Category Archives: 2017 POSTS

EXPOSING IMPLICIT RACIAL BIAS DURING JURY SELECTION…HOW?

 

IMPLICIT BIAS

Attorneys, judges and jurors all want to see themselves as fair, equitable, and rational, yet studies show that despite our best intentions none of us are free from bias. Implicit bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs.

Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Studies show that implicit bias can affect how judges make decisions, how attorneys decide who to leave on juries and how jurors decide what testimony to believe or disregard.

The impact of implicit bias on decision making has been shown in numerous studies. For example:

  • Researchers sent identical resumes to employers and found a 50% drop in interview callback rates for the applicants when they changed the names on the resumes from Emily and Greg (signaling European ancestry) to Lakisha and Jamal (signaling African ancestry).
  • Study participants shown photos of black and white American men with neutral facial expressions perceived the black face to be more hostile than the white face, and the participant’s implicit bias as measured by the IAT correlated to the degree of hostility the participant perceived.
  • Partners reviewing the identical third-year associate memorandum rated the memorandum higher and found fewer errors when the associate was identified as white than black.

The important takeaway is not that implicit bias is bad or that people who have bias are bad people. We all have bias. Part of our job as trial attorneys and judges is to recognize and address racial justice issues whenever and wherever they arise.

For example, within the context of a jury trial, it is critically important to recognize the role that implicit racial bias may play within the minds of otherwise well intentioned jurors. But how do you uncover from someone a subconscious (implied) bias that the person’s conscious mind does not recognize or even realize exists. As Justice Sotamayor wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race….”

The following are suggestions on how to introduce the issue of implicit racial bias to prospective jurors along with 15 carefully crafted voir dire questions.

IF RACE IS OR MAY BE AN ISSUE IN YOUR TRIAL CONSIDER THE FOLLOWING: 

During voir dire you have the right to question jurors concerning their beliefs and attitudes on race and racial bias. Start with introducing the issue of racial bias to the jurors and then try to get them to talk about it. Make sure to link questions about race to your case. The following statement to the jury panel and sample voir dire questions are a good starting point.

NOTE: Some attorneys may prefer to have the judge address the issue of racial bias with the jury panel by asking all or some of the following race related questions. All voir dire issues (including the racial bias statement below) should be discussed with the judge during your pretrial conference prior to commencement of trial.

INTRODUCING THE ISSUE OF RACIAL BIAS TO THE JURY PANEL: Ladies and gentlemen, despite the many differences in our lives and backgrounds, we all want to see ourselves as fair, equitable, and rational human beings, yet studies show that despite our best intentions none of us are free from bias. Implicit racial bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs. Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Implicit bias is developed over the course of a lifetime through exposure to direct and indirect messages. Studies show that implicit bias can affect how we all make important decisions in our lives. Please keep that in mind as you answer the following questions

(Note: the following questions can also be found in the voir dire section of the Criminal Jury Trial Judges Manual):

  1. Please tell us the type of contacts you have had with Blacks/Asians/Native Americans/Hispanics
  2. Do you work with any Blacks/ Natives Americans/ Asians?
    1. Describe work setting i.e. large factory small office
    2. If so, do you socialize with them at work? Coffee breaks, lunch?
    3. Socialize with them outside of work? If so, types of activities?
    4. Have they been in your home? Have you been in their home?
  3. Do you have kids? Are they in school?
  4. Are your kid’s friends with any Blacks/Native Americans/ Asians in school?
  5. Have your kids’ minority friends ever been in your house?
  6. Have your kids ever been in their minority friend’s home?
  7. Do Blacks/ Native Americans/ Asians live in your neighborhood?
  8. Do you have any contact with them?
    1. Describe?
    2. Ever been in their house? They ever been in your house?
    3. Do your kids have any contact with them? Do their kids have any contact with you?
    4. Are you friends with them?
    5. Are their kids & your kids friends?
  9. Any Blacks/ Native Americans/ Asians in your church?
    1. If so, describe types of contacts you have with them?
  10. When you were growing up were there any Blacks/ Native Americans/ Asians in your neighborhood?
    1. What kind of relationship did you have with them?
    2. Describe activities you would do with them?
    3. They ever in your home? You ever in their home?
  11. Ever date Black/ Native American/ Asian?
    1. If yes, how did your parents feel about that?
  12. Have your children ever dated Black/ Native American/ Asian?
    1. If yes, how did you feel about that?
    2. If no, how would you feel about your child dating a Black/ Native American/ Asian?
  13. Have you or anyone close to you ever been the victim of a crime?
    1. Do you know the race/ethnicity of the person who committed that crime?
    2. If yes, is there anything about the race of the person who committed that crime that would make it difficult for you to be a juror in this case?
  14. Race can have no part in your deliberation and decision on the guilt or innocence of the Defendant. Do you understand and agree with that?
  15. Is there anything about the race of the Defendant in this case that would make it difficult for you to be a juror in this case?

