Bias in the Washington Courts: a Call for Reform

• Jurisdiction: Washington,United States
• Citation: Vol. 16 No. 02
• Publication year: 1992

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 2WINTER 1993

Bias in the Washington Courts: A Call For Reform

Melisa D. Evangelos(fn*)

[In a] case involving complex accounting [the] judge indicated that as a woman attorney, I knew or understood less about numbers. [The judge] also addressed me as "young lady" in front of the jury. I won, but some jurors indicated it affected the amount I won.(fn1)

-Member of the Trial Practice Section of the Washington State Bar Association

Incidents like the one noted above prompted the Washington Supreme Court to establish two task forces to study gender and racial bias in the judicial system.(fn2) More than thirty states, and the federal government, have established similar groups, and many have reported their findings.(fn3) The reports, including the Washington reports, universally conclude that gender and racial bias is pervasive in the legal profession, that bias deters and sometimes prohibits the effective delivery of justice, and that affirmative steps are needed to address and eliminate the effects of gender and racial bias.(fn4)

Because of the documented threat that racial and gender bias pose to the effective administration of justice in Washington, this Comment advocates amending the Washington Rules of Professional Conduct to explicitly make intentional gender and racial bias an act of attorney misconduct and to discipline any attorney who engages in such behavior.(fn5) Section I of this Comment identifies and describes instances of attorney behavior that result in gender and racial bias and explains the impact of such bias on attorneys, clients, and the judicial system. Section II explores similar anti-bias rules proposed or in place in other states. Section III introduces the rule advocated in this Comment, compares this proposal to the approaches taken by other states, and explains the operation of the rule. Section IV examines the constitutionality of the proposed rule of professional conduct (RPC), concluding that the rule would withstand First Amendment scrutiny. Finally, Section V argues that the proposed RPC would be an effective and necessary tool in combating racial and gender bias in the Washington court system and concludes that the Washington State Supreme Court should adopt the proposed amendment to the Washington Rules of Professional Conduct.

I. Gender and Racial Bias Impair the Fair and Effective Administration of Justice

The Gender and Justice and Minority Task Forces undertook studies to identify bias in Washington court proceedings, and to explore its effect on the fairness and effectiveness of the judicial system. Part A briefly explains the use of the word "bias" in the two Task Force reports and in this Comment. Part B then explores the bias found in the Washington court system and demonstrates that the fair and effective administration of justice is threatened when such bias is used as a tactical device.(fn6)

A. What Is Bias?

Bias is an inclination, bent, predisposition, or preconceived opinion.(fn7) Bias includes "any action or attitude that interferes with impartial judgment."(fn8) The Gender and Justice Report explains that "gender bias . . . is evident in society's perception of the value of women's and men's work, and the myths and misconceptions about the social and economic realities of women's and men's lives."(fn9) The Minority and Justice Report characterizes minority bias, including racial, ethnic, cultural and linguistic bias as a conscious or unconscious act or decision, which may or may not result in disparate treatment.(fn10)

B. How Does Bias Affect the Judicial System?

The Washington Task Forces studied the effect of gender and racial bias on the delivery of justice in the Washington Court system and found that lawyers commonly pander to such bias in judges and juries in litigation and negotiation tactics.(fn11) Such tactics most severely impair the judicial system when they alter case outcomes. Even when the ultimate outcomes of cases are not affected, however, these tactics impair the integrity of the legal profession, cause participants to lose faith in the judicial process, and prevent women and minority lawyers from effectively carrying out their duties.

The Gender and Justice Task Force found that a substantial number of lawyers and judges believe that gender bias exists in the Washington courts.(fn12) More significantly, over one third of the lawyers who participated in a task force survey believed that gender bias occasionally affected case outcome.(fn13) Gender-biased behavior by attorneys falls into three categories: disrespectful behavior, sexual trial tactics, and sexual advances.

1. Disrespectful Behavior

The most common form of gender-biased behavior by attorneys is disrespectful behavior, including inappropriate use of first names, demeaning remarks, familiar terms, comments about personal appearance, and even facial expressions.(fn14) This subtle form of bias can have a dramatic effect on courtroom atmosphere. When opposing counsel, judges, or court personnel address a female lawyer by her first name, while male lawyers are addressed by surnames, the professional status of the female attorney is immediately reduced. The impact is even greater when female attorneys are addressed by familiar names such as "dear" or "young lady."(fn15) Addressing female attorneys in this manner suggests to a jury that female lawyers are held in lower esteem, that they are less professional, and that they are not taken seriously. As a consequence of this gender-biased behavior, women attorneys become less effective advocates.

The excerpt noted at the beginning of this Comment illustrates how bias affects the credibility of a litigator and can affect the outcome of a case. The judge reduced the credibility of the female attorney by communicating to the jury the stereotyped idea that this attorney, like all women, has inferior mathematical abilities, and he further diminished her stature by addressing her as "young lady."

Demeaning remarks, as well as racial and sexist jokes, have a significant impact on the judicial system.(fn16) Such remarks reflect a systemic sexist and racist tolerance. Gender-or race-biased behavior takes the judge or jury's mind off of the merits of a case and onto the immutable characteristics of a litigant or witness. Even compliments about personal appearance can have the effect of drawing emphasis toward appearance and away from the professional role of a female attorney.(fn17) When jurors observe judges or attorneys treating other attorneys or witnesses with disrespect, "the litigants stand less of a chance of prevailing on the merits of a case."(fn18)

2. Sexual Trial Tactics

Ours is an adversarial system of justice. With this system comes a "sporting theory of justice"-a belief that a lawyer must do whatever it takes to fully and aggressively represent his or her client.(fn19) Thus, some lawyers justify sexual trial tactics as an appropriate technique of client advocacy. Kandis Koustenis identifies sexual trial tactics as "deliberate efforts by opposing counsel to undermine women litigators on the basis of their gender."(fn20) Demeaning remarks, comments suggesting stereotyped behavior, even compliments become sexual trial tactics when they are used by attorneys to distract, intimidate, or frustrate opposing counsel, or to play to a judge or jury's inherent biases.

The sexual trial tactics that can be employed against attorneys, litigants, and witnesses generally fall into two categories: tactics designed to intimidate and tactics designed to reduce the credibility of those attorneys, litigants, and witnesses. Intimidation tactics often include overly aggressive or abusive behavior(fn21) by male attorneys, but can even include compliments by male attorneys to younger female attorneys.(fn22) These seemingly harmless comments directed at an "attorney's physical appearance . . . [suggest] that looks matter more than brains or competence. Attention is diverted from counsel's professional expertise and shifted instead to her looks."(fn23)

Tactics designed to reduce credibility often include attempts to reinforce stereotypes that a woman is less believable because the subject matter is beyond the stereotypical knowledge of a woman or that her emotions have clouded her perception.(fn24) The excerpt noted at the beginning of this Comment is an example of precisely this type of stereotyping: women are not mathematically inclined.

Sexual stereotyping can also defeat attempts by a woman to defend herself against sexist or derogatory remarks. The Gender and Justice Report describes an incident where a woman attorney waiting for a trial assignment was called a "feisty young thing" by the opposing counsel.(fn25) Opposing counsel then requested that they not be assigned to a woman judge at trial because she and the woman attorney would "gang up on him."(fn26) When the female attorney complained about the incident, the assigning judge dismissed the incident, treating it as a joke.(fn27) The opposing counsel characterized the female attorney as a "humorless feminist."(fn28)

Male participants in the legal system are also victimized by stereotyping. The Gender and Justice Task Force notes instances "where men were accorded less credibility vis-a-vis parenting of young children."(fn29)

Another...