Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. Inflammatory statements and insinuations by counsel aimed at the foreign litigant
    1. During the trial itself, in opening statements, counsel may seek to influence the jury by making references to and allusions to stress that your client is a “foreigner.”
    2. In an opening statement, the advocate may not appeal to the prejudices of the jurors by making statements that are meant to arouse racial, religious, or status based prejudices. See, e.g., People v. Reinmann, 42 N.Y.S. 2d 599 (1943)(prosecutor claimed that defendant boasted of his German blood, gave the Nazi salute.)
    3. Nor should opening statements appeal to a juror’s economic interests as a taxpayer.
  2. Symbols and pins
    1. The lawyer’s communication with the jury is not only verbal but visual and indeed subliminal. The adversary counsel or witnesses may seek to play up the “home court advantage” and to play down to the bias and prejudice of some juror by using symbols, including ties and lapel pins with the American flag, or symbols such as the Statute of Liberty, to stress that the adversary is a “foreigner.”
    2. If counsel estimates that such non-verbal cues are prejudicial to the client, the issue should be raised with the trial judge at a pre-trial hearing to obtain counsel’s agreement to refrain from the use of such symbols enter an appropriate order prohibiting both the attorneys [and witnesses] from wearing such symbolic ornamentation and if necessary.

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