Recently, a client sent us a link to a political ad run by Texan US Senate candidate David Dewhurst. The ad essentially attacks Dewhurst’s opponent (Ted Cruz, an attorney) for representing a Chinese company in an intellectual property lawsuit with an American company. Ted Cruz is painted as a “China sympathizer” who is guilty of helping the Chinese steal American jobs. The ad has gotten heavy airplay all over Texas, and the coverage of the dispute related to it has raised the prominence of the controversy even more.

It made us think about several recent projects where bias against Asians was expressed in a joking fashion by various mock jurors. But it was clear that the joking tone was a thin veil for attitudes that were not at all funny. All of the cases involved intellectual property (patents or trade secrets) and the accusations that the Asian entity had reverse-engineered the American IP unfairly. The merits of the cases are one level of analysis, but more prominent was the readiness of most jurors to find guilty conduct in these Asian parties in a way that speaks of confirmation bias.

As many readers of our blog are aware, confirmation bias is the tendency we all have of seeing the world as we believe it to be. People remember evidence that confirms their attitudes and biases, and have weaker recall for contradictory points. Someone with such a bias may say “Because of [X fact], I think the Defendant should pay the Plaintiff”, but you are able to rebut their reliance on [X fact] absolutely. They reply not by changing their conclusion, but by changing their justifying argument. Often, this pattern is an indication of confirmation bias, not of the power of the evidence itself. When I was in graduate school, we referred to this as “drawing the curve before you plot the data”.

In one project, the plaintiff was a very successful American businessman with a Middle Eastern last name, and was suing a major retailer, alleging that they knowingly purchasing and sold black market counterfeit products manufactured in Asia. Given the last name of the plaintiff, we were expecting racism. And we saw it. Interestingly, the racist comments were directed at Asian countries who were (in the minds of jurors) counterfeiting the [American] products and profiting off the backs of a good [American] product name. Slurs were directed (all in a seemingly joking fashion) at China, Korea and Asian countries in general. When questioned about these comments and the basis for them, our mock jurors denied the importance of the comments and then made additional racist comments–again, veiled as jokes.

In another case, a Chinese scientist invited himself to an American university to ‘study’ with an established inventor. While there, the Chinese scientist copied documents and beat the American inventor to the US patent office by filing a patent through his Chinese company with stolen documents. The Chinese scientist later wrote a letter to the American inventor apologizing for his own poor manners and ethics. Again, we heard slurs and stereotypes about Asians being not trustworthy, sneaky, ethically challenged and more. And again, there was no explanation for this from the mock jurors other than additional “joking” comments.

Since we are based in Texas, it might be tempting to say “Wow, those Texas rednecks are pretty closed-minded”.  [We would then encourage you to consider the bias implicit in that belief…]  But in fact, we conduct research all over the country, and IP cases from coast to coast. The same pattern applies all over. Ethnocentrism is thriving in every community, as it has forever. Globalization is only a good thing if you, your family, and your friends all have the jobs they want.

As we have discussed in other posts about racism and ethnocentrism, people usually deny racial bias, but if the question becomes one of “What do you think your neighbors and co-workers would think about this [racially  loaded] issue?”, the jurors often warn us that the minority party is facing a difficult burden due to race. Obviously, such a person doesn’t want to be seen as racist, but doesn’t mind us knowing that their best friends are racist. Not too wily.

Despite recent surveys depicting a positive sense of each other by American and Chinese citizens, we have been seeing a different picture from our American mock jurors for the past few years.

Perhaps it’s due to the flagging economy and perceptions of China overtaking the US as a global superpower.

Perhaps it’s fear of the Asian intelligence that apparently leads to discrimination against Asians in our educational institutions.

Perhaps it’s the leftover stereotypes from 1960’s James Bond movies portraying Asian men as super-villains.

Perhaps it is a combination of all those factors.

Whatever the reason, we are regularly reminded of the need to carefully prepare Asian and Asian-American witnesses for testimony in American courtrooms, and to carefully prepare trial teams on strategies for dealing with overt and covert anti-Asian bias. Just as we carefully prepare other “different” witnesses–whether they be atheists, homosexuals, powerful women, African Americans or Muslims. We focus on clarity of communication (using translators if necessary) and how to introduce the witnesses to the jury so they are seen as trustworthy and credible. Without making that connection, their testimony is corrupted by bias that can creep in and define the witness.

It appears that when bias against Asians is used in high-profile political campaigns, it has achieved mainstream acceptance, and we should all be paying close attention. Running the anti-Ted Cruz ad is estimated to have cost more than $600,000 and we’re guessing money like that isn’t thrown around “just in case” there are a few voters out there who are biased against Asians.

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Here are two questions from a survey conducted of 200 waitstaff working at 18 full-service restaurants in 2004.

“Which is the most ideal race to serve?”

White: 64.7%

“Which is the least ideal race to serve?”

African American: 54.6%

Further, 38.5% said race influenced their manner of waiting on restaurant patrons and 52.8% of servers saw co-workers providing poorer service to African American patrons. More than half of the servers [57%] acknowledged they also had provided poorer service to African American patrons. A 2012 follow-up paper offers specific documentation of waiters paying each other to wait on the “black tables”, discriminatory behaviors clearly evidenced while African American patrons waited to be served, and comments by wait staff clearly evidencing wide-spread bias against African American customers for being poor tippers and “difficult” customers.

