LawTalk joins the NZ Asian Lawyers Seminar that included senior members of the judiciary and a swathe of VIP attendees for an insightful and high energy discussion on the topic of ‘Asian Parties in Courts and Working with Asian Clients.’
Senior members of the judiciary and a swathe of VIP attendees turned out to support a hugely popular recent seminar on ‘Asian Parties in Courts and Working with Asian Clients’. Presented in partnership between NZ Asian Lawyers (NZAL) and the Law Society’s Auckland branch, the seminar was oversubscribed in-person, with many others joining online. President of NZ Asian Lawyers, Mai Chen told the packed room “You are all getting a very clear signal from the people here today that you are important.”
Acknowledging the full seminar room of around 125 lawyers with many more attending online, Mai paid special mention to attending dignitaries that included Chief Justice Rt Hon Dame Helen Winkelmann, Sir Anand Satyanand, his Honour Judge Ajit Singh, his Honour Judge Terry Singh, her Honour Emma Smith together with a strong online audience including Chief Judge Inglis, the Chair of the Judicial Diversity Committee, who joined the seminar from overseas along with panellist Law Society President Frazer Barton who joined from Canada. Judge Patel and Judge Sellers KC registered apologies due to their judicial commitments.
Chief Justice Rt Hon Dame Helen WinkelmannFollowing an opening mihi from Mai that paid tribute to the super diverse nation that we serve as lawyers in Aotearoa New Zealand, Law Society Chief Executive Katie Rusbatch reinforced the importance of Asian lawyers to the profession. According to Law Society data, of the 0-7 years PQE group, 22 per cent1 identify as Asian. The number of Asian Lawyers in New Zealand is growing year on year, and this is further reflected in Law School numbers throughout the country. Overall, Asian Lawyers now represent 12 per cent2 of the profession and bring a diverse and valuable range of cultural and linguistic skills and experiences.
Findings from a recent NZAL stocktake of members revealed that twenty Asian ethnicities were represented. Mai quipped that this proves, “One size does not fit all. New Zealand Asian Lawyers are a superdiverse group of practitioners and legal professionals who bring a depth of cultural and linguistic and religious diversity to our nation and the people we serve.” The NZAL stocktake reported that members spoke twenty-five different languages.
Respondents also shared where they were born. Of the twenty ethnic groups recorded, the highest number reported being born in New Zealand, 50 per cent higher than the second group being China. Of these respondents the overwhelming majority were first generation New Zealanders with 120 of the 127 respondents reporting having parents who were born outside of New Zealand.
Despite the “born in New Zealand” origins of the majority of the respondents, discrimination, particularly in the form of unconscious bias, was evident in both professional and workplace social settings.
Mai Chen, President of NZ Asian LawyersThe NZAL stocktake report found bias especially toward ethnic women was alive and well and anecdotally reported in the findings as “institutionalised racism amongst colleagues and clients.”
Receiving remarks such as, “Oh, your English is very good,” or “Where are you originally from,” is not uncommon for New Zealand born, Asian lawyers. Others reported judges presuming that Asian lawyers are representing the Asian party when that is not necessarily the case. Bias based on gender, age and ethnicity was also reported in the 2023 Law Society Legal Workplace Environment Survey which found that eleven per cent of the legal community (lawyers and non-lawyers) have experienced employment discrimination in the last five years.
Whilst there are challenges, there are also opportunities and these were very much the focus of the seminar. Increasing the Asian capability and cultural competence of lawyers was seen as important to the profession in reflecting New Zealand’s increasingly diverse populace. “The chances now of having an Asian client or appearing in court on a matter that involves an Asian party is ever increasing and so it becomes more important for all of the profession to advance their awareness of the cultural and linguistic issues that can influence proceedings,” says Mai.
Katie Rusbatch, Law Society Chief ExecutivePanellist and Barrister, Karun Lakshman addressed the seminar from an Indian perspective, the second largest Asian group in New Zealand. As ‘Asian’ represents a diverse group of ethnicities that is broad in geography, culture and language, so too does the cultural collective known as Indian. “Dealing with the Indian diaspora in New Zealand requires an understanding of divergent languages and cultural practices. For example, Fijian Indian is quite different to Hindi or Punjabi Indian.” On this point, Lakshman referred to the necessity for accurate translation through an appropriate interpretor. “Not having an interpretor who can translate the nuances of a dialect or language can have dire consequences when it comes to rights such as consulting a lawyer because of confusion or misinterpretation over cost of services versus free advice. Such incidents can have a profound effect on the outcome for a client and in the wider sense of delivering equal justice. Likewise customs such as arranged marriages, raising children and ways in which people engage with authorities will vary amongst members of the Indian community,” he said.
