OLYMPIA (Legal Newsline) - Litigants who claim a jury verdict was tainted by racial bias are entitled to a hearing where the judge must assume they are correct, the Washington Supreme Court ruled, placing the burden on the other side to prove that bias didn’t affect the decision.
The high court’s ruling came in a routine car accident case where the victim, a Black woman, claimed she suffered whiplash and exacerbated symptoms of Tourette’s Syndrome requiring $3.5 million in damages. The all-white jury awarded her only $9,200, after hearing a defense lawyer describe the plaintiff in closing arguments as “combative” and “confrontational,” and suggesting that friends and family who testified about her medical condition might have been coached to tell the same story.
“These terms evoke the harmful stereotype of an `angry Black woman,’” wrote Justice Raquel Montoya-Lewis in a lengthy opinion that cited academic studies on implicit bias, and “coded `dog whistle’ language.”
The effect of the Oct. 20 decision is to extend to civil trials the standard the Washington Supreme Court recently established for criminal cases, where litigants can demand a hearing to inquire into racial bias if they show an “objective observer” could view race as a factor in the verdict.
“The trial court is to presume that racial bias affected the verdict, and the party benefiting from the alleged racial bias has the burden to prove it did not,” the court ruled, in a case that drew briefs in support of the plaintiff from the American Civil Liberties Union, Disability Rights Washington and the Seattle Chapter of the National Lawyers Guild.
Janelle Henderson sued Alicia Thompson after they were involved in a rear-ender accident where Thompson admitted fault. Henderson claimed the accident aggravated her existing Tourette’s, including involuntary movements and vocalizations called “tics.” She sought $3.5 million in damages, based upon treatment costs of $250 a day for the rest of her life.
Henderson’s lawyer and several of her witnesses were Black, while Thompson, her lawyers, the jury and judge were white.
The defense challenged Henderson’s claims of disability with a surveillance video from work where she displayed no observable tics. Two defense medical experts said she only suffered minor injuries from the accident that were quickly resolved.
Henderson presented friends and family members as lay witnesses, who said she was plagued by chronic pain and tics that kept her from exercising or going out in public. Several described her as the “life of the party,” a phrase Thompson’s lawyer said suggested they might have been coached to tell the same story. The lawyer also told jurors Thompson got a job from her chiropractor, suggesting there might be more than simply a medical relationship between them.
Finally, the lawyer suggested the plaintiff was in it for the money.
“It’s just a simple car accident; it’s a simple rear-end; why are we going through this exercise?” the defense lawyer told jurors. “And it seems pretty evident that the reason we’re going through this exercise is because the ask is for three and a half million dollars.”
The trial judge refused Henderson’s motion for a new trial, saying judges can’t “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.”
“That reasoning gets it exactly backward,” the Supreme Court said. The question is whether an objective observer “could view race as a factor in the verdict.”
In this case, Justice Montoya-Lewis wrote, Thompson’s lawyer engaged in “racist tropes” that depict “Black women as untrustworthy and motivated by the desire to acquire an unearned financial windfall.” In a footnote, she cited “the myth of the `welfare queen,’” and cited the fact Henderson wasn’t present in the courtroom when the jury returned its verdict, which her lawyers said was because the jury requested it.
She also criticized Thompson’s lawyer for saying her client felt intimidated and emotional about having to testify about the accident.
“The depiction of Henderson as `confrontational’ and `combative’ and her depiction of Thompson as `rightly’ `intimidated’ and `emotional’ distorted the roles of plaintiff and defendant, casting Thompson — the person responsible for injuring Henderson — in the role of the victim to whom the jury owed more sympathy than the actual injured party,” the court said. “This invited the jury to make decisions on improper bases like prejudice or biases about race, aggression, and victimhood.”
“Counsel’s comments during cross-examination and closing arguments that drew on racial stereotypes, along with the jury’s astonishingly small award and the request to remove Henderson from the courtroom, support the conclusion that appeals to racial bias affected the verdict,” she concluded.
In a concurrence, Justices Sheryl Gordon McCloud and Barbara Madsen agreed there was evidence of racial bias, but that the defense lawyer’s comments weren’t necessarily improper.
“Parties must be able to explore witnesses’ financial and other interests that might undermine their credibility,” Justice Gordon McCloud wrote. “For that reason, I disagree with the majority’s conclusion that it was an improper appeal to racial bias for defense counsel to argue that the trial was all about `Henderson’s desire for a financial windfall.’”