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How to bridge the culture gap

Susan Bryant

(Reprinted from Trial Magazine, August 2002, ©2001 Clinical Law Review and Sue Bryant.) If your culture is worlds apart from your client's, you can learn to adapt the way you communicate, interpret behavior, and assess best interests. A lawyer and a translator enter a law firm's reception area to greet a client. The following dialogue occurs. Attorney: Hi. My name is Lisa Reiner, an attorney with Main Street Legal Services. Client's brother: [Spanish] Translator: [Spanish] Attorney: This is Bernice Cohn. She is here to translate. Translator: [Spanish] Attorney: And your name again? Client: Elsa Rodriguez. Attorney: And you're the one who called to make the appointment? Translator: [Spanish] Client: Si. Attorney: And this is your . . . ? Client's brother: I'm her brother, Jorge. Attorney: Have a seat. The basic problem that you have? Translator: [Spanish] Client: [Spanish] Translator: She got a notice from her landlord. Client: [Spanish] Translator: He says that she has to leave the apartment. How does Lisa proceed with the interview? Does she include Jorge? Does she explain to him that, for confidentiality reasons, she must interview Elsa alone? Does she view Jorge as connected to

the dispute with the landlord? What assumptions does Lisa make about why he is there? What are the potential benefits and costs of including or excluding him from the interview? To what extent are Lisa's assumptions and responses to the situation based on her experiences and culture? How can she correctly attribute meaning to Elsa's and Jorge's behavior and make better lawyering decisions? For many years, companies choosing employees for overseas work and schools selecting students for overseas study gave applicants personality tests to explore who would make good travelers, adjust readily to cross-cultural encounters, and be culturally sensitive. Generally, people who were flexible, nonjudgmental, and reflective were viewed as having the ideal personality to work well in a cross-cultural environment.1 This notion that success is dependent on personality has been replaced with the idea that crosscultural competence is a skill that can be taught. As with most skills, some people have a natural talent for this type of work, but everyone has the capacity to become more proficient at crosscultural interaction and communication skills. Culture is like the air we breathe: It is largely invisible, yet we depend on it for our very being. It is the logic by which we give order to the world. Culture gives us our values, attitudes, and behavioral norms. We constantly attach culturally based meaning to what we see and hear, often without being aware that we are doing so. Through our invisible cultural lens, we judge people as truthful, rude, intelligent, or superstitious based on the conclusions we draw from their behavior. Cross-cultural lawyering occurs when lawyers and clients have different ethnic or cultural heritages and when they are socialized by different subsets within ethnic groups. By this definition, everyone is multicultural to some degree.2 Cultural groups and norms can be based on ethnicity, race, gender, nationality, age, economic status, social status, language, sexual orientation, physical characteristics, marital status, family role, birth order, immigration status, religion, accent, skin color, and a variety of other characteristics. If we think about birth order alone as a cultural characteristic, we may not see any significance. Yet if a client comes from a society where the oldest son has special responsibilities and privileges, then identifying the client's ethnicity, gender, or birth order alone will not be enough to alert the lawyer to the set of norms and expectations for how the oldest son is expected to behave. Instead, the lawyer needs to appreciate the significance of the combination of ethnicity, birth order, and gender to fully understand this aspect of the client's culture. A woman from the same culture may understand these responsibilities and privileges better than an outsider, but because her experiences are different from a man's, she still may not fully understand. A broad definition of culture recognizes that no two people have exactly the same experiences, so no two people will interpret or predict behavior in precisely the same way. Culture is enough of an abstraction that people can be part of the same culture and make different decisions.3 People can also reject norms and values from their culture. As we recognize these individual differences, we also know that sharing a common cultural heritage with a client tends to improve our predictions and interpretations and reduce the likelihood of misunderstandings. Crossing borders When lawyers and clients come from different cultures, several aspects of the attorney-client interaction may be implicated. The abilities to form trusting relationships, evaluate credibility, develop client-centered case strategies and solutions, gather information, and attribute the intended meaning of behavior and expressions are all affected by cultural experiences.

