What We Have Here is a Failure to Communicate: Cross-Cultural Communication 101 for Lawyers
By Teresa Rendon and Michael Duggan

She’s Off to See the Wizard

Dorothy comes in with a slip-and-fall. Bang! Lawyer Wizard instantly forms a negligence elements checklist in his mind. Examination of client begins. While Dorothy rambles on about supervisor Art, Wizard is only half listening. His focus is on wrenching out of this pathetically non-legal morass, the elements he needs for a successful case. Client, not dumb, is half-listening to Wizard. In her mind, she is wondering, “Why did he just cut me off about Art? He’s the cause of the whole thing. Is this guy stupid?”

Is any of this fun? We think not. Both edges of this chasm are bewildered at what is going on. Clients feel as though lawyers could not care less about their stories or their feelings while lawyers believe clients don’t know or care about all the work they do for them. Clients feel like lawyers don’t respect their intelligence or integrity; lawyers sense clients don’t respect their knowledge and skills. Clients become angry, then bitter; lawyers become hurt, then cynical. Neither side understands why the other acts as he or she does.

Lack of communication is the number one complaint of attorneys’ clients.1 It is the number one source of bar complaints nationwide.2 Lawyers rank first on the list of most distrusted professions.3 Americans, touted as the most litigious people in the world, actually seek out lawyers only as a grudging last resort. Businesses selling forms and software for do-it-yourself law have become a growth industry, while lawyer jokes are as popular as ever. One colleague tells us that of his disgruntled criminal defendant clients, they reserve their most intense animus for him—much more than any prosecutor, judge or jury.

Lawyers respond with an equally healthy disrespect for their clients. We sit in our offices and swap war stories about the four dreaded words heard all too often from clients: “Oh, by the way.” Halfway through a case, the client drops a bomb which destroys everything. We sympathetically roll our eyes as we joyfully wallow in our little pool of dysfunction—another beautiful case ruined by the client. The “wise” lawyer either ignores the client’s ceaseless calls or shunts them to an underling. There are a hundred matters to attend to that are more important than fielding irrelevant questions or hopelessly trying to explain legally complex concepts to a lay person. The client is a significant obstacle to our doing what we should be doing—prosecuting the client’s case.

The sad truth is that while Wizard might end up with a well-drafted complaint, he is likely to know very little about what he needs to know about the case. A good lawyer knows the hundred directions a case can go in after it’s filed. If Wizard could get inside client Dorothy’s head, know everything she knows, there could never be any “Oh, by the way” bomb. Plus her knowledge and experience might open up vistas—a product liability angle, a sexual harassment claim, punitive damages, etc. Wizard has effectively destroyed all rapport and trust with Dorothy and set himself up for the future disasters that he will later blame on another “ungrateful client.” Wizard forgot rule number one: The client knows more about the case than the lawyer.

If Men Are from Mars and Women Are from Venus, What Planet Are Lawyers from?

John Gray’s bestseller “Men Are from Mars, Women are from Venus”4 is based on the premise that men’s and women’s vastly distinct communication styles erect seemingly impassable barriers between the two genders. Deborah Tannen’s work You Just Don’t Understand5 also reflects on gender differences in these conversational styles with the goal of creating lines of effective communication between men and women. While these authors have been accused of being overly simplistic, essentialist, even misogynistic, they suggest something significant and fundamental about communication: gender exerts a ponderous influence on the ways humans send and receive information. Another popular author and presenter, Ruby Payne,6 offers a view on communication between members of various socio-economic classes. Her premise — that people in poverty share a single mindset — supports a deficit theory of poor people which cavalierly ignores systemic inequities and overly simplifies complex individuals. Payne does, however, suggest an important point of view: socio-economic class is a filter through which we transmit and receive information. What these authors omit is that people communicate based not on one single factor but a complex, almost kaleidoscopic set of factors: gender, race, ethnicity, religion, culture, language and socio-economic status, among many others.

While clients come in all shapes, colors and creeds, the population of lawyers does not reflect the composition of society as a whole. Despite an increase in minority enrollment in law schools, U.S. lawyers continue to be more likely to be male (73%) and white (88.8%).7 Although race and gender are immutable characteristics and are therefore not within the lawyer’s control, what is within the lawyer’s control is her openness to clients who are different than she and her willingness to adopt an attitude of cultural sensitivity. In other words, to borrow a rather trite but appropriate phrase, try to imagine walking in that person’s shoes. If we, as lawyers, are to communicate effectively with our clients, appropriate attention should be given to each client’s unique set of characteristics.

