How clients' backgrounds may shed light on their motivation for litigation
I once represented a shopkeeper whose husband died when he fell off the Tacony-Palmyra Bridge into the Delaware River. The police had declared it a suicide. An insurance policy on her husband’s life provided that if he committed suicide within the first six months of the policy, the insurance company had no liability. Indeed, he fell off the bridge within the first six months; and the life insurance company refused to pay on the policy, since the police had ruled it a suicide. She came to me for help.
As a fairly aggressive litigator, I was loaded for bear, ready to sue the insurance company. That’s what I thought she wanted. She and her husband were Chinese immigrants, and her command of English was poor, so I thought her resistance to what I explained about filing a complaint was due to a failure to communicate. It was, but not for the reasons I initially thought. I realized that her real purpose in seeking help was to show that her husband’s death was an accident, not a suicide, because in her culture suicide was considered a shameful act.
Once I realized this, my approach to the case changed. I shifted from trial mode to investigator mode. I depart-ed from my comfort zone. I hired a former police officer to help me reinvestigate what happened. During the course of the investigation, I walked the bridge, climbed down a bridge truss, rode a police boat on the river and ate doughnuts with the local cops. Ultimately, the police and the insurance company were forced to acknowledge that they had no proof he committed suicide, and that his fall was most likely an accident. They paid on the policy, which for my client was a bonus.
For me, this client highlighted the importance of what is called “cultural competence,” the ability to understand cultural differences between people from, among other things, different countries, different races, different socioeconomic groups. It is a skill that should be part of every lawyer’s advocacy arsenal. Not only is it important for understanding what your own client wants; it is also important for you to be able to evaluate what witnesses are talking about and what your opponents truly want.
GET TO KNOW YOUR CLIENT
Cultural competence is a mindset, not a compendium of knowledge. You must be open to the different ways people from different cultures respond to situations that you or I would consider ordinary.
I ran up against a major cultural difference when I represented a hospital in a malpractice action. The plaintiff had confounded the doctors by suing over an issue that seemed to the doctors to be bogus. The plaintiff was a woman in her 40s with extremely high blood pressure that couldn’t be controlled with the usual drugs. As a result, the doctors had prescribed minoxidil, a medication of last resort. The drug’s biggest side effect was the growth of facial hair. Knowing that she was likely to incur this side effect, the doctors had asked her to acknowledge in writing that she understood the risks—that the medication the doctors gave her could cause the growth of facial hair, but that if she didn’t take the medication, she could die. She signed the statement. When she grew facial hair after taking the medication, she sued because of it. Her doctors were furious. They told me that she had destroyed their therapeutic relationship.
Let us put aside for the moment her duplicity in agreeing not to sue but then suing. Instead, let us focus on the plaintiff herself, whom I met when I took her deposition. She was dressed modestly in a headscarf, jeans and a long-sleeved shirt. She had a prominent moustache, but otherwise her cheeks and chin were hairless. My introductory questions elicited the fact that she had emigrated to the United States five years before from India, and that she was currently working at a local bank. She had wrestled for years with hypertension, and the minoxidil was the first drug that was effective in reducing her blood pressure.
“Then why did you sue?” I asked. Because, she said, the hair growth was much worse than she expected, and she had used a hair remover, Nair, on her cheeks. But as the Nair was such a strong chemical, she was not looking forward to having to use it forever.
CULTURAL MOTIVES MATTER
I studied her face for a moment. “Why do you still have a moustache, then, if you removed the hair on your cheeks?”
“I have always had the moustache,” she said. “I only wanted to remove what the drug added.”
It turned out that our plaintiff was a Sikh, and within her culture there was an element of belief that held that one must accept the body, face and hair given by God. In her view, the moustache was God-given; the beard was not.
Once I understood where she was coming from, I could explain it to my clients, the doctors. It certainly reduced the tension between the doctors and their patient. We never took the case to trial. The plaintiff withdrew the complaint shortly after her deposition.
Some things are never going to make sense to us, except as an artifact of someone else’s culture. Learning about how a particular culture shapes a particular plaintiff, witness, defendant or client can help you and your client get to the right result.
Author’s note: If you are looking for resources that will help open your mind to cultural differences, various sections of the ABA (Criminal Justice, Individual Rights and Responsibilities, and Labor and Employment Law) and the ABA Coalition on Racial and Ethnic Justice have presented programs and issued position papers on the subject in the last five years.
This article originally appeared in the September 2015 issue of the ABA Journal with this headline: “Honing ‘Cultural Competence’: How a client’s background may shed light on her motivation for litigation.”
Janet S. Kole is a retired trial lawyer from Philadelphia and the author of numerous books, including Avoiding Bad Depositions: A Simple Guide to Complex Issues and the murder mystery Suggestion of Death.