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The Guide to Advocacy - Second Edition

Cultural Considerations in Advocacy: Latin America

Advocacy is part science and part art. Part science because advocacy must take into account basic rules of logic and the rational application of legal principles to known facts. Part art because that exercise in rationality and logic takes place through mental filters, such as cognitive biases, prejudices, legal tradition (common law versus civil law), and perceptions shaped by culture,[2] that make the process vary from individual to individual.

In this article, we address culture as a factor in advocacy, with a special focus on Latin America.

We do so subject to three threshold points:

  • While biases, prejudices, legal traditions and culture are each ever-present factors in human legal decision-making, they are intangible. Each of these factors affects each person differently. So generalisation and oversimplification are always a risk when trying to dimension something that cannot be measured scientifically for a particular individual.
  • ‘Culture’ can refer to a legal tradition, such as civil versus common law, as well as social culture, separate from the legal tradition involved.
  • As international arbitration spreads, the impact of culture on the process is at once diminishing and increasing. It is diminishing in that best practices, such as the IBA Rules and other soft law, are increasingly used in international arbitration and are ameliorating the differences in traditions. At the same time, though, more arbitrations are being handled by a greater number of lawyers with parties from a greater diversity of countries and regions in more local seats (as opposed to the traditional arbitral seats), thereby injecting more local flavours into international arbitration than existed when arbitration practice was by and large the province of a relatively small club.

With those caveats, we share some of the lessons we have drawn over years of advocating in Latin American disputes.

Cross-examination – the witnesses

Hollywood motion pictures and American television shows dramatising cross-examination are well known globally, including in Latin America. In our experience, virtually all lay witnesses, be they from Latin America or elsewhere, are apprehensive about being obligated to sit still and answer questions about a subject in controversy. So, it is always important to explain to all lay witnesses what the cross-examination process will be like.

But beyond that, the ability of the witness to provide the tribunal with an accurate portrayal of the facts – namely, what actually happened – is affected by, among other things, his or her understanding of the rules of engagement (procedure), personality, communication skills, intelligence and culture.

Culture comes into play because the process of cross-examination takes place within a framework in which power is allocated among the actors, both explicitly and implicitly. The allocation is explicit in that the rules of procedure grant to a party’s counsel the right (read: power) to require the witness to answer questions, and allocates to the arbitrators the power to decide what questions are permissible and what answers are responsive.

But there is an implicit allocation of power that is also at work in any cross-examination, which must be taken into account. It derives from the rules that require a witness to answer questions even when the witness would rather not answer them, failing which, the witness could damage the case of the party that put the witness forward to prove that party’s version of the facts.

This is where culture comes in. Yes, there are differences between the civil and common law cultures (legal traditions) with respect to cross-examination, but here we refer first and foremost to social culture.

Different cultures relate to power in different ways, so much so that anthropologists have developed a relative measure for it, known as power distance. Power distance is defined as ‘the extent to which the less powerful members of institutions and organizations within a country expect and accept that power is distributed unequally,’[3] and has been quantified in an index by country accounting for elements that influence whether in the culture of a given society there is a deep and abiding respect for authority. It includes, for example, a subordinate’s expectation as to whether he or she should be consulted or simply be told what to do.[4]

The power distance index is measured on a continuum. A higher numerical measure is ascribed to societies that have clearly defined and established hierarchies, in which authority is not questioned and participation is not expected. A low numerical value for power distance appears in a society in which members question authority and expect to participate, with a more balanced distribution of power. The fact that culture bears on a witness’s ability to communicate in the context of a cross-examination becomes particularly important in a Latin American context because Latin American countries, for the most part, tend to have a high power distance index.[5]

While the index varies from country to country, for our purposes in addressing culture as a factor in dispute resolution in the region, it is sufficient to say that on balance, the index tends to be higher in the region[6] and therefore should be considered carefully in the context of cross-examination in which relative ‘power’ can have a strong influence in the elicitation and communication of testimony.