Barrister Joon Yi talked about representing Korean clients and described how what may just appear as common vernacular in Korean movies and TV shows where a character exclaims, “Do you wanna die?” or threatens to kill another, is a language pattern that exists outside of the cinematic context. This can land the Korean client in a Western society in serious trouble. Yi spoke of Korea’s 70-year post war heritage as not offering a long history of Koreans mixing with the international community. With a closely connected culture, given the small Korean community in New Zealand, familial relationships and knowing one another is commonplace, thereby elevating the importance of “saving face.”
Panellist Kenneth Sun addressed the seminar on the topic of representing Chinese clients. A feature of this was around managing traditional, cultural approaches to align client expectations with the process of a Western legal system. “This often requires informing Chinese clients that litigation should be seen as a means to a settlement – as opposed to aiming to fight to the bitter end. In this respect, managing the way we work toward optimal outcomes can mean tempering the desire to have an immediate outcome when it could have the opposite effect, for example, summary judgment applications are harder to win. As part of the educational process it is important to inform Chinese clients that we are trying to persuade the Judge, not trying to persuade the lawyer on the other side. This is usually needed as a response to client frustration that we cannot compel the other party’s lawyer to do what we want simply through correspondence,” says Sun.
Heritage Law Partner, David Liu spoke to the importance of educating Chinese and Taiwanese clients in a Western legal setting. Liu shared an instance of a client stating that he was moving lawyers “because the other side has a thug lawyer so I need one too.” The same goes for some Chinese clients believing that they need a Western lawyer because they are facing a Western legal system and judges won’t discriminate against a white lawyer. Liu applied a “big face” analysis to solving disputes. He said that understanding how big the Chinese parties “faces”3 are is critical to settling a dispute. Mainland Chinese have the biggest face, in his experience.
Liu points out to clients the importance of having a lawyer who understands not only the language but also the cultural nuances, particularly around contracts and property. “It is not unusual for multi-million dollar property deals to be done via WeChat, so we try to educate clients around the importance of good and early drafting as a means to mitigating issues of litigation later on, so we suggest that engaging a good lawyer who understands your needs and is attuned to your culture is like a good insurance policy.”
Tracey Hu, panellist and barristerGuest speaker Associate Professor Dr Andrew Godwin, Associate Director at the Asian Law Centre at the University of Melbourne Law School, addressed the seminar saying that “Australia was watching and listening to New Zealand.” Leading cases such and Zhang v Zhang [2022] demonstrates the courts’ willingness to consider cultural and linguistic expert evidence when it comes to the meaning of words. In this respect, context is often as important as content.
He referred to the 2022 “Issues Paper on Culturally and Linguistically Diverse Parties in Australian Courts – Insights from New Zealand” which he had co-authored with Mai Chen, showing New Zealand leading the way for the Australasian courts and profession.
This is important in understanding relationships of parties. It is commonplace in Chinese culture to refer to someone as a “brother,” or “uncle,” often distinguishing between age and status, but this may preclude any blood relationship between the parties. What it can do is to establish the basis for the relationship and the context around elements of contract.
Dr Godwin says, “Recognition of the role of the expert witness in matters relating to differing social and cultural contexts is required to avoid treating people with ethnically diverse backgrounds as homogenous.”
Sir Anand SatyanandThe role of the expert witness was the topic of Dr Leo Liao’s presentation. A senior law lecturer and specialist in Chinese culture at Waikato University, Dr Liao spoke to the progress being made amongst the New Zealand judiciary in accepting culture-based evidence in proceedings. Dr Liao cited the leading case, Deng v Zheng [2022] where the New Zealand Supreme Court granted leave to appeal and guidance to seek assistance on Chinese culture from New Zealand Asian Lawyers.
