I was called for an emergency consultation on the eve of trial to help a defendant physician, Dr. Hashani, in a medical malpractice case. What was the problem? According to trial counsel, Dr. Hashani smiled too much. Huh?
Dr. Hashani 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. What made him nervous was the thought of courtroom conflict, an aggressive cross examination and potential public humiliation.
Americans have a communication style that can be direct and often blunt. We value straight-talkers. We think they’re more honest. Asian cultures are generally 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 and loss of face. When confused or embarrassed or nervous they may sometimes smile.
Dr. Hashani 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 his smile. Indeed, he had a dazzling set of “choppers.” Dr. Hashani told me that trial counsel wanted him to stop smiling. That would have been a mistake. Then what? His nervousness would have played out in some other objectionable way.
I told Dr. Hashani that I liked his smile and the jury would as well. I didn’t want him to be self-conscious about it. I advised trial counsel that he had two options: 1) find the time (or someone else) to prepare his client really well for cross examination so he’d be less apprehensive and perhaps smile less; and/or 2) raise the issue of his nervousness and smiling in his direct exam so the jury would understand the cause.
This was largely a cultural misunderstanding by trial counsel. He also underestimated the jury’s capacity to forgive human frailties. I did not believe the jury would punish Dr. Hashani for nerves and smiles alone. He was a sweet man and a good doctor, and in time the jury would see that.