Trust. Lawyers and clients who do not share the same culture face special challenges in developing a trusting relationship in which genuine and accurate communication can occur.4 When the client's culture fosters a significant distrust of outsiders or of the lawyer's particular culture, the lawyer must work especially hard to earn trust in a culturally sensitive way. Understanding. Even in situations in which trust is established, cultural differences may significantly interfere with the lawyer's and client's capacity to understand one another's goals, behavior, and communication. Cultural differences often cause us to attribute different meanings to the same set of facts, and inaccurate attributions can cause lawyers to make significant errors when representing clients. Imagine a lawyer telling a client, "If there is anything that you do not understand, please just ask me to explain" or "If I am not being clear, please just ask me any questions." The lawyer might assume that a client who does not then ask for clarification understands what he or she is saying. But cultural differences may explain clients' reluctance. Perhaps the client doesn't want to blame himself or herself for not understanding. Or maybe the client does not want to blame the lawyer for poor communication.5 Body language. Cultural differences may also make lawyers and clients misperceive body language and judge each other incorrectly.6 For an everyday example, take nodding while someone is speaking. In some cultures, this gesture indicates agreement with the speaker; in others, it simply indicates that the person is listening. Another common example is eye contact. In some cultures, looking someone straight in the eye is a statement of open and honest communication, while a diversion of eyes signals dishonesty. In other cultures, doing so is a sign of respect. Credibility. Credibility is also culturally determined. In examining a claim's credibility, lawyers and judges often ask whether it makes sense, as if "sense" were neutral.7 Consider, for example, a client who explains that she left her native country because God appeared to her in a dream and told her it was time to leave. If the departure time is critical to the credibility of her story, how will the fact finder evaluate the client's credibility? Does the fact finder come from a culture where dreams are valued, where an interventionist God is expected, or where major life decisions are based on these expectations or values? Will the fact finder find the story incredible or indicative of a disturbed thought process? Or will he or she find the client credible?8 Categorization. The way different cultures group concepts may cause lawyers and clients to view different information as relevant. Lawyers who describe clients as "wandering all over the place" may be working with clients who categorize information differently from the way the legal system does. For example, lawyers and clients with different time and space orientations may have difficulty understanding and believing each other. If a lawyer whose culture is oriented to hour, day, month, and year needs a time line from a client whose culture is not oriented that way, the lawyer may incorrectly interpret the client's failure to provide the information as evidence that the client is uncooperative or dishonest. Clients who are unable to tell a linear, time-related story may evoke the same reaction from judges and juries if the fact finders don't understand the client's culture. Individual culture v. collective culture. The distinction between individual and collective cultures is an important concept to grasp in building cross-cultural relationships.9 In analyzing the scenario described at the beginning of this article, lawyers may have different interpretations of why Jorge might be there, based in part on whether Lisa sees Jorge and Elsa as a unit or as separate individuals, one of whom has a legal problem. This assessment is related to the lawyer's culture and family experience.10