Dr Liao pointed to matters involving property, partnerships, companies, financial transactions abroad and Chinese law including CPC policies as just being some of the areas of law that are likely to influence matters before the courts. “Obtaining the proper meaning and understanding cultural concepts such as ‘gong xu liang su’ concerning public order and good custom are central to understanding Chinese culture and the context of the matters before you.”
Fundamental cultural differences such as collectivism versus individualism, hierachical versus equal status, uncertainty avoidance, long term orientation and masculinity are all culturally diverse considerations. To demonstrate what can be a gulf of understanding between the weighting of these concepts, Dr Liao references his work ‘Decoding the Puzzle: Chinese culture, familial transfers and disputes in Western courts’4 to demonstrate the difference in power distance between China and New Zealand as a ratio of 40 to 11 of respondents.
David Liu, Heritage Law PartnerLikewise, the importance of long term orientation is reflected in 59 to 15 China to New Zealand, respectively.
Special guest Sir Anand Satyanand spoke to attendees as a “person of Asian origin, that is one with family roots back to India and Fiji,” and who has for a dozen years been an “enthusiastic advocate in the Courts conducting cases for and against the Crown in all Courts, the then Magistrates Court upwards.” Sir Anand shared that “being an advocate presents professional challenges, opportunities, and achievements of an inestimable kind. The adrenalin rush of being an advocate surpasses those which occur in judicial or ombudsman existences where other matters come to the fore. The challenges, opportunities and achievement are available for Asian lawyers as well as those in the general community.”
Sir Anand told the seminar, “Your reputation and ability as a lawyer, is for you to grow and maintain, and no one else. To become known as a lawyer whose presentation of facts and submissions on law are sound is something to aim for – whether in Chambers or in Court and whether in writing or verbally. Furthermore, Sir Anand spoke of the importance for lawyers not to get “pigeon-holed as one kind or another because of background.”
Part two of the seminar was a panel session presided over by the Chief Justice in collaboration with Law Society President Frazer Barton.
Pam Davidson, NZ Asian Lawyers Vice PresidentMai asked the Chief Justice why she had identified facilitating access to justice, connecting the courts to the community, and supporting a representative and diverse judiciary as her priorities for her tenure and the relevance of these priorities for Asian lawyers.
The Chief Justice spoke to the priorities of diversity. She said that the courts must serve all of society, and for that reason judges need a sufficient understanding of all people and the communities that make up that society.
Her Honour spoke of the importance of Asian lawyers to the profession assuring the audience that it was “non negotiable that you succeed in the profession” noting that “demographics suggest the future of the profession will be largely dependent on you.” She encouraged delegates to “keep on challenging us to do better” in supporting diversity in the senior profession and judiciary.
In advancing Asian lawyers in the profession, her Honour spoke of educational and reverse mentoring programmes as a way to create bridges into the senior profession and the judiciary for Asian lawyers.
Asked during question time about the issue of unconcious bias, her Honour acknowledged that there is a risk that decision making can be affected by unconcious bias – as it is a phenomenon that affects everybody. But the judicial oath reminds judges to strive to avoid that – which judges consciously do. She said it was important that judges are supported in this. She spoke of the importance of three things in this regard. First, education for judges in relations to unconcious bias – although noting that this can only ever be a small part of the solution. Secondly, having judges from different backgrounds bringing a breadth of perspectives and knowledge to the judiciary. And finally, the work that counsel do, to call the evidence and make the arguments that ensure that any easy preconceptions are challenged.
In closing, the Chief Justice encouraged the audience to progress their careers by “maintaining a lifelong interest in the law, reading widely and by seeking out opportunities to hear different perspectives, perhaps by attending the public lectures that are regularly hosted by Law Schools and by the Legal Research Foundation.”
Law Society President Frazer Barton also addressed how Asian lawyers could build pathways and interconnections with the profession so they could be influential and meet their full potential. He commented that, “their numbers do require they meet that potential – in the best interests of the profession and the people we serve.”
NZAL Vice President Pam Davidson closed the seminar and urged delegates to “get to the heart of who we are and what we do.” Pam reinforced remarks from the Chief Justice about the importance and purpose of education as “educating us and the wider profession,” and called for attendees to look to what has “drawn us together and the impact of how we contribute to the profession and the country.”