Denny’s and Cracker Barrel are perhaps the most well-known of the  restaurant discrimination lawsuits, but a full 23.5% of the 81 published federal court opinions between 1990 and 2002 involved dine-in restaurants. [When fast food restaurants are included, the percentage increases to 36% of the identified opinions.]

It’s a disturbing and intriguing study when we consider the role of race in litigation advocacy. The restaurant servers had multiple negative adjectives to describe African American patrons: picky, demanding, hyper-sensitive, rude, mean, et cetera. It is likely a reflection of the attitudes just beneath the surface for many Americans. Yet, there are some differences:

Our mock jurors often deny bias on their own part but emphatically insist that “the real jurors from this area” will undoubtedly be biased. Over the years, we’ve only had one overtly race-driven conflict in our pretrial research groups but we’ve had a lot of covert conflicts (some of them very thinly veiled).

In this survey, more than half of the servers reported they both saw discrimination by peers and participated (i.e., were discriminatory) themselves. This may reflect the difference between completing questionnaires anonymously and having a face to face discussion with peers and a facilitator. Our mock jurors may simply be (usually) less willing to acknowledge their own biases.

Customer service work is hard. It is likely servers make sweeping generalizations about customers since their salary is largely tip-based. As the researchers say, it behooves restaurants to discourage this sort of behavior and to encourage good service for everyone to avoid a self-fulfilling prophecy where African American customers are lower tippers based on poor service.

Being aware of these stereotypes is important as you prepare your case narrative, introduce your African American client or witness to the jurors, and prepare your witness for testimony. The pervasiveness of racial discrimination is rampant. You have to intervene directly and strategically to have the optimal outcome for your client.

We are a long, long way from being a post-racial society. Until then, we need to plan, assess, investigate, and intervene strategically to keep covert and overt bias from preventing a fair trial.

Brewster, Z., & Rusche, S. (2012). Quantitative Evidence of the Continuing Significance of Race: Tableside Racism in Full-Service Restaurants Journal of Black Studies, 43 (4), 359-384 DOI: 10.1177/0021934711433310

Sarah E. Rusche, & Zachary W. Brewster (2008). ‘Because they tip for shit!’: The Social Psychology of Everyday Racism in Restaurants. Sociology Compass, 2 (6), 2008-2029

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Related posts:

1. Black? On trial in Florida? You don’t want an all-white jury!
2. You’re on trial: Is it better to be an atheist or a black radical Muslim lesbian?
3. The Danger of Stereotyping: Does Gay + Black = Likable?

So we are grateful to social science researchers who sometimes identify strategies to disrupt permanent and deep-seated biases. And here’s one for disrupting biases against atheists. It’s simple, straightforward and free: remind jurors about the government.

Researchers point to research noting distrust of atheists who do not believe a “watchful and judging god monitors their behavior”. Most people think we behave better when reminded there is a god watching over us. That atheists have no such moral force judging their behavior makes the rest of us suspicious of their moral trustworthiness. The observation by a supernatural being gives believers a sense of psychological control over the behaviors of all believers. On a none-too-subtle level, it also suggests that mostly, we don’t trust that people to do the right thing if they don’t fear punishment.

There is also recent research showing that secular authority can also give a sense of psychological control in the world. When reminded of secular authority (and thus the awareness of monitoring by powerful figures, albeit not a deity) which also enforces prosocial behaviors–believers should also exhibit less distrust toward atheists. The idea is that there would exist some sort of behavioral control over the atheist–we don’t have to be so afraid of what they might do.

Researchers wanted to explore these ideas to see if bias against and fear of atheists would diminish if research participants were reminded of secular authority. They conducted 3 separate experiments:

In Study 1, researchers emphasized “police effectiveness” by having participants watch a video of the Vancouver police chief’s year-end report “which detailed many successes of the Vancouver Police Department during 2010”.

They found that being reminded of secular authority decreased the level of distrust toward atheists.

In Study 2, researchers examined distrust of atheists and the prevalence of disgust for homosexuals. Again the “police effectiveness” video was shown.

Again, researchers found that being reminded of secular authority (i.e., “police effectiveness”) reduced distrust for atheists but did not affect antigay prejudice.

In Study 3, researchers wanted to see if reminders of secular authority would reduce distrust in atheists and (at the same time) reduce distrust toward gays.

And again, the researchers found that being reminded of secular authority reduced distrust in atheists but did not affect distrust of gays.

What this research progression shows is that reminders of secular authority/effectiveness decrease distrust in atheists but do not decrease prejudice in general. This is a powerful finding although it will of course be moderated by how effective and trustworthy people find their government. Overall, though, it makes sense, if the secular authority is a replacement for religious authority. Bias and prejudice is not unidimensional, it is a complex response. No unidimensional explanation will capture all of the potential vagaries of bias and prejudice.

From a litigation advocacy perspective, if you have a client who is atheist (and ‘out’), you would do well to find ways to remind jurors of secular authority–either through law enforcement, regulatory agencies, or other reliable secular institutions relevant to the facts of your case. Society is safe, even if this person doesn’t perfectly mirror the religiously observant jurors. Jurors need to have a sense that “this atheist” is contained and law-abiding so they can trust the atheist’s future behavior.

It’s a simple yet powerfully, and pointedly targeted strategy.

Gervais WM, & Norenzayan A (2012). Reminders of Secular Authority Reduce Believers’ Distrust of Atheists. Psychological Science PMID: 22477103

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