Relative JusticeAuthor(s): Donald BlackSource: Litigation, Vol. 18, No. 1, THE ADVERSARY SYSTEM (Fall 1991), pp. 32-35Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759503 .

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Relative Justice

by Donald Black Like Moliere's nobleman who spoke prose all his life with? out knowing it, lawyers use sociology daily. At least they try to. They look to social characteristics to tell them what to

expect of individuals. They assume justice depends on who is involved, and they are right. But the beliefs they rely on are often nothing more than folklore or stereotypes. Most often the focus is on jurors: Women are tougher than

men on accused rapists. Blacks favor the socially disadvan

taged. Nearly everyone sympathizes with lowly individuals

against powerful corporations. Lawyers stake their liveli? hoods on stereotypes like these. Yet sociological research has shown that some are not true.

A lawsuit involves people more than it does evidence. Par? ties. Witnesses. Lawyers. Jurors. Judges. If you know their social characteristics and relationships, you can get a pretty good handle on?and can influence?the likely outcome of a case. Call it exploiting bias, if you like. But it's how law

operates. How that reality could be altered and whether it should be altered are questions I will consider after I discuss what sociological justice is and how to make it work for you.

First I want to make it clear that I'm talking about some?

thing far more sweeping than mere juror selection. The

sociological considerations I have in mind begin before the client walks through your door. They begin with the events that lead to the lawsuit itself, and they do not end until the

appeal (if there is one) is over. They can help you decide which client to represent, what your chances are at trial, and how to present your case from beginning to end.

Sometimes the sociology will confirm the folklore; sometimes it won't. For example, most of us probably realize that the risk of capital punishment depends on who kills whom. Blacks who kill whites have by far the highest

Mr. Black is University Professor of the Social Sciences at the University of Virginia in Charlottesville. This article draws on his book Sociological Justice (Oxford University Press, 1989).

risk, followed by whites who kill whites, blacks who kill blacks and, finally, whites who kill blacks. Maybe you even know that those who kill strangers have a much greater risk of a death sentence than those who kill relatives, friends, or

acquaintances. But if you rely on folklore, you probably do not know that

in civil cases?all other things being equal?it is the big guys, not the little ones, who are most likely to win. Organi? zations that sue individuals have the best chance of all, followed by organizations that sue organizations, individuals who sue individuals, and, at the bottom, individuals who sue

organizations. The evidence is overwhelming. We know that technically identical cases are often handled

differently. People may not call the police or contact an

attorney; if they do, a prosecution or a lawsuit may not result; if one does, the plaintiff or prosecution may not win; the sentence or remedy will vary from case to case; not all losers

appeal; and so on. In the strictest sense, law is the same for

everyone, but in practice, law is variable. It helps to think of law as something you can count. The

more power a court asserts, the greater the sum of law. A conviction or a plaintiff's verdict involves more of this legal power?more law?than a dismissal or a defendant's ver? dict. A death sentence is more law than a sentence of 20 years in prison. One million dollars in damages is more law than $100,000. On appeal, a reversal in favor of the prosecution or plaintiff increases law, and reversal of a conviction or a

plaintiff's verdict decreases it. To evaluate a case, look at (1) the social status of the

parties, (2) the relationship between the parties, (3) the law?

yer, and (4) the third parties?the judge and jurors. They are

good predictors of who will win and how large the damage award or how severe the sentence will be. They will also

guide you in presenting a case you do decide to take?

suggesting, for example, what witnesses to choose and what facts to emphasize.

Litigation Fall 1991 Volume 18 Number 1

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Social Status

Lawyers instinctively know that the wrongful death of a derelict is worth less than the wrongful death of a working, law-abiding plumber, whose wrongful death is, in turn,

worth less than that of a cardiovascular surgeon. Of course there is a difference in lost earnings. But that is not all. The crucial difference is in social status-the relative wealth, including earning capacity, but also factors like education, occupational status, and respectability.

That prospective client walks through your door carrying all the baggage we call social status. You can emphasize or

gloss over aspects of it, but you can't change it, and it is

predictive, if not conclusive, from the start. It has always been so, though less democratic cultures have been more candid about it. For example, the Code of Hammurabi, com

piled about 4,000 years ago, provided a different remedy for each social setting in which an offense occurred:

If a man strike another man of his own rank, he shall pay one mana of silver. If a man strike the person of a man . .. who is his superior, he shall receive sixty strokes with an ox-tail whip in public. If a man's slave strike a man's son, they shall cut off his ear.

