Simple Jury Persuasion: Does Using an Interpreter Help or Hinder the Plaintiff?
You’ve seen non-native English speakers struggle to be understood on the witness stand. Even native English speakers can be tough to understand due to speech dialects or thick styles of pronunciation. We know accents make us all work harder to comprehend and that most of us don’t like to work that hard.
So what happens when you bring in an interpreter? Will jurors resent the extra time taken to ask the question, have the question translated, have the witness respond in their native language and then have the response translated? According to new research, the (perhaps surprising) answer is… No.
Researchers had actual (criminal district court) jurors in a “large urban county” (Dallas County, Texas) view videotapes of civil cases.
“Three versions of the videotapes were identical except that, on one, the plaintiff required an interpreter to communicate and it is approximately three minutes longer than the other two. On the other two versions, the plaintiff spoke English, but differed in ethnicity (Hispanic or Anglo).”
Researchers expected there would be a negative reaction to the plaintiff using an interpreter [due to bias against an “out-group member”) but that did not happen. Instead,
“the non-English-speaking plaintiff did not fare worse than the English speakers, and, in fact, was awarded higher mean damages than either of the English speakers”.
This finding is in sharp contrast to research done back in the 1980’s (reviewed in the article) and the authors are concerned that the use of college students in the older research skewed the results. So they used actual potential jurors who had reported for jury duty during a three-week period in 2010. Jurors were asked to respond to a question that is straight out of the Texas Pattern Jury Charge:
What sum of money, if paid now in cash, would fairly and reasonably compensate Rene Blank (the name of the plaintiff in the video) for his injuries, if any, that resulted from the occurrence in question?
Physical pain and mental anguish sustained in the past?
Physical pain and mental anguish that, in reasonable probability, Rene Blank will sustain in the future.
As you can discern from the question, the issue for these research jurors related to non-economic or ‘soft damages’, which have been demonized by the tort reform movement in Texas, and are viewed with a great deal of suspicion by many in the jury pool. In a sense, these awards call upon the jurors to empathize with the suffering of the plaintiff, a task which is viewed as more difficult with a person “not like me”. And in Texas, most Spanish speaking litigants are economically disadvantaged, which creates an additional downward pressure on damage awards.
The researchers wonder if the higher than average number of women, Hispanics and college-educated persons in this particular jury pool resulted in the finding of a positive bias toward the non-English speaking plaintiff. The study also took place when the Arizona immigration statute (SB 1070) was making the news and the area around North Texas had highly publicized anti-immigrant activity. Researchers thought the overall atmosphere could have resulted in more sympathetic feelings toward Spanish-speaking plaintiffs.
While this study was framed in terms of degrees of support for a Plaintiff, there is no reason to imagine that the same overall lessons wouldn’t apply as well to Defendants.
So, what about litigation advocacy? This study gives us many ideas.
If you have a client with a heavy accent, don’t be afraid to use an interpreter.
If your client is native English-speaking but has a difficult to understand dialect or manner of speaking—consider a video with subtitles.
Recently we did a mock trial where one of the witnesses spoke with such a thick regional accent, those of us watching struggled to comprehend him, and couldn’t be sure of what was meant. As the video concluded and mock jurors were completing their witness reaction forms, one of the attorneys commented, “Now there’s a witness that cries out for subtitles!”
Choose females, jurors from within the same ethnic group (such as Hispanics in this case), and college-educated jurors.
Finally, the researchers indicate they think the jurors in this study were sensitized by the national and local events focused on immigration. To sensitize your jurors, raise the flag of tolerance overtly.
Shuman DW, Stokes L, & Martinez G (2011). Stranger at the Gate: the Effect of the Plaintiff’s use of an Interpreter on Juror Decision-Making. Behavioral sciences & the law PMID: 21618274