Many Black plaintiffs suing in the civil forum for damages owing to negligence or discrimination, or malpractice find that their access to the justice is problematic.  Nationwide, Black civil plaintiffs just don’t get the same justice as white plaintiffs, especially if the defendant is white.  Our Supreme Court has addressed this disparity in criminal cases regarding Black defendants, but now the Supreme Court has broadened those protections to protect Black plaintiffs in civil cases so they may have the same access to justice as white plaintiffs.

On October 20, 2022, our Supreme Court issued its opinion in Henderson v. Thompson, 200 Wash. 2d 417, 421, 518 P.3d 1011, 1016 (2022), which is perhaps the most important Supreme Court decision in a decade for civil plaintiffs, because it addresses racism in the courtroom in a civil case: “[w]hether explicit or implicit, purposeful or unconscious, racial bias has no place in a system of justice. If racial bias is a factor in the decision of a judge or jury, that decision does not achieve substantial justice, and it must be reversed.” Id

In Henderson, the plaintiff was Black and the defendant was white. At the request of the the plaintiff, the Supreme Court overturned a jury verdict for plaintiff that was diminished by racism in the courtroom: the plaintiff received a small verdict in a civil case even though the evidence supported a larger verdict, and “because [of] defense 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, [which] support the conclusion that appeals to racial bias affected the verdict. Id. at 434. In addition, the trial judge was removed from presiding over the second trial upon remand based on their conduct. Id. at 440. 

Henderson speaks to judges and lawyers guiding them on  how to address, post-trial, racism that occurred in the courtroom during trial. “Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion.” Id. at 422.

Relying on State v. Berhe, 193 Wash.2d 647, 665, 444 P.3d 1172 (2019), a criminal case, the Supreme Court announced procedures for the trial courts to use post-trial when race could have affected the jury’s verdict. They are: 

  • First, the plaintiff, post-trial, must present a prima facie case showing that 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.
  • Second the trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation.
  • Third, at that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor.
  • Fourth, if that burden is not met, the court must conclude that substantial justice has not been done and order a new trial. CR 59(a)(9).

Id. at 422–23 (quotation marks omitted).

Henderson also admonishes lawyers and judges to “actively work to prevent racism before it occurs.” Id. at 446.

There is hope for change.

Click here to see Henderson

Click here to see (State v. Bagby) a new criminal case addressing racism by prosecutor

In 2020, in an open letter to judges and lawyers, our Supreme Court faced racism in the courtroom and asked attorneys and judges to do better.

We must recognize that systemic racial injustice against black Americans is not an omnipresent specter that will inevitably persist. It is the collective product of each of our individual actions—every action, every day. It is only by carefully reflecting on our actions, taking individual responsibility for them, and constantly striving for better that we can address the shameful legacy we inherit. We call on every member of our legal community to reflect on this moment and ask ourselves how we may work together to eradicate racism.

The Court pointed a finger at attorneys and judges.

 The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. The injustice still plaguing our country has its roots in the individual and collective actions of many, and it cannot be addressed without the individual and collective actions of us all.

As judges, we must recognize the role we have played in devaluing black lives.

In knowing that unrelenting racism exists today the Supreme Court is asking the judges and attorneys everywhere to do better.

In a straight line from this letter, the Supreme Court recently recognized in criminal cases addressing the issue of whether a police encounter with a person of color was in fact a seizure.  The Court noted:

an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.

State v. Sum, No. 99730-6, 2022 WL 2071560, at *1 (Wash. June 9, 2022).

The Court faced head-on the reality of mistreatment in the courts. “Historically, many of this court’s opinions concerning the civil rights and lived experiences of BIPOC have been deplorable.” Id. at *5.

The Court recognized that race and ethnicity are always relevant in addressing seizure issues: “we hold that an allegedly seized person’s race and ethnicity are relevant to the question of whether they were seized by law enforcement for purposes of article I, section 7.”  Id.

The evolution of the judicial mind, must continue along that straight line and allow for introspection as to whether this forum will overcome that long history of discrimination in the courts or fail again.  Judges and attorneys must recognize that in every judicial decision race discrimination and the potential for unfair treatment of a Black and other litigant of color exists in every courthouse and affirm that this evil specter will not be allowed in this judicial process.

Click here to see State Supreme Court open letter

Click here to see State v. Sum

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