I have just read a very interesting report by the Bar Standards Board on a Symposium it held last January on the topic “Does Cross-cultural Commmunication Matter at the Bar?”
It brought back many memories, not least because my old friend Ranjit Sondhi was one of the speakers at this Symposium. He was an outstanding member of the advisory committee I chaired in the early 1990s whch introduced what is now called diversity training into the Judicial Studies Board’s training syllabus for judges and magistrates.
Some of the issues being discussed this year seemed to be exactly the same as those with which I used to grapple, both in that job and in my earlier job of chairing the Bar’s Race Relations Committee. I have already published on this site a talk I gave in early 1992 on the steps the Bar had to take if it was to avoid some of the pitfalls which are clearly still prevalent 24 years later.
The latest report defined “cross-cultural communication” as
“the ability to empathise, understand and communicate effectively with those who may not share one’s own style of spoken language or one’s background – be that racial, gender, religious or any other background.”
In my time as a trainer race and religion were the topics on which we were asked to concentrate, although it was obvious that the Board would in due course have to widen the scope of its activities in this field.
In this year’s report there recurred references to topics on which I spoke again and again at training seminars for judges and magistrates in the early 1990s:
With a strong emphasis on the role communication plays in the legal process, navigating through cultural differences can be complex. Embedded patterns of verbal and non-verbal communication can often be subtle; differences in the meaning of eye contact, politeness and silence in a conversation are informed by a person’s cultural conditioning. Even when the same language is spoken, if the speaker’s first language or background differs there may be cultural influences that cause misunderstanding or confusion within the exchange, potentially leading to negative impact. Communication can be a complex transaction given the interplay of the cultural dimensions such as nationality, region, disability, sexual orientation, gender and religion.
… Failure on the part of the barrister to understand the client’s and/or witness’s cultural context and an inability to help them overcome cultural barriers or communicate their meaning and truth to the court can have highly damaging consequences. At its most serious, it might result in a miscarriage of justice. It can also result in clients and witnesses losing confidence and faith in the legal system as a whole, leaving them less able – or willing – to engage properly next time.
Participants were clear that poor cross-cultural communication and insensitivity towards diverse groups is, equally, an issue within the Bar as a profession. As one barrister from a minority group put it:
“People perform at their best when they feel they can be their authentic selves. I have a choice: do I edit, or am I just me?”
… Participants agreed that, although some progress has been made in recent years, lack of diversity remains a major problem at the Bar. They also agreed that discrimination on cultural grounds – eg socio-economic background, gender, sexual orientation, disability – persists, seriously affecting the fair recruitment and retention of practitioners. Concern was expressed that unless it can attract more new entrants from a wide range of social and cultural backgrounds, problems in cross-cultural communication will persist, and the Bar will fail to be truly representative of the public at large. Chambers may also be failing to recruit the best or most able candidates if they are only able to communicate effectively with those from a similar background to them. Moreover, because the Bar is a feeder profession for the judiciary, this has ramifications for diversity in the legal system more widely.
Today I am republishing a paper I wrote in 1995 for the Inns of Court School of Law for their Handbook on Conference Skills. I was asked to write this paper after speaking on the topic at a workshop for the School of Law’s senior staff. If the different universities which are now delivering vocational training to the Bar had reproduced the lessons of this paper in vivid form as part of their teaching syllabus over the last 20 years I do not believe that the same issues would still be proving so troublesome today.
Advice written for a Handbook on Conference Skills published by the Council of Legal Education in the autumn of 1995
Britain is now a multi-cultural society. The 1991 census showed that at least 5.3% of our population now comes from ethnic minorities. Although primary immigration has ceased (except for family members joining those already admitted here), this proportion will rise steadily on present projections until the year 2030 when it is likely to level off at about 10%. Britain also attracts many visitors, for business, tourism or study, for example, whose homes are elsewhere. In the normal course of things most barristers will conduct conferences from time to time with people of different cultures from their own.
Culture is a very potent force in all our lives. It affects the way we think, the way we talk, the way our families are structured, the way we use the spoken word and the way we use different parts of our bodies – our eyes, our shoulders, our hands and so on – to communicate our thoughts. If you are not alert to the possibility, sometimes the likelihood, of a communications breakdown when you act for a client from a different culture, there will be all the makings of a potential miscarriage of justice, for which nobody will be to blame but yourself.
The Judicial Studies Board Handbook on Ethnic Minority Issues contains this important piece of advice:
“Most of the time in our daily lives we experience no difficulty in communicating with others. We speak the same language, and feel we understand one another – at home and at work – pretty well. If something seems unclear or we want more information, all we have to do is ask. If no one does this, we assume we have been understood.
This assumption does not necessarily hold up where the two people communicating with one another come from different cultural backgrounds. It may of course be obvious to one or both parties that they have not understood. Quite often, however, this is not the case; they may think they have understood correctly, but in fact they have not done so. The message may have been read quite differently from how it was intended. People are likely to ‘read’ behaviour from the point of view of their own cultural group, without being aware of the possibly different meaning attributed to it in the culture of the other party. It is when this quite natural tendency towards ‘ethnocentrism’ creeps in – i.e. where parties interpret the behaviour in terms of their own cultural frameworks, and do so unconsciously that the greatest danger of cross-cultural misunderstanding arises.
In cross-cultural situations, culture, normally the means to successful communication – paradoxically can become the barrier to such success.”
