Washington Supreme Court Addresses Racism in Litigation

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Res Ipsa
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Washington Supreme Court Addresses Racism in Litigation

Post by Res Ipsa »

The Washington Bar has done a ton of work research and investigating racism in the judicial system. The results of that effort has begun to show up in Supreme Court opinions. Here is a good example of what that looks like:

Having to consciously think through whether language used at trial plays into negative racial stereotypes is a new process that most of us don't think about. Now we have to, and I think that's a good thing for promoting equal access to justice.
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Re: Washington Supreme Court Addresses Racism in Litigation

Post by Marcus »


...The court instead stated it could not “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.” 1
Clerk’s Papers (CP) at 180-81.

That reasoning gets it exactly backward. In ruling on a motion for a new civil trial, “[t]he ultimate question for the court is 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.” State v. Berhe, 193 Wn.2d 657, 665, 444 P.3d 1172 (2019).

A 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.

At that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor. If that burden is not met, the court must conclude that substantial justice has not been done...
[bolding added]
That's an incredibly powerful statement.
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