The Honorable Elizabeth S. Stong sits as a judge on the United States Bankruptcy Court for the Eastern District of New York. Before taking the bench, she spent 20 years in private practice as a litigator, representing clients in business and corporate disputes with Willkie Farr & Gallagher LLP and Cravath, Swaine & Moore LLP. She also served from time to time as a private and court-appointed mediator and securities industry arbitrator.
Appointed to the bench in September 2003, Judge Stong has presided in hundreds of corporate restructuring cases and thousands of consumer bankruptcy cases. She has also participated in judicial capacity-building work in some 25 countries on five continents.
Lawyers — and businesspeople — who are not mindful of the cultural context of their client, their counterparty, or a particular dispute risk making all kinds of mistakes. First, of course, they may misperceive the applicable law. They may not understand the framework of a foreign legal system or how decisions are made. If they rely on a translation tool instead of a thoughtful interpretation of a document or rule, they may misunderstand or completely overlook a key point.
But there are other kinds of mistakes that lawyers and their clients may make when they don’t think about the cultural context of the situation. In a culture where building trust is important to working well together, they may not appreciate the importance of getting to know the other party outside the context of the particular task at hand. The time spent building this trust may be the most valuable time you spend accomplishing your work.
Here are some practical examples that may illustrate this point. For many years, I have worked with judges outside of the United States, and it has always been important that we get to know each other as people and colleagues first. In Argentina, we spent a day at an “estancia,” a horse farm outside of Buenos Aires, before we began our hard work of developing skills in problem-solving and case management. In Sao Paulo, we took an afternoon away from our workshop sessions on business rescue to attend a professional match. In Cairo, a small group of women judges participating in a mediation workshop that I led invited me to visit the pyramids at Giza one evening, and off we went!
So, think about how to show both interest and respect for the culture you are visiting, whether figuratively or literally, and remember to invest time in that! Getting to know the people with whom you are working, and gaining their trust outside of the conference room, may well play a big part in the success of your work.
My experience in working with judges in other cultures and legal systems has helped me to be a better bankruptcy judge in several ways. In order to be effective in assisting other judges, courts, and legal systems to be transparent, responsive, and mindful of value preservation, I need to think about what I do, why I do it, and how I do it when I am at my best. Put another way, a good way to understand something better — even something as seemingly intangible as case management in a problem-solving court — is to explain it to someone else.
So, from my earliest years on the bench, as I worked with judges in other countries, including countries with developing economies and legal systems, I thought about what makes for a respectful, fair, and just legal process.
Here’s an example. As I worked on training judges in the economic courts in Egypt, where business disputes are heard, on mediation and conciliation techniques, I identified the three themes noted above — transparency, responsiveness, and value preservation — from my own case management practices. These continue to inform my thinking about case management in my own cases to this day.
In addition, as I try to distill what could be the attributes of a good court system and case management process, I step back from the day-to-day tasks of a busy caseload and docket and reflect on how to express those ideas to others.
Here’s another example. In Uganda, I worked with the judiciary, the federal registrar, and others to help with the implementation of a new business rescue debt resolution statute. Early one morning, I went for a run along the shores of Lake Victoria, saw the fishing boats go out at sunrise, and thought, “the rising tide raises all the boats” — and it does. So that day, in my opening remarks to the group, I posed a question: Can you imagine if courts could be like the rising tide, and all of the parties could leave the process at least a little bit better off than they were when the process began? Because this is, in substance, the “best interests of creditors” test to approve the restructuring of a business in financial distress. To confirm a Chapter 11 plan of reorganization, the court must find that each class or group is better off than it would be in a straight liquidation. So, I told those judges later that day that they should imagine their courts in that way — the rising tide that raises all the boats. No one wins until everyone wins, at least a little bit. I have repeated and applied those thoughts many times, in many venues around the world — and in my own courthouse in Brooklyn as well.
Of course, do your homework. If you are traveling, learn a few phrases in your host’s language. “Thank you” is a good place to start. And please leave your preconceptions in the overhead bin — because you may well bring them with you, but they should stay on the plane. Never assume. Always ask. Ask open-ended questions. And then say, “Tell me more about that.” Perhaps most important, listen to the answer!
You could take that approach, but you won’t do your best work for your client. I have always understood that it’s part of the lawyer’s job to represent their client as effectively as they possibly can. A lawyer does not have a time machine, and neither does a judge — we can’t change the past. Instead, your job is to understand the situation as well as you possibly can and navigate an effective path to the best available outcome under the circumstances. It’s a big responsibility, and you will miss opportunities to do it as well as you can if you disregard the cultural context of your client’s situation.
Some things are simple, even if they are often overlooked. In many parts of the world, the work week is Monday to Friday — but not everywhere. August is high summer in the Northern Hemisphere but the depths of winter in the Southern Hemisphere. Similarly, the school year may be from September to June, or it may be from February or March to December.
On a more serious note, in many venues, those in positions of authority are deeply trusted; but in others, they may not be trusted at all. Hierarchies may be important and hard to discern from the outside. Avoiding causing embarrassment and loss of face to others is always gracious, and sometimes it is critical.
The best advice I can give is to dive in! Think about what might be involved in identifying the relevant cultural context, and once you have done that, get to work. Are you interested in languages, art, history, architecture, or food? Don’t hesitate to learn about these, and show your appreciation. Take the time to explore the context that may surround the transaction, the dispute, or whatever you are working on with your client.
And get a local perspective. Many years ago — before the internet — my firm represented a client with a large matter in Alaska. Alaska is a long way from New York, in many ways. I asked our local counsel, a prominent Anchorage business litigator, how I could gain a better understanding of the context for the matter, which involved some significant state government interests. He recommended reading the local paper — the Anchorage Daily News — and for two years, I did. It came by mail, about two weeks late, but that did not matter. I was reading it for context, not for current events. I learned about Binky the polar bear, who took a swipe at the tourist who climbed into his exhibit at the Anchorage Zoo and then scrambled out, leaving only his red sneaker behind — in Binky’s mouth. The lesson: Don’t be that tourist! I learned that people from outside Alaska were from Outside. So I would introduce myself: “Yes, I’m from Outside, but it’s OK.”
Finally, take time to enjoy and celebrate the differences. Your client will be grateful, and you will be too. And what could be better than that?
