Not One Of UsA critical factor in determining if a case should go to trial is whether or not the jury or judge would find the client sympathetic.  Would your client look normal and healthy to that decision maker? If not, the decision makers may have an innate aversion to your client that may be an obstacle even before you get in the courtroom.

Psychology Today recently published a story on protective prejudice, defined as “a set of innate cognitive and behavioral responses that evolved to help us detect and avoid potential disease.” One example cited is Dan Gottlieb, a psychologist and radio talk show host who is paralyzed from the waist down due to a car accident in 1979.  He uses a wheel chair. He says of strangers he encounters, “People turn away…They don’t make eye contact. They pull their children away. They apologize, for God knows what.”

Why this knee jerk, gut level response that has no logic?  Why might we avoid those in wheelchairs, the morbidly obese, those with Down’s syndrome or even just someone with a particularly obvious and unsightly birth mark? Is this protective prejudice at work?  According to the article,

Consider it the brain’s way of engaging in a form of preventive medicine, says Mark Schaller, a professor of psychology at the University of British Columbia. “We’re on the lookout for signals indicating that those around us deviate from what’s ‘normal’ in some way,” he explains. When we detect a possible sign of illness in others—a runny nose, say, or an unusual lesion on the skin—we automatically give them a wide berth, and sometimes worse.

Since we can’t detect germs, this may be an unconscious strategy for avoiding a wide range of potential infections. Since contracting a disease from someone is potentially fatal and the possible symptoms almost limitless, we have a subconscious, behavioral, overly sensitive immune system which may make us averse to almost anyone who doesn’t meet our idea of fit and healthy.

In addition to whatever sociological or psychological reasons why someone might be wary of strangers (even those looking fit and healthy) this protective prejudice may also kick in when encountering someone outside from our community. An outsider, a stranger, someone not from around here, may be perceived as someone potentially spreading a new pathogen dangerous to our virgin immune system.

When deciding how to best resolve the case you’re handling, there are any number of factors going into the equation. One worth considering is how your client (or even an important witness) will be perceived unconsciously by a judge of jury.  Might there be some irrational, unconscious aversion based on his or her looks? Could the client be perceived as an outsider, someone not part of the community?  If so, that should be part of the calculations you need to make.

Negotiation and mediation could be one way to lessen the risk a client’s case could fall victim to protective prejudice.  Behind closed doors, working with a small group of professionals, might blunt that instinct.  In a smaller group, where the parties communicate and learn each other’s background and objectives and get to know each other, perhaps the educated, rational, conscious brains in the room may make fair, reasonable decisions and overcome unconscious, primitive prejudices against those who are different.