The Importance of the Perception of Fairness in the Legal System By Pansy Moore-Shrier, Esq

The Importance of the Perception of Fairness in the Legal System

By Pansy Moore-Shrier, Esq.

Fairness is what justice really is. ~Potter Stewart

It is important that the legal system be fair. The Lawyer’s Creed, Rules of Professional Responsibility, and Rules of Evidence all demonstrate that members of the legal system have an obligation to conduct themselves in such a way as to ensure that the system is fair.

As with any large system, processes can develop that result in unfairness. Practically on a daily basis, there is a news report detailing unacceptable happenings in the legal system. The issue of fairness has become so important that local, state, and national bar associations, as well as an extensive list of public interest groups and commissions, are working on identifying ways in which to make the legal system more fair — both for criminal and civil cases.

It will take time and effort to implement comprehensive changes in the legal system. In the meantime, there are two very simple and effective ways in which lawyers, judges, and legal staff can make immediate progress to increase the level of fairness: the appearance of impartiality and attentiveness.

Imagine this scenario: You, as the defendant in a civil case, walk into the courtroom with your lawyer, noticing that the plaintiff’s counsel and the plaintiff are already in the courtroom. The judge, judge’s clerk, and the plaintiff’s lawyer are happily engaged in a lengthy discussion related to a basketball game their children played in over the prior weekend. What impact does this scenario have on fairness? Further, what if a juror observes this type of interaction?

Scientific research proves that witnessing this type of interaction can persuade the viewer to find the plaintiff’s case more persuasive due to cognitive biases. Humans’ brains make systematic, predictable, scientifically-proven decisional shortcuts, often referred to as cognitive biases. While there are numerous cognitive biases that researchers have been identified, the

following cognitive biases are merely some examples of those persuading the viewer: authority bias (finding persons in authority more persuasive), likability bias (a likable person is more persuasive), and social proof bias (conforming with the group as a more correct answer). While there are numerous other cognitive biases that impact the fairness of the legal system, an additional interesting example is the bias of physical attractiveness (sometimes known as the halo effect). Research indicates that good-looking people obtain better results in the legal system. When a study was conducted into the length of sentences for male criminal defendants, the researchers found that more attractive men received significantly lighter sentences than ones who presented with less physically attractive features. Additionally, research shows that parties to lawsuits who report positive quality and quantity of time perceive the legal system as more fair. Parties who are rushed, ignored, or otherwise treated poorly will perceive the system to be more unfair. For example, research proves that felony defendants who had more face time with their lawyers considered the process more fair than other felony defendants with the same outcome. Merely changing the outward behavior of individuals working in the legal system through appearing impartial and being attentive will result in parties perceiving the system to be just. Further, these changes in behavior are (1) easy to enact, and (2) actually result in the system being more fair.

While it a long process to fix the systemic problems in the legal system, there are several immediate actions that can be taken by lawyers, judges, and legal staff that will result in the immediate improvement of fairness. Merely appearing impartial as well as being respectfully attentive to the parties will increase the public’s confidence in the fairness in the legal system and the actual fairness of that system.

Pansy Moore-Shrier is an attorney at Moore-Shrier Law Firm. She also serves as the chairperson of the TCBA Technology committee, TU College of Law’s coach of the National Trial Competition team, and operates Two Goats Solutions, a company working to improve people’s access to the legal system.