By Dr. Ken Broda Bahm:
When we think about racial bias in the legal process, our first thought is likely to be of charging and sentencing in the criminal justice system, or based on the Black Lives Matter movement of recent times, we might think of interactions with law enforcement officers. Based on an innovative new study coming out of the University of Oregon Law School (Girvan & Marek, 2015), there is one more arena where we should expect a documented threat to equal justice: civil jury damage awards. Looking at a large number of cases that made it to a plaintiff’s verdict, the researchers uncovered a systematic bias. “When jurors had discretion (i.e., pain and suffering damages),” the authors write, “they awarded less to black plaintiffs than to white plaintiffs.” Quite a bit less, it turns out.
That’s a finding that should be interesting not only to those representing minority parties in civil litigation, but to everyone with an interest in the fairness and viability of the civil jury trial, and that should be all of us. While the study doesn’t look beyond race and gender (more on gender below), it is a safe bet that this tendency for ambiguity to provide an opening for bias applies to all psychological biases, not just to racism and sexism. For that reason, it is worth taking a look at the research and its implications. The study also adopts a pretty clever way of analyzing the sample in order to ferret out the key variables, and for research nerds like me, that alone is a pretty good reason to read the study.
The Study: 41 Cents on the Dollar for Black Plaintiffs
Erik Girvan, an Assistant Professor at University of Oregon’s School of Law, and Heather Marek, a research fellow at the same school, conducted the study. They used Lexis Advance to identify a set of 1,133 civil cases that included an award for pain and suffering where the race of the plaintiff was roughly identifiable. How was the plaintiff’s race roughly identifiable? That’s where the clever research technique comes in. Unlike in criminal cases where demographic information is often kept, civil trials have no such research-friendly method. So what Girvan and Marek did is rely on census data on the surnames of 270 million respondents and use probability estimates of a given race holding a particular last name. Apparently, race is quite a bit more identifiable from last name than you might think. For example, 96 percent of those named Olson are white. Using that data, they didn’t have guaranteed racial identification, of course, but they did have a very reliable and robust probability estimate on race that they could factor into the model.
So armed with that data, the researchers looked at case outcomes in noneconomic damages. Of course, injuries differ in severity, so Girvan and Marek used the level of economic damages as a control. The ultimate finding? “Holding the other variables in the model constant,” they write, “jurors tend to award black plaintiffs approximately 41 percent of the amount of pain and suffering as white plaintiffs.” Forty-one percent! That is quite a discount in the damages category that can make up a sizable portion of the overall award. Of course, that’s not the only category affected by bias. In looking at female plaintiffs, the researchers also found lower damage awards, but those differences were entirely explained by economic damages. In other words, women get less in economic damages, because they make less on average in the rest of the world, and that spills over into noneconomic damages.
The Implications: Account for What Makes Bias Easier and Harder
Bias Is Easier in the Presence of Ambiguity and Discretion
When a decision is undefined and open-ended, like a pain and suffering award, then it is more likely to be influenced by biases. This part of the study’s finding, Grivan and Marek note, squares with other research. When assessing job candidates with substantially different qualifications, study subjects are likely to pick the more qualified candidate, but when the candidates are very close in qualification, subjects are more likely to fall back on race and gender biases. The ambiguity creates an opening for the bias. In a way, that provides a reason why a setting like a civil jury trial will never be free of bias. In an adversarial context where both sides are deploying relatively high levels of resources, a fair amount of ambiguity is inevitable. That’s a reason for attorneys to pay close attention to bias in voir dire and to never take for granted that a potential juror who says he won’t be biased really won’t be. In addition, it suggests a sliding scale of concern: The more ambiguous you expect the evidence to be, and the more the bulk of the case depends on intangibles like pain and suffering, the more resources and effort you should devote to uncovering bias in voir dire.
Bias is Harder When There’s Clear and Objective Criteria
Girvan and Markel explain that bias is less likely to influence economic damage categories that are defined with reference to structural factors like past income, medical bills and care plans. “When jurors are given clear, objective criteria for determining an award, structural factors are most likely to influence awards. However, when faced with ambiguity and broad discretion, jurors’ biases are likely to have the most impact.” That explains why, in the human resources field for example, the principle strategy for reducing the influence of bias is to provide clear and concrete criteria for evaluative steps that would otherwise be subjective. That discretion can’t be fully drained from a jury trial, but plaintiffs’ trial lawyers can try to minimize it by loading as much of their damages into concrete economic categories, and when dealing with noneconomic categories, aiming to provide decision rules that are as concrete as they can be. For example, one classic strategy for calculating an amount for pain and suffering is to create a daily rate that seems fair, and to then multiply it over the course of the plaintiff’s remaining years. Based on the research, that’s not just a good strategy for getting jurors to a high anchor, it is also a good strategy for reducing the influence of bias.
Of course, these are incremental ideas, and they don’t get us past the pretty shocking finding that black civil plaintiffs only receive 41 cents on the dollar in noneconomic damages relative to what white plaintiffs receive. That sobering fact suggests that implicit racial bias is not erased by civil procedure, and that in addition to a “Black Lives Matter,” our justice system might need a “Black Pain and Suffering Matters” message as well.
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Other Posts on Racial Bias:
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Girvan, E. J., & Marek, H. (2015). Psychological and Structural Bias in Civil Jury Decisions. Available at SSRN, URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2659875
Image Credit: 123rf.com, used under license, edited by author.