Lawyers who explore differences in individual and collective cultures may come to appreciate different communication styles, values, and views of the lawyer's and client's roles. In an individualistic culture, people are socialized to have individual goals and are praised for achieving them. They are encouraged to make their own plans and "do their own thing."11 Individualists need to assert themselves and do not find competition threatening. By contrast, in a collective culture, people are socialized to think in terms of the group, to work for the betterment of the group, and to integrate individual and group goals. Collectivists use group membership to predict behavior. Because collectivists are accepted for who they are and accordingly feel less need to talk, silence plays an important role in their communication style. Majority culture in the United States has been identified as the most individualistic in the world.12 Our legal culture reflects this individualism. For example, ethical rules of confidentiality and conflicts of interest often require lawyers to communicate with a client in private and may prohibit lawyers from representing a group or taking group concerns into account.13 In addition, the U.S. legal system creates substantive laws that reflect a highly individualistic model of rights and responsibilities. Lawyers need to be alert for potential conflicts that may arise between a client's culture and the legal strategy designed for an adversarial, individualistic system. Here is an example of how a result that appeared successful nevertheless was unacceptable when viewed within the context of the client's collective culture: An Asian woman killed her abusive husband and faced a 25-year sentence. Her attorneys and the prosecutor negotiated a plea to a misdemeanor assault with probation. The client, who had a strong self-defense claim, refused to plead to the misdemeanor charge because she did not want to humiliate herself or her ancestors, children, or grandchildren by taking responsibility for the killing. Her attorneys did not fully comprehend the shame she would experience from such a plea until she explained that 25 years in jail was far less offensive than the certain shame that her family would experience if she pleaded guilty. The client's reaction to what the lawyers had considered a fine result required them to examine the meaning of pleas, family, responsibility, and consequences within a collective-cultural context, different from their own. In another case, the plaintiff attorneys----whose client was a Somalian refugee seeking political asylum----had to change their strategy for presenting evidence in order to respect the client's cultural and religious norms. She had been bayoneted by soldiers when she resisted rape and was scarred on a breast and an ankle. To show evidence of persecution, the plaintiff would have had to reveal parts of her body that she was committed, by religion and culture, to keeping private. Ultimately, the client showed the injuries to opposing counsel, a female lawyer, and was able to be true to her culture.14 Each of these cases presented stark cultural contrasts with clear connections to lawyering choices. In hindsight, it is easy to see how the contrasts affected the clients' and lawyers' perceptions of what actions were appropriate and what accommodations were acceptable. Deep listening In addition to awareness and knowledge, lawyers need analytical and communication skills to competently engage in cross-cultural interactions. Intercultural communication requires deeplistening skills15 and the ability to focus on content rather than style,16 to interpret verbal and nonverbal behavior, and to adapt conversation-management behaviors and style. We need these communication skills in every situation, but especially in cross-cultural ones. Attorneys must be able to identify assumptions and make judgments based on facts rather than on stereotypes and biases.17 In the cross-cultural context, this ability is especially important

because the meaning we attribute to client behavior and words is often based on ethnocentric interpretations and therefore will often be incorrect. An ability to make "isomorphic attributions"----to attribute the same meaning to behavior and words as the actor and speaker intended18----requires an antenna sensitive to the various connotations a word or act may have in different cultures. To attribute meaning correctly, lawyers need to be flexible and adaptable, and we need to consider multiple possible meanings for behavior. Most important, attorneys need to be nonjudgmental to connect with and un derstand clients. A cross-cultural anthropologist has referred to this as "perceiving as normal things that at first seem bizarre or strange."19 Being nonjudgmental is a core cross-cultural skill----and one that is particularly difficult for lawyers. Our training requires us to analyze a case based on limited, digested casebook facts. Early in most representations, lawyers begin to assess clients' stories and the probable result in the case. In law school, we are taught that assessing client credibility is critical and that it begins in the initial client interview.20 Although assessing the viability of a case is an important lawyering skill, cultural differences and assumptions of similarity----the fallacy that all people have the same thought processes and nonverbal behavior----may lead to ethnocentric distortion. Consider the example of Lisa, Elsa, and Jorge. Perhaps Jorge accompanied Elsa to Lisa's office because Elsa relied on him for a ride, interpretation, or support. Perhaps he shares her apartment, so his interests are also at stake, or perhaps he knows some relevant facts. Maybe he is there to censor Elsa so she does not say something she shouldn't. He may be there to help her make decisions, or he may be the intended decision-maker. The following exchange took place when Lisa told Jorge that she would like to speak with Elsa alone. Lisa: Maybe what we'll do, if it is OK with you, is we will start the interview in the office just with your sister, and then if we need some information from you, we'll call you in afterward. Is that OK? Translator: [Spanish. The translator speaks to Elsa, not Jorge.] Elsa: [Spanish] Translator: If you think it will be more convenient, but Jorge is the person who always helps her. Lisa: Do you prefer for him to be in with us? Translator: [Spanish] Elsa: [Spanish] Translator: If you think it is going to help her. Lisa: Well, why don't we start just with you, and then if it turns out that we need him, we'll have your brother come in later. Lawyers may have different opinions about whether Elsa is likely to be more forthcoming with Lisa alone rather than with Jorge, too. Often these opinions are tied to the lawyers' own experiences and their cultural backgrounds.

