Case Analysis #5 - Dealing with Bias

Persuasion must take bias into account

Bias may well be the buzzword of the decade. Whether unconscious or otherwise, bias is a human trait. We all have a bias toward or against something. Whether by instinct or training, nature or nurture, we favour some things and lean against others. As advocates, we should recognize this tendency in our witnesses, our audience and ourselves. Remember that we are in the persuasion business. An advocate must – absolutely must – consider bias in everything we plan, do and say.

OK, then. That’s the easy part. The hard part is recognizing the potential for bias in any given situation and then mapping out a strategy to deal with it. In other words, apply case analysis.

Look at the most innocent of elements:

1.     Goldilocks was a child walking alone in the forest.

Consider a jury consisting only of 70-year-old white women from a farming community. If you are an advocate pleading before such a jury, what do you think will most persuade them to lean towards or against Goldilocks? Provided that you stay within the bounds of the evidence, you can spin this sentence, this element, any way you think will most impress that jury. Then repeat the notional exercise for a jury of 30-year-old urban Black men. Attributes such as age, race, gender, height and possibly others become important when seen in the light of bias and your assumptions of their bias.

Why do you think judges, tribunal panels, or arbitrators are any different than jurors? Yes, these decision-makers may be selected from a body of accomplished professionals, and many receive bias training. But professionals are still human. And they are guided to some extent by what they have heard in earlier cases despite their training to keep an open mind and weigh the evidence in a case on its merits.

Bias is, of course, not always good or bad. It just is. And as an attribute, you should take it into account. That means you can plan to exploit the bias to favour the outcome you seek or plan to accommodate it if you can’t exploit it. You should – in both cases – be conscious of it. Like ‘bad facts’, bias doesn’t disappear just because you ignore it.

A word about political correctness – it should not play any part in your analysis. Sure, there are things you can’t say and questions you can’t ask in open court or even in the privacy of your office when interviewing a client or witness. But you should ask yourself the hard questions so that you can identify where the sensitive points are. Just like the ‘bad facts’, people don’t shed their bias because it’s wrong to lean in a direction that society disfavours.

This leads our discussion to judgment calls. Your case analysis may be correct, but then maybe it’s not. You can only do the best you can. If one of your analyses turns out to be inaccurate or outright wrong, learn from that and move on. Lawyers -and other professionals -are artists more than scientists. Every advocacy experience is a learning opportunity. It is foolish not to take them as such.

The point is that you can look for and find an opportunity for bias in every element of every case. Ask yourself in respect of each of the elements in your case analysis (whether neutral or spun):

·        Which witnesses may have something important to say about the element?

·        How does each potential witness lean in respect of this element?

·        Why do you think this?

·        How can I exploit or accommodate this bias?

Once you have done this in respect of the witnesses, repeat the exercise for the decision-maker. It will help you fine-tune your spun case analysis if you recognize what will best persuade your audience.

Lastly, repeat the exercise for yourself. You are certainly not exempt from the rule that bias impacts everyone. How have your own biases framed your analysis of the case?

Exercise: examine all of the elements you have drafted, both spun and neutral. Consider the biases of the witnesses named in the case summary or case study. How would you exploit or accommodate these?

Look for the biases of two major witnesses in any file in your own practice or, if in law school, to the main parties in a court case you are studying. This technique helps you to appreciate the nuances of your files or that of the litigators who presented the court case in the decision.

If you want more detail and exercises, consider Case Analysis - the Critical Path to Persuasion, available from Irwin Law here.