Content downloaded/printed from HeinOnline

Mon Jul 15 03:54:23 2019

Citations:

Bluebook 20th ed.

Diana Eades, I Don't Think the Lawyers Were Communicating with Me: Misunderstanding
Cultural Differences in Communicative Style, 52 EMORY L.J. 1109, 1134 (2003).

OSCOLA 4th ed.

Diana Eades, 'I Don't Think the Lawyers Were Communicating with Me: Misunderstanding
Cultural Differences in Communicative Style' (2003) 52 EMORY LJ 1109

McGill Guide 9th ed.

Diana Eades, "I Don't Think the Lawyers Were Communicating with Me: Misunderstanding
Cultural Differences in Communicative Style" (2003) 52:Special Edition Emory LJ 1109.

MLA 8th ed.

Eades, Diana. "I Don't Think the Lawyers Were Communicating with Me: Misunderstanding
Cultural Differences in Communicative Style." Emory Law Journal, vol. 52, no. Special
Edition, 2003, pp. 1109.

APA 6th ed.

Eades, D. (2003). don't think the lawyers were communicating with me:
Misunderstanding cultural differences in communicative style. Emory Law Journal,
52(Special Edition), 1109.

Chicago 7th ed.

Diana Eades, "I Don't Think the Lawyers Were Communicating with Me: Misunderstanding
Cultural Differences in Communicative Style," Emory Law Journal 52, no. Special
Edition (2003): 1109

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement availablehttps://heinonline.org/HOL/License
at
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information

Use QR Code reader to send PDF to your smartphone or tablet device

 LAWYER-CLIENT COMMUNICATION

"I DON'T THINK THE LAWYERS WERE COMMUNICATING

WITH ME": MISUNDERSTANDING CULTURAL DIFFERENCES IN
COMMUNICATIVE STYLEt
DianaEades*

INTRODUCTION'

Sociolinguistics is the study of the way that languages are used in social
contexts. 2 One of the major contributions made by sociolinguists to the
understanding of society in the latter half of the twentieth century has been in
the explanation of the role that cultural differences play in intercultural
communication and miscommunication. The aim of this Article is to show
how this kind of sociolinguistics can contribute to the area of lawyer-client
communication.' To do this, I will relate the true story of an Australian
Aboriginal woman named Robyn Kina. Her story is a compelling tale of
lawyer-client miscommunication, which points to a range of sociolinguistic
issues that are important in legal contexts.

My thanks to Jeff Siegel for his helpful comments on the draft. All remaining errors are my
responsibility.
. Associate Professor in the Department of Second Language Studies, University of Hawai'i.
PhD,
University of Queensland (1983); B.A. with Honours, Australian National University (1973).
1 Parts of this Article draw on a previous publication for sociolinguists. See Diana Eades, Legal
Recognition of Cultural Differences in Communication: The Case of Robyn Kina, in 16 LANGUAGE AND
COMMUNICATION 215 (1996).
2 For an excellent introduction to sociolinguistics, see CONCISE ENCYCLOPAEDIA OF SOCIOLINGUISTICS
(Rajend Mesthrie ed., 2001); JANET HOLMES, AN INTRODUCTION TO SOCIOLINGUISTICS (2d ed. 2001).
3 For the use of sociolinguistics, particularly discourse analysis, in the design of a research project to
analyze and improve the way lawyers interview clients, see Clark D. Cunningham & Bonnie McElhinny,
Taking It to the Streets: Putting Discourse Analysis to the Service of a PublicDefender's Office, 2 CLINICAL L.
REv. 285 (1995).
 EMORY LAW JOURNAL [Vol. 52

I. ROBYN KINA'S STORY: PART 1

Robyn Kina was born in 1959 and grew up in an Aboriginal environment in

southeast Queensland. As with most Aboriginal people in this part of the
country, Kina is of mixed descent and speaks a kind of English that will be
discussed later in the Article. One of fourteen children who lived in difficult
family circumstances, which included an alcoholic father, Kina left school at
the age of twelve to look after her three younger brothers and sisters. Her
teenage years were characterized by sexual abuse, prostitution, alcoholism, and
trouble with the police. By the time she was twenty, Kina had been charged
with a number of the offenses characteristic of the criminal record of many
Aboriginal people: obscene language, assault of a police officer, resisting
arrest, and willful and unlawful destruction of police property, in the form of
police documents She had also served twenty months in prison for her role in
an attack on a person during a pub brawl.
In her mid-twenties, Kina stopped prostituting herself, stopped using
alcohol, and started a relationship with Tony Black, a non-Aboriginal man.
Almost from the beginning of their relationship, Black had bouts of extreme
violence towards Kina, particularly when he was drunk. During the three years
of their relationship Kina was subjected to frequent punching, pulling of hair,
kicking with steel capped boots, and anal rape. During an argument one
morning early in 1988, in which Black threatened to rape her fourteen-year-old
niece who was living in the house at the time, Kina stabbed Black in the chest
as he came towards her with a chair raised above his head. Kina was shocked
to see Black stagger and fall to the ground. He died in the hospital shortly
thereafter.
On that day the ordeal of violence ended for Kina, but the drama of the
legal process was about to begin. Before discussing Kina's legal drama, some
information about Aboriginal people and their involvement in the criminal
justice system is required.

4 Details about Robyn Kina's background, as well as her case, come from the many sources that I used
in working on her case, including my interview with her and affidavits from Kina, family members, her
counselor and lawyers, as well as the judgments in the case. See R v. Kina, No. 221 (Queensl. Ct. App. Nov.
29, 1993) (unreported).
5 CHRIS CUNNEEN, CONFLICT, POLITICS AND CRIME: ABORIGINAL COMMUNITIES AND THE POLICE 29
(2001).
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1111

II. AUSTRALIAN ABORIGINAL PEOPLE IN THE CRIMINAL JUSTICE SYSTEM

The Aboriginal population comprises approximately two percent of nearly

twenty million Australians. 6 Like dispossessed indigenous people the world
over, Aboriginal people are the most disadvantaged ethnic group in the country
in terms of poverty, sickness and disease, discrimination, mortality rates,
7
unemployment, and inadequate housing. They are also grossly over-
represented in the Australian prison population. Concerns over this situation
contributed to the establishment of the Royal Commission into Aboriginal
Deaths in Custody between 1987-1991, which found that an Aboriginal person
is almost thirty times more likely than a non-Aboriginal person to be taken into
custody and fifteen times more likely to be imprisoned.' The Royal
Commission made over 300 recommendations concerning issues ranging from
conditions in prisons to far-reaching social, educational, and health issues. In
1992, the national government allocated $400 million to federal agencies to
support implementation of the recommendations. Still, the rate at which
Aboriginal people are taken into police custody and imprisoned remains
alarmingly high throughout the'
country, and "[t]he national picture is one of
increasing ...imprisonment.
While most of the Aboriginal people in the populated eastern seaboard of
Australia are of mixed descent, there are strong cultural continuities with
earlier, pre-invasion Aboriginal societies."' Despite this fact, many non-
Aboriginal Australians are ignorant of the Aboriginality of contemporary
Aboriginal people like Robyn Kina, who live in cities and towns and have
lifestyles that appear very similar to that of other Australians of similar
socioeconomic status."' Nevertheless, an important aspect of ongoing

