Washington Supreme Court Forges New Path in Combating Implicit Racial Bias: Risks and Opportunities for Civil Defendants

May 2023  • Joseph Hogan, Scheer.Law PLLC

How can courts address racial bias when that bias is unintentional?  A white woman causes a car accident.  A Black woman is injured and sues.  The defendant admits liability but makes no offer to compensate the plaintiff before trial.  Her attorney argues the plaintiff’s lay witnesses were coached; her chiropractor is biased; and the plaintiff is financially motivated.  The plaintiff asks for $3,500,000.  The jury awards $10,000.  Did racial bias, implicit or express, affect the verdict?  If so, what should be done about it? 

In the groundbreaking opinion in Henderson v. Thompson, the Washington Supreme Court charted a new course in examining implicit bias in civil cases.  The Court outlined a new procedure for considering when to declare a mistrial due to implicit bias.  Under the new ruling, the trial court must decide whether an “objective observer” could view race as a factor in the verdict.  The objective observer is one “who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State.”  If a proponent of a new trial makes a prima facia showing, a hearing must be held.  The party seeking to preserve the verdict bears the burden to prove that race was not a factor.  If it cannot, a new trial must be held.  In the case of Henderson v. Thompson, a majority of the Court determined a prima facia case was met.

The ruling drew praise; but also concern.  The Court has been on a campaign to eradicate implicit bias.  But the aspects of the defense that were identified as calling for implicit bias are typical for many civil cases.  The Plaintiff was described as “combative” under cross examination.  The defense counsel highlighted the Plaintiff’s financial motive.  Lay witnesses were described as having bias.  Seasoned civil attorneys may be scratching their heads why these common arguments create grounds for a new trial.

The application of the new ruling is yet to be seen, but nothing limits its use to plaintiffs.  Close observers are keen to see what deference trial courts are given.  What is clear is that there is a new battlefield for overturning unfavorable verdicts—both for plaintiffs and defendants.  To be ready for that battlefield, civil attorneys must be or become familiar with the history and literature surrounding implicit bias.  Strong advocates should prepare such motions in any civil case regardless of the race of their client.  Attorneys should consider addressing racial bias throughout trial to Henderson-proof a favorable verdict.

Will other states follow Washington’s lead?  Only time will tell.  But savvy litigators in states with liberal supreme courts should consider making similar arguments.  And attorneys and claims professionals everywhere can look to Washington State to see what the future might hold for efforts to eradicate implicit bias.

The slip opinion in Henderson v. Thompson, No,. 97672-4 (Oct. 20, 2022) can be found here.