As an international attorney based in Miami, it is common for me to represent or be challenged by a foreign party in litigation. The cases are typically disputes over commercial transactions or business ventures that, for one reason or another, did not work out as the parties expected.
When one of these cases finally makes it to trial, jurors are asked to decide the dispute in favor of the American or foreign litigant. With a foreign litigant on one side of the equation, it’s not unusual for a client to ask one of the following questions: Does the fact that a party is foreign play a role in the jury’s decision? Will the foreign party be viewed as less credible or less likeable than the American party?
I mention this because I just read a fascinating article by Dr. Philip K. Anthony in the International Law Quarterly published by the Florida Bar’s International Law Section. The article, Lost in Translation: American Juror Perceptions of Foreign Litigants, presents an intriguing look into the minds of American jurors when one of the parties is foreign.
According to Dr. Anthony, “jury research over the years has consistently shown that jurors are relatively blind toward the origins of a litigant. Whether litigants are Japanese, Israeli, Chinese, or German, jurors, during deliberations, are rarely focused on nationalities.”
The Culture Gap
Dr. Anthony notes that jurors rarely exhibit bias towards a foreign litigant and they also do not take into account cultural differences. While this may sound promising, this phenomenon may actually work against the foreign litigant, as presented in the following scenario:
A Japanese witness takes the stand and during testimony, laughs repeatedly, covering her or his mouth while laughing. In Japanese culture, such expression is often the reaction to embarrassment about the nature of the subject. The question asked by the examining attorney may be considered too direct, not appropriately subtle. Though the answer itself may not be at all damaging to the Japanese witness, he or she does not wish to answer a question so publicly, directly or candidly, and is very uncomfortable having to talk so openly about someone else.
In this context, American jurors only see a generic person recounting facts and details about a particular matter. The American juror will rarely consider the cultural nuances in the behavior of this generic (although foreign) person.
As Dr. Anthony explains, a juror in this scenario will ask “[w]hy is this witness laughing? Do they not take this seriously? Is the witness uncaring and arrogant? Have they been caught in a lie?
Significantly, the American juror does not ask “why is the‘Japanese’ witness laughing?”
This is just one example of culture differences affecting the perception of American jurors. For every culture there are nuances in the testimony of foreign litigants that are not factored into the thought process of American jurors.
Minding the Cultural Gap
Dr. Anthony goes on to present several ways a foreign litigant can counteract this problem. The most effective way for a foreign litigant to bridge the culture gap is to have a thorough understanding of American culture. Sounds easy enough, right? Well, not so fast.
A thorough program of sensitization and culture familiarization relies on both the steadfast commitment of the foreign litigant and the steely resolve of his attorney. After all, familiarizing an individual in the ways of a foreign culture takes real work.
Dr. Anthony suggests several techniques for making the job easier for both attorney and foreign client:
- Use videotaped examples of how American juries perceive the foreign party’s mannerisms.
- Show the foreign party a videotape of their own testimony to help the witness improve in problem areas.
- Use a mock jury panel to gauge the likely perception of American jurors. Review and repeat the exercise until with you are comfortable with how the jurors perceive the delivery of the testimony.
Because American juries are likely to apply the same standards and expectations to both the foreign and domestic witness, it’s paramount that foreign litigants have a thorough understanding of American culture.
By using the techniques suggested above, you’ll be well on your way towards bridging the culture gap between your foreign witness and an American jury.
What other techniques are you using out there?