We had a three-and-a-half hour session this morning entitled "Unequal Justice: Strategies to Address Racial Bias in Your Briefs." This was fairly intense, and I'm still pondering what we discussed.
Our lead presenter challenged us to use words like "discrimination" and "racism" in our briefs. He counseled forcing courts to confront these issues - give them the choice between acting and saying it doesn't matter.
If we keep citing the cases against us, we will continue to lose. So, we should challenge the standards. We should change the narrative.
How best to do that? As with yesterday afternoon's session, we were counseled to view the common law as evolving on these issues. The law isn't static. We should push for change. We can use law review articles, social science studies, cases from other jurisdictions, etc., to document this change. Support in the data is particularly useful.
Tell your story from the client's perspective. This point goes back to the first day: this is about client-centered representation. But make the deciders decide.
There was more - my notes are pretty extensive - but I really do need to think through this session. No client will benefit from un- or ill-supported charges of racism or discrimination. But in cases where the evidence is there - and these exist, I've seen them - wouldn't it be unprofessional not to pursue these arguments?
There's no doubt that it was worth the time and effort to attend this program. If you do criminal appeals, direct or habeas, I highly recommend NLADA's Appellate Defender Training to you.
I'll spend some time in the very near future typing up my notes and thinking of ways to deliberately incorporate these lessons into the criminal appeals side of my practice. I'll also consider which lessons might be incorporated into my civil appeals, too.
Thanks for reading.
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