I am sure you are wondering what is wrong with the author of this article. After all, what in the world does voir dire have to do with mediation? In fact, it has a lot to do with it.
Is your client or the opposing party a racial minority; a corporation; a female; an attractive female; a motorcyclist; a bicyclist; a truck driver; overweight; an apartment complex owner; a developer or fit into any other category where potential jury bias could come into play at trial? What kind of bias are we talking about? How are we going to address that potential bias in voir dire? To properly evaluate your case for mediation, you will need to objectively evaluate your ability and opportunity to identify and overcome those biases that could significantly affect the outcome of the trial of the case.
You must first determine what potential bias may come into play at trial. Studies reflect that bias comes in multiple forms. There are explicit biases, which are attitudes and stereotypes that are consciously assessable through introspection and endorsed as appropriate. If these biases are generally accepted in the community, a potential juror may freely acknowledge this bias when questioned about it in voir dire. If it is not generally accepted, the potential juror may very well not acknowledge this bias; particularly if just general questions are asked.[i]
Studies reflect that many jurors when asked will say they have no particular bias against corporations, but if presented with this statement, “If a company could benefit financially by lying, it’s probable that it would do so”, more than 80% of the people polled answered yes.[ii] Studies reflect jurors return larger verdicts against corporations than even wealthy individual defendants. This is not necessarily because of the financial condition of the corporation, but because jurors believe a corporation should be held to a higher standard of care than an individual. [iii] [iv] How does this sync with most jurors denying they have any particular bias against corporations? When questioned on the telephone, 60% of persons polled will admit they do not believe in the tenet that persons charged with a crime should be presumed to be innocent. The majority of those people would not admit this when questioned in voir dire.[v]
It is often difficult to ferret out potential jurors with an explicit bias. Depending upon what the presiding judge allows you to ask or do in voir dire, it may be impossible to identify jurors with an implicit bias that might affect the outcome of the case. Implicit biases are attitudes and stereotypes that are not consciously accessible through introspection; it is a subconscious bias for which the person having it is not even aware. General, and even specific, questions about this type bias will not illicit a positive response from the person. Even if the person recognizes through questioning he or she may have this bias, they may not acknowledge it because they may feel that it might reflect poorly on them; particularly if they are questioned in front of other potential jurors.[vi]
Even though the person is not aware of the bias, studies clearly reflect when placed in a situation where that bias comes into play, the subconscious will affect that person’s thought processes and ultimate decisions. Mental activities that are affected include perception, forming of impressions, processing of information, use of information and retrieval of information; obviously all of these play a significant role in how a juror reacts to the evidence presented and his or her deliberations in the jury room.[vii]
Studies have indicated that making potential jurors aware of the existence of implicit bias and its effects can help reduce the impact of this type of bias. Implicit Association Tests have been developed to help identify these hidden biases. Examples of this testing can be found at https://implicit.harvard.edu/implicit/. The tests ask questions or have the person respond to certain visual stimuli that are designed to identify implicit biases. The studies have shown the ability to identify implicit bias is significantly better utilizing the tests as opposed to self-reporting. The tests can be administered in as little as 10 minutes.[viii]
Over 6 million IATs have been administered, and the test results consistently show the majority of people prefer whites over blacks (if the test taker is White, Asian or Hispanic), young over old, light skinned over dark skinned, other peoples over Arab-Muslims, thin people over obese people and straight people over gay people.[ix] Social cognition research suggests that over eighty percent of American whites and Asians demonstrate at least unconscious bias in favor of whites compared to blacks.[x] Additionally, mock juror studies reveal that this anti-black bias routinely influences verdicts and sentencing in cases in which a juror’s race differs from the defendant’s.[xi] As litigators, we are not surprised by these results. The key is identifying those people so they can be the subject of either a challenge for cause or a preemptory strike. Unfortunately, the legal basis that must be met for striking someone for cause is not very conducive to successively striking someone with an implicit bias.
