Intercultural difference in legal practice

The photo I have chosen to accompany this post represents two of the least helpful stereotypes about German and English culture, namely that all Germans like beer (and drink a lot of it!) and that all English people like tea (and drink a lot of it!). The problem with stereotypes is, of course, that they fail to take account of the regional and personal differences that make each individual unique.

Ignorance is bliss

I should mention that, when I was practising as a lawyer in London, I worked from the premise that my German colleagues would automatically interact with me in the ‘Anglo-Saxon’ way because we always spoke English. This assumption strikes me now, with the benefit of hindsight, as extremely arrogant. I think it is incumbent upon lawyers from both traditions to educate themselves about the cultural context of the other and to try to understand (if not adapt) to their way of interacting. This would no doubt address many common miscommunications and render unnecessary most apologies for any offence caused.

Some examples of the problem

The following examples (with some minor creative tampering on my part) were shared with me by German lawyers in the context of a seminar on legal writing in English – we were discussing the impact of intercultural difference on e-mailing:

Example 1: An American lawyer (Jack) sent a German lawyer (Erika) an e-mail attaching an agreement for her review. Erika did not immediately respond to the e-mail, but was intending to respond a few days later with her comments. Before Erika could do so, Jack contacted Erika’s associate in a rage, asking why Erika had “ignored” his e-mail. Erika viewed Jack’s conduct as extremely unprofessional.

Example 2: A German lawyer (Heike) works as a relatively junior member of legal team at a public institution. Her boss (Marc Braun) is a professor and has a PhD in law. Heike often negotiates complex agreements with English and American lawyers. John is an associate at an English law firm. He contacted Heike for the first time by e-mail and called her “Heike” and continues to do so. In contrast, he addresses Marc as “Professor Dr. Braun”. Heike is not impressed and does not like John at all.

Can you identify the cause of the problem in each of the above examples? I will venture an explanation below, but what emerges very clearly is the breakdown in trust and respect that can result from a lack of awareness of intercultural difference in legal practice.

The ‘directness-indirectness dichotomy’ or the ‘no-frills’ approach

At first glance, the problem in Example 1 might seem to have been caused by a difference in the perception of time-urgency i.e. Jack expected Erika to deliver her comments much more quickly than she did and Erika thought Jack’s timing was unrealistic. However, I would argue that the problem here is at least partly caused by what I have chosen to call the ‘directness-indirectness dichotomy’ or the ‘no-frills’ approach.

German lawyers work in a direct culture. This means that they will generally communicate in a way that gets straight down to business (‘no frills’). It would, for example, be unusual to receive an e-mail from a German lawyer padded by such niceties as “I hope you are well” or “I am looking forward to hearing from you”. The German lawyer will only ask how you are if he or she is really interested in your answer, and the question “How are you?” will sometimes be met with perplexity and the answer “Fine” without the reciprocal “And how are you?”. As proponents of indirectness or ‘politeness’, English-speaking cultures might tend to perceive this approach as rude. Germans, in contrast, might argue that the English approach is impractical, time-wasting and somewhat fake.

An extension of this is that a German lawyer will likely only send you an e-mail if he or she actually has something to say. In Erika’s case, this means that she only intended to respond to Jack’s e-mail when her comments were ready. An earlier ‘thank you’ e-mail would have been a waste of time. From Jack’s perspective, on the other hand, it might have been useful to receive a quick initial response from Erika simply acknowledging receipt of his e-mail and perhaps giving him a timeline within which he could expect her comments. Jack might then still have regarded Erika’s timeline as too generous, but at least the issue would have been out in the open.

Erika has now decided to be proactive and implement a policy at her firm that all e-mails requiring action, which are received from non-German lawyers and clients, are to be met with an initial ‘thank you’ e-mail and an indication of a timeline for a reply or delivery of the work.

Sie, du and you

Example 2 illustrates a problem that arises quite often in working relationships between German and English lawyers. In German business culture, the level of formality or informality with which you communicate is largely determined by whether you are on Sie terms or on du terms with someone. Both Sieand du mean ‘you’, but Sie is the formal version of ‘you’ and du is the informal version. In most German companies, everyone starts out on Sie. There are then a set of relatively clear rules as to who may ‘offer’ the du (i.e. permission to switch to a more informal mode of communication). I say “relatively clear rules” because some of these rules are not absolutely clear in their application, even to Germans! One clear rule is that an older woman generally has the prerogative to offer the du to a younger man, but not the other way around.

You can work with someone for 10 years in Germany and still be on Sie with them. ‘When the du is offered, the two people involved might even shake hands and introduce themselves to each other again using their first names, as if a new level of familiarity in their relationship is deserving of a little ceremony. When I first encountered this, I was very touched by the gesture.

In English business culture, on the other hand, the level of formality or informality of communication is more nuanced and determined by context, hierarchy and the working relationship you have with someone. There are very few clear rules and it is also becoming more acceptable to address someone, in your first communication with them, by their first name. Given the German approach to formality and informality outlined above, you can see how this could be perceived as extremely rude.

It is arguable, then, that John in Example 2 should have started out by addressing Heike by her surname, as he did her boss, Marc Braun. The problem in Example 2 was exacerbated by the fact that John also seemed to be showing more respect to Marc than to Heike by using Marc’s surname and Heike’s first name, although John probably chose to do so on the basis that Heike was a colleague on the same level as him (i.e. relatively junior) and Marc was senior to both of them. From Heike’s perspective, John’s conduct was simply rude.

I always advise the German lawyers I train to start off by addressing an English counterpart or client by his or her surname (‘Mr’ in the case of men and ‘Ms’ in the case of women). In written communication, an English-speaking lawyer or client will often then give you a sign that she is comfortable with you using her first name by signing the e-mail off with her first name. You can then usually address her by her first name without any problems.

English lawyers, on the other hand, should proceed with caution when choosing to address a German counterpart by his or her first name. This will not necessarily be welcome, but much will obviously depend on the circumstances and the extent to which the law firm or company you are dealing with has adopted English norms of communication.

There are certainly many traps for the unwary in the field of intercultural difference, but a little understanding obviously goes a long way.

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