An important conference skill is the ability to communicate to your client that you really understand their problem. In this way they are much more likely to have confidence in entrusting their affairs – and sometimes their hopes of happiness or liberty – to you.
A bad start to a conference is to get the client’s name wrong. Names are very personal to people, and they may feel “If my barrister can’t even get my name right, what hope has he [or she] of getting anything else right?” You must do your best to avoid pronouncing their name wrong, or committing other avoidable mistakes, such as asking a Hindu client what her Christian name is. By way of example only, an unmarried Chinese woman called Cheung Lan-Ying should be addressed as Miss Cheung, and a devout Muslim called Mohammed Rahman Khan should never be addressed as by the holy name Mohammed alone: this would cause grave offence. If in any doubt, ask your client how he or she would like to be addressed. That way you can’t make mistakes.
It is always wise to be on the lookout for misunderstandings when your clients may have been using common English words in a different sense from the way in which you are accustomed to use them – words like “afternoon” or “dinner” or “family” or “uncle” or “cousin”, for instance. Sometimes people in court are accused of being liars when they use a word in a way that is familiar to them, but not to the opposing advocate or, often, to the judge. It is your job to spot any possibility for misunderstanding when you read the conference papers beforehand, and then to be on top of your clients’ explanation of what the word means to them when you appear in court.
And you should always be on the lookout for problems with body language. Don’t necessarily think your client is shifty and not fit to be believed if he or she does not look you in the eye. It may be very natural for them not to look straight in the eye at somebody they may treat as having authority over them. In some cultures, too, using a loud voice does not necessarily indicate loss of control. Nor need it indicate hostility or an aggressive disposition, a matter that often leads to misunderstandings in the street between citizens and the police. In the same way an expansive use of the hands and arms may be some people’s way of expressing themselves comfortably. It is impossible to lay down hard and fast rules about body language, particularly at a time of so much cultural diversity. All one can hope to do is to be on one’s guard not to pick up signals that are quite wrong.
It may also sometimes be necessary to obtain a very clear understanding of some matter that is very important to a client in relation to his or her religion. For instance, it may be extremely important for a young Muslim, remanded on bail, to attend the mosque with his family on a weekday evening, and the barrister needs to be aware of this when questions of a curfew come up. Or a Hindu may need his case adjourned so that he may attend his father’s funeral: the barrister needs to know that if the oldest son does not light the funeral pyre, his father’s soul will not be released from his body to ensure its smooth passage to the afterworld. If you act for a Rastafarian, it is wise to learn about their beliefs and their style of living beforehand: clients really appreciate it if you take this sort of trouble, before meeting them in conference, to understand things that are important to them.
Very often, too, a barrister needs to understand a client’s family system when they meet in conference. Again it is very dangerous to generalise, but a few basic ground rules may help. Family patterns in Britain are characterised by diversity and change generally. Ethnic minority families merely add an additional dimension. You must beware of stereotyping ethnic minority families. There are no typical forms of Indian or Afro-Caribbean family, any more than there are typical forms of French or Italian or English family.
Extended families in African and Asian cultures, however, traditionally reflect a corporate approach to family affairs, and family ties tend to be very much stronger. Such families may be misunderstood as being simply ‘extensions’ of ‘nuclear’ families. When the Ethnic Minorities Advisory Committee of the Judicial Studies Board was first formed, I remember being very struck by some evidence we received from a group of Asian interpreters in the West Midlands. They said that they often witnessed family cases being decided by English judges, with the help of English advocates and English social workers, as if the only alternatives for the child were the father, the mother or foster parents or a children’s home. There was a great wall of ignorance about the fact that in the extended Asian family there are plenty of relatives who would welcome the child into their own homes as if he or she was their own child: the existence of this wall of ignorance was causing a great deal of heartache in the families concerned.
In minority ethnic communities, greater emphasis tends to be placed on discipline in bringing up children, and there is often bemusement and concern at the ‘liberal’ approach of many British parents. In some parts of West Africa, moreover, it is usual for children to be brought up not in the parents’ household but that of relatives (as it used to be in parts of Europe) so that among West Africans, in particular, ‘fostering’ may be seen as normal and indeed beneficial for a child. Grandparents, too, may play more significant roles in many ethnic communities, both with regard to children and the management of family property and affairs generally.
The corporate style of family organisation is reflected in the system of arranged marriages in many Asian cultures. Traditionally these were an opportunity to create alliances between family groups. On the other hand, arranged marriages in the British context focus more on selecting a suitable partner for the individual family member. Increasingly they are now allowing the latter an element of choice. The important thing is to do your best to understand the social and family dynamics at work, and not to condemn practices simply because they are unfamiliar and inconsistent with your own culture.
Divorce is a case in point. In all South Asian communities, divorce is strongly disproved of socially, and divorce arrangements are particularly liable to disadvantage women. Although the English courts are bound to administer English family law, this does not mean that there may not be plenty of problems being stored up within an extended family if divorce is used by a member of that family as a means of bringing a marriage to an end.
It is not only in a family law practice that a barrister will run into great difficulties if he or she doesn’t understand these things, and a lot more besides. Often in criminal trials or civil litigation issues crop up which require the advocate to see the world as his or her client sees it. The conference is likely to be the last chance you will get of acquiring the knowledge you need. The golden rule must always be: if you don’t know, ask. In a multi-cultural society the ignorance of a barrister about important features of a client’s culture certainly doesn’t signify bliss for the client – very much the reverse.