JURY TRIAL REFERENCE TOOLS: For a “Complete Step-By-Step Guide from the Beginning of Trial through the Return of Verdict” go to the Criminal Jury Trial Judges Manual. If during voir dire the state or defense makes a peremptory strike on the basis of race or gender, every trial attorney (and judge) MUST be familiar with the 3 step BATSON challenge process. See Judicial Training Update “Jury Selection ‘Batson’ Challenge”. To access all past judicial training updates and the Judicial Resource Library, go to the Minnesota Judicial Training & Education Blog.   

IMPLICIT BIAS TEST: The most widely recognized test of implicit bias is the Implicit Association Test (IAT) conducted by Project Implicit a research website operated by Harvard University, Washington University, and the University of Virginia.

September 24, 2017

Alan F. Pendleton (Former District Court Judge)

afpendleton@gmail.com

763-498-1508

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TEN TIPS THAT EVERY NEW ATTORNEY SHOULD KNOW

lessons_in_law

PERSONAL UPDATE: I woke up this morning realizing that it had been 6 months since my last post. One of the drawbacks to the aging process is that time seems to pass so much faster than when we were younger. I am now a legal resident of North Scottsdale, Arizona but we will continue to spend summers and fall in Minnesota. We just completed construction on a new home way out in Minnestrista (for those of you geographically challenged) Minnestrista is a picturesque small town located on the western edge of lake Minnetonka. Now that the dust has started to settle I will hopefully get back to posting on a more regular basis. If you need to reach me I have a new email: afpendleton@gmail.com.  As for this week’s post:

Whether you work in a private law firm, city or county Attorneys office, public defenders office, or as a judicial law clerk, someone at your place of employment has responsibility for hiring and firing new attorneys.

Over my 36 year legal career I have worked in all of the above settings (except not as a public defender). I can tell you from personal experience that when management attorneys meet to discuss business, the subject often turns to common mistakes made by new attorneys. This is a topic I wish law schools would spend more time covering with their recent graduates. 

The following is a list of ten typical mistakes to avoid when you’re trying to get your legal career off to a great start.

MENTORING SUGGESTION: If you are an older more experienced attorney I encourage you to share this post with any new attorneys in your firm or office.