For example, lawyers from collective or immigrant cultures may explain that Jorge is essential to how Elsa interacts with the English-speaking world. Lawyers with strong feminist perspectives may argue that Elsa should be interviewed alone to ensure that it is her voice Lisa hears. Lawyers need to realize that clients' behavior can be interpreted in many ways and that lawyers may sometimes substitute their own cultural explanations and norms for the behavior of others and make lawyering choices based on those explanations. By being culturally sensitive, lawyers can be alert to the possible need to gather additional information to develop a culturally appropriate response. The following segment shows how cultural differences may influence questioning. Translator: The landlord says that Elsa doesn't pay her rent. But she does pay her rent. She doesn't know why he is saying that. Lisa: Who do you live with in your house? Elsa: [Spanish] Translator: She lives with her brother, her husband, and her two children. Lisa: Whose name is on the lease? Translator: [Spanish] Elsa: [Spanish] Translator: Her husband's and hers. Lisa: Who usually pays the rent? Translator: [Spanish] Elsa: [Spanish] Translator: Who writes the check? Or who gives the money? Lisa: Both. Translator: [Spanish] Elsa: [Spanish] Translator: Her husband works, but she is the one who writes out the check. Lisa: Is that how you pay the rent? By check? Translator: [Spanish] Elsa: Si.

Translator: Yes. Lisa: How do you usually give the check to the landlord? Do you hand it to him? Do you mail it? Translator: [Spanish] Elsa: [Spanish] Translator: She mails it. Lisa: I imagine that you did not bring them today, but do you have your canceled checks from the other times that you paid? Translator: [Spanish] Elsa: [Spanish] Translator: Yes, she has them. Lisa: From what you are saying, you have been paying your rent? Translator: [Spanish] Elsa: [Spanish] Translator: Yes, she pays it. Lisa: Is there a date when you have to pay it by every month? Translator: [Spanish] Elsa: [Spanish] Translator: She usually pays before the end of the month. Lisa: Before the end of the month. Did the landlord ever tell you the day that he wants the check by? Translator: [Spanish] Elsa: [Spanish] Translator: Sometimes she pays at the beginning of the month, sometimes at the end of the month. There are 30 days to pay the rent. She pays during those 30 days. Lisa: Have you ever had to pay your rent late? Why is Lisa exploring time and payment? Presumably, something does not make sense to her. She knows that a defense to nonpayment will require a showing of payment of the rent. Lisa asks when rent is paid and continues exploring this subject because the story strikes her as odd. A lease would have a date, but it seems as if Elsa does not pay on a certain date.

