Five Habits for Cross-Cultural Lawyering - Section 1

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Author: Sue Bryant & Jean Koh Peters
Last updated: October 2007

Culture and the Role it Plays in Lawyers' Work

To become good cross-cultural lawyers, we must first become aware of the significance of culture in the ways we make sense out of the world. Culture is like the air we breathe; it is largely invisible and, yet, we are dependent on it for our very being. Culture is the logic by which we give order to the world. [9] Our culture is learned from our experiences, sights, books, songs, language, gestures, rewards, punishments and relationships that come to us in our homes, schools, religious organizations, and communities. [10] We learn our culture from what we are fed and how we are touched and judged by our families and significant others in our communities. Our culture gives us our values, attitudes and norms of behavior. Through our cultural lens, we make judgments about people based on what they are doing and saying. We may judge people to be truthful, rude, intelligent or superstitious based on the attributions we make about the meaning of their behavior. Because culture gives us the tools to interpret meaning from behavior and words, we are constantly attaching culturally-based meaning to what we see and hear, often without being aware that we are doing so. [11]

In these materials, when we talk about cross-cultural lawyering, we are referring to lawyering where the lawyer’s and the client’s ethnic or cultural heritage comes from different countries, as well as where their cultural heritage comes from socializing in groups within the same country. By this definition, everyone is multicultural to some degree. [12] Cultural groups and cultural norms can be based on ethnicity, race, gender, nationality, age, economic status, social status, language, sexual orientation, physical characteristics, marital status, role in family, birth order, immigration status, religion, accent, skin color or a variety of other characteristics.

This broad definition of culture is essential for effective cross-cultural lawyering because it teaches us that no one characteristic will completely define the lawyer’s or the client’s culture. [13] For example, if we think about birth order alone as a cultural characteristic, we may not see any significance to this factor. Yet, if the client (or lawyer) comes from a society where “oldest son” has special meaning in terms of responsibility and privilege, identification of the 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” ought 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 ethnic culture may understand these responsibilities and privileges better than an outsider and yet, because her experiences are different, may still not fully understand.

A broad definition of culture recognizes that no two people have had the exact same experiences and thus, no two people will interpret or predict in precisely the same ways. Culture is enough of an abstraction that people can be part of the same culture and make different decisions in the particular. People can also reject norms and values from their culture. Understanding and accepting that culture unites us and gives meaning and at the same time allows for significant differences helps us to avoid stereotyping or assuming we know that which we have not explored with the client. At the same time that we recognize these individual differences, we also know that if we share a common cultural heritage with a client, we are often better able to predict or interpret and our mistakes are likely to be smaller misunderstandings.

Lawyers and clients who do not share the same culture face special challenges in developing a trusting relationship where genuine, accurate communication occurs. Building trust is a goal for all lawyering and is an especially important focus in cross-cultural lawyering. Lawyers cannot assume that trust exists because the client has chosen to come to the lawyer or because the client is paying the lawyer. Especially where the culture of the client is one with a significant distrust of outsiders [14] or of the particular culture of the lawyer, the lawyer must work hard to earn trust in a culturally sensitive way.

Even where trust is established, cultural differences may significantly interfere with lawyers’ and clients’ capacities to understand one another’s goals, behaviors and communications. Because we interpret another’s messages through lenses shaped by our cultural, social and personal experiences, we often interpret the behavior and communication of others by asking ourselves subconsciously, “What would that mean if I did it or said it?” “What would members of my group think of me if I did that?” We also predict how others will interpret us based on these same life experiences. [15] For example, when a lawyer puts out a right hand to greet a client, the lawyer engages in an introduction ritual that the lawyer expects will be welcoming to clients. However in many cultures, this is not a welcoming gesture and may instead be considered offensive.

Cultural differences often cause us to attribute different meaning to the same set of facts. Imagine a lawyer tells 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 ask me any questions you like.” The lawyer might assume that if the client never asks for clarification that the client understood what the lawyer was saying. However, many cultural differences may explain a client’s reluctance to either blame the lawyer for poor communication (the second question) or blame the client for lack of understanding (the first question). People from different cultures might find one or the other of these results to be rude and, therefore, be reluctant to ask for clarification for fear of offending the lawyer or embarrassing himself. [16]

Cultural differences may cause lawyers and clients to misperceive body language and judge each other incorrectly. For an everyday example, take nodding while someone is speaking. In some cultures, the nodding indicates agreement with the speaker while in others, it simply indicates that the listener is hearing the speaker. Another common example involves 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, a diversion of eyes is a sign of respect. When one is lawyering on behalf of someone who is culturally different, the lawyer must continually examine assumptions about the client based on body language. The lawyer must also be careful about the messages she sends with her body language.