A witness with a high power distance orientation will tend to feel compelled to defer and be less willing to push back on a questioner they perceive as being higher in the social hierarchy. We have not found that witnesses will give an answer they consider false because of their power distance index. What we have found is that when witnesses come from a high power distance culture, they have been reluctant to ask a cross-examining counsel for clarifications of ambiguous questions, and instead, have given imprecise or indefinite answers motivated, at least in part, by a desire not to disagree with what they perceive to be a higher authority.

While counsel should explain the process of cross-examination and the rules of engagement to every witness, regardless of the culture involved, the need to do so becomes all the more important when dealing with witnesses from high power distance cultures. The witnesses from those cultures, especially, need to understand their testimony is important and valued, and therefore that they should listen carefully and answer thoughtfully, that it is not disrespectful to answer only questions they understand, that they are entitled to a fair opportunity to answer the questions fully and to the best of their ability, and that there is no ‘hierarchy’ that should deter them from those principles.

The tribunal can play an important role in assuring that the value of testimony is not diminished by factors such as a witness’s power distance culture, by assuring the witness that he or she feel at ease in putting forth the truth, not hesitate to address the tribunal and so on.

Of course, the issue of cultural power distance works in other ways. Just as persons lower in the hierarchy in a high power distance culture can tend to be too deferential and accepting of authority, persons at the high end of the hierarchy in high power distance cultures can tend to be dismissive and resistant to fair cross-examination. While it is important for a tribunal to guard the process against efforts of a cross-examiner to distort the truthful testimony of a witness by taking advantage of cultural factors such as the reluctance of a witness to ‘push back’ on captious questions, it is also important for the tribunal to protect the cross-examination process from witnesses in high power index cultures who occupy the high end of the social hierarchy.

We have seen instances in which a witness who comes either from wealth or high office has deemed the process of being questioned by a cross-examiner as beneath them and proceeded to resist by giving evasive answers. While a good cross-examiner can deal with such witnesses, the cross-examiner can do so only if the tribunal itself doesn’t fall victim to the deference often given to persons at the high end of the hierarchy. We have more than once seen tribunals be deferential to CEOs and others high in the social hierarchy in ways that they would not be with witnesses of lesser station, and decline to instruct the ‘important’ witness to listen to the question and answer it directly.

Culture also enters the witness examination process in other ways. For example, Latin American societies tend to be gregarious and collectivist societies, as opposed to individualistic societies.[7] In preparing a witness for cross-examination, it is important to help him or her understand that the process is important, with significant consequences for both sides, and that at all times he or she should remain professional and civil, but also vigilant against efforts to manipulate him or her. While the process of giving testimony under cross-examination is not, and should not be seen as, a mano a mano fight, witnesses need to understand that neither is it a casual conversation with someone who will give them the benefit of the doubt if they misspeak.

Skilful cross-examiners can take advantage of the social tendencies of gregariousness and collectivism by tailoring their cross accordingly, being deliberately low-key, chatty and informal, thereby lowering the witness’s sense of the importance of speaking precisely. This occurs not only during the cross-examination. In one instance, during a break in a hearing, we found our witness gathered in a group of the other side’s witnesses and opposing counsel, engaged in social conversation and cracking jokes. That’s all perfectly normal social behaviour in a non-confrontational context, but that mindset lends itself to less careful listening and precision in expression. It will be difficult for the witness to turn the ‘careful listening and speaking’ modality back on once the cross resumes and opposing counsel continues to charm the witness. Counsel should be mindful of this potential dynamic and during preparations advise the witness to limit interactions with the lawyer interrogating him or her and other representatives of the opposing party.

Cross-examination – counsel and the tribunal

Common law practitioners will likely be familiar with the saying that cross-examination is ‘the greatest legal engine ever invented for the discovery of truth’.[8] Cross-examination is a fundamental advocacy tool for a lawyer in the context of the common law adversarial system.

