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Simple Jury Persuasion: When to talk about racial bias and when to stay quiet

Wednesday, September 30, 2009
posted by Douglas Keene

racial biasCommon wisdom would say you should always raise issues of racial bias if your client is a member of a minority group. Common wisdom isn’t always right.  When walking through the minefield of racial issues you need uncommon insight.

Here’s what we know: Racism is alive and kicking in the US of A. Based on research since the civil rights movement in the 1960’s and 1970’s and the cultural awareness curricula in the 1980’s, racism has not dissipated. Instead, it has morphed into a more insidious form, cleverly called ‘modern racism’.

According to those who write about ‘modern racism’, most majority group members ‘know’ they are not supposed to be biased and they work to appear non-biased. Most rely on cues from the environment to alert them to the expectation that they should behave in a race-neutral fashion. When these cues do not appear, however, majority group members (in most American situations these are also known as ‘white people’, although in social environments dominated by African-American, Asian, or Hispanic groups, the dynamic is the same), they will automatically and habitually make decisions that are driven by deep-seated biases.

What this means for you is this:  You should overtly raise the race issue when race is not salient to the story itself, and not do so when race is central to your case facts. Granted, this does not make sense. Neither does racism. Racism is driven by deep-seated emotional experiences that are often not accessible to us on a conscious level. Yet, they control our behavior. The heart of the reasoning is that if the racial elements are self-obvious, you don’t need to put the jury on notice to consider it. But if it is less obvious, or even irrelevant, the jury needs to have their awareness of potential bias raised. It has to be done in a non-manipulative way and without being heavy-handed, but it has to be done.

We worked on a case where the plaintiffs—a professional couple—had been horribly injured through no personal fault in an airline crash.  It was a miracle they were alive. The defendant had acknowledged liability, and all that was left to determine was the amount of the damages. The case was presented to a focus group and the empathy was palpable in the room. These people would never be the same. Their injuries were explained, medical expenses and lost income identified and dismal future prognosis for physical and emotional recovery foretold. Focus group members were angry. Then the day in the life video came up and there was a stunned silence in the room: the plaintiffs were African-American! They were also educated, upper middle class, attractive, church-going, upwardly mobile, and well-spoken.  These were the type-A workaholics of the American success story, but they were also black. Nothing had changed in their story except that earlier, focus group members had pictured them as like themselves (i.e., white). During deliberations, multiple ‘reasons’ were given for the low awards proffered (most not even covering medical bills).

“They should not be asking for money. They should be on their knees thanking God they’re alive!”

“My mother was injured in a mass transit accident & she never asked for money. I just want to punish them for asking for money.”

“I bet they were having fun getting bumped up to first class before all this happened.”

Race was irrelevant to the case facts. Focus group members had no external cue to tell them to behave in an unbiased fashion. Therefore they automatically extended biased reactions in the guise of non-racist rationales.

In this sort of case, if you are representing the Plaintiff/Victim, you want to raise the issue of race. Alert white jurors to the expectation that they will fairly consider damages and awards.  If race is not mentioned, it will subtly affect the deliberations, even though it will never be mentioned by the jury.

Alternatively, if you are representing the Defense, show lots of pictures but say nothing. If the Plaintiff/Prosecution attorney does not know to raise the race card, jurors will make their decisions based on prejudices and misconceptions.

Being a litigation consultant can be disheartening at times like this focus group.  We were ashamed at the state of our society after this group, and disheartened that as a nation we had not grown more since my Dad marched in Selma, Alabama and we all should have learned better than this.  But here we had a situation in which settlement of a case for less than its objective value seemed to make sense.  In the wake of these findings, we did the research needed to understand why it happened, and to develop strategies for our clients (who, in this example, were the plaintiffs).

We have undertaken research for our own edification as well as the benefit of our clients numerous times, and after our clients have benefited from the most current analysis, we make these papers available to you at no charge. If you’d like to read the lengthy article we wrote reviewing racial bias at trial, register at our website and download “Juries and Racism: A Failure of Justice“.  And scan the other offerings.  These are papers that were written for private clients, or for the ABA, AAJ, ACTL, and other CLE sponsors.

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