Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
Black Americans, especially but not exclusively those on the lower-economic rung, often have a different experience with police and the justice system. That difference makes them more likely to believe they’ve been discriminated against, or to believe more generally, that they get greater attention and less protection from the law. That engenders a general distrust of the criminal justice system which, unfortunately, is a large part of what drives racial bias in strikes by prosecutors. I have written recently about ways to address race-based strikes, but an additional interesting question is whether skepticism toward the criminal justice system extends to skepticism toward the legal system in general, including the sphere of civil litigation. After all, following the Civil Rights Acts, civil litigation now serves as one of the principal ways of enforcing anti-discrimination in the workplace. If the groups that are more likely to face discrimination are also less trusting in the legal tools meant to address it, that would be an important limit on the law’s effectiveness.
Not many studies have examined attitudes toward civil litigation, but a recent study has taken a look. McElhattan, Neilsen & Weinberg (2017) research looked at the views of Latino, African American, and White participants, specifically looking at two hypotheses: A “vigilance hypothesis,” suggesting that minorities are more sensitized to potential discrimination and therefore more likely to see it than Whites, and a “cynicism hypothesis,” suggesting that non-Whites are less likely to favor using the law by filing a claim. Their study found support for one hypothesis, but not the other one. It is an interesting conclusion with some implications both for avoiding litigation in the workplace and for the voir dire of potential jurors on attitudes toward civil litigation.
The study looked at perceptions of race discrimination and willingness to believe it is worth it to hire a lawyer to take the claim to court. Given that minorities show greater skepticism toward law in a criminal context, the team suspected that there may be a gap between perceiving discrimination and recommending that a victim turn to the legal system. The hypothesis was that minorities will be more likely to perceive discrimination, but less likely to favor the law as a solution.
To test that, they asked a diverse nationwide sample of 2,087 adults to read and respond to vignettes describing a situation of potential race discrimination, while varying a number of factors such as tenure on the job and work history. After each scenario, they asked whether it was discrimination and, if the target were a friend, whether they would encourage or discourage that friend from taking the matter to court.
The first hypothesis, vigilance, is the one that was at least partially confirmed. “We find African-American respondents perceive more anti-Black discrimination than other racial groups.” Latinos, however, were not significantly different from Whites, and African-Americans themselves were only more likely to perceive discrimination when the target described in the scenario was also African-American.
In the second hypothesis, however, the team found the opposite of what they expected. “Our results show that while Latinos and especially African-Americans tend to hold much more positive views [on civil litigation], Whites and higher-income respondents give the least favorable answers to these questions about legitimate grievances and social fairness.” Taking into account that white individuals are more likely than African-Americans to have lawyers, more likely to survive summary judgment and make it to trial, and see higher win rates, the team still found that, despite that, they’re more skeptical on civil law as a solution. “We find that respondents who are structurally positioned to navigate the litigation process more easily and achieve more favorable outcomes also tend to express the lowest confidence in civil legal institutions.”
The findings on both vigilance and cynicism have some implications both in the workplace and the courtroom.
In the workplace, employers should expect that minorities, and particularly African-Americans, are going to be more vigilant about discrimination. That means, in some cases, they are likely to see it where others do not. That does not make them wrong or over-sensitive. It simply means that based on their experience, some events and circumstances are going to resonate more strongly than they might for another group. The article cites data showing that 28 percent of African-Americans report experiencing unfair treatment due to their race, compared to just 6 percent of White workers. In that setting, a culture where it is okay to raise questions and concerns is going to be better in the long-run for the company. And one reason for that is, just as African-Americans are more likely to see and feel discrimination, they are also more likely to view civil litigation as the appropriate solution. So a setting where they can raise a complaint before filing a claim is going to be helpful.
The findings on cynicism are even more interesting. So while it might be reasonable to believe that African-Americans are more likely to be skeptical of the system when it comes to criminal trials, that expectation does not apply to civil trials. In contrast, African-Americans seem to be the most trusting in civil litigation as a solution, with Latinos coming in second, and Whites third. The authors speculate on why Whites might be more skeptical: “Respondents from relatively high-status groups may view lawsuits as litigiousness run amok — precisely because these claims often pit plaintiffs from marginalized social groups against higher-status defendants.” So while those in lower-status groups see litigation as a route to greater justice, those in higher-status groups might see it as a threat.
That suggests that, whether you are looking for jurors who see the redistributive potential of civil lawsuits or whether you are looking to strike those jurors, it is a good idea to ask about attitudes toward civil litigation as part of the voir dire process.
The researchers measured civil litigation attitudes based on agreement or disagreement with eight statements:
- Most people who sue have legitimate grievances.
- There are far too many frivolous lawsuits today.
- People are too quick to sue rather than trying to solve disputes in some other way.
- The courts have made it easier to sue someone in recent years.
- Civil lawsuits have made this a more fair society.
- The number of lawsuits shows that our society is breaking down.
- Juries do a good job determining the outcomes of lawsuits and assessing damages.
- The money awards that juries are awarding in civil cases are too large.
Other Posts on Race:
- Expect Racial Bias in Civil Damage Awards
- Address Bias at its Roots
- Treat Racism as Situational
- Don’t Treat Racism as Just a Belief
McElhattan, D., Beth Nielsen, L., & Weinberg, J. D. (2017). Race and Determinations of Discrimination: Vigilance, Cynicism, Skepticism, and Attitudes about Legal Mobilization in Employment Civil Rights. Law & Society Review, 51(3), 669-703.
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