In contrast, Latin American countries follow the civil law tradition. Their procedural systems have been less reliant on oral testimony and more reliant on documentary evidence.[9] Moreover, traditionally the systems have been inquisitorial, which gives judges greater influence in the proceedings.[10] In many Latin American countries, questions during judicial hearings are posited primarily by the judge or a judicial officer, or are posited by the parties through the judge. As a result, common law-style cross-examination has not been a technique much developed or practised in the judicial systems of Latin America.

Although the dividing lines are increasingly becoming blurred in international arbitration as participants become more experienced and sophisticated, these contrasting points of view nonetheless continue to inform the approach and weight given by counsel and arbitrators alike to cross-examination. Counsel needs to be mindful of that, and adapt as needed.

For example, a technique often used to conduct a cross-examination is to impeach a witness’s assertions by confronting the witness with inconsistencies between his or her testimony or statement and the documentary evidence in the record (e.g., in paragraph X of the witness statement the witness said something that is inconsistent with what he or she said in an email). The premise behind the tactic is that if the witness lied about or misremembered X, he or she could have lied or misremembered with regard to other important points.

The importance and utility of cross-examination are beyond the scope of this chapter. But the analysis of the importance and utility of cross-examination is integrally tied into culture (read: legal tradition). How the arbitrator views his or her mission – whether ‘to issue a ruling based on the truth of what happened’ versus ‘to efficiently bring a business dispute to a resolution’ – affects the value that the arbitrator ascribes to cross-examination and the latitude that will be accorded to cross-examining counsel.

In the example given of the inconsistency between the documents and the testimony, an arbitrator who places more weight on documentary evidence might see little value in having the witness confronted with the contradiction, as the arbitrator will already be predisposed to discount the oral testimony in favour of the documents anyway. So, during cross-examinations we have seen arbitrators say: ‘I can read the witness statement and the email (or document) – they speak for themselves.’

In addition, some arbitrators in the region believe that the process of confronting the witness with the contradiction between the witness’s testimony and the document in question can be done in writing in post-hearing memorials or oral argument.

That view short-changes both the witness and the party that wanted to cross-examine. The witness is short-changed because when counsel points out the inconsistency after the hearing, the witness is off the stand and does not have a fair opportunity to explain the inconsistency. Second, in many instances, the inconsistency between the testimony and the documents is best illustrated by the witness’s inability to explain the inconsistency away. Third, the imprecise memory or mendacity of the witness is often not proven by single contradiction, but rather by a series of small inconsistencies that become significant once grouped together, namely, a cumulus of inconsistency sufficient to cast doubt on the reliability of the testimony on critical points. Fourth, page limitations often imposed by tribunals upon post-hearing memorials limit the ability to set forth the inconsistencies point by point. Fifth, sometimes it is not the witness’s testimony that counsel is seeking to impeach through cross-examination but, rather, it is the document that counsel is trying to undermine; depriving counsel of the opportunity to cross-examine adequately effectively protects a document that might be flawed.

Assuming that the testimony or document that counsel is seeking to impeach is important, counsel needs to find a way to persuade the tribunal to permit a fair cross-examination. Outside the presence of the witness, counsel should explain to the arbitral tribunal or arbitrator the relevance and reason for the line of questioning.

In any event, counsel should always bear in mind that, generally speaking, the legal tradition of the arbitral tribunal will inform its views of the scope and style of cross-examination that will be permitted, and, therefore, counsel should tailor the questions accordingly. Cultural issues (read now: both legal tradition and social culture) define what a tribunal will view as acceptable behaviour in the course of a cross-examination. Much has already been written about the fact that an aggressive US-style cross-examination does not sit well with a traditional civil law-oriented tribunal, and there’s nothing in Latin America that changes that.[11]

This sensitivity goes beyond the process of cross-examination – it is rooted in the boundaries of conduct deemed appropriate when treating participants in the arbitral process. In one case, for example, opposing counsel sought to introduce into the record at the hearing an isolated past police report of an expert witness’s offence of driving while intoxicated that had no bearing on the witness’s technical testimony, credibility as an expert or ability to render testimony. Opposing counsel’s objective was to rattle and embarrass the expert. The Latin American arbitral tribunal took issue with the tactic, admonished opposing counsel and made clear that the arbitrators were displeased.