The parties' speech patterns, clothing, and other outward features reflect their social status. Higher social status is

likely to make for more powerful speech, for example. Pow erful speech involves fewer hedges ("sort of" or "pretty much"), fewer fillers ("um" or "you know"), fewer deferen tial expressions ("ma'am" or "sir"), and fewer intensifiers

("very" or "surely"). An anthropologist, William O'Barr, found that regardless of the content of their speech, people with more powerful speech patterns project more authority and credibility than others. And people who testify by narra tive have more credibility than those who give short answers to direct questions. Higher-status people presume the right to talk at length. Lawyers are less likely to interrupt them. You can also think of the social structure of a case in

directional terms. Is the case downward (against a defendant of lower social status than the plaintiff or complainant), or is it upward (against a defendant of higher status)? Downward

cases attract more law than upward cases do. The plaintiff or the prosecution is more likely to win and to win bigger. If both parties are of high social status, the case will attract more law than if both are of lower status. Parties accused of

harming someone below them in social status are less likely to be punished or will be punished less severely. There is a

stronger chance that capital punishment will be imposed when the killer's social status is below the victim's, but

virtually no chance of capital punishment when the case is

upward.

Finally, organizations like corporations or governments have more social status than individuals. There is good rea son for lawyers to take pride when they successfully defend downtrodden individuals against organizations. It means

they have overcome the social structure of the case. An

organization against an individual defendant attracts more law than vice versa. Individuals suing organizations must overcome this invisible hurdle. In criminal cases, the de fendant faces the most powerful and revered organization, the state.

Relationship Between the Parties The relationship between the parties also affects the likely

outcome of the case. The closer the relationship between the

parties, the less law there is likely to be. That explains why, until recently, child abuse or spouse abuse cases were seldom

prosecuted. Following something like the "one bite" rule for

dogs, some states seemed to prosecute only when a husband killed his second wife, too. It is still true that someone assaulted by a close friend or relative is less likely to file a

complaint. If there is a complaint and an arrest, prosecution is less likely and any punishment will be less severe than if a

stranger had committed the assault. So, too, with civil matters. People are less willing to

litigate a breach of contract in a long-standing business

relationship. Strangers or infrequent business contacts do not have that immunity. In medical malpractice litigation, the remote surgeon or anesthesiologist has more exposure to claims than does a family doctor who knows the patient better. Friends and neighbors are less likely to sue one an other. Contract or negligence cases between members of the same family are rare and sometimes even legally forbidden. In a dispute between parties who are close to each other,

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settlement is more likely and for lower amounts than if the

dispute is between relative strangers. The rules apply to lawyers, too. It is particularly important

for parties of lower social status to have lawyers because some of a lawyer's relatively higher social status rubs off on the client. But there are also social status distinctions among lawyers. Indigent criminal defendants have been known to

say, "I don't want a public defender. I want a real lawyer." They mean they want a lawyer with a higher social status.

The social status of the lawyers may minimize or exacer? bate the social status differences between the parties. A low status party with a high-status lawyer gains a status advan?

tage in the case?and vice versa. The relationship between the lawyers, like the relationship between the parties, may affect the outcome. If the lawyers know each other, there is an improved chance of settlement between clients who are

strangers and would otherwise be expected to go to trial. But lawyers can affect the relationship factor the opposite

way as well, a fact that lawyers sometimes ignore. When

lawyers become involved in a dispute between closely re? lated clients?friends or relatives?the relational distance between the parties increases. For that reason it may become harder to settle a divorce case after lawyers are involved. Or one neighbor will resent the fact that the other neighbor hired a lawyer in a boundary dispute and will become less reasonable. That's why they say the only lawyer in a small town will starve until a second lawyer moves there.

Judges and juries are obviously the third parties with the most influence on the outcome of a case. The quality to look for in them is authoritativeness. Authoritative judges and

jurors are more likely to select a single winner than to

compromise and give something to each side. They are more

legalistic and more punitive. Less authoritative judges and

jurors are more lenient and less likely to decide totally in favor of either side.