More generally, our concepts of credibility are very culturally determined. In examining the credibility of a story, lawyers and judges often ask whether the story makes “sense,” as if “sense” were neutral. [17] Consider for example, a client who explains that the reason that she left her native country was that God appeared to her in a dream and told her it was time to leave. If the time of leaving is a critical element to the credibility of her story, how will the fact-finder judge the credibility of the client’s story? Does the judge come from a culture where dreams are valued, [18] where an interventionist God is expected, and/or where major life decisions would be based on these expectations or values? Will the judge find the story incredible or evidence of a disturbed thought process of the witness?

Cultural differences may cause lawyers to develop case strategies that fail to appreciate the significant cultural norms of the client. For example, in one case, lawyers negotiated a plea to misdemeanor assault with probation for a battered Chinese woman who had killed her husband and faced a 25-year sentence if convicted of murder. The client, who had a strong self-defense claim, refused to plead to the misdemeanor charge because she did not want to humiliate herself, her ancestors, her children, and their children by an acknowledgement of responsibility for the killing. Her attorneys did not fully comprehend the concept of shame and the meaning of the plea to the client until she consistently and steadfastly rejected her attorneys’ and advocates’ advice to take the plea. In these conversations, she explained that 25 years in jail was far less offensive than the shame that would be experienced by her family (past, present and future.) These negative reactions to what the lawyers thought was an excellent result allowed the lawyers to examine the meaning of pleas, family, responsibility and consequences within a culture context that was different from their own. [19] In another case, lawyers had to change their strategy for presentation of evidence to make a claim that honored the cultural and religious norms of their client. In this case, lawyers arguing for political asylum for a woman client wanted to present evidence of persecution by showing an injury to an area of her body that the client by religion and culture was committed to keeping private. Ultimately, the client developed a strategy of showing the injury to the adversary, an INS lawyer who was also a woman. [20] This strategy, challenging conventional legal procedures and violating cultural norms of the adversary system, allowed the client to present a case that honored her values and norms. [21]

Finally, cultural differences may cause us to misjudge a client or to provide differential representation based on stereotype or bias. Few lawyers engage in explicit open racial or cultural hostility towards a client. However, if recent studies in the medical field have relevance for lawyers, we need to recognize that even lawyers of good will may engage in unconscious stereotyping. Studies in the medical field show that doctors are less likely to explain diagnoses to patients of color, less likely to gather significant information from them or refer them for needed treatment. [22]  While no studies of lawyers have focused specifically on lawyers engaging in discriminatory treatment, two recent studies have identified differential treatment by the legal system based on race. One study done by the Child Welfare Watch shows that African-American children are far more likely to be removed from their home, put in foster care, and left there longer than similarly situated white children. [23] Another study showed that African-American juveniles received disproportionate sentences when compared to similar white youths. In each of these legal studies, lawyers - as prosecutors, representatives and judges - are deeply implicated in the work that led to the differential treatment.

Culture-General Knowledge

In addition to developing awareness of the role that culture plays in attributing meaning to behaviors and communication, a competent cross-cultural lawyer also studies the specific culture and language of the client group that the lawyer represents. If the lawyer represents clients from a multitude of cultures, the lawyer can improve cross-cultural interactions by acquiring culture-general knowledge and skills. This culture-general information is also helpful to lawyers who are beginning to learn about a specific culture. Because learning any new culture is a complex endeavor, (remember the number of years that we spent learning our own) the lawyer can use culture-general knowledge and skills while learning specifics about a new culture.

In their work on culture-general themes, leading cross-cultural scholars [24] have identified themes that arise in cross-cultural interactions. Some of these themes are listed in the chart on the next page. In looking at the knowledge areas listed on the chart, we can identify many areas of cultural differences that could influence the attorney-client relationship. For example, some communication and language use differences will be obvious and require translators. Other communication differences that may be less noticeable are discussed in more detail in Habit Four, the Habit that focuses on communication specifically. Value differences cause lawyers and clients to evaluate strategies, options and solutions differently. Categorization differences may cause lawyers and clients to see different information as relevant. [25]

Lawyers and clients who have different time and space orientations may have difficulty understanding each other. The lawyer trying to get a time-line from a client whose culture is not oriented to day, month, year may incorrectly interpret the client’s failure to provide the information as uncooperative, lacking intelligence, or, worse, lying. Similarly, the lawyer who insists that clients come on time may be surprised to learn that her client considers herself to be on time when she arrives “late” according the lawyer’s time orientation to minutes and hours. [26]

In other settings, the distinction between individual and collective cultures has been called the most important concept to grasp in cross-culture encounters. [27] This concept and the differences that flow from it are also critically important for lawyers to understand. Cultural differences that exist between individual and collective cultures will have a significant effect on how clients and lawyers define problems, identify solutions and determine who are the important players in a decision. For example, the client who refused a misdemeanor plea described above came from a collective culture where her actions of pleading guilty had effects for her family and not just her.