Document production

Latin American judicial systems do not have robust procedures whereby one party can compel the other party to produce evidence. The procedural rules of Latin American countries do not, generally speaking, provide for ‘interrogatories’ (written questions that the opposing party must answer), ‘requests for admissions’ (factual assertion put by one party to the other that the recipient must admit or deny) or ‘depositions’ (process in which a party must appear and under oath answer questions posed by the opposing party’s lawyer), all of which are available under American rules of civil procedure.

While some Latin American systems provide for ‘requests for production’ (whereby one party can ask the other to produce internal documents(s)), the procedure is very limited, requires a high degree of specificity (date, sender, recipient, etc.) and some would say, is of little use. In any event, the procedure bears no comparison with the expansive system available under US common law whereby categories of documents can be requested and sanctions can be imposed if a party fails to comply with its obligation to produce.

Again, much has been written about the merits or demerits of requiring document production in international arbitration, but the right to request documents is today a reality in international arbitration. The IBA Rules on the Taking of Evidence now embody document production as an acceptable practice.

Latin American parties will often be taken aback by the sometimes expansive nature of requests for production in an international arbitration. Even more, parties have difficulty accepting the idea of having to voluntarily provide to the opposing party documents that are prejudicial or potentially damaging. While in other contexts, such as the American judicial system, parties are more exposed to the idea of producing private documents and might have a less difficult time understanding the reasons for and importance of the obligation, it is an especially difficult concept to accept in the context of a legal tradition that has no analogue in the civil justice system, and social cultures that operate with less transparency.

Given that international arbitration now includes document production, counsel’s challenge is to persuade the client of the importance with which the obligation to produce must be treated. It is a process of education, requiring both an explanation of the rules and the obligation, as well as the benefits of complying.

While Latin America has a large and growing bar of sophisticated international arbitration practitioners who are expert in the best practices of international arbitration, new players, formed in the judicial litigation tradition in Latin America, are entering the world of international arbitration. Cultural issues with respect to document production become acute with new entrants. The IBA Guidelines on Party Representation in International Arbitration provide helpful orientation to counsel and parties on the extent of the duty and expected conduct. We have more than once used the guidelines as a tool to educate clients on the extent of the obligation, noting that counsel should:

  • ‘inform the client of the need to preserve’[12] documents;
  • ‘explain to the Party whom he or she represents the necessity of producing, and potential consequences of failing to produce, any Document that the Party or Parties have undertaken, or been ordered, to produce’;[13]
  • ‘advise the Party whom he or she represents to take, and assist such Party in taking, reasonable steps to ensure that: (i) a reasonable search is made for Documents that a Party has undertaken, or been ordered, to produce; and (ii) all non-privileged, responsive Documents are produced’;[14]
  • ‘not suppress or conceal or advise a Party to suppress or conceal, Documents that have been requested by another Party or that the Party whom he or she represents has undertaken, or been ordered, to produce’;[15] and
  • ‘if, during the course of an arbitration, a Party Representative becomes aware of the existence of a Document that should have been produced, but was not produced, such Party Representative should advise the Party whom he or she represents of the necessity of producing the Document and the consequences of failing to do so.’[16]

Concluding remarks

Many Latin American international arbitration cases are no different from international arbitration cases stemming from any other major international business transaction elsewhere in the world. The lawyers and arbitrators are as aware of best practices as lawyers and arbitrators anywhere else in the world and, in fact, have led organisations and spearheaded efforts to develop worldwide best practices. That said, one of the privileges of the practice of international arbitration is that globalisation does not mean homogenisation, and there remain practices, tendencies, preferences and values, both social and legal, that differentiate practice in one region versus another. The Latin American practice of arbitration is rich in talent and opportunity. Attention to the cultural differences will go a long way to help parties feel comfortable in that setting and counsel advocate persuasively.

