Recently, I attended a webinar sponsored by the Beverly Hills Bar Association entitled “ Ethical Obligations: How Bias Plays a role in our Decision- Making” presented by Mindy Gulati, Esq., Founder and CEO of Fundamental Advisory.
Initially, Ms. Gulati discussed the notions of explicit and implicit Biases as well as cognitive biases or our systematic errors in judgment. Then in her discussion of the everyday consequences of such biases, she noted that they exist in every type of case imaginable. For example, implicit racial bias may exist in (1) a property law dispute in terms of redlining or zoning regulations; (2) a tort lawsuit in terms of the nature and extent or amount of damages available in that such valuation may be less for a person of color than a Caucasian; or (3) a lawsuit implicating health law in that the decisions made by health care providers will be different based on the race of a person. (Id at Power point (Ppt.) Slide 28.) And as has been well documented, biases exist in criminal matters in that black defendants tend to receive longer sentences than white defendants in federal court. ( See, Jeffrey J. Rachlin-ski et al., Does Unconscious Bias Affect Trial Judges? 84 NOTRE DAME L. REV. 1195, 1196 (2009)) Further, bias exists in family law matters in terms of gender bias, culture issues, and/or socio-economic issues. (Id. at Ppt. Slide 26)
But what struck me the most was the discussion on the racial bias of judges. Although aware of it, I had not given it much thought. In her Slide 31, Ms. Gulati notes:
Researchers have found that trial court judges have the same implicit biases as the rest of us, at least with regard to race. One study of 133 trial judges from three jurisdictions found that 87% of White judges have implicit preferences for Whites. The majority of Black judges, “by contrast, demonstrated no clear preference overall,” although 44% of Black judges had weal implicit preferences for Whites. (Jeffrey J. Rachlin-ski et al., Does Unconscious Bias Affect Trial Judges? 84 NOTRE DAME L. REV. 1195 (2009)) (Id. at Ppt. Slide 31.)
This bias will show up throughout the life of a case. Initially, will the court look askance at your theory of the case as alleged in your complaint when confronted with a motion to dismiss? Or in connection with any motion brough, how will the judge react? If there are discovery disputes- will the implicit bias of the judge reveal itself? Or, how about when picking a jury or ruling on objections during trial? Or, in response to motions made notwithstanding the verdict or for a new trial? The implicit biases of the judge- however much the court may deny it- will unconsciously play a role in such decisions and thus the outcomes of the case. (Id. at Ppt. Slide 24.)
Consequently, it might just be better to settle the case. At least, you will be aware of your own biases and while you cannot control the biases of the other party, you will have more control over the outcome. Perhaps with a great deal of diplomacy, you might be able to indicate to the other side that biases are in play, which clearly would be most difficult to do with a court. It may well bring a contempt citation.
So, when considering whether to roll the dice and go to trial or go to mediation with the hope of settling, think about the unseen forces of bias that will be present.
…. Just something to think about.
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