Access to justice has become a buzzword. While it sounds noble, many struggle to define it. Others use it synonymously with technology. So, I have been on a mission asking lawyers from all over the world what it means to them and how we collectively get there. For my interviewee, access to justice is the manifestation of the constitutional guarantee of equal access under the law and equal treatment for all of humanity no matter their walk of life.
Winter Wheeler, Esq. is an Atlanta-based mediator and arbitrator at Miles Mediation & Arbitration. She specializes in wrongful death, catastrophic injury, legal and medical malpractice, automotive and trucking liability, § 1983 actions, and entertainment. Most recently, Winter was a senior attorney at a prominent midtown Atlanta law firm. To say that Winter is skilled is an understatement. She handles complex matters involving a diverse range of cultures, including Spanish-speaking clients.
Winter’s view about access to justice and specifically the role of language is even more remarkable and rich. She is particularly attuned to accents and dialects and seeks to shed light on the stereotyped reactions to them as they affect litigants’ access to equal justice. She believes that by simply making people aware of these issues she can help to eradicate them and ensure that witness credibility is evaluated on an individual basis absent bias against the words used and how those words may sound as they are spoken.
OM: I know you are working on several issues related to access to justice and that language is one of the issues you address frequently. Why is discussing language access so important to you?
WW: If history is written by the victors, then one might say that justice is determined by the speakers. Or perhaps more accurately, the speakers and the listeners. In the law, oral testimony makes up a great deal of the evidence used to make binding decisions. So, it should follow that spoken evidence should be understood by the listeners if a fair outcome is to be reached — and that when speakers go misunderstood this presents a clear barrier to justice. This is, of course, why language interpreters are commonly used in legal proceedings, both in and outside of the courtroom.
OM: You speak specifically about the importance of African-American Vernacular English. Why is that aspect of language access so crucial?
WW: If I were to ask you what the most spoken second languages are in metro Atlanta — and therefore the languages in most need of these interpreters — you might say Spanish or perhaps Korean. However, there is one that you would most likely not even think of but should add to the list: African American Vernacular English (AAVE). Given the demographic makeup of the city, AAVE may very well be the language in the most need.
OM: Why do you think AAVE is overlooked?
WW: Unfortunately, the mostly negative attitudes toward AAVE held by the general public helps to prevent confirmation and the addressing of that need.
Language discrimination is rooted, in part, in the notion that there is only one correct dialect of American English, whose name betrays its elevated, privileged status: Standard English (SE). This widely held notion almost always dismisses AAVE as a bastardized version of SE. At best, many consider AAVE to be the grammatically incorrect daily speak of an uneducated underclass — though the truth is much more complex. Indeed, AAVE is not slang but a proven language dialect with clearly established grammatical rules and norms formed over the course of centuries. While it shares a lexicon with SE — just like other American English dialects, including Appalachian—it is quite linguistically distinct in several verified ways. Yet, its classification as a true American English dialect has not stopped the public from associating it with commonly held negative and demonstrably false stereotypes about Black Americans, such as laziness and a lack of intelligence. Notably, when AAVE-speaking children are offered learning support in AAVE, their test scores are much higher than native-AAVE speakers who only receive support in SE.
OM: What impact does this have on the legal system?
WW: We know that these stereotypical views have real consequences in our legal system. A 2019 study published in Language Magazine showed that key listeners in American courtrooms — including judges, lawyers, jurors, and court reporters — often assumed criminality on the parts of AAVE speakers. This held true no matter the ethnicity or race of the listener. The study also showed that the majority of court reporters were woefully incapable of understanding, paraphrasing, or accurately transcribing the testimonies of AAVE speakers. Think of the far-reaching ramifications this could have on litigants of every shade of the rainbow when the key witness happens to speak AAVE. Suddenly, not only have a litany of negative attributes been ascribed to a witness who likely does not deserve them, but any attempt by that witness to establish their credibility may be met with a severe lack of understanding. These eventualities have unfortunate effects on litigants’ ability to participate in and receive equal justice under the law.
Consider the 2013 trial of George Zimmerman, who was accused by the state of Florida of having murdered teenager Trayvon Martin. Now, recall if you can the racialized backlash against the state’s star witness, Rachel Jenteal, whose Creole background and AAVE-delivered testimony resulted in her carrying the double hurdle of having her credibility openly dismissed (by at least one juror after the trial) and having her character publicly questioned. News reports from that period show that Jenteal’s speech and delivery were described as “ghetto trash.” In the days and weeks following her court appearance, social media and blogs covered her lack of a high school diploma — as if that had anything to do with what she witnessed — instead of the actual murder of her friend. Keep in mind that the harsh criticism against Jenteal came from both Black and white Americans.
OM: What can mediators and arbitrators such as yourself do to eliminate this type of discrimination?
WW: There are deep socioeconomic problems undergirding this somewhat hidden form of legal discrimination — and remedies will not be found until we develop and adhere to tactics that address and mitigate these effects within our professional legal circles. There are several practices that can be utilized to ensure a fair and just mediation.
Because AAVE shares the same lexicon as SE, many non-AAVE speakers genuinely believe they can fully understand the dialect. That is likely not the case. Remember, AAVE has a distinct grammatical structure that can fundamentally change the tense, and therefore the meaning of verbs. For example, AAVE speakers can swap the words have not, does not, and is not with just one word representing all three tenses: ain’t. So, despite the familiarity, I would not recommend guessing your way through someone giving testimony in AAVE.
Do not assume that because a lawyer is Black that they speak or understand AAVE. It is not fair, nor practical, to do so. Usage and fluency in AAVE vary wildly from person to person for any number of reasons, with one documented cause of variation being socioeconomic class. The wealthier a person is, the more likely they are to speak SE with more regularity than they speak AAVE. Members of higher socioeconomic classes are also more likely to “code switch,” which is to speak AAVE amongst peers while switching to SE with non-AAVE speakers.
It is fair to assume that a native AAVE speaker understands SE — do not worry about speaking to someone in SE even if they prefer to respond in AAVE. During mediation, you should do your best to make the parties feel comfortable enough that they are willing to speak to you in their native AAVE if they cannot or will not code switch — but I would not recommend trying to speak AAVE if you are not a native speaker. You do not want to sound as though you are mocking the dialect.
Repeat back what you heard. If a party speaks to you in AAVE, you can be sure you have interpreted their words correctly simply by doing what you would normally do as a good mediator. Summarize their points back to them and then ask for confirmation that you are correct in your summation and that you captured accurately what they are conveying.
Pay careful attention to determine whether the attorney is aware of any potential language barrier with their AAVE-speaking client, because the attorney very well may not be. As any mediator knows, there is always the chance of a rift between the attorney and their client. Since you should already be attuned to this issue, a natural next step is for you to note any linguistic gaps. A misinterpreted double negative or tense could have devastating consequences to a lawsuit if it goes unnoticed.
OM: What should the ultimate takeaway be for attorneys from all of this information?
WW: Ultimately, be respectful of those who choose to speak AAVE in your presence. The dialect is an important and often unifying cultural marker. It is not slang, it is not a trend, nor is it to be mocked. Because we know that AAVE is subject to negative stereotypes and discriminatory actions and attitudes, mediators and arbitrators can alter our own behavior and mindset to ensure equal access to justice.
Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.