Try to picture this: One woman sues another over injuries from a car accident and seeks $3.5 million in damages. In closing arguments to the jury, defense counsel states that the plaintiff’s testimony was “confrontational” and “combative.” Defense counsel states that the case involves “a simple car accident” and suggests that the plaintiff is seeking a financial windfall. Defense counsel points out that three of the plaintiff’s witnesses used the same phrase—“life of the party”—to describe what the plaintiff was like before the accident and suggests that “someone had told them to say that.”
What do you know or surmise about the plaintiff?
In a baffling opinion (in Henderson v. Thompson), the Washington supreme court, proclaiming that “Racism is endemic,” has concluded that the language used by defense counsel “called on racist tropes.” The terms confrontational and combative “evoke the harmful stereotype of an ‘angry Black woman.’” (Hmmm, who’s the racist here?) The suggestion that the plaintiff, Janelle Henderson, was seeking a windfall “appealed to … negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy.” And the insinuation that Henderson had coordinated the testimony of her witnesses was supposedly “akin to the prosecutorial misconduct [the court] had condemned [in another case], where the prosecutor asserted that Black witnesses were unreliable because there was a ‘code’ that ‘Black folk don’t testify against Black folk.’”
At trial, the jury ruled in favor of Henderson and awarded her $9,200. The Washington supreme court calls that amount “astonishingly small,” but its characterization makes no sense. The defendant presented a video at trial that indicated that Henderson was faking the extent of her injuries, and the jury evidently agreed. The Washington supreme court claims that defense counsel “proposed” an award of $60,000 in closing argument, but its own account shows that defense counsel said that should be the maximum award if the jury “found that Henderson was injured and her condition was aggravated by the collision.”
The Washington supreme court ruled that the trial court, in deciding whether to grant Henderson’s request for a new trial, should have asked “whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” If the answer is yes, as the supreme court says it is, then the trial court “must presume” that racial bias affected the verdict. The party seeking to uphold the verdict “must prove how it did not.” For flimsy reasons, the supreme court also ordered that the case be reassigned to another judge on remand.
Hans Bader spells out in this post how the ruling “effectively gives black plaintiffs a racial advantage in lawsuits against whites”—black defendants, too, I would think—how it draws on Critical Race Theory, and how it violates Equal Protection principles. I’ll add some related observations here.
What if Henderson’s testimony actually was confrontational and combative? Is it really the case that a white witness’s testimony can be criticized on those grounds but a black witness’s can’t? Isn’t it routine for defense counsel to argue that the damages sought by plaintiff are excessive? Mightn’t all plaintiffs be accused of seeking windfalls? Are black plaintiffs exempt from charges of coordinating testimony? And how does defense counsel’s mild suggestion at all “akin” to the charge of a supposed “code” that “Black folk don’t testify against Black folk”?
Oddly, the Washington supreme court doesn’t bother to spell out the burden of proof that the defendant will bear in showing that racial bias didn’t affect the verdict. If the standard is the ordinary civil standard of preponderance of the evidence, that standard could be met by, say, defense counsel testifying that she had no intention of appealing to racial bias and by the trial court’s crediting counsel’s testimony. But that is obviously not what the supreme court is encouraging. And perhaps it even envisions that the party seeking to uphold the verdict must somehow prove that “implicit, institutional, and unconscious biases” played no role.