Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


There’s a quote most often associated with Martin Luther King: “The arc of the moral universe is long, but it bends toward justice.” When applied to historical progress, these words generally connote the comforting message that “Things get better.” Our recent history, however, seems dedicated to showing that if there’s an arc, it isn’t necessarily a smooth one, and sometimes that bend toward justice takes some jagged turns. For example, the completed administration of America’s first African-American president did not soothe the country’s troubled experience with race. Rather, it inflamed it. Perceptions of racism as a major problem grew throughout the Obama Presidency, and then exploded afterward.

According to a Pew Research survey of 1,893 adults conducted last month, the percentage reporting that racism is a “big problem” has increased by eight points within just the last two years. That growth has been almost entirely among Democrats, widening what has been an already-large gap between the parties. The gap is even greater between the races, with about half of whites and eight in ten blacks agreeing that racism is a big problem. But across the population, 58 percent agree, and that is up from 50 percent in 2015, and  41 percent in 1995. These social perceptions can drive reactions in litigation, not just in racial discrimination cases, but also in cases involving diverse parties and witnesses. In this post, I will take a quick look at the survey results and discuss a few implications.

The Survey

The year by year data show a growing perception of a problem. While labeling racism as a big problem slightly declined after the first Obama election, it more than made up the difference in subsequent years. Add in the “Somewhat” category and you have nearly 9 in 10 seeing it as a problem.

Screen Shot 2017-09-17 at 7.32.44 AM(Pew Research)

Of course, this is partially a reflection of what is being discussed in the media, but there are also certain realities, like a racial wage gap that is essentially the same as it was sixty years ago. The result is a nation that has not yet gotten past race, and that has some implications in those legal cases that touch on race.

The Implications

Avoid Denial

In a recent discrimination defense, we conducted a mock trial that included deposition video of the company’s CEO testifying that, in his view, discrimination “just isn’t an issue” at his company. The Pew survey data in this case show why a majority of mock jurors didn’t buy it. To the majority, it’s an issue. The only question is, how your company is dealing with it. And if the CEO is too sanguine about it, then that just shows denial, and to these jurors, that means that it is a problem within the company. So while it might be a worthy goal to be color blind, it probably isn’t yet a reality. Adapting to current views means treating the issue as at least a potential problem.

Expect Vigilance

Those who perceive discrimination to be a big problem and who further perceive themselves to be a potential target of it are naturally more likely to be on the lookout for examples of discrimination. I have written recently about this ‘vigilance hypothesis‘ showing that minorities are more likely to perceive discrimination and more likely to support use of the civil litigation system in order to address it. As racial issues attain greater social salience, they have greater availability as an explanation for adverse conduct. The resulting increase in vigilance should matter both at the workplace and in the jury box.

Look for Hyper-sensitivity

Wherever concerns over real conditions are present, there is also the chance of some hyper-sensitivity, with some potentially exaggerating issues or seeing problems that aren’t there. When that kind of attitude risks tainting your jury, the goal in voir dire is to expose and strike those at the extremes.

Here are a few questions to ask:

1. Do you think racism in the U.S. is currently a big problem, somewhat of a problem, a small problem, or not a problem at all? (the Pew Research question)

2. Do you feel that American race relations are currently improving or getting worse?

3. Is racism something that most minorities experience or not?

4. The law will provide instructions on burden of proof, but I want to ask about what you personally would expect. If, in your perception, a member of a minority group received unfair treatment, do you think it is more the responsibility of the individual to prove it was racism, or is it more on the company to prove that it wasn’t?


Other Posts on Race: 


Image credit:, used under license, edited.