The collective/individual distinction also influences communication styles, implicates value differences, and may influence clients’ and lawyers’ views of the roles of the lawyer and client. All cultures and people have individualistic and collective parts to them. Even in the most individualistic cultures, people consider themselves part of a group. In an individualistic culture, people are raised to have individual goals and praised for achieving these goals. They are encouraged to make their own plans and “do their own thing.” [28] Individualists need to assert themselves and do not find competition threatening. In contrast, in a collective culture, people are raised to think 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. Collectivists are accepted for who they are, feel less need to talk and therefore, silence plays a more important role in their communication style.

Majority culture in the United States has been identified as the most individualistic culture in the world. [29] The Anglo-American legal system reflects this culture with substantive laws that reflect a highly individualistic model of rights and responsibilities. [30] Ethical rules of confidentiality and conflict of interests often require a lawyer to communicate with an individual client in private and may prohibit the lawyer from representing the group. [31] While legal systems and forms of practice in the United States are beginning to respond to demographic changes, [32] a lawyer working with a client from a highly collective culture may face special challenges in helping that client accomplish her goals in a culturally sensitive way in our legal system.

Other cross-cultural themes listed on the chart on the next page identify additional categories from which to examine lawyers’ work. In trying to identify cultural norms, each of these knowledge areas helps the lawyer clarify how his background may affect the way he practices law. When the lawyer identifies similarities and differences between herself and her client, the lawyer can use these knowledge areas as examples of similarities and differences that may affect the practice.

A word of caution: In using the cross-cultural themes, remember that because cultures are so complex, lawyers should not totally isolate one of the cultural themes from the others as the context within which each of the themes operate will influence how the theme is developed in the culture. Instead, the themes are useful to identify possible similarities and differences and to explore these with the client.

Knowledge Areas that People Learn as a Result of Being Raised within Any Given Culture [33]:

  • Communication and language use - Communication differences are probably the most obvious problem that must be overcome when crossing cultural boundaries. Cross-cultural communication, attitudes toward language use, the difficulties of learning another language, and its relation to education are addressed in this area
  • Roles - People perform a generally accepted set of behaviors in relation to the roles they adopt. Tremendous differences exist with respect to the occupants of these roles and how these roles are enacted in different social groups
  • Individualism versus collectivism - All people act at times in their individual interest, and at other times according to their group allegiances. The relative emphasis on group versus individual orientation varies from culture to culture and may have a significant impact on people’s decision-making processes, their choice of peers and associates and the degree to which they perform effectively on their own
  • Rituals versus superstition - All cultures have rituals that help people meet their needs and cope with life’s everyday demands. People in all cultures also engage in behaviors that “outsiders” may label superstitious. One’s rituals may be seen by others as based on superstitions
  • Social hierarchies - class and status - People often make distinctions based on various markers of high and low status. These distinctions differ from culture to culture;
  • Values - People’s experiences in such broad areas as religion, economics, politics, aesthetics, and interpersonal relationships become internalized. Understanding these internalized views and the range of possible differences is important to cross-cultural understanding
  • Work - Differences in the amount of time people spend on tasks versus socializing, which has the onus of control, and the way decisions are made may differ significantly across cultures
  • Time and spatial orientation - Culture determines people’s orientation toward time and the degree to which one feels bound by the clock. In addition, people’s use of space may also be quite different
  • Categorization - Because people cannot attend to all the information they perceive, they group similar bits of information into categories and then respond according to that category. Different cultures may put the identical piece of information into different categories. This variation causes confusion when people who use different sets of categories must interact
  • Differentiation - People make finer distinctions between elements in categories that are of great importance to them
  • In-group/out-group distinctions - People the world over classify people into in-groups – those with whom they are comfortable and can discuss their concerns – and out-groups – those who are generally kept at a distance. People entering other cultures or new groups must recognize that they will often be considered out-group members and that they will never participate in some behaviors associated with in-group membership
  • Attribution - People observe the behavior of others and reflect on their own behavior. Judgments about the causes of behavior are called attributions. Effective intercultural interaction is facilitated when people can make isomorphic (shared or agreed-on) attributions about the behavior of others.

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