In Praise Of Prejudice

What do you say, dear readers -- is this clever marketing and intelligent defense of lawsuits, or offensive bigotry?

I am condemned by the State Bar of California to take one hour of continuing legal education every two years on the subject of “eliminating bias in the law.”

I recently found a mildly interesting podcast during which a speaker addressed the question whether you should add a woman or minority to your trial team to score points with the jury. The speaker answered, predictably enough: “Don’t pander. It’s a bad idea to put a woman or minority on your trial team who just sits there during trial and doesn’t do anything. The jury will view this as pandering and hold it against you.”

Of course; that’s bad pandering.

What about good, solid, effective pandering?

Should we put a woman or minority on the trial team and then have that person examine a half-dozen witnesses, so the scam is not so self-evident? What do the data say about that?

I would have liked to have heard the speaker talk about the interesting question, rather than the silly question with the self-evident answer.

It wasn’t to be.

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But the discussion got me to thinking about other forms of prejudice, which are simultaneously politically incorrect and the life-blood of litigation.

I’m not (generally) thinking about jury selection here. The Constitution limits your ability to deploy your prejudices when picking jurors.

I’m thinking about retaining counsel.

Years ago, there was a personal injury defense lawyer in Cleveland who was confined to a wheelchair. He had a pretty good practice, and he was awfully effective defending broken-leg cases before juries. Was it wrong for his clients to retain him in part because of his disability?

I know a fair number of management-side African-American employment lawyers who implicitly play the race card every day. Who would you rather have defend your company in a race discrimination case — yet another old white guy, or someone who looks like the plaintiff? Is it wrong for these employment lawyers to capitalize on their race? Is it wrong for corporations to retain these lawyers because of their race?

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When I wear my lawyer’s hat, I’m interested more in empirical evidence than political correctness. I’d be curious to see any data about the comparative success rates of female versus male lawyers defending sex discrimination cases, or whites versus blacks defending race cases.

Suppose the data supported what prejudice suggests — that you’re better off with a woman defending your sex case or an African-American defending your race case. Is it right to retain counsel for politically incorrect reasons to improve your odds at trial? If this form of prejudice pays, does zealous advocacy demand that you play the sex or race card on your client’s behalf?

Potentially useful prejudice doesn’t stop there. Many young female litigators got their first opportunities to try cases when jury research in the breast implant litigation prompted the defendants to fill courtrooms with progesterone. Those female defense lawyers were often conducting direct examinations of female expert witnesses — women with doctorates in biomechanics or expertise in FDA regulatory processes. The folks planning trial strategy for the defense weren’t stupid: If defending your case requires you basically to beat up on a female plaintiff, aren’t you better off having a bunch of women undertake the attack?

Those female lawyers returned to the courtrooms a decade later to defend the hormone replacement therapy cases. Was it prejudice — or reality — that prompted defendants to make those tactical choices? Either way, were those decisions improper?

Years ago, I was part of a four-lawyer team that made a pitch to defend a drug company in another set of cases that would exclusively involve female plaintiffs. Who did we send to the beauty contest? The two (male) lawyers with reputations and experience in pharmaceutical product liability cases (which had prompted the client to interview our firm) and two of our female partners with significant trial experience. Part of our pitch was obvious: “Jury research in analogous cases has shown that you need female trial lawyers and experts to defend cases such as these. We’ve given you a list of some female expert witnesses that we propose to interview about these cases, and we wanted to introduce you to a couple of our female partners who can serve as lead trial counsel in these cases. No other firm with experience comparable to ours in pharmaceutical product cases can also offer female trial lawyers as distinguished as ours.”

What do you say, dear readers — clever marketing and intelligent defense of lawsuits, or offensive bigotry?


Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.