6 See Australian Bureau of Statistics, Census of Population and Housing: Aboriginal and Torres Strait
Islander People, 1996 (Sept. 24, 1998) available at http://www.abs.gov.au/ausstats/[email protected]/
b0666592430724fca2568b5007b8619/c159fa62a2e98d2fca2568a9001393e4!OpenDocument.
7 See ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION, ANN. REP. 2001-2002, at 3741,
available at http://www.atsic.gov.au/AboutATSIC/AnnualReport/annual-report- 200102/default.asp (last
visited Feb. 19, 2003).
8 ROYAL COMMISSION INTO ABORIGINAL DEATHS IN CUSTODY, FINAL REPORT (1991), available at
http://www.austlii.edu.au/au/specia/rsjproject/rsjlibrary/rciadic/rciadic-summary/ rcsumk04.html.
9 See CUNNEEN, supra note 5, at 21.
10 See Diana Eades, They Don't Speak an Aboriginal Language, or Do They?, in BEING BLACK:
ABORIGINAL CULTURES IN 'SETTLED' AUSTRALIA 97, 98-100 (lan Keen ed., 1988).
11 See Diana Eades I Don't Think It's an Answer to the Question: Silencing Aboriginal Witnesses in
Court, 29 LANGUAGE SOC'Y 161, 164-65 (2000).
 EMORY LAW JOURNAL [Vol. 52

Aboriginal values and social interaction concerns communication patterns,

even where people are using a kind of English.

III. COMMUNICATION WITH ABORIGINAL PEOPLE

IN THE CRIMINAL JUSTICE SYSTEM

Most Aboriginal people speak either a variety of Aboriginal English or a

learners' English in their dealings with the law. 2 Aboriginal English (AE) is
the dialect of English spoken by Aboriginal people throughout Australia. It
differs from Standard Australian English (SAE) in systematic ways. There is
considerable variation in the varieties of AE spoken, with the heaviest, or most
basilectal varieties being spoken mostly in more remote areas, and the lightest,
or most acrolectal being spoken mostly in urban and metropolitan areas. 3 In
most of the eastern cities, including Brisbane, where Kina's story takes place,
the Aboriginal English is quite light, and in terms of grammar, pronunciation,
and vocabulary, it is not generally difficult for Aboriginal English speakers to
have a conversation with non-Aboriginal people, who speak other varieties of
Australian English.
But just because Aboriginal English speakers share a lot of grammar,
vocabulary, and pronunciation with other Australians, this does not mean that
people always understand each other. The work of leading American
interactional sociolinguists on intercultural communication is pertinent here:
"Speakers may have similar life styles, speak closely14 related dialects of the
same language, and yet regularly fail to communicate."'

12 The speakers of learners' English live in remote Australia and are not the subject of this Article. For
sociolinguistic analysis of the participation of these people in the legal system, see Michael Cooke, Aboriginal
Evidence in the Cross-Cultural Courtroom, in LANGUAGE IN EVIDENCE: ISSUES CONFRONTING ABORIGINAL
AND MULTICULTURAL AUSTRALIA 55 (Diana Eades ed., 1995); Michael Cooke, A Different Story: Narrative
Versus 'Question and Answer' in Aboriginal Evidence, 3 FORENSIC LINGUISTICS 273 (1996); Michael Cooke,
Interpreting in a Cross-Cultural Cross-Examination: An Aboriginal Case Study, 113 INTERNATIONAL
JOURNAL OF THE SOCIOLOGY OF LANGUAGE 99 (1995); Michael Cooke, Understood by All Concerned?
Anglo/Aboriginal Legal Translation, in 8 TRANSLATION AND THE LAW 37 (Marshall Morris ed., 1995); Russell
Goldflam, Silence in Court! Problems and Prospects in Aboriginal Legal Interpreting, in LANGUAGE IN
EVIDENCE: ISSUES CONFRONTING ABORIGINAL AND MULTICULTURAL AUSTRALIA, supra, at 28; Michael
Walsh, Interactional Styles in the Courtroom: An Example from Northern Australia, in LANGUAGE AND THE
LAW 217 (John Gibbons, ed., 1994). For a paper written especially for legal professionals, see Michael Cooke,
INDIGENOUS INTERPRETING ISSUES FOR THE COURTS (2002).
13 See Susan Kaldor & Ian G. Malcolm, Aboriginal English-An Overview, in LANGUAGE IN AUSTRALIA
67, 71 (Suzanne Romaine ed., 1991).
14 John J.Gumperz & Jenny Cook-Gumperz, Introduction: Language and the Communication of Social
Identity, in LANGUAGE AND SOCIAL IDENTITY 1, 13 (John J. Gumperz ed., 1982).
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1113

The work of John J. Gumperz and Jenny Cook-Gumperz, beginning in the

early 1980s, demonstrated the importance of "ways of speaking" or "ways of
communicating," an area of language analysis that is often referred to as
"pragmatics."" It is important to point out that ways of speaking, like other
aspects of language, such as accent and grammar, are mainly learned implicitly
by children as they grow up. While there is sometimes explicit instruction,
such as teaching children how to talk politely to older people or to look at the
person they are speaking to, much of our language learning occurs implicitly
through less direct socialization. Further, just as competent speakers of a
language are often unable to consciously explain the grammatical patterns, or
"rules" which they follow, so too are they often unable to consciously explain
the ways of speaking, such as those studied by sociolinguists.
My work since the early 1980s has shown that even where the grammatical
differences between SAE and AE are not great, there are significant pragmatic
differences, which have implications for intercultural communication. 16 The
case of Robyn Kina demonstrates that Aboriginal ways of communicating
must be taken into account if Aboriginal people are to be treated fairly by the
justice system. More generally, it raises important issues about the need for
lawyers to understand cultural differences in communication.

IV. ROBYN KINA'S STORY: PART 2

Most Aboriginal people in the criminal justice system are unable to afford
private legal representation, and, at the time of Kina's case, Aboriginal cases
were handled by either the Public Defender's Office (PD) or Aboriginal Legal
Services (ALS)." Both of these legal services were, and still are, seriously
under-resourced, and their lawyers have responsibility for an extremely high

15 "Pragmatics" is a widely used term in sociolinguistics, originally referring specifically to the study of
speaker intentions and meaning, in contrast to semantics as the study of utterance meaning. The term is now
used quite generally to refer to the analysis of language beyond the sentence level, and, as such, it always
includes considerations of context, both immediate and social.
16 See, e.g., Diana Eades, Communicative Strategies in Aboriginal English, in LANGUAGE IN AUSTRALIA,
supra note 13, at 84; Diana Eades, MisunderstandingAboriginal English: The Role of Socio-Cultural Context,
in APPLICATION OF LINGUISTICS TO AUSTRALIAN ABORIGINAL CONTEXTS 24 (G.R. McKay & B.A. Sommer,
eds., 1984); Diana Eades, The Case for Condren: Aboriginal English, Pragmatics and the Law, 20 J.
PRAGMATICS 141 (1993) [hereinafter Eades, The Casefor Condren];Eades, supra note 10.
17 In the state of Queensland, the work of the Public Defender's Office was taken over by the Legal Aid
Commission in the mid-1990s. Aboriginal Legal Services (ALS) consists of a nation-wide network of services
providing legal services to indigenous people.
 EMORY LAW JOURNAL [Vol. 52

case load.' 8 Kina was represented by ALS at the initial committal hearing in
March 1988, and by PD at her trial in September of that year. In fact, her case
was passed on to a number of lawyers, due to several factors, including the
difficulty experienced by lawyers in taking instructions from her. The
following table shows the total number and duration of all visits to Kina by her
lawyers from the time of her imprisonment in January until the trial on
September 5:
Table 1: Legal Visitors to Robyn Kina Before Her Trial

