For Part Two of our series on Diversity in the Courtroom we aimed to address the question: As a trial lawyer, how do you approach the issue of potential juror biases – explicit and implicit – based on race, in situations that may arise in the courtroom? To accomplish this we reached out to Craig Thompson. Craig is a practicing trial lawyer at both the state and federal court levels and is a Partner at Venable LLP and has been a NITA faculty for NITA at the Building Trial Skills DC Program.
Juror bias is real, and must be acknowledged in order to achieve the goal of winning your case. Jurors are human beings, and we each carry biases with us wherever we go. In an age of technology-driven imagery and bullet point information gathering, it is even more likely that human biases will be nurtured, as many of us become less likely to take the time to study and appreciate what makes us different. Recent reports have determined that the average American over the age of two spends more than thirty-four hours a week watching live television — plus another three to six hours watching taped programs. Our thoughts about humankind – including ideas about race – are driven into our psyche in millions of bits per second that we may or may not seek to counter with additional facts.
As a trial lawyer, I approach the issue of potential juror bias in a pragmatic manner. Noted psychologist Julian Jaynes likened awareness to “asking a flashlight in a dark room to look around for something that does not have any light shining upon it.” As far as that flashlight is concerned, the room is completely bright. I approach potential juror bias in a similar manner, and make sure that I am consciously aware of the fact that each juror with whom I come into contact may hold some form of implicit or explicit racial bias.
I tried a case a few years ago in a southern jurisdiction, and felt unsure about how a jury from the south might view an African American defense attorney. At one point, I even considered allowing my partner to handle a majority of the witnesses and engage in more juror face time. Eventually, I came to the conclusion that the best way to approach potential juror bias is to confront it directly. Facts are facts. The law is the law. Trial lawyers are, in essence, storytellers, and we have to develop the ability to tell our clients’ stories in a way that all can relate. I prepared for my trial like I had for the prior fifteen years, and told my client’s story. And won. Whether the jurors felt any bias for or against me did not matter – I was able to focus on the facts and the law, and tell my client’s story.
Conscious of the “flashlight effect” described above, I worked extra hard (as I seek to do in every case) to dismiss any notions of intellectual inferiority or under-preparedness, assuming one or more jurors may have implicitly or explicitly held those beliefs. As the saying goes, hard work beats talent when talent does not work hard. When provided with an opportunity to play against type, it is critical that attorneys of color step up and demonstrate mastery of the facts and law.
Assume bias exists. Acknowledge it, accept it and act on it.
To read more of the posts on the Diversity in the Courtroom series:
- Part 1 – The Jury Pool Biases
- Part 3 - Diversity in studio71: An Interview with Judge Alfred Harrell Part 1
- Part 4 – Diversity in studio71: An Interview with Judge Alfred Harrell Part 2
We invite you to comment below with any thoughts or experiences you have regarding Diversity in the Courtroom.