The Challenge of Language

Lawyers are often accused of speaking a foreign language to our clients. We use terms such as voir dire, nisi prius, guardian ad litem, pro bono, which frequently do more to confuse than to elucidate. If this is true for our English-speaking clients, how much more incomprehensible are these terms to clients whose English is limited? Since 22.3 percent of Oklahomans who speak a language other than English speak English either “not well” or “not at all,”8 it is likely that many Oklahoma lawyers will have a non- or limited English speaker in their offices at one time or another. We have the challenge of explaining certain important, often emotionally charged topics to a person whose English is still evolving. One common mistake that is made by persons who have had little experience with the acquisition of a second language is assuming that the person who is politely listening to every word understands us perfectly. After all, Vinh (substitute Jose, Vladimir, Rene or Mohammed) is nodding his head, isn’t he? We therefore precipitously assume that he is thoroughly following our explanation of his case.

Adults who immigrate to the United States experience enormous pressure to learn English. They must fill out job applications, enroll their children in school, maneuver around a city with street and highway signs in English, etc., all high stakes activities. They often resist exposing their lack of English comprehension for fear of appearing ignorant, uneducated or “fresh off the boat.” In a valiant effort to save face, many adults will nod or say “yes” to statements which they don’t completely understand; after all, they have a 50 percent chance of being right. When attorneys are explaining legal matters to limited English-speaking clients without the benefit of an interpreter, they should assess their clients’ understanding by asking questions from time to time as they progress through the conversation. They should ask questions that call for more than a “yes-no” answer, such as “What days do you want to visit your son?” instead of “Do you know when you want to visit your son?” In my 10 years’ experience as a federal courtroom interpreter, I have discovered that the very worst of all questions are the ones with tag answers such as “You don’t know when you want to visit your son, do you?” Although such questions are very popular on cross-examination, there is often no clear answer even for fluent English speakers. If the client has trouble with even short, simply phrased questions, the attorney should find an interpreter. However, even if the client answers appropriately, he or she may still not be able to handle the complex, high-stress atmosphere of courtroom English. The client may have developed survival language skills in English, but not yet mastered the more academic aspects of the language.

Research on how adults and children learn English as a second language9 may shed light on the reasons for some of our clients’ behavior. It reveals that at first language learners are in a receptive phase that lasts from one month to one year in which they are listening to English and speaking very little. They begin to develop survival English which is the oral language necessary to satisfy their basic needs and to function in the school environment. This type of English may take three to five years to develop. In an overlapping pattern, they are also learning cognitive academic language, the type of language needed to understand school subjects. This language may take as long as seven to nine years to master. Although most of the immigrant adult clients in an attorney’s office will most likely not be in school full time and the pressure to speak English right away is greater, the sequence in which they learn the English language is similar. They first learn oral language in order to navigate successfully in an English-speaking world. They learn to greet the checker in the grocery store, to say “good morning” to the boss, and to utter “excuse me” as they make their way through a crowd. That does not mean that they know enough English to understand a trust agreement, a visitation schedule or a deed. Even if the client has strong oral English, a prudent attorney would also want to find out if the client would benefit by having a translation of the document in question.

When considering hiring an interpreter, the attorney should carefully consider the interpreter’s qualifications. Just because a person speaks fluent Spanish does not mean that he or she can interpret legal terms accurately. An inquiry should be made into the interpreter’s academic background and prior interpreting experience. Now that the state of Oklahoma requires certification of courtroom interpreters,10 community colleges are offering programs of study to train them. An interpreter emerging from one of these programs would be expected to interpret competently in a court of law. Using the clients’ minor children to interpret, even just for attorney-client conversations is not recommended, especially in divorce cases where children already suffer guilt and anxiety. Parents aren’t likely to be completely forthcoming in front of their children, and if they are, how harmful must that be for the children?

Through the Cultural Sensitivity Lens

Culture is in the air we breathe as individuals living in society. It is in our family structure, our rules, roles, customs, values, problem-solving approaches and communication styles. My clients for the past 20 years have been migrant and seasonal farm workers, the majority of whom are Latino whose culture is very different than my own. When I first began to practice law, I had an idyllic vision of my law office as a peaceful place to work where I could communicate with clients without interruption. My Latino clients showed me a different way. First of all, rarely did they come in alone. Most of my clients appeared in my office with at least three or four family members and possibly a neighbor or two. Babysitters were not the norm, so children of all ages appeared and continue to appear in my office. Mothers and fathers handled several tasks at once while discussing with me their legal problems. This polychronism or multi-tasking is a trait very different from the lock-step, one task at a time approach of many Euro-Americans. At first, I found this behavior disconcerting and a bit disrespectful, but now I think nothing of it. Instead, I now observe other clients who come in all by themselves and find it unfortunate that they have no one with whom to share the weight of their troubles.