Solicitor 9 Date Length of Visit

Solicitor A Feb 24 lhr 10 min.
Solicitor B Apr 26 lhr 45 min.
Solicitor B Jul 27 lhr 37 min.
(with Solicitor C) lhr 56 min.
Barrister D Aug 11 27 min.
(with Solicitor E)
Barrister D Aug 31 "brief'
(with Solicitor A)
Solicitor A Sept 1 30 min.20

Kina pleaded not guilty to murder on the grounds that she had not intended
to kill Black. She did not give evidence, and no witnesses were called to give
evidence to support her case. The trial was one of the shortest murder trials in
Queensland's history, lasting less than a day, with fewer than three hours of
evidence. It took the jury only fifty minutes to return its verdict of "guilty."
Kina was sentenced to life imprisonment with hard labor.

18 For example, a lawyer working for Aboriginal Legal Services in the early 1990s reported to me that his
case load there was 10 times that of his load when he previously worked in a private criminal practice.
19 Australia follows the British system in distinguishing between two types of legal practitioners: while
most lawyers are solicitors, and most members of the public deal directly with solicitors, barristers are more
highly specialized, better paid, are usually engaged by solicitors, and generally only practice litigation.
20 This information was provided by Kina's appeal lawyer, based on official prison visitation records.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1115

V. ROBYN KINA'S STORY: PART 3

Several years later, public interest was aroused in Kina's case by two
Australian Broadcasting Commission television documentaries, one screened
in September 1992 (Without Consent) and the other in May 1993 (Excuse to
Murder). These documentaries raised legal and moral issues concerning
victims of domestic violence who kill their violent spouse in situations of self-
defense and provocation. Kina was one of several people profiled on each of
these television documentaries, and her interviews were compelling. Slowly,
shyly, but very clearly, she told the story of horrific abuse and fear that
precipitated the action that led her to kill Tony Black.
As a result of the interviews with Kina on these documentaries, the
Queensland Attorney General contacted her and a new appeal was initiated."'
The basis of the appeal, which was heard on November 22 1993, was that she
should not have been found guilty of murder because she had acted in self-
defense and under provocation. Evidence to support this appeal was clear from
her television interviews, though it had never been presented to the jury at her
trial.

VI. SOCIOLINGUISTIc EVIDENCE IN THE APPEAL

Clearly, Kina's story on the television documentaries was compelling-

compelling enough for the Attorney General to contact her. But what if she
had fabricated the story she told on television about the events that had led up
to the fatal stabbing several years earlier? The most important question that
her lawyers needed to answer at the appeal was this: Why did Kina talk about
this self-defense and provocation to television journalists in 1991 and 1992,2
but not to her lawyers in 1988?
This question was answered by experts in three different fields: psychiatry,
23
social work, and sociolinguistics. It is the sociolinguistic perspective on this

21 In fact, the 1993 appeal was her second. Kina had written to her lawyers shortly after her trial in 1988
and asked for an appeal. This appeal was carried out without any consultation between Kina and any lawyer,
and was heard on November 23, 1988. It was unsuccessful. Thus, while the appeal in 1993 was actually the
second appeal, it was the first chance Kina had to present the evidence of self-defense and provocation to the
court, which she did mainly in affidavit form.
22 While the documentaries were released in 1992 and 1993, the interviews were recorded in 1991 and
1992, respectively.
23 While both the psychiatry evidence and the sociolinguistic evidence were accepted without objection,
evidence from the social worker was objected to by the prosecution on the basis that the necessary expertise of
 EMORY LAW JOURNAL [Vol. 52

question which I was asked to provide, and which forms the focus of this part
of the Article. On the basis of my work on Aboriginal ways of
communicating and on intercultural communication between Aboriginal and
non-Aboriginal people in the legal system,25 I had some general ideas about
how this question might be answered. In order to give a specific answer I read
many documents relating to the case, including affidavits from Kina, her
lawyers, television journalists, and her counselor. I also spent about two hours
talking to Kina in prison to find out about her background, and to assess her
linguistic and sociolinguistic situation, and interviewed her counselor, a key
person in one part of Kina's story. 26
The sociolinguistic evidence which I provided to the court of appeals
centered around the fact that in 1988 Kina was communicating with her
lawyers in an Aboriginal way.27 However, her lawyers, who found her
"extremely difficult to communicate with, 28 were not aware that there are
distinctively Aboriginal ways of using English. The cultural differences in
communication were significant, but unrecognized, and prevented her lawyers
from finding out her story. On the other hand, the way that the television
journalists, as well as the counselor, communicated with Kina had several
similarities, as it happens, to Aboriginal ways of communicating. I will now
explain these differences and similarities.

A. Aboriginaland Non-Aboriginal Ways of Seeking Information

What does it mean to say, "Kina was communicating in an Aboriginal

way?" This is where the pragmatics of Aboriginal English becomes very
important in understanding not only Kina's case specifically, but lawyer-client
communication in Australia generally. And even more generally still,
understanding pragmatic differences in ways of using English can provide a

the testifying witness was in psychology, not social work. The court decided that it was unnecessary and
undesirable to rule on the admissibility of this social work evidence "because there was no real investigation of
[the social worker's] qualifications and much of her evidence need not be relied upon for the appellant's
present... purposes." R v. Kina, No. 221, at 32 (Queens. Ct. App. Nov. 29, 1993) (unreported).
24 See supra note 16 and accompanying text.
25 See DIANA EADES, ABORIGINAL ENGLISH AND THE LAW: COMMUNICATING WITH ABORIGINAL

ENGLISH SPEAKING CLIENTS: A HANDBOOK FOR LAWYERS (1992).

26 Limitations of space prevent detailed discussion of the counselor's role. See Eades, supra note I.
27 This is based on the fact that Kina had been socialized in an Aboriginal family, and most of her social
life and interactions had always been in Aboriginal groups. Likewise, she had had marginal and unsuccessful
participation in mainstream institutions, such as education and employment.
28 Kina, No. 221, at 20, 24.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1117

valuable perspective for any lawyer working with clients from a different
cultural background, even if they speak English.
The most relevant aspect of Aboriginal communication relates to the
cultural assumptions and linguistic strategies used in finding out information
and the ways in which these contrast with the assumptions and strategies used
in interviews. The interview is a speech event specific to western societies.
The use of interviewing strategies in Aboriginal societies often results in
behavior that is viewed as culturally inappropriate, bad manners, and
ineffective. The most detailed evidence on Aboriginal ways of seeking
information came from my ethnographic research, carried out from the late
1970s until the mid-90s in Southeast Queensland (the region in which Kina
grew up and spent most of her life)."