Time is a culturally bound concept that may not have the same meaning for Lisa and Elsa. What does "late" mean? How do Lisa and Elsa each view the relationship between landlord and tenant? The segment shows how assumptions of similarity affect interactions. By asking, "Whose name is on the lease?" rather than "Do you have a lease?" or "Who pays the rent?" Lisa reveals assumptions of similarity, and the question about who pays the rent reveals a cultural assumption. In one immigrant family, bills were placed in a bowl at the entrance to the home and were paid by whoever had enough money that month. Generally, a different person paid the rent each month. To acquire culturally diverse conversation-management skills, lawyers need to be less rigid about the structure of an interview. The issues of who is supposed to talk, for how long, and about what are very much related to culture. Direct and indirect acquisition of information may occur. Lawyers who remain flexible and listen deeply will achieve better client interactions. Notes 1. See IMPROVING INTERCULTURAL INTERACTIONS: MODULES FOR CROSS-CULTURAL TRAINING PROGRAMS (Kenneth Cusher & Richard W. Brislin eds., 1997). 2. INTERCULTURAL INTERACTIONS: A PRACTICAL GUIDE (Kenneth Cusher & Richard W. Brislin eds., 1996) (hereinafter INTERCULTURAL INTERACTIONS). 3. RAYMONDE CARROLL, CULTURAL MISUNDERSTANDINGS: THE FRENCH-AMERICAN EXPERIENCE 3 (Carol Volk trans., 1988). 4. Bill Ong Hing, Raising Personal Identification Issues of Class, Race, Ethnicity, Gender, Sexual Orientation, Physical Disability, and Age in Lawyering Classes, 45 STAN. L. REV. 1807, 1809-10 (1993). 5. See RICHARD BRISLIN & TOMOKO YOSHIDA, INTERCULTURAL COMMUNICATION TRAINING: AN INTRODUCTION 95 (1994). 6. See id. at 91. 7. See Carolyn Grose, A Field Trip to Benetton and Beyond: Some Thoughts on 'Outsider Narrative' in the Law School Clinic, 4 CLINICAL L. REV. 109, 116 (1997); see also Naomi R. Cahn, Inconsistent Stories, 81 GEO. L.J. 2475, 2515 (1993). 8. See Marc A. Fajer, Authority, Credibility, and Pre-Understanding: A Defense of Outsider Narratives in Legal Scholarship, 82 GEO. L.J. 1845, 1856 (1994); Jane E. Baron, Resistance to Stories, 67 S. CAL. L. REV. 255, 263 (1994). 9. INTERCULTURAL INTERACTIONS, supra note 2, at 302. 10. See PAUL PEDERSON, DEVELOPING INTERCULTURALLY SKILLED COUNSELORS 105 (1986). 11. INTERCULTURAL INTERACTIONS, supra note 2, at 302. 12. GEERT HOFSTEDE, CULTURE'S CONSEQUENCES: INTERNATIONAL DIFFERENCES IN WORKRELATED VALUES (1980).

13. Kimberly E. O'Leary, Using 'Difference Analysis' to Teach Problem-Solving, 4 CLINICAL L. REV. 65, 72 (1997). 14. Peter Margulies, Re-Framing Empathy in Clinical Legal Education, 5 CLINICAL L. REV. 605 (1999). 15. See J.H. Katz & F.A. Miller, Skills for Working in Culturally Diverse Organizations, in OD PRAC. 25, 32-33 (1993), cited in HANDBOOK OF INTERCULTURAL TRAINING 293 (Dan Landis & Rabi S. Bhagat eds., 2d ed. 1996). 16. See ROBERT F. COCHRAN JR. ET AL., THE COUNSELOR-AT-LAW: A COLLABORATIVE APPROACH TO CLIENT INTERVIEWING AND COUNSELING, TEACHER'S MANUAL 212 (1999). 17. Michelle Jacobs, People from the Footnotes: The Missing Element in Client-Centered Counseling, 27 GOLDEN GATE U. L. REV. 345, 372 n.294 (1997). 18. HARRY CHARALAMBOS TRIANDIS, INTERPERSONAL BEHAVIOR (1977). 19. Carroll, supra note 3, at 2. 20. DAVID F. BINDER ET AL., LAWYERS AS COUNSELORS: A CLIENT CENTERED APPROACH 19295 (1991). Susan Bryant is an associate professor at the City University of New York School of Law. This article is excerpted and adapted from one originally published in the Fall 2001 issue of Clinical Law Review. ©© 2001, Clinical Law Review and Susan Bryant.


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