[COLUMN] Protecting employment rights of immigrants require more than courtroom skills  

Pablo, a hardworking Filipino mechanic and naturalized U.S. citizen,, worked in Los Angeles  for 23 years and earned enough to retire. However, he was persuaded by an insurance agent to  transfer his retirement money to a complex insurance policy known as an equity-indexed annuity. He  was further induced to transfer the funds to a second insurance company.

Unbeknownst to Pablo, every transfer of money resulted in a surrender charge of 33%.  Hence, a transfer of $150,000 from insurance company A to insurance company B resulted in  $50,000 that Pablo lost in surrender penalties. The company kept the $50,000 and the agent earned  more commissions. Worse, Pablo discovered he could not immediately use his money without  additional losses.

Pablo just lost a chunk of his retirement savings and felt shame and disgust at himself. Feeling  powerless, he slowly spiraled into depression and had to undergo psychiatric care. We filed a lawsuit  on his behalf to recover his money plus damages for emotional distress. Pablo’s deposition was taken.

During questioning by the three big firm insurance lawyers, Pablo was asked how he understood  “surrender charges”.

Pablo, who grew up in the Philippines, replied with his arms raised: “I do not know surrender  charges. All I know about surrender is when the Japanese raised their hands and surrendered to the  Americans!”

The lawyers thought that Pablo was joking. But Pablo was serious. He truly did not know  what ‘surrender charges’ meant in the context of an insurance contract. While he had worked in the  U.S. for a long time, his speech patterns and cultural referents continued to reflect his upbringing in  the Philippines.

For Pablo to win his case, he needed to be understood by an American court and jury. Pablo  needed, not only a lawyer’s courtroom skills, but also one who understood his culture. He had to be  able to speak to his attorney in his native language so that he could tell “the whole truth.” Since his

psychological state was at issue, he needed counsel who understood his emotional and cultural  background. As Pablo’s background was explained, his testimony, in light of other evidence, started  to make sense to the other parties. This understanding contributed to reaching a successful settlement  for Pablo and his family.

Pablo’s case is an example of the challenges involved in helping immigrants obtain justice.  Immigrants may need to go to court to seek relief for the following:

  1. when injured by the negligence or business fraud of another;
  2. when full wages are not paid to the immigrant;
  3. when defrauded by a company that deceptively marketed its products;
  4. when unreasonably denied benefits under an insurance policy.

A client’s lack of fluency in English can limit his or her full expression of the facts. An  immigrant’s willingness to explain may be hindered by cultural factors like a sense of shame. Is the  client keeping his true feelings to himself for fear of being perceived as dumb or crazy based on his  cultural standards? Or is the client unwilling or unable to explain because of injured feelings?

Even when dealing with immigrant professionals, who are fluent in the English language, an  attorney might still hit the cultural wall. My firm was hired by a major retirement home to defend the  company’s manager accused of sexual harassment. The other attorney in the case, who used the  usual straightforward style of asking questions, was unfamiliar with the manager’s cultural  sensitivities and was not able to obtain “the whole truth”.

The manager felt that simply being accused of having forced himself on an unwilling woman  was a badge of dishonor. Since he has been so dishonored, he would rather keep silent. What resulted  was a communication breakdown.

Our involvement as attorneys who knew the manager’s culture and language brought a  different dynamic into the case. Because the actual underpinnings of the manager’s behavior were  understood, the approach to asking questions was done in a way that allowed the manager to open up.  As more truth surfaced, a better evaluation of the issues led to a productive resolution of the case.

Communications that ensure complete understanding between clients and attorneys can help  achieve success for the immigrant client’s case. This is especially true where emotional pains are  suffered as is true in serious discrimination or personal injury cases.

The attorney’s knowledge of a client’s language and culture can go a long way in facilitating  effective communications. Armed with more complete information, the attorney can better articulate  the client’s damages to opposing counsel, to the court and the jury..

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential  and at no cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than  25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and  consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected  as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for  Outstanding Filipino Overseas.]  

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