The following summary of the way that Aboriginal people seek

information in Aboriginal interactions is quoted from the handbook that I
wrote to assist lawyers in Queensland in communicating more effectively with
their Aboriginal clients:
Aboriginal societies in Australia function on the basis of small-scale
interaction between people who know each other and are often
related to each other. Information or knowledge is often not freely
accessible. Certain people have rights to certain knowledge. Direct
questions are used in some settings, particularly to find out
background details, e.g. "Where's he from?" However, in situations
where Aboriginal people want to find out what they consider to be
significant or certain personal information, they do not use direct
questions. It is important for Aboriginal people to respect the privacy
of others, and not to embarrass someone by putting them "on the
spot." People volunteer some of their own information, hinting about
what they are trying to find out about. Information is sought as part
of a two-way exchange. Silence, and waiting till people are ready to
give information, are also central to Aboriginal ways of seeking any
substantial information.

Although we can recognize these ways of seeking information in

Standard English, we use them in mainstream society only in
sensitive situations. In Aboriginal interactions these are the everyday

29 See sources cited supra note 16 (citing ethnographic research on which the understandings about
Aboriginal English pragmatics are based). Also note that ongoing investigations and communications from
Aboriginal and non-Aboriginal people indicate that the patterns which were revealed in Southeast Queensland
can be found in many areas of Australia.
 EMORY LAW JOURNAL [Vol. 52

strategies used to seek substantial information. This is a very

significant difference in the way English is used between Aboriginal
societies and mainstream societies in Australia. And an awareness of
this difference is crucial to understanding why lawyers commonly
have so much difficulty in interviewing Aboriginal clients. 3°
In contrast, everyday ways of seeking information in western societies are
often based on the assumption that direct questioning is the most effective
strategy. Silences are avoided, as they are frequently interpreted as some kind
of breakdown in the communication. Many people who need to find out
information from Aboriginal people are unaware of these subtle but important
cultural differences and use non-Aboriginal ways of communicating with
Aboriginal people. This is particularly true of professionals, such as lawyers,
teachers, and government workers, who need to conduct interviews with
Aboriginal people. The fundamental assumptions and strategies of the one-
sided interview, which are central to many Australian institutions, such as the
law, are quite contrary to the assumptions and strategies involved in Aboriginal
ways of seeking information, discussed above.

B. Information Seeking in Lawyer-Client Interviews

Thus, there are many points of contrast between Aboriginal ways of
seeking information, and those used in the legal system, particularly in the
lawyer-client interview, which is of greatest relevance here. The work of
lawyers has been described as that of "translators," translating the client's story
for the legal process.3 A good example of the complexity of this work is
found in recent sociolinguistic research that examines how affidavits required
for domestic violence temporary restraining orders (TRO) are produced. 32
Shonna Trinch provides detailed analysis of the processes involved in
transforming clients' narratives into the co-constructed format acceptable to
the specific legal process for which it is required, namely the application for a
TRO.
With regard to the interview which a criminal lawyer carries out with a
client, the primary purposes are: (1) to ascertain factual circumstances, (2) to

30 EADES, supra note 25, at 27-28.

31 Clark D. Cunningham, The Lawyer As Translator,Representation As Text: Towards an Ethnography
of Legal Discourse, 77 CORNELL L. REV. 1298, 1299 (1992). See also JOHN M. CONLEY & WILLIAM M.
O'BARR, RULES VERSUS RELATIONSHIPS (1990).
32 Shonna L. Trinch, The Advocate As Gatekeeper: The Limits of Politeness in Protective
Order
Interviews with Latina Survivors of Domestic Abuse, 5 J. SOCIOLINGUISTICS 475 (2001).
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1119

take instructions about what the client wishes to be done with this information,
and (3) to ascertain the client's criminal record ("personal antecedents"). A
very high functional load is borne by the fact-finding function of the interview.
It is also a function of such interviews that the lawyer explain relevant legal
matters to the client and advise the client on possible courses of action and
probable outcomes. It is important to note that many interviews between
lawyer and client take place under pressures of time and in circumstances
dominated by the need to perform what Clark Cunningham referred to as
"translation," by organizing factual information in legally relevant categories
(e.g. related to pleas, types of offence, taxonomies of defense, etc.).33
In affidavits to the 1993 appeal, lawyers A, B, and D all gave evidence
about their interviews with Kina that highlighted that they had found her
"extremely difficult to communicate with. 34 They each also pointed out that
at the time of interviewing Kina in 1988, they had received no training or
advice on communicating with Aboriginal people. The following quote from
the affidavit of lawyer A provides some evidence of the way in which these
lawyer interviews proceeded:
During my years with the ALS, I found that Aboriginal clients were
often extremely difficult to interview. They usually presented as
reticent and uncommunicative, and would not volunteer information
unless questioned in detail. In my experience, an important matter
could be overlooked in that situation because it was not volunteered
by the client, and not asked about by the solicitor. I expected to
experience some of these problems with the appellant, but even so
found her to be one of the most difficult clients for whom I acted at
the ALS.35
It appeared that the interviews carried out by the lawyers with Kina were
quite unsuccessful. General comments from both Kina, in her interview with
me, and the lawyers, in their written affidavits, reveal the common tendency of
people to interpret different approaches to communication in terms of
personality and intention rather than in terms of cultural difference.36
Kina's analysis of the different styles of interviewing is consistent with an
Aboriginal approach to effective ways of finding out information. It is not
surprising that she found the lawyers to be "not interested," "not listening,"

33 See Cunningham, supra note 31.

34 R v. Kina, No. 221, at 22, 24 (Queensland Ct. App. Nov. 29, 1993) (unreported).
31 Id. at 18.
36 See, e.g., JOHN J. GUMPERZ, DISCOURSE STRATEGIES (1982).
 EMORY LAW JOURNAL [Vol. 52

"not communicating," "in a hurry," and "using big words." 37 The lawyers, on
the other hand, described her as "extremely reticent in her communication with
[them]," 38 "appear[ing] passive and uninterested in the entire process of the4
39
preparation of her defence," and generally "an uncommunicative person,"
41
and "a difficult client."
My ongoing research with Aboriginal people and the lawyers who
interview them, combined with my analysis of the lawyers' and Kina's
affidavits and my interview with Kina, led me to the following understandings
about the nature of the serious miscommunication between Kina and her
lawyers leading up to her trial:
(1) While relationships are essential before serious information
can be exchanged in Aboriginal interactions, in lawyer-client
interviews there is frequently no opportunity to wait until a
relationship develops before important personal details are
sought from the client. Table 142 demonstrates how
impossible it would have been for Kina to build up such a
relationship with any of the lawyers who represented her in
1988, especially given the number of times her legal counsel
changed (i.e. three times after the committal hearing and
before the trial).

(2) In lawyer-client interviews there is frequently little of the

sharing strategy that typifies information-seeking in
Aboriginal interactions. While this may be provided by
discussion of allegations against a client (e.g., "the police
have said..."), much of the lawyer-client interview is a one-
sided interview typical of many mainstream white
institutions, including education and employment. Using
Aboriginal ways of communicating, Kina would have found it
very difficult to successfully participate in these one-sided
interviews, structured by a large number of questions. In
particular, she would have found it extremely difficult to
provide embarrassing personal information in such a context.

