In a 2019 article published in JAMA, Drs. Torres, Salles and Cochran contend that physicians must recognize and react to microagressions in surgery. As those physicians note in that article:
The word microaggression was initially coined by Harvard psychiatrist Chester Pierce in 1970 and referred to minor yet damaging humiliations and indignities experienced specifically by African Americans. The modern definition of microagressions, created by Sue et al in 2007, describes them as ‘subtle snubs, slights, and insults directed towards minorities, as well as to women and other historically stigmatized groups, that implicitly communicate or at least engender hostility.
Might the same contention be made for the courthouse or in a law office in the 2020s? Sadly, yes.
What might constitute a microagression at a law office?
- A paralegal “quiet quits” by refusing to perform an attorney’s work, and instructing other members of staff to slowboat work for that attorney.
- A partner lauds an associate who pulls out a major victory at the courthouse, but adds “when are you going to pull in some new work?”
- One attorney (of advanced age) refers to opposing counsel as “honey,” “dear,” or “sweetie,” after being admonished not to do so by the opposition.
- An attorney continuously mispronounces opposing counsel’s name, after being told not to do so.
- A senior partner criticizing footwear favored by a female partner, when the female partner has come to favor low, tie shoes, in order to grapple with painful bunions and arthritis.
- A burly older lawyer demands that a diminutive attorney abandon the seat at counsel table that the latter arrives early to capture in order for the older (late arriving) lawyer to be closest to the jury box.
- A partner belittles an attorney or other employee for their manner of dress, tattoos, and/or piercings.
- An attorney advises opposing counsel to talk about resolving their case by working together to find a reasonable resolution, only to find opposing counsel respond: “This case is winner take all. It is a duel to the death.”
Microaggressions, or microinsults, may seem to be a way of cutting tension for the acerbically gifted, but often, the recipient may feel demeaned, even if that was not the intention of the person making the aggressive or insulting statement.
Can we distinguish “mens rea” in this context? Often, the perpetrator of the insult is unconscious of the impact of their words.
As Mrs. Reiter’s beloved Bubbie used to say “a word is like a bird. Once it’s gone, it’s hard to catch.” There is an old Yiddish expression that translates to “What’s on the lung is on the tongue;” we must question whether the pandemic has caused us to lose our natural filters.
A microinsult can simply be an unconscious critique of an aspect of the recipient’s character. A microinsult may also be intentional – as we learn from Caste and from Avenue Q, “everyone’s a little bit racist sometimes.”
What’s the issue at the law office? Microagression happens at an interpersonal level. Demeanor and behavior are governed at the top; what the boss or senior partners do is frequently reflected in action throughout the firm. If the microagression is condoned at a firm wide level, the microaggression is no longer micro in nature; instead the jab has transcended interpersonal insult to become environmental. When that action reaches the point of invalidating an employee, the microagression has potentially gone too far. Microinvalidation reflects a lack of empathy on the part of the purveyor, devoid of empathy or understanding of the impact of the purveyor’s words.
How to respond to microagressions at the law office or courthouse?
One has to question whether one is simply having a bad day, and is overreacting in a given moment to a barb that is intended to lighten the mood. Can the recipient respond without creating their own microaggression or microinsult? Need the recipient find solace in meditation, prayer, food or drink? Anger and accusation should be avoided. How to create a teaching moment? Training seems key, as does the age old principle of thinking before speaking. The National Equity Project recommends the following:
- Whenever possible, reflect any positive intentions: ‘It sounds like you were intending to express ‘ or ‘I’m sure you didn’t mean to convey ——-.’
- Share the impact it had on you: ‘When I hear things like that, I feel ‘ or ‘That makes me think about which is not ok / really upsets me.’
Consider the following:
Refrain from belittling others.
Empathize with others. Find an ally to avoid anxiety.
Separate intent from impact. We don’t all have the same sense of humor.
Persevere. Shake off the critique, try to make the perpetrator understand that they’ve stepped on your toes, but move on.
Expect the boss to be concerned about the bottomline, and keep your billable hours up.
Create a work environment that is friendly and professional, where good humor reigns, and clients are valued, as is family.
Treat everyone respectfully.
Entertain a life beyond the law – after all, real life experience enhances our performance at the courthouse..
Shake hands. Tap elbows. Remember – we are professionals, and the very attorney who may have engaged in a microagression against us today, may be our partner tomorrow.
Quiet the impulse to respond in kind. Do not unto others as you would not have them do onto you. Be kind.
Hope these words of wisdom come to apply when depising expert witnesses. 🙂