Research shows that authoritativeness increases with so? cial status. WASP judges are more authoritative?more severe?than judges from ethnic or religious minorities. Clarence Darrow's famous advice about jury selection is accurate today. Darrow, "Attorney for the Defense," Esquire (May 1936), reprinted in Litigation 41 (Winter 1981). Only the stereotypes have changed since 1936. Rather than seek?

ing Irish jurors to sympathize with the poor or powerless, today you would look for Latino or black jurors. In Darrow's time, religion was a key clue about attitudes. Darrow said, "If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm." Today, such factors as residence, political views, and magazine subscriptions may tell you whether the jurors' social status

disposes them toward your view of the case.

Just Compare Compare the social status of the judge or jury with that of

the adversaries. White jurors are more likely than black

jurors to find criminal defendants guilty?especially when the defendants are black. A juror's social status also affects other jurors. Jurors with higher social status tend to talk more during jury deliberations and exert more influence on the outcome than do their social inferiors.

Because lawyers realize that the relational distance be? tween the judge or jury and the parties also affects the outcome, they wisely challenge for cause a juror who knows

one of the parties. Jurors who have friends or acquaintances in common with one of the parties are also suspect. In a small-town court, the out-of-towner who sues a local resident starts with a handicap and often tries to dress or speak to increase closeness with the jurors by seeming more like them. The local judge will act less authoritatively with local

parties and will be more willing to look for compromise or

encourage settlement. But count on an out-of-town judge appointed specially to hear a case to act more authorita?

tively?more legalistically and decisively.

Sociology and Precedent The value of legal precedent and jury-verdict research de?

pends on how much sociological information you have about

seemingly similar cases. Lawyers are trained to look to prior cases for fact patterns similar to those in their own cases.

They do that to predict the application of the legal rules. But the predictive value of the precedent is weaker when the

sociological facts in a case vary from those in the precedent. Lawyers who cannot distinguish cases sociologically as

well as legally will not understand apparent inconsistencies and may complain that courts are unpredictable.

That is the case only if you don't know what is predictive. For example, in a case of homicide the sociological facts may be a better guide to the outcome than the legal facts are. A

vagrant who kills a prominent physician will face prospects different from those of a hardworking woman who kills her

unemployed, heroin-addicted boyfriend. The first case is downward (social status) and distant (relational distance). The second is upward and intimate. The first case will attract more law, both in the likelihood of conviction and in the

severity of sentence. You can screen prospective cases on the strength of the

sociological facts. Your chances of winning?and winning big?will be greater if your clients bring downward cases

against distant defendants. If you represent a corporation, its claims against individuals will be easier to win. Defense counsel will be more successful when the client is being sued

by social inferiors, friends or relatives, or individuals rather than organizations.

Although sociology confirms many legal stereotypes, it also undercuts some conventional wisdom. Contrary to

popular belief, for example, the ideal plaintiff is not a poor, pathetic, oppressed individual. That kind of person tends to have lower social status than the defendant, and the battle is

uphill. Nor is the policy of suing defendants with deep pock? ets foolproof. Those defendant organizations or individuals are likely to have higher social status than the plaintiff and a

greater chance of winning. Prosecutors who need impressive winning records can use

these principles to select the sociologically strongest cases to

prosecute. Criminal defense attorneys will seek a quick plea bargain when the case is sociologically weak, even if a defense on the legal facts is possible. The alleged robbery of a prosperous businessperson by an unemployed black youth with a long record may be decided on the sociological facts rather than the weakness of the eyewitness identification. However, if the crime is between friends or relatives, both with low social status, the worst case will probably be con? viction with a light sentence.

Few lawyers have the luxury of accepting only cases in which sociology favors their clients. However, lawyers may

Litigation Fall 1991 Volume 18 Number 1

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affect the outcome of litigation by controlling sociological information. Feature the social facts that are advantageous. Begin with yourself by dressing for success and learning pow? erful speech patterns that will increase your social status.

Then do the same for your client, drawing attention in oral

arguments and testimony to characteristics like high income, college, military service, and organizational memberships. Emphasize the socially damaging characteristics of the op? posing party. Depending on your position, emphasize or minimize the relationship between the parties. Social dis? tance benefits a plaintiff. Intimacy benefits a defendant. Present the sociological evidence as thoroughly as other evidence.

Remember that social status and relationships are only predictive as they appear to the trier of fact. That's why lawyers dress up some clients, ask their friends and family to

appear at the trial, and coach them to testify with powerful speech, perhaps videotaping practice testimony?all to mini?

mize social differences. Even when the social gap between the client and the judge or jury is great, good eye contact may create a degree of intimacy. Manipulating the outcome of litigation may also mean

manipulating the trier of fact. By forum shopping and judge shopping, plaintiffs may find a court and a judge with social characteristics more like their own. Jury consultants try to match jurors with the sociological facts of the case. Lawyers seek jurors with the same or lower social status than their clients and jurors who will feel close to the clients (relational distance) because they live in the same community or have the same interests.