37 Interview with Robyn Kina in Brisbane (October 7, 1993).

38 Kina, No. 221, at 22.
39 Id.at 18.
40 Id.at 23.
41 Id.at22.
42 See supra note 20 and accompanying table.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1121

(3) The lawyer interview usually proceeds without productive

silences. This is primarily because it is a norm of non-
Aboriginal Australians, like western speakers of English
worldwide, that silence is an indication that communication
has broken down.43 Unlike counselors, lawyers are not trained
to use silence as a positive and productive part of interviews.
Further, it is common for lawyers to interrupt the silence of
Aboriginal people, not recognizing that it is a part of their
answer. Unless they are trained, either in counseling
techniques or in effective communication with Aboriginal
people, lawyers tend to wrongly interpret Aboriginal silence
in answer to a question as either unwillingness to answer or
as lack of relevant knowledge 44 Similarly, they interpret
silence in response to suggestions as acquiescence. In both
instances, the Aboriginal person is most likely thinking
through the issue at hand before formulating a response.
Specifically in Kina's case, we know that she was using a
great deal of silence in her interviews with her lawyers.45
Their misinterpretation of this silence was a significant factor
in the miscommunication.

(4) Narratives are frequently interrupted so that the lawyer can

understand the information being provided in terms of the
legal constraints and constructs within which the particular
case is operating. As well, the need to collect specific details
on a large number of points can necessitate the interruption of
the client's telling "in her own words."

C. Information Seeking in Television Interviews

There is considerable variation in the way that television journalists

conduct their interviews, for example, depending on whether the interview is
prerecorded or live, and on the particular style of journalism. It is significant
that both of the programs on which the interviews with Kina appeared were
national current affairs programs, produced by the government-funded,

43 Sociolinguistic analysis of conversations, both formal and informal, in mainstream Western English-
speaking societies have found that interlocutors feel uncomfortable with silences that are longer than about one
second. See Gail Jefferson, Preliminary Notes on a Possible Metric which Provides for a 'Standard
Maximum' Silence of Approximately One Second in a Conversation, in CONVERSATION: AN INTER-
DISCIPLINARY PERSPECTIVE 166 (Derek Roger & Peter Bull eds., 1989).
44 Kina's trial took place in 1988, at which time there was no training or literature available for lawyers
on this topic.
45 Kina, No. 221, at 21.
 EMORY LAW JOURNAL [Vol. 52

noncommercial television station, Australian Broadcasting Commission. As

such, their producers and directors are not motivated by the need to secure
advertising revenue, but are charged with undertaking serious and thought-
provoking investigative journalism.

Fortunately, we have some of the necessary information about the conduct

of the television interviewers from the affidavit of one of the two documentary
producers. She explains that the director of the initial documentary, David
Goldie, flew to Brisbane to speak to Kina before any formal or recorded
interview took place:
Our standard procedure in situations like this is to ensure that the
person to be interviewed has our confidence, and feels secure in
speaking to us .... One of David's purposes in seeing Robyn before
the interview was to make her feel comfortable with us and what we
were doing.46
Further, when the film crew went to interview Kina at a later date, they
conducted the interview in her own space, her room, and Goldie talked to her
for some time before any filming began. In her affidavit of September 8, 1993,
Kina states: "They did the interview in my cell where I had •spent
,,41 a lot of time
and had come to feel at home. They talked to me all morning .

The following three features of the way in which the David Goldie's
television interview was conducted are culturally appropriate to Aboriginal
ways of finding out information:
(1)The interviewer took the time to establish some sort of
relationship with Kina before conducting the television
interview.

(2) The interviewer provided the opportunity for Kina to give

several uninterrupted narrative accounts in telling different
parts of her story. Further, while we have no direct evidence
about the use of silence in the television interviews, the fact
that they talked with her "all moming," and that she was
comfortable with them suggests the likelihood that her silences
would have been respected to some extent.

(3) Unlike the lawyer interviews, the television interviews were

primarily concerned with hearing Kina's story. Having no

46 Aff. of Amanda Caroline Groom, at 2 (on file with author).

47 Aff. of Robyn Bella Kina, at 27 (on file with author).
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1123

need to structure the information, the journalists used prompts

to encourage her to say what she wanted to say. In contrast, in
the lawyer interview, the lawyer needed to find out about
certain aspects of Kina's story that were determined to be
legally relevant.

D. Another Kind of Information Seeking: The CounselorInterview

Although the central question in the appeal compared the lawyer interviews
with the journalist interviews, it is important to point out that in 1988, when
the unsuccessful lawyer interviews were being conducted, Kina was successful
in telling most of her story to her counselor, in counseling interviews. Thus, it
cannot be argued that the main factor which differed between the lawyer
interviews and the journalist interviews was the passage of time. Previously, I
have examined both the functions and the sociolinguistic characteristics of the
counseling interview and compared these to Aboriginal ways of seeking
information. 8

E. The Central Question

My sociolinguistic analysis found that the way in which the television

journalists, as well as the counselor, communicated with Kina involved
features that were culturally appropriate to the task of finding out sensitive and
49
embarrassing personal details from an Aboriginal person. On the other hand,
the ways in which the lawyer interviews were carried out were much less
culturally appropriate to the task of finding out sensitive and embarrassing
personal details from an Aboriginal person."'
The major differences between the counselor and television interviews, and
the lawyer interviews, would be attributable not primarily to personality
differences in the interviewers, but to the functions and natures of the different
interviews." The lack of continuity of lawyers representing Kina leading up to
the trial was also a major problem in terms of entrusting important personal
information to a person with whom one has developed a relationship2

48 See Eades, supra note 1.

49 See supra pp. 1121-22.
50 See supra pp. 1119-21.
51 Seesuprap. 1118.
52 Another relevant factor in answering this question relates to the timing of the interviews. The first of

the television interviews was conducted in October 1991, by which time Kina was developing considerable
bicultural competence. See supra p. 1114. Had she been interviewed at this time by a lawyer who had taken
some time to establish rapport, it is quite likely that she would also have spoken to that person about these
 EMORY LAW JOURNAL [Vol. 52

I concluded therefore that it was no surprise that Kina told television

journalists in 1991 and 1992 about important facts that she did not tell her
lawyers about in 1988. The manner in which information emerged in Kina's
story is totally consistent with her Aboriginal ways of communicating and with
this information being accurate and honest, even though this may seem
extraordinary to a non-Aboriginal person.
It seems quite likely that psychological factors are also relevant to this
question, particularly regarding the comparison between the interviews with
lawyers in 1988, and with the television journalists in 1991. The development
of Kina's self-confidence and sense of self-worth are issues that were raised by
the psychiatrist in her appeal.

VII. OUTCOME AND CONSEQUENCES OF KINA'S APPEAL

Somewhat to my surprise, the prosecution did not challenge the

sociolinguistic evidence, and thus I was not called to give oral evidence, as my
report, tendered in the form of a seventeen-page statement, was accepted in its
totality.53 It is difficult to assess the weight given to this sociolinguistic
evidence in comparison to the psychiatric evidence and the evidence of what
appeared to point to elements of mishandling of Kina's case by various legal
representatives. The finding of the three appeals court judges is summarized in
this extract from the judgment, co-authored by two of the judges:
In this matter [i.e. Kina's case], there were, insufficiently recognised,
a number of complex factors interacting which presented exceptional
difficulties of communication between her legal representatives and
the appellant because of:

(i) her aboriginality;

(ii) the battered woman syndrome; and

embarrassing personal details. Note that many of these embarrassing personal details had been revealed to the
counselor in 1988.
53 This is somewhat in contrast to a decision by the same court, the Queensland Court of Criminal
Appeal, some seven years earlier, which ruled sociolinguistic evidence, presented by the same expert, was
inadmissible in the case of Kelvin Condren. See Eades, The Case for Condren, supra note 16; Diana Eades,
Aboriginal English on Trial: The Case for Stuart and Condren, in LANGUAGE IN EVIDENCE: ISSUES
CONFRONTING ABORIGINAL AND MULTICULTURAL AUSTRALIA, supra note 12, at 147.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1125

(iii) the shameful (to her) nature of the events which characterised her
relationship with the deceased.

