I’ve written many times about how trials are crap shoots. Why is this? There are many reasons, but one reason can be implicit bias. We all have them. It is part of being human. In fact, it evolved within us so we can make quick decisions (such as is that striped animal [tiger or zebra] a threat to me and should I run). But it is a problem when implicit biases impact your lawsuit. What is implicit bias?
implicit bias includes unconscious expectations, or tendencies that exist within an individual, regardless of ill-will or any self-aware prejudices.
Implicit biases can be based on race, skin color, religion, gender, experiences or any other factor that might cloud — unconsciously — a person’s decision. For instance, from a recent American Bar Association Annual Meeting Session:
The audience of mostly judges heard several examples from various studies over the years: Darker skin leads to longer prison sentences, differentiating even between lighter- and darker-skinned African-Americans. Prospective jurors given facts about a fictional incident remember more aggressive details about a defendant named “Tyrone” than they do when the same scenario concerns a “William.” And when 60 lawyers were shown the same research memo from what they believed to be a third-year law student, and half were told it was by a black student while the other half were told the writer was white, they gave the black writer a 3.2 out of 5 and scored the white writer 4.1.
And the implicit-association test for measuring such bias shows, after being taken by thousands of individuals, that 80 percent of white test-takers and 40 percent of blacks tested show a pro-white bias, said panelist Johanna Wald, director of strategic planning for the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School.
What can you do?
You will likely never know when your judge or juror had a bad experience in life that will subconsciously negatively reflect on your case.
Most cases settle. They settle because most people do not like having a crap shoot as an outcome. If you think you might have a problem, or you’re unattractive or ugly, consider settling. Mediation can help you reach a settlement.