The recent trial and conviction of former Minneapolis police officer Derek Chauvin thrust the debate about policing and systemic racism back into the spotlight, but race in America has been a major issue in our national dialogue at least since George Floyd’s death last May.  During our live and virtual focus groups throughout the last year, we’ve learned that jurors bring their perspectives about this debate into the deliberation room.

Increasingly, we’ve seen that it’s not just jurors of color who factor the impact of race into their evaluation of a case – many white jurors do, as well.  Perhaps this shouldn’t be surprising, given the multi-racial crowds at protests last summer.  But what has struck us is the diversity of white jurors expressing such “woke” opinions.  It’s no longer just younger, more liberal jurors.  We’ve heard older, conservative men argue that police often don’t give Black men a fair shake, and we’ve seen white grandmas wearing Black Lives Matter T-shirts.

A number of polls conducted during the past year bear out these changing attitudes.  For example:

• A YouGov/UMass Lowell poll last August found that 51 percent of Americans – including 48 percent of whites – think Blacks are treated less fairly than whites in their interactions with police.
• A Wall Street Journal/NBC News poll last July found that nearly 60 percent agreed that Black people face discrimination.
• According to a Pew Research poll from March 2021, 80 percent of Americans – including 76 percent of whites – believe there is a lot of or some discrimination against Black people.  Seventy-six percent said there is discrimination against Hispanic people and 70 percent against Asian people.
• Last month, Gallup found that 48 percent of respondents say they worry about race relations a great deal, compared to 31 percent in March 2020 (before George Floyd’s death).

These attitudes extend beyond just criminal justice and policing and touch many aspects of American life.  For example, an October 2020 poll by The Undefeated and the Kaiser Family Foundation found that 41 percent of whites – as well as 70 percent of African-Americans and 43 percent of Hispanics – agreed that “our healthcare system treats people unfairly based on their race or ethnic background” very often or somewhat often.  Anecdotally, during focus groups for a recent construction-injury case, several jurors of various races commented that Hispanic construction workers are more likely to face unsafe jobsite conditions due to a reluctance to report problems because of immigration status concerns.

The fact is, race is increasingly an issue many trial lawyers must consider – even if your work doesn’t relate to hot-button issues like policing or criminal justice.  Although there is obviously no silver bullet to take racial factors out of a case, there are steps defense attorneys can take to blunt the impact:

• Don’t hide from it.  Many lawyers are understandably reluctant to even acknowledge race as an issue in a trial, but that does not mean jurors won’t still think it.  If you think it might be an issue, find a way to address it, ideally up front during jury selection.
• Educate about the reality.  We know that many people believe Black people receive substandard health care compared with whites.  We’ve heard hospital executives complain, “If only they knew how much free health care we give away…”  Well, tell them.  If a case involves an underprivileged Black plaintiff, educate the jury about the hospital’s outreach programs and efforts to provide low-cost care to those in need – and how a particular plaintiff may have benefitted.
• Highlight your witnesses’ character.  Racism is an issue of character.  Allow defendant witnesses to educate the jury about their character, including their backgrounds, values, community service efforts and life experiences.
• “I don’t see race.”  Everyone sees race.  Rather than having a defendant doctor, for example, deny that race is a factor in treatment decisions, lean into the issue by eliciting testimony that a patient’s race is relevant only insofar as some races are more prone to certain conditions than others.  Thus, instead of saying, “I don’t see race,” the doctor can say, “I do see race, and I account for how that might be a factor in an individual patient’s health.”
• Don’t pander.  There’s a fine line between not hiding from the race factor in a case and pandering, which will come off as inauthentic.  We can’t tell you what that line is, but consider discussing the issue with various coworkers – Black, white, young, old, etc. – and get their opinions about how to strike the right balance in your case.  For example, we have monitored several trials where one side will bring in a lawyer or client representative who never says a word, but just happens to be the same race (we’ve seen it with gender as well) as a key person in the case.  Jurors are observant, and they typically interpret this as offensive pandering.

There’s no doubt this is a tricky issue, and one that is becoming more and more important for lawyers to address as attitudes toward race change.  If you’d like our perspective on how to handle a racial element in one of your cases, contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.