These cultural, psychological and personal factors bore upon the

adequacy of the advice and legal representation which the appellant
received and effectively denied her satisfactory representation or the
capacity to make informed decisions on the basis of proper advice.

In the exceptional events which occurred, the appellant's trial

involved a miscarriage of justice.54

As a result, Kina's murder conviction was quashed on November 29, 1993,

and she was released from prison. Although the appeals court judgments
recommended a new trial, in which she would undoubtedly have been found
guilty of manslaughter, the Attorney General exercised his discretion not to
proceed with the trial, presumably because Kina had already served nearly five
years in prison, the likely maximum sentence, given the self-defense and
provocation involved in the fatal attack.
The court's recognition of cultural differences in communication and the
need for these differences to be accommodated by the law has had some far-
reaching affects. On a practical level, the Legal Aid Office of Brisbane
organized workshops for its staff on intercultural communication in the law as
a direct response to the judgments in Kina's case.55 And, in the public debate
and discussion that followed the quashing of Kina's conviction, the Attorney
General made a strong statement about the cultural disadvantage experienced
by many Aboriginal people in the legal system. Speaking on a television
current affairs show on the day following the decision in Kina's appeal, he
said: "I think the law is going to have to find ways, and the legal system is
going to have to find ways to make special provisions frequently for
Aboriginal witnesses .. .. "," and that "the problem of crosscultural
communication is one which the legal system needs to have knowledge of and
needs to be sensitive to ....
However, it is important to point out that there is a danger that the kind of
sociolinguistic analysis presented in Kina's case might be taken to assert that

54 R v. Kina, No. 221, at 35-36 (Queensl. Ct. App. Nov. 29, 1993) (unreported).
55 See supra note 17.
56 7.30 Report (Austri. Broad. Comm'n television broadcast, Nov. 30, 1993).
57 id.
 EMORY LAW JOURNAL [Vol. 52

the vast inequities suffered by Australian Aborigines in the legal system" can
be righted simply through improving the ways in which members of the legal
profession communicate with them. Elsewhere, I have written about the need
for sociolinguists to address the ways in which language is used in the legal
process to perpetuate the neocolonial control of the State over Aboriginal
Australians." This Article focuses on the issue of improving communication
between lawyers and their clients, because that is the theme of the conference
for which it was written. 60 But it should be made clear that this is only one
aspect of the way that language is used in the legal process that needs to be
addressed in considering the disadvantage suffered by minorities in the legal
system.

VIII. IMPLICATIONS

Lawyers are well aware that language skills and effective communication
are essential in their work with clients. But to what extent are lawyers aware
of the central role that culture plays in communication? The mere fact that we
appear to share a language with someone does not mean that we have the same
norms for using and interpreting language, as we have seen in the case of
Robyn Kina. Even when grammar and accent seem quite close, ways of
communicating or pragmatics may contain considerable differences that
significantly affect communication. Kina's lawyers, thinking that she was a
poor communicator, could not see any solution to the communication
difficulties they were experiencing with her. A sociolinguistically-informed
approach would have viewed Kina's communication not in terms of deficit, but
in terms of difference, both cultural and pragmatic. Such an approach would
enable lawyers to search for culturally appropriate strategies, which could
enhance their attempts to communicate with their client. 61

58 See supra note 7 and accompanying text for examples of the shocking over-imprisonment of
Aboriginal people. See also CUNNEEN, supra note 5, at 18.
59 Diana Eades, Evidence Given in Unequivocal Terms: Gaining Consent of Aboriginal Young People in
Court, in LANGUAGE IN THE LEGAL PROCESS 161 (Janet Cotterill ed., 2002); Diana Eades, The Politics of
Misunderstanding in the Legal Process: Aboriginal English in Queensland, in MISUNDERSTANDING IN SPOKEN
DISCOURSE 196 (Juliane House et al. eds., 2003) [hereinafter Eades, The Politics of Misunderstanding]; Diana
Eades, Understanding Aboriginal English in the Legal System: A Critical Sociolinguistics Approach
(unpublished manuscript on file with author).
60 For discussion of a case where an understanding of cultural differences in communication was used to
achieve misunderstanding of Aboriginal witnesses see Eades, The Politics of Misunderstanding, supra note 59.
61 See, for example, strategies provided in the lawyers' handbook, EADES, supra note 25.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1127

To what extent are lawyers aware of the cultural assumptions that are at the
basis of everyday communication in the law, and which may not be shared
with people from other cultural backgrounds? Like any social institution, the
working of the law depends on a number of cultural assumptions. But these
assumptions are generally mistakenly seen as facts. These legal/cultural
assumptions generally derive from or relate to wider cultural assumptions from
mainstream society. The following are some examples of such cultural
assumptions that are often taken as "facts" in western institutions, such as the
law:
(1) Silence in answer to a question indicates ignorance, shyness,
or unwillingness to cooperate. Silence in answer to an
accusation (possibly masquerading as a question) indicates
guilt.

(2) If a person being interviewed can't look the interviewer in the

eye, then she is trying to hide something.

(3) Conflicting answers in an interview are a sure clue to a

speaker's dishonest and untrustworthy character.

(4) The most effective way to find something out is to ask a

question.

(5) The most effective way to find out many things is to ask many
questions.

(6) The best way to test a person's truthfulness is to put

conflicting propositions to her and see what she agrees to.
While we see a manipulation of these assumptions in adversarial legal
contexts, such as cross-examination, they may nevertheless underlie all legal
contexts, including lawyer-client conferences. Kina's case, in which the
serious miscommunication was not in cross-examination but in interviews with
her own lawyers, shows how problematic the unquestioning acceptance of such
assumptions about the communication process can become. Compare cultural
assumptions 1-6 above with those numbered6 a-f below, which are widely held
in Aboriginal societies throughout Australia: 1
(1) People who use silence should be respected for their
thoughtfulness and their recognition of the value of time.

62 id.
 EMORY LAW JOURNAL [Vol. 52

(2) It's rude to make direct eye contact with a person you should
respect, especially an older person.

(3) If you want to find out whether a person is honest and

trustworthy, you need to take time to get to know her; don't
rush her, and don't talk all the time when you are with her.

(4) Interrupting a person's story with questions makes it harder for

her to be accurate and consistent.

(5) Asking many questions is rude, and it is a very ineffective way

of finding things out.

(6) If a white person in authority asks you many questions,

especially in a pressured situation, the best thing is to say
"yes," to keep them happy. If it's a negative question, say
'no."