Notes


[1]      José I Astigarraga is the global head of the international arbitration practice at Reed Smith LLP and Eduardo J  De la Peña Bernal is counsel at the firm.

[2]      Culture shapes a person’s perception. See Sharon Shavitt, Angela Y. Lee & Timothy P. Johnson, Cross-Cultural Consumer Psychology (1103) in HANDBOOK OF CONSUMER PSYCHOLOGY (Curtis P. Haugtvedt, Paul M. Herr, & Frank R. Kardes eds., 2008) (Culture includes ‘shared elements that provide standards for perceiving, believing, evaluating, communicating, and acting among those who share a language, a historical period, and a geographical location’.)

[3]      Geert Hofstede, Dimensionalizing Cultures: The Hofstede Model in Context 9, in ONLINE READINGS IN PSYCHOLOGY AND CULTURE, 2(1) (International Assoc. for Cross-Cultural Psychology 2011), available at https://doi.org/10.9707/2307-0919.1014.

[4]      Id.

[5]      Id. at 10.

[6]      On a scale of 1 to 100, the power distance index for Guatemala is 95, Panama 95, Mexico 81, Venezuela 81, Ecuador 78, Brazil 69, Colombia 67, Peru 64, Chile 63, and Uruguay 61. Compare with Austria’s Power Distance Index of 11, Denmark’s 18, Sweden’s and Norway’s 31, Finland’s 33, United Kingdom’s 35, Germany’s 35 and United States’ 40. Argentina and Costa Rica are Latin American outliers with a Power Distance Index of 49 and 35. See Geert Hofstede, Country Comparison, available at https://geert-hofstede.com/countries.html (accessed 1 September 2017).

[7]      Hofstede’s Index for individualism, with being 1 the lowest possible number and 100 the highest rank, has seven Latin American countries in the top 10 scale of the less individualist societies (Guatemala, Ecuador, Panama, Venezuela, Colombia, Costa Rica and Peru). No Latin American country evaluated ranks above the median, 50. The closest is Argentina, with a 46-point index. In contrast, the top 10 countries in the individualism index rank much higher with the United States with 91 points, Australia with 90, the United Kingdom with 89, the Netherlands with 80, New Zealand with 79, Italy with 76, Belgium with 75, Denmark with 74, France with 71 and Sweden with 71. See Geert Hofstede, Country Comparison, available at https://geert-hofstede.com/countries.html (accessed 1 September 2017).

[8]      JOHN HENRY WIGMORE, 5 Evidence in Trials at Common Law, Section 1367 (James H. Chabourn ed., Little, Brown & Co. 1974).

[9]      See JEFFREY WAINCYMER, PROCEDURE AND EVIDENCE IN INTERNATIONAL ARBITRATION 746 (Kluwer Law International 2012) (‘Common law systems have also relied heavily on oral testimony, tested by cross-examination, while civilian systems tended to give greatest weight to contemporaneous documents.’).

[10]     See RAGNAR HARBST, A COUNSEL’S GUIDE TO EXAMINING AND PREPARING WITNESSES IN INTERNATIONAL ARBITRATION 6–7 & 11–12, (Kluwer Law International 2015) (‘The judge is the master of the evidence in the civil law tradition.This also influences the method of taking the evidence. It is the judge who usually questions the witness first. When doing so, the judge will put open, non-leading questions to the witness,’ whereas in the common-law adversarial system the ‘approach is entirely different. As mentioned, the system counts on active and powerful cross-examination of the witness in order to determine the evidentiary value of the testimony. The process of obtaining this testimony is therefore lawyer-driven.’).

[11]     See, e.g.,WAINCYMER at 917 (‘While cross-examination is now common, the more aggressive approach to cross-examination, seeking to challenge the veracity and expertise of a witness, might be considered unseemly by some civilian arbitrators and hence be a questionable strategy.’).

[12]     IBA Guidelines on Party Representation in International Arbitration, No. 12.

[13]     Id., No. 12.

[14]     Id., No. 14.

[15]     Id., No. 16.

[16]     Id., No. 17.