March 08, 2021

A book titled “Biased Trials” will invariably draw the attention of those who take courtroom advocacy seriously, who teach advocacy, or are driven by concerns over disparate treatment.  This was a ‘moth to the candle’ attraction.  But this book is more than what a trial lawyer needs.  It is a study in behavioral economics, a systems analysis comparing European and U.S. adjudicative processes for relative fairness and efficacy/accuracy.  It is in the terse language of an academic dissertation, made slightly more difficult to read because it was (apparently) originally written in another language and translated to English.  So the prose does not flow and reading is not easily digested by the non-economist or behaviorist.

Yet “Biased Trials” is a text I urge every serious litigator, and every committed advocacy instructor, to dive in to.  Dominioni plumbs the worlds of cognitive and social psychology research to see whether our ‘truth-finding’ [or dispute resolving] systems do the job.  With an entire chapter on implicit racial bias, he shows how race devalues certain plaintiffs’ losses or discourages them from seeking relief precisely because those biases have impeded other minority litigants from securing redress.

A particularly important discussion, and the subject of an entire chapter, is that of FAE -fundamental attribution error.  The gist of this phenomenon as that when something happens to us, we often understand/blame surrounding circumstances – but when something happens to someone else, especially when that person is from a different background, blame is attributed to the individual’s character failing, real or assumed.  Dominioni writes about this as a systems problem, one that distorts case outcomes and reinforces societal biases.  For the advocate or advocacy instructor, it is a warning light of what to anticipate and what to try and deflect.

Written with particular focus on tort litigation, the book offers another reveal – the significant difference in outcome depending on whether gender and race are included in earnings calculation table used by forensic economists.  This disparate treatment is only beginning to be  factor in judicial consideration.

When litigants have recovered damages, verdicts have often reflected racial disparities in income and health outcomes. Until the Legislature prohibited the practice this year, California juries routinely consulted tables estimating earning potential based on race and gender when awarding economic damages to prevailing plaintiffs.

B.B. v. County of Los Angeles, 10 Cal. 5th 1, 32, 471 P.3d 329, 350, 2020 Cal. LEXIS 5145, *64.

So to say there is much of value in this work is only to begin to describe it.  BIASED TRIALS is a treasure trove of research and insight, if the reader is capable of ,parsing its sometimes stilted prose.



Dominioni, Biased Trials, Gabler Verlag 2020