Because of my experience and knowledge, I have focused on an example

from Aboriginal Australia. But, I believe this discussion of culture and
communication in Aboriginal Australia has revealed the tip of what is
undoubtedly a massive iceberg. What about cultural assumptions in the many
social groups that live in the United States and come before the legal system in
this country? In fact, some of the ways of communicating that distinguish
Aboriginal people from mainstream speakers of English in Australia are also
relevant in a number of intercultural settings in the United States.
We saw that a major communication problem between Robyn Kina and her
lawyers related to differences in the way that silence is used and interpreted
conversationally. This cultural difference in communication is not restricted to
the Australian situation. A number of sociolinguists and anthropologists have
pointed out that Native Americans use silence quite comfortably in their
interactions, and the failure of other Americans to realize this aspect of
pragmatics, can result in miscommunication.63 And in fact, the Native-
American use of silence was a key issue in the sociolinguistic evidence given
by the most eminent scholar in intercultural sociolinguistics, Professor John

63 See WILLIAM L. LEAP, AMERICAN INDIAN ENGLISH 87-89 (1993); SUSAN URMSTON PHILIPS, THE
INVISIBLE CULTURE: COMMUNICATION IN CLASSROOM AND COMMUNITY ON THE WARM SPRINGS INDIAN
RESERVATION (1983); RON SCOLLON & SUZANNE SCOLLON, NARRATIVE, LITERACY AND FACE IN
INTERETHNIC COMMUNICATION 14-15 (1981); Keith H. Basso, "To Give up on Words:" Silence in Western
Apache Culture, 26 Sw. J. ANTHROPOLOGY 213 (1970).
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1129

Gumperz, 64 in the 1989-90 retrial of Patrick Croy in the Supreme Court of

California. 65 Croy's case was the result of a shoot out in which twenty-seven
police officers fired more than 200 shots, and Croy, his sister, and cousin fired
twenty shots. One police officer was killed while one police officer and the
three Native Americans were injured. The resulting murder charge against
Croy was based, to a considerable extent, on his silence in response to remarks
allegedly attributed to his sister earlier in the day about wanting "to get some
cops." 66 In presenting a cultural defense, Gumperz pointed out that "meanings
of silence vary greatly with culture and context. ' 67 Drawing on research about
silence in a number of Native-American communities, as well as research
specifically in Croy's community, Gumperz showed that it was culturally
inappropriate to interpret Croy's silence as agreement. Incorporating this
sociolinguistic evidence, Croy's defense successfully argued that the shooting
was a case of self-defense, as Croy was being shot at from two sides.
Another telling U.S. case involving miscommunication over cultural
differences in the use and interpretation of silence, is found in Margaret
Montoya's 68 analysis of the impact of the "momentary silence" of bilingual
Hispanic jurors in the case of Hernandez v. New York. 6 ' Hernandez was the
1991 Supreme Court case that held that Spanish speakers could be excluded
from jury service in a case in which interpreted evidence would be given
originally in Spanish, if the prosecutor believed that these potential jurors
would rely on the witness's actual testimony, rather than the English
interpretation. The crucial point in the Hernandez trial occurred during the
voir dire, when the prosecutor asked Spanish speakers whether they could
accept the interpreter's translation of the testimony. 7° The prosecutor, as
quoted in the New York Court of Appeals, said that when he asked this, "They
each looked away from me and said with some hesitancy that they would try
.7Montoya points out that the prosecutor chose to disbelieve the

64 See Gumperz & Cook-Gumperz, supra note 14.

65 John J. Gumperz, Contextualization and Ideology in Intercultural Communication, in CULTURE IN
COMMUNICATION: ANALYSES OF INTERCULTURAL SITUATIONS 35 (Aldo Di Luzio et al. eds., 2001).
66 Id. at 39-40.
67 Id. at 50.
68 Margaret E. Montoya, Silence and Silencing. Their Centripetal and Centrifugal Forces in Legal

Communication,Pedagogy and Discourse,5 MICH. J. RACE & L. 847, 855 (2000).

69 500 U.S. 352 (1991).
70 People v. Hernandez, 552 U.S. 621,622 (1990).
71 id.
 EMORY LAW JOURNAL [Vol. 52

potential jurors' actual words, and chose instead "to give a particular meaning
to their demeanor, that is, their lack of eye contact and their hesitancy. ...
""
The legal term "demeanor" is used here to refer to two significant features
that sociolinguists include in the pragmatics of language: namely eye contact
and silence. In Montoya's analysis of the prosecutor's interpretation of these
pragmatic features, we have a law professor providing a clear sociolinguistic
argument about the legal implications of cultural differences in
communication. She says:
I argue that the prosecutor was interpreting the hesitancy on the part
of the potential jurors-their pausing before speaking, their silence-
in a manner that was consistent with his worldview. Indeed, I think
the prosecutor did not know enough about nonverbal communication,
particularly cross-cultural communication, to understand that silence,
pauses, and hesitations are encoded with meaning in relation to the
words and the language being spoken, I further assert that silence
with ....
its multiple
73 meanings is an unexplored aspect of linguistic
discrimination.
While the lack of understanding of Aboriginal silence in Robyn Kina' s case
and Native-American silence in Patrick Croy's case appears to have played a
significant role in those two wrongful murder convictions, the lack of
understanding of Hispanic silence and avoidance of direct eye contact in the
Hernandez case arguably makes somewhat of a mockery of the right to a "jury
of one's peers." The distinctive use of silence in conversations has also been
described by a number of scholars of language use in Asian countries, such as
Japan74 and China." To what extent do immigrants from these countries
continue such communicative practices in countries like the United States,
even when speaking English, and how might this impact lawyer-client
interviews?
The use or avoidance of eye contact is another example, where cultural
differences can impact communication in legal settings, as we saw above in
Montoya's discussion of the Hernandez case. 76 In the Australian Aboriginal
context people often avoid direct eye contact, especially with authority figures

72 Montoya, supra note 68, at 876.

" Id. at 874.
74 Takie Lebra, The Cultural Significance of Silence in Japanese Communication, 6 MULTILINGUA 343
(1987).
75 LINDA W.L. YOUNG, CROSSTALK AND CULTURE IN SINO-AMERICAN COMMUNICATION (1994).
76 See supra note 68 and accompanying text.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1131

because it can be considered rude or threatening. This obviously contrasts with

the expectation in western societies that it is rude not to make eye contact with
the person you are speaking to. The significance of this cultural difference is
explained in the Lawyers' Handbook in this way: "Aboriginal avoidance of eye
contact in legal interviews should not be interpreted as rudeness, evasion or
dishonesty. 77 A similar cultural difference also appears to operate in
intercultural communication in the United States with immigrants from a
number of countries, including Laos," Vietnam, 7 9 and Mexico.
In the United States, it appears that the only detailed examination of
cultural differences in communication as it affects the legal system is the
anthropological linguistic work of Phyllis Morrow with Yup'ik Alaskans,
speakers of both the Yup'ik language and "local Yup'ik-influenced English."
Writing for lawyers in the Alaska Justice Forum, Morrow points out Yup'ik
and Euro Americans have "fundamentally different approaches to the
management of speech and interpersonal relationships."' In discussing this
"sociolinguistic mismatch," Morrow points out that "the primary flow of
information in Yup'ik society is not through direct questions and answers. ' 2
As with Australian Aboriginal societies, indirectness in interactions is central,
and "the more informal or distant the relationship between speakers, the more
care is taken to be indirect. '83 This obviously presents challenges to non-
Yup'ik involved in the legal process with Yup'ik. Further, Gumperz's work
on the Croy case in northern California 4 suggests that the issue of Native
Americans' ways of communicating is not restricted to Alaska.
As Montoya's work has suggested, differences in ways of communicating
are not limited to interactions with indigenous people." In the United States,

77 EADES, supra note 25, at 55.

78 Janet Bauer, Speaking of Culture: Immigrants in the American Legal System, in IMMIGRANTS IN
COURTS 8, 10 (Joanne I. Moore ed., 1999).
79 Tai Van Ta, Vietnamese Immigrants in American Courts, in IMMIGRANTS IN COURTS, supra note 78, at
155.
80 Juan-Vicente Palerm et al., Mexican Immigrants in Court, in IMMIGRANTS IN COURTS, supra note 78,
at 92. See also Montoya, supra note 68; text accompanying notes 65-70.
81 Phyllis Morrow, A Sociolinguistic Mismatch: Central Alaskan Yup'iks and the Legal System, 10
ALASKA JUST. F. 1 (1993) [hereinafter Morrow, A Sociological Mismatch]. See also Phyllis Morrow, Yup'ik
Eskimo Agents and American Legal Agencies: Perspectives on Compliance and Resistance, 2 J. ROYAL
ANTHROPOLOGICAL INST. 405,410-13 (1996).
82 See Morrow, A Sociolinguistic Mismatch, supra note 81, at 6.
83 id.