There is a push in some areas to educate potential jurors about implicit bias and to administer IATs to potential jurors during their orientation before they are called to a courtroom to participate in voir dire. The primary use of these tests has been to educate the potential juror on what unconscious biases he or she might have, how implicit bias may affect decision making and to provide additional information to the attorneys to assist in the voir dire process. Some courts have developed specific jury charges on implicit bias, the possible effect it can have on decision making and the need to try to avoid implicit bias playing a role in the jury’s deliberations. It is thought this may serve to assist each member of the jury panel serving as a check and balance on the potential biases of other jurors.[xii]
I am not aware of any court system in the Atlanta area that administers these tests or even addresses the existence of implicit bias. Would your presiding judge be open to a motion to have the tests administered? Even if the judge would allow the testing, in all likelihood the cost and logistics of administering the testing would be the responsibility of the moving party. A decision would have to be made on whether the potential value of the case would justify the expense involved. In making this determination, it must be understood the best developed IAT’s do not always accurately identify the presence of implicit bias.
To try to identify implicit biases without Implicit Association Tests, you must be allowed to ask many more subtle questions that identify beliefs, actions, lifestyles, preferences, etc. The presiding judge would need to allow you to ask questions about club and organization affiliations, what the juror reads, what news they follow, their political party affiliation, what they do with their leisure time, what means of transportation they use, what radio stations they listen to and other similar type questions that might reveal hidden biases. For this to be most effective, each juror would need to be questioned individually, outside the presence of other jurors.
Considering the potential for both explicit and implicit biases to significantly affect the outcome of the trial when you are representing a client that comes within known biases, you must take this into consideration when preparing for mediation. Before mediation, ask yourself:. What is the most likely composition of the potential jury panel based upon the venue of the case? What role will the efforts of tainting a potential juror about the need for tort reform play in jury deliberations? Is the case in State or Federal court? Will the presiding judge conduct most of the voir dire questioning? Will the presiding judge consider having Implicit Association Tests administered and education of the potential jurors about the existence and effect of implicit biases? Will the presiding judge allow you to question the potential jurors individually and in detail? Is the case large enough to justify spending the time and expense necessary to weed out the biased jurors if possible? Will you be able to identify the potential jurors which have a bias that could affect the outcome of the trial and remove them from the jury panel? How do you present your case in such a way to best address these known biases that will come into play even if you are as successful as you can be in eliminating biased jurors in voir dire?
An honest and objective assessment of these questions is essential in properly evaluating your case. It is also essential that you address these issues with your client before the mediation so the client can have a realistic perspective on the value of the case. Although at first glance, it would appear that the intricacies of voir dire are something to consider only if and when a mediation fails to resolve a dispute, in fact considering bias and the role it may play in your case at trial may very well determine whether a case settles at mediation or not.
It is beyond the scope of this article, but I recommend you read the article found at this link:. It is an article on how juror’s perception of and reaction to evidence, including expert witness’ testimony, is influenced and shaped by what they wish to believe, and how you should frame your presentation and evidence at trial to account for this.
BAY Mediation & Arbitration Services, LLC
[i] Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124 (2012).
[ii] Dr. Ken Broda-Bahm, Measure Your Potential Juror’s Anti-Corporate Bias: Get Scales Here. Persuasive Litigator, December 12, 2011.
[iii] Hans, Valerie P. & M. David Ermann (1989), Responses to Corporate versus Individual Wrongdoing, Law & Human Behavior,m 13, 151-66.
[iv] MacCoun, Robert J. (1996), Differential Treatment of Corporate Defendants by Juries: An Examination of the “Deep-Pockets” Hypothesis, Law & Society Review, 30, 121-61.
[v] Andrea v. Horowitz, Note Ross v. Oklahoma: A Strike Against Peremptory Challenges, 1990 Wis. L. Rev. 219, 224 n. 37.
[vi] Kang et al., supra, p. 1132.
[vii] Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul L. Rev. 599 (2009).
[viii] Roberts, Anna, (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias, Connecticut L. Rev., Vol. 44, February 2012, Number 3, page 827.
[ix] Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. Rev. 465, 474 (2010).
[x] Carol Izumi, Implicit Bias and the Illusion of Mediator Neutrality, 34 Wash. U. J.L & Pol’y 71(2010).
[xi] Tara l. Mitchell et al., Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treatment, 29 L. & Hum. Behav. 621, 625, 627-28 (2005).
[xii] Robert, supra, pp. 847-860.