PGP Mediation Blog by Phyllis G. Pollack
As I mentioned in my last blog post, I started teaching ADR Ethics at USC Gould School of Law last week. During our discussion of ethics, I asked whether it would be proper to hide information. I posed the following hypothetical:
At mediation, an Insurance company settled a dog bite case for an extremely large sum because it wanted to avoid a trial in which punitive damages would most likely be awarded. Unbeknownst to the plaintiff, this was the 8th time that the homeowner insured’s dog had bitten someone for no reason. This information was unknown to Plaintiff, and the insurance company wanted to keep the information hidden.
Most of the students agreed that it was neither a misrepresentation nor a deceptive nor unethical tactic for the insurance company to keep this damaging information hidden.
I then changed the scenario a little by stating:
Suppose the Plaintiff specifically asked about prior dog bite incidents in discovery and the defendant homeowner objected/did not answer the question.
At this point, most students agreed that the information should not be kept hidden and if defendant tried to avoid answering the question, then a motion to compel the answer filed in court should be the next step.
But, what surprised me was not the answers during class but a discussion I had with a student after class. She was from a foreign country. She came up to me after class explaining that she did not quite understand the hypothetical or its importance. I soon figured out the reason was that the laws of her country were vastly different than those in the United States when it comes to dog bites.
As most of us are aware, there is strict liability when it comes to dog bites. That is, the owner will be liable for the injuries and damages caused the very first time that her pet bites, even though the dog has never shown any inkling or propensity to attack or bite others and the dog owner has absolutely no prior knowledge that her dog is anything but a sweet, loving cuddly animal. Or, to use the vernacular, “the first bite is not free”.
And most of us also know, that if the dog bites often enough, it can be deemed a “nuisance” by the local, or county animal control, removed from the home and ultimately put down (i.e. killed) by the authorities.
Well, all of this was new information to the student. She was not aware that in the United States, a repeat “offender” dog could ultimately be taken by authorities and put down. As she explained, in her country, if a dog bites a person, the penalty goes against the owner only; nothing is done to the dog. Thus, in her country, the dog can be a “repeat” offender with absolutely no repercussion to it, although there may be some to the owner. In sum, the matter is treated very differently in her country than in the United States.
With this new understanding in the difference in culture and law, I understood why the foreign student did not quite see or realize much less understand the implied consequences or significance of my hypothetical.
It reminded me of a valuable lesson: beware of cultural differences. Whenever I am discussing anything with someone with a different cultural background, I should be careful not to assume that she understands the implications or significance of what I am saying. I need to diplomatically inquire that she, indeed, is following my thoughts.
…. Just something to think about.
This piece by John Sturrock was written as part of a series of booklets published in Scotland about the justice system and how it might be reformed.What do we mean...By John Sturrock