84 See supra notes 65-67 and accompanying text.

85 See supra notes 68-73 and accompanying text.
 EMORY LAW JOURNAL [Vol. 52

African Americans are the ethnic group that is most disadvantaged by the legal
system. A study conducted in 1993 showed that African Americans were six
times more likely to be imprisoned than white Americans. 6 To what extent
might cultural differences in ways of communicating be involved in this
disadvantage? For about three decades, linguists have examined the
grammatical structure of African-American English, 7 and sociolinguists have
paid some attention to certain ways of communicating, such as signifying and
sounding." But to my knowledge, there has been almost no research that
investigates the implications of distinctively African-American ways of
communicating in the legal system. The exception is the writing of John
Gumperz who presented sociolinguistic evidence in the late 1960s case of a
"well-known, but highly controversial black community leader ' 8 9 whose
speech to an anti-war rally led to an indictment for threatening the life of the
American president.9 ° To briefly summarize the complex linguistic and
sociolinguistic evidence in this case, it involved a demonstration of the ways in
which the speaker was using speech-making styles typical of African-
American religious sermons, and it also involved a semantic analysis of the
verb "kill," as used in the allegedly life-threatening exclamation "we will kill
Richard Nixon," as meaning "destroy the influence of' in African-American
English. The case never came to trial, as it was dismissed on a technicality.
Further, as countries like Australia and the United States become
increasingly culturally and linguistically diverse, the potential for
miscommunication with immigrants intensifies. The area of intercultural
communication with Native-American, African-American, and immigrant
groups in the legal system is an important one for future sociolinguistic and
sociolegal research. While there is a growing interest in international
intercultural communication, for example in ways of conducting business with

86 SAMUEL WALKER ET AL., THE COLOR OF JUSTICE: RACE, ETHNICITY AND CRIME IN AMERICA 1 (1996)

(citing MARC MAUER, AMERICANS BEHIND BARS: THE INTERNATIONAL USE OF INCARCERATION 1992-1993
(1994)).
87 See, e.g., AFRICAN-AMERICAN ENGLISH: STRUCTURE, HISTORY AND USE (Salikoko Mufwene et al.
eds., 1998); WILLIAM LABOV, LANGUAGE IN THE INNER-CITY: THE BLACK ENGLISH VERNACULAR (1972);
JOHN RICKFORD, AFRICAN AMERICAN VERNACULAR ENGLISH: FEATURES, EVOLUTION, EDUCATIONAL
IMPLICATIONS (1999).
88 E.g., ROGER D. ABRAHAMS, TALKING BLACK (1976); THOMAS KOCHMAN, BLACK AND WHITE STYLES
IN CONFLICT 52-56 (1981); MARCYLIENA MORGAN, LANGUAGE, DISCOURSE AND POWER IN AFRICAN
AMERICAN CULTURE 56-58 (2002).
89 GUMPERZ, supra note 36, at 187.
90 Id. at 187-203.
2003] "I DON'T THINK THE LAWYERS WERE COMMUNICATING WITH ME" 1133

Chinese companies,9 there is just as important a need to understand how

cultural differences in ways of communicating affect the intra-national
participation of immigrant groups, within countries with a predominantly
Anglo monolingual and monocultural legal system.
It is important when approaching such issues to avoid the dangers of
stereotyping, over generalization, and the essentialization of culture." For
example, we cannot assume that there is only one Chinese way of doing things,
or that all Chinese immigrants will communicate in Chinese ways-some may
become bicultural, choosing to use Chinese ways in Chinese interactions and
mainstream American ways in their dealings with the law, for example. There
are no easy short cuts in dealing with these complex issues. My view, which is
consistent with much current sociolinguistic work, is that, while it is important
not to engage in stereotyping and essentialization, it is just as dangerous to
ignore widely shared norms of language use that are involved in
understanding. 93

IX. WHAT CAN LAWYERS Do?

Being in tune to cultural differences in communication and working with

clients in a way that minimizes the adverse impact of these differences presents
many challenges for lawyers. It is clearly impossible for a lawyer to know
about all the cultural differences in an increasingly complex and diverse
multicultural societies. But there are a number of things that lawyers can do:
(1) From the outset, it is important not to dismiss clients as "poor
communicators," especially if there is a possibility that they
could be using culturally different ways of communicating.
Being open to the possibility that poor communication is a
product of the intercultural context, rather than the weakness
of one of the parties, provides much more opportunity for
ways of addressing communication difficulties.

(2) It is also important not to assume that ways of communicating

are shared, simply because both parties seem to be using
English. Dialectal differences may be apparent at the level of
vocabulary, accent, or grammatical structure. But pragmatic

91 See YOUNG, supra note 75, at 2.

92 See, e.g., ALASTAIR PENNYCOOK, CRITICAL APPLIED LINGUISTICS: A CRITICAL INTRODUCTION (2001).
93 See,e.g., Nikolas Coupland, Introduction: Sociolinguistic Theory and Social Theory, in
SOCIOLINGUISTICS AND SOCIAL THEORY 1, 18-19 (Nikolas Coupland et al. eds., 2001).
 EMORY LAW JOURNAL [Vol. 52

dialectal differences may be much more subtle and easier to

misconstrue, as we have seen in Kina's case.

(3) When possible, clients should be matched with lawyers who

share not just language, but also cultural background with
them. Many people are not consciously aware that the ways of
communicating are particular to their social group. But when
they are with people who share these norms, they have no
difficulty in using them to communicate.

(4) Paralegals who share cultural background as well as language

have a great advantage in terms of effective communication
with clients.

(5) One of the most valuable strategies is for lawyers to be explicit

about their own cultural assumptions and those widely held by
the legal process that are relevant in working with their client.

(6) One of the main lessons from Kina's case can be applied the
world over: Working with clients from a different cultural
background often takes more time. Perhaps this could be seen
as a troubling conclusion in a world where, more than ever
before, time is money. But, taking seriously the professional
responsibility to represent clients fairly, the legal system has to
acknowledge that equal justice for clients who do not share the
cultural assumptions of the law may often require more time.

(7) Finally, at the risk of promoting my own profession, I suggest

that law schools and legal professional training can benefit
from the inclusion of some sociolinguistic components.
Understanding complexities in the way that language is used
in society is a goal that is shared by lawyers and sociolinguists
alike.