  1. Know your place. If you’re the newest lawyer in your firm/office, others with more seniority and experience expect a certain level of respect. Being arrogant, self-righteous, or correcting senior counsel publicly will make your opinions less favored than using a respectful and thoughtful approach. You’re expected, at least initially, to prove that you can work harder and longer hours to prove yourself. Complaining about the work load, taking long lunches, and expecting to have a hand in deciding what cases you’ll work on will appear overreaching and unappreciative. Perks will come with time and experience.
  2. Don’t be afraid to ask for input. Few new attorneys ever ask for input or ask how their work can be improved. This is probably because they don’t really want to receive feedback on these issues for fear of being criticized. However, it shows initiative and maturity to ask how you can improve. Also, if you want advice on how to approach a legal task, it’s often helpful to approach your supervisor early with a plan as to how you will attack the legal problem. It’s better to find out if you’re on the right or wrong track early than to waste time doing something the wrong way. The fact that you’re trying to improve is impressive in itself.
  3. Write a handwritten note. Hardly anyone thinks to write a thoughtful, handwritten note to show appreciation for a kind gesture. Before texts and emails, we actually owned pens and stationery! A nicely written note will earn you major points with both supervisors and clients. Electronic communications can seem impersonal and may get buried in the email morass of the recipient’s inbox. (this is my personal favorite!)
  4. Listen more than you talk. When you’re a new lawyer, there’s a tendency to talk too much and listen too little because you’re trying to impress clients and/or colleagues. However, a good lawyer listens to the client and their issues, concerns, and problems and then asks appropriate follow-up questions before offering legal advice. Learn to be a good listener early on in your career and your clients will appreciate you for it. When dealing with more experienced attorneys in your firm/office your rule of thumb should be “ask them questions, listen, learn from them and then thank them.”  Developing your active listening skills will also help you with negotiations (civil or criminal).
  5. Have empathy. Clients (and victims for prosecutors) are often frightened by being involved in the legal process and may feel very violated. They’re coming to you for legal advice, but showing compassion, being a good listener, and treating them with respect can earn you a client for life .  Many people don’t think that lawyers care about the outcome of the legal issue—do what you can to change this perception of lawyers and you’ll help the profession, and yourself, in the process.
  6. Learn to proofread. Read and reread everything you draft. And always even though you draft it electronically, print your legal work and review it thoroughly before signing it. Doing this helps you catch formatting errors, written mistakes, and less than stellar analysis. Keep it formal; too many young lawyers inappropriately use a casual, unprofessional tone (i.e., “the defendant acted like a Mafia Don”) and colloquialisms or slang. By submitting a technically perfect document, you can set yourself apart from others and enhance the possibilities for future successes. Judges can be especially critical of attorneys that submit sub-par filings.
  7. Get all agreements in writing. Handshake deals aren’t the way we practice law. No matter how friendly your relationship is with opposing counsel, all agreements should be confirmed in writing. For example, if opposing counsel tells you on the phone that he or she will drop a cause of action from the complaint, get it in writing so you aren’t left without recourse if he or she reneges. And if much of your confirmation writings are in email, make sure to have a system for storing these agreements or print them out for future use. This is expecially important when reaching plea deals in criminal cases.
  8. Don’t expect law clerks and Google to tell you how to practice law. Law clerks hate calls from lawyers who try to use them as a reference instead of doing their own independent research. And you don’t want to irritate the clerk. Also, be aware that a search on Google or another online search engine doesn’t replace actual legal research, and any samples you obtain through such a search should be thoroughly researched to make sure the law cited is correct, recent, and relevant. Also, when researching, always read the entire case. Don’t depend on a summary and canned holding that may not be on point with your own case. Remember, if you annoy or agitate a law clerk the judge is sure to hear about it.
  9. For private attorneys, understand what it means to provide client value. Your work, every minute of it, is ultimately billed to a client, and you should think about how the bill will look from the client’s perspective. Keep up with your timesheets on client matters on a daily basis. Your firm and the clients will benefit from your accuracy and value your efficiency. Provide detailed billing so that you can always justify your time and don’t do secretarial work that can be billed by someone else at a lower rate.
  10. Use your tech skills. Younger attorneys are usually proficient at using computer programs, social media, and other technologies. Offer to assist your firm/office with existing skills to add value to the organization while demonstrating your own value. It will take a while to develop legal skills, so why not capitalize on skills you already have in the meantime?

July 24, 2017

Alan F. Pendleton (Former District Court Judge)

afpendleton@gmail.com

Source: CEBblog, California Continuing Legal Education. Anabella Q. Bonfa, Wellman & Warren LLP, and Diane Rifkin, Rifkin Consulting.

The “Rule of Primacy”, The Cornerstone to Effective Trial Advocacy: Plus Some Bonus Acting Tips

rule-of-primacy

RULE OF PRIMACY: Following the “Rule of Primacy” is one of the easiest (yet most overlooked) ways for attorneys to improve their trial performance. If you’re a young attorney with aspirations of becoming the next Clarence Darrow you need to know and follow this rule (all great trial attorneys do). If you’re a presiding judge who believes in the value of mentoring young attorneys, the “Rule of Primacy” should be at the top of your constructive critique list to share with attorneys following a jury trial. So, what is the “Rule of Primacy”?

The most important concept to remember in organizing your statements to the jury, whether during opening statement or closing argument, is the “Rule of Primacy:” Jurors tend to believe what they hear first and most frequently.

What someone believes first is hard to change or dislodge. That’s why going first gives the prosecution in a criminal case or the plaintiff in a civil case a distinct advantage.

But regardless of whether you speak first to the jury, you can use these “Rule of Primacy” techniques to get them on your side:

Take advantage of your opening. The opening statement is made when jurors usually are the most attentive. Using a clear theme and reinforcing it with strong language chosen to produce a specific perception in the minds of jurors can help you persuade jurors even before presentation of the evidence. If a plaintiff gives a compelling opening statement, it’s absolutely imperative that the defense’s opening statement eliminate or minimize the effect of the rule of primacy. The task is made somewhat easier by the fact that jurors tend to forget much of what’s said to them. The defense opening should take advantage of the fact that what people do remember is what they hear at the beginning and end of a presentation.

Tell them what you are going to tell them; tell them; and then tell them what you’ve told them. This presentation organization is used by teachers with students and preachers with congregations. The trial format itself echoes these principles. The opening statement provides the first opportunity to “tell them what you are going to tell them.” Then, when you present the evidence, you do “tell them.” Finally, in closing argument, you “tell them what you’ve told them.”

