Page 29

Diversity may specifically be why someone is seeking legal representation as the client may have claims involving employment discrimination, denial of disability accommodations, or other claims of discrimination or denial of legal rights. Our law schools and continuing legal education courses teach us how to best represent our clients in those situations, but seldom do they prepare us to handle client relationships or other “non-legal” issues dealing with our clients’ diversity. This article attempts to identify diversity issues that could affect case outcome or counsel’s ability to effectively represent the client. Most salient are the following: 1. How decision makers view and judge the clients and their behavior; 2. What are the clients’ expectations and views of our legal system, and; 3. How to interact with our culturally diverse clients. How decision makers view and judge clients and their behavior As the above story tells, a jury may be negatively influenced by actions on the part of a client that deviate from more conventional behavior. Other factors impacting a decision maker’s view of a client include: language (whether or not, or how well the client speaks English), immigration status (though usually inadmissible in court), race, ethnicity, and education. Also potentially impacting decision makers’ favorable or unfavorable view of a client are gender, sexual orientation and disability. A party’s or witness’ foreign citizenship or inability to speak English may affect American jurors negatively. Studies suggest that racial and ethnic minorities sometimes get less respect and lesser awards than similarly situated “mainstream” Americans.6 Such negative decisions by a judge or jury may be unconscious, rather than intentional. In fact, studies suggest that unconscious or “implicit” bias based on race, gender or other diversity situations strongly influences decision-making with inadvertent-

ly negative results.7 For example, regardcusal or change of venue. If your client’s less of what role they play in the justice conduct seems strange, get expert witsystem (attorney, litigant, witness, judge nesses familiar with your client’s culture or court employee), “women and mito explain differences and “normality” norities reported incidents of demeanof the behavior. Help the judge or jury ing behavior directed toward them.” see your client in the best light possible. While some incidents were intentional, Show respect for your clients. “Humanmost were due to a lack ize” them and make of understanding of the them look as likable and Studies suggest 8 impact of their actions. “normal” as possible. that racial Treat them like you like Furthermore, judges and them yourself. If lanjurors may also “uninand ethnic guage is at issue, rememtentionally and autober that many variations matically ‘misremember’ minorities exist within each lanfacts in racially biased sometimes get guage and hire a certified ways during all facets of interpreter for that parthe legal decision makless respect ticular dialect or region. ing process.”9 Consider drafting jury How decision makers and lesser instructions addressing judge a client may also the possibility of implicit have to do with what awards than bias.12 Anticipate how they hear. If your client similarly situated does not speak English the client’s diversity may well, the interpreter’s affect the case and dis“mainstream” ability can have a crucuss this with the client cial impact on what the at the outset. Learn from Americans. jury actually hears. For your client by sensitively example, in Spanish the statement “Perdí asking direct, probative questions.13 la guagua” means “I missed the bus” in some countries, “I lost the baby” in othClients’ expectations and view of ers, or is totally incomprehensible in yet our legal system others. Similarly, a Cuban defendant on Perhaps cultural differences are most aptrial for public intoxication once testified parent in family law. Once in a family he had only four “maltas” (a non-alcoholic case, the young Latin American mother drink). The interpreter translated “maltas” assumed she would get custody of her as “four malt liquors,” leading a judge to children. “Why are you so sure?” I asked. view that as an admission of guilt. “Because I’m the mother,” was her confident response. Though statistics may Practice Tips: show that, as the mother, she indeed had As an attorney, anticipate and be cona better chance, her confidence may have scious of how your client will likely come been somewhat misguided. She was not across to the judge, jury and other deciaware of Texas law stating: “The best sion makers. Beware of the possibility of interest of the child shall always be the implicit or hidden biases.10 Try to pick primary consideration of the court...”14 jurors that are most likely sympathetic Though this has long been the law in to your client. Anticipate how cultural Texas, it is not so in other jurisdictions. differences could affect potential jurors. I was also surprised by her confidence Address those issues in voir dire to make since my experience has been that, unjurors aware of their possible biases and/ like her positive expectations of victory, or eliminate potentially problematic juAmerican minorities and/or foreigners 11 rors. If the biased decision maker is the often have lower and more cynical expectations of our legal system. judge, carefully consider requests for re-

thehoustonlawyer.com

March/April 2016

27

Profile for QuantumSUR

THL_MarApr16  

The Houston Lawyer magazine MarchApril, 2016

THL_MarApr16  

The Houston Lawyer magazine MarchApril, 2016

Profile for leosur