Is It Right? Justice is not equal, evenhanded, or blind. Sociological

litigation, like jury consulting, exploits bias and discrimina? tion. It may even exacerbate discrimination. For example, if

lawyers refused all upward cases (suits against social superi? ors) and advised defendants in downward cases to plead guilty, settle, or give up, the lower classes would lose vigor? ous legal representation. Legal claims or crimes between friends and relatives would receive even less attention from the law because it is less rewarding to bring them. Aware of the advantages that organizations enjoy, lawyers might de? cline to represent individuals who opposed them. The biases we already live with would be multiplied many times.

The idealist sees sociological litigation as increasing the

perversion of justice, a legal nightmare. In the dark days after World War II, an unreconstructed Southerner said that a German was just a Yankee carried to its logical extreme.

Sociological litigation is just jury consulting carried to its

logical extreme. It is effective and profitable because social differentials do exist, but more effective exploitation of them

by lawyers may fuel the public's mistrust of the legal system. If it is true that the poor will always be with us, so will

sociological litigation. The only way to absolutely prevent it would be to prevent social differentials. Equality in so?

ciety would have to become reality?a situation unknown in legal history.

But equality before the law can be engineered in the cases themselves. Even if it remains impossible to create equality in society, two strategies would minimize sociological litiga? tion: using legal cooperatives and creating procedures to bar the introduction of sociological evidence in a case.

A legal cooperative is an association that represents the

legal claims of individual members. Its roots are in tribal life, in which a person's legal standing was based on family and tribe. Contrasted with tribal members, we operate in an era of legal individualism. Most people with legal problems are alone and unorganized. That creates the differential seen when individuals sue or are sued by organizations. It also highlights the unique social characteristics of the indi? vidual party.

Legal cooperatives exist in limited ways now. Trade asso?

ciations, labor unions, and special-interest groups represent the interests of members collectively and, sometimes, indi?

vidually. The police union will provide for the defense of an officer charged with misconduct. Trade associations may furnish counsel or file amicus briefs when a member is involved in a dispute. Even prepaid legal plans have some characteristics of legal cooperatives.

To minimize the effects of individual social characteris? tics, the legal cooperative would have jurisdiction to repre? sent the claims of individual members against outsiders and to defend its members when they are sued by outsiders. It

would provide alternative dispute resolution for disputes between members so that cases would be settled by true

peers. For example, the historical pattern of dispute settle? ment between members of the same religion is being contin? ued on a larger scale in major cities by Christian Conciliation Services. Whether the members are tenants, labor union members, or physicians, the legal cooperative could present their legal claims or defenses more effectively against out? siders. It would also discourage litigation between members. A second alternative to the manipulation of the law by use

of social factors is to decrease the chance that social differ? ences will affect the outcome of litigation. A Boston case in which a husband allegedly had killed his wife but blamed a black male led to a massive, intrusive manhunt?quite possi? bly because of the racial facts. Race and other social factors will continue to determine legal cases unless justice is firmly blindfolded.

One way to do that is to restrict the amount of sociological evidence that the judge or jury hears. Evidence rules could exclude information about social characteristics, such as

wealth, residence address, occupation, education, and mari? tal status. Abolishing peremptory challenges would restrict efforts to manipulate the social nature of the jury. Sentencing strictly according to guidelines based on only the offense would minimize social disparities.

The most extreme way to remove sociological information from litigation would be to prohibit the personal appearance of the parties, witnesses, and lawyers. A randomly selected

judge or jury would then consider only edited transcripts of

testimony. Trial skills would be obsolete. But is totally blind justice what we really want? Perhaps

not. Perhaps we do want more severity in cases between

strangers. And perhaps we do want to place a greater value on a neurosurgeon's life, for example, than on a derelict's? to leave room in the adversary system for value judgments that are hard to quantify.

Trial lawyers have an ethical duty to seek a judicial system that promotes equal treatment. They also have an ethical duty to be zealous on behalf of their clients. Like it or not, the sophisticated use of sociological knowledge will

help you win. \D

Litigation Fall 1991 Volume 18 Number 1

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