Use opportunities for repetition when you get them. The opening statement and the closing argument should be used as vehicles for repetition. The use of repetition, along with strong, confident language selected for its most favorable emotional appeal, can be an extremely effective way to reinforce a party’s perspective in the eyes of the jurors. This is especially true when the same theories, facts, and phrases are used in the opening statement and closing argument. Jurors tend to remember and believe what they hear most often.

BONUS ACTING TIPS: Many years ago I took an acting class specifically designed for trial attorneys. During that class they stressed the importance of several simple yet effective techniques designed to help jurors remember key points raised during your opening statement and closing arguments. 

When presenting your opening statement or closing argument one of the WORST things you can do is plant yourself in one spot never moving more than 2 or 3 feet in any direction from your podium or your self-imposed spot on the floor.  REMEMBER: When preparing for trial you literally become the producer, writer, director, choreographer and actor of your own play. For purposes of this article I am focusing on your role as the “choreographer”. 

During a jury trial, the “WELL” section of the courtroom (the area in the center of the courtroom surrounded by the jury box, judge, witness stand and attorney tables) should be viewed as your performance stage, this is your moment in the sun, your moment of truth, this is where many close cases are won or lost…..YOU NEED TO USE AND MASTER THIS AREA – YOUR STAGE! But how? The answer is simple – you need to MOVE YOUR ASS. Use the space you have been given. Take advantage of every tool at your disposal. Don’t be a talking head…MOVE, MOVE, MOVE, but move with purpose and design. In other words, during your opening statement and/or closing argument, you must learn to choreograph your every move. FOR EXAMPLE:

1. FOCUS ON WITNESS: To highlight the testimony of a credible young sex abuse victim, you could walk to the witness stand where the young child sat while cringing with fear and embarrassment, and retell her story from that exact same spot (whether you stand by the witness chair or decide to sit in the chair is a matter of personal preference, and yes, there is no rule that says you can’t sit in the witness chair during portions of your summation). From the jurors perspective, your actions will automatically trigger powerful memories of the young child’s appearance and testimony. Or, for the defense, if the child victim was NOT credible or sympathetic, you could use the same technique to highlight the glaring inconsistencies brought out during your masterful cross-examination. 

2. FOCUS ON DEFENDANT: When you get to the part of your oratory masterpiece where you want to highlight some despicable act of the defendant, a key piece of evidence pointing to guilt, or perhaps his/her confession or incriminating statement, you could walk to where the defendant is sitting and dramatically point or gesture toward him/her. How physically close you get to the defendant and how far you go with the pointing or gesturing will depend on how aggressive you want to be and how far your judge will let you go. Or, for the defense, if you have a credible and sympathetic client, you can use this same technique to personalize your client by walking over to and gently placing your hands on his/her shoulders while you highlight  how horribly unfair the system has treated him/her.

3. THE KEY IS TO MOVE: There are a million variations to this theme….the point is to choreograph your opening and closings so that you make use of the courtroom stage. You accomplish that by moving and knowing exactly where in the courtroom you want to be standing (and why) when highlighting certain facts. Your presentation will be far more interesting and thus more effective and persuasive to the jury.

4. JURORS REMEMBERING MULTIPLE POINTS: Finally, what is the most effective way to maximize juror retention when you have 3 or 4 critically important facts you need the jurors to remember? Our brains are taught from an early age to read and retain information from left to right.                                                                                

When your about to discuss your first important point pick a spot to the right of the jury box (this is to your right – for jurors it will be to their left). Stay in that general area while discussing that first point.        

When your ready to move on to point two, move your spot a little to your left (which is the jurors right, the direction in which they read) and discuss your second point.

For your third point move to a spot a little further to your left (the jurors right), etc and etc. Jurors are watching and listening to your multiple points in the same direction that they would read a book. This provides mental separation between multiple points and allows jurors to subconsciously put a place holder of sorts on each point allowing for easy recall during the deliberation process.

Based on countless post-trial discussions I have had with jurors following the return of verdict, both as a judge and during my years as a prosecutor, I can tell you with absolute certainty that these simple techniques work.

You are limited only by the lack of your own imagination and willingness to move beyond your comfort zone. 

January 15, 2017

Alan F. Pendleton (Former District Court Judge), 763-498-1508; afpendleton@gmail.com

Source: CEBblog, Rule of Primacy, Julie Brook, January 13, 2017, State Bar of California.