I was called by an insurance company for an emergency consultation on the eve of trial to help a defendant physician, Dr. Yogi, in a medical malpractice case. The problem? According to trial counsel, Dr. Yogi smiled too much. Huh? Dr. Yogi was from Sri Lanka and had practiced medicine in this country for over twenty-five years. He was a lovely man in his early 60s. He was a good cardiologist and he had never been sued before. He was nervous about testifying. What made him nervous? It wasn’t the idea of losing. He was near retirement. It was the thought of courtroom conflict and cross exam.
Americans tend to have a communication style that is direct and often blunt. We value straight-talkers.
We think they’re more honest. Asian cultures are more sensitive to the context of conversations. Gesture, body language, eye contact, pitch, intonation and silence are as important as words. Asian cultures are more polite. They place a higher value on harmony and avoiding conflict. When confused or embarrassed or nervous they may smile. Dr. Yogi had a warm and beautiful smile. It’s true that he smiled quite often – he was nervous about cross examination – but there was nothing wrong with the smile. Dr. Yogi told me that trial counsel wanted him to stop smiling so much. I thought that would have been a mistake. Then what? His nerves would then have shown up in some less desirable way. I told Dr. Yogi that I liked his smile and the jury would as well. I advised trial counsel that there were two options: 1) find the time to prepare him really well for cross examination so that Dr. Yogi wouldn’t be so apprehensive or 2) raise the issue of his nervousness and smiling early in his direct exam. The jury would never punish him for nerves and smiles. This was all a cultural misunderstanding.