Another adjustment I made concerned telling my clients when their court date was and confirming that I would see them on that day at that time. At first I found it annoying that my clients never told me that they would be there for sure. They always said, “Si Dios quiere” (“If God wills it”). I thought they were being flaky or unsure and always felt like squeezing a decisive “yes” out of them. Now I know how this behavior fits into a culture where fatalism is a common trait and in which it is considered arrogant to put one’s will before that of God’s.

These are just my observations gleaned from over two decades of representing mostly Latino migrant farm workers; certainly it is not my wish to create or foster stereotypes. Instead, I offer them as a way of showing how my lens as a middle class lawyer blurred my view of a culture and how that view could have interfered with my relationship with my clients.

I would offer the following suggestions for working with clients whose culture is not your own11:

1. Assume nothing.
2. Inquire about specific behaviors, values, attitudes and perspectives which seem confusing to you;
3. Be sensitive to any signs of spirituality or religiosity so that you may respect the client’s beliefs;
4. Do not insist on eye-to-eye contact which is considered a sign of disrespect in many cultures;
5. Be slow to judge.

Conclusion

Our message as lawyers is an important one which must be communicated with care. Our Rules of Professional Conduct exhort us to “keep [our] client[s] reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”12 To accomplish this, we must truly listen to our clients and remove as many cultural and linguistic barriers as possible.

1. ABA report cited in Why not Fire Attorneys? An Economic Approach to Ethical Sanctions, Stanford Law Review, Stepehen Bene, April, 1991, at 909.
2. E.g., in West Va., Communication Bar Complaints outnumbered all other complaints put together (West Virginia Lawyer, Annual Report of the Lawyer Disciplinary Board 2006, March/April, 2007); same result in Missouri (Loyola of Los Angeles Law Review, Winter 2004, 809); Oregon: “[communication] most common kinds of complaint..”, Oregon State Bar Bulletin April, 2006, 27.
3. The Harris Poll® #61, August 8, 2006, accessed at http://www.harrisinteractive.com/harris_poll/ index.asp?PID=688.
4. John Gray, Ph.D., Men are from Mars, Women Are from Venus: A Practical Guide for Improving Communication and Getting what You Want in Your Relationships, New York: Harper Collins Publishers, 1992.
5. Deborah Tannen, You Just Don’t Understand, New York: Harper Collins Publishers, 2001.
6. Ruby Payne, A Framework for Understanding Poverty
7. ABA Lawyer Demographics, The lawyer Statistical Report, American Bar Foundation, 2004.
8. Current Population Survey (CPS), U.S. Census Data.
9. Heidi Dulay, Marina Burt & Stephen Krashen, Language Two, New York: Oxford University Press, 1982, p. 3; Sandra Lee McKay & Sau-ling Cynthia Wong, Language Diversity: Problem or Resource?, Boston: Heinle & Heinle Publishers, 1988; Colin Baker, A Parents’ and Teachers’ Guide to Bilingualism, Clevedon: Multilingual Matters Ltd., 2000; Susan J. Dicker, Languages in America, Clevedon, Multilingual Matters Ltd., 1996.`
10. 2005 O.S.L. 427.
11. The Volunteer Lawyers Project, Best Practices Manual for Guardians Ad Litem. http://www.ptla.org/vlp/culture.htm, 2/17/2006, p. 3.
12. Rules of Professional Conduct, Communication, Rule 1.4 (a).

About The Authors

Teresa Rendon has been the farm worker attorney at Legal Aid Services of Oklahoma Inc. for 15 years. She is a commissioner on the Oklahoma Human Rights Commission and a member of the Oklahoma Bar Association’s Diversity Committee. Ms. Rendon, a former bilingual teacher at Oklahoma Public Schools and current doctoral student in educational studies at OU, is an adjunct professor at OCU in the sociology/criminal justice department where she teaches courses on diversity. 

Michael Duggan is a staff attorney in the Senior Division at Legal Aid Services of Oklahoma. He received his B.A. from Columbia University, and has worked as a journalist, and then editor and publisher of an international trade magazine, before founding a related trade association and growing it to 1,100 corporate members in 22 countries. After a two-year stint driving a cab in Las Vegas, he earned his J.D. from Oklahoma City University.

What We Have Here is a Failure to Communicate: Cross-Cultural Communication 101 for Lawyers
Published 79 OBJ 1151 (May 10, 2008)