It would come as no surprise that the Supreme Court of the State of Washington held that racism has no place in our legal system. Indeed, who would argue otherwise? But like most platitudinous proclamations, the devil is in the details, and the details of a very ordinary trial make that very clear and deeply problematic.

In this case, Janelle Henderson, a Black woman, and Alicia Thompson, a white woman, were involved in a motor vehicle collision. Thompson admitted fault for the collision but made no offer to compensate Henderson for her injuries. Henderson claimed that her preexisting condition was seriously exacerbated by the collision and sued for damages.

Thus far, it sounds pretty much like any other auto accident case, with the notable exceptions of the race of the litigants, with “black” spelled using a capital B while “white” is spelled in the usual way. The court went on to a more detailed racial assessment of the people in the courtroom.

Henderson’s lead trial counsel was a Black woman; Thompson’s was a white woman. The judge was a white woman, and there were no Black jurors. The only Black people in the courtroom were Henderson, her attorney, and her lay witnesses.

It’s unclear why the court does a demographic survey of skin color, but it does as part of its opinion.

During the trial, Thompson’s defense team attacked the credibility of Henderson and her counsel—also a Black woman—in language that called on racist tropes and suggested impropriety between Henderson and her Black witnesses. The jury returned a verdict of only $9,200 for Henderson. Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion. The court instead stated it could not “require attorneys to refrain from using language that is tied to the evidence in the case, even if in some contexts the language has racial overtones.”

Racial “overtones” is quite vague, particularly when the language is “tied to the evidence.” What, then, did the defense attorney do that invoked racist tropes and suggested impropriety? Henderson’s claim was that the accident exacerbated her pre-existing Tourette’s Syndrome. She sought damages of $3.5 million.

At closing, defense counsel argued that Henderson and her witnesses were not credible.

First, defense counsel characterized Henderson as “confrontational” and “combative” in her manner of testimony. In describing her cross-examination of Henderson, defense counsel said Henderson “was confrontational with me” and called one of her answers “Ms.  Henderson’s challenge.” Later, she characterized Henderson as “combative” and therefore not credible:“By comparison, my client took the stand, obviously feeling, I think, intimidated and emotional about the process and—and rightly so, and provided you with—with genuine and authentic testimony.”

To put a finer point on it, defense counsel noted that each of Henderson’s witnesses described her using a common phrase, “life of the party,” which is a fairly obvious indication that they were prepped to do so.

Defense counsel later argued that Henderson’s motivation was a financial windfall. Had any of this been argued with races the same or reversed, it wouldn’t have raised a single eyebrow hair. But not here.

We hold that Henderson is entitled to an evidentiary hearing on her new trial motion under CR 59 because she presented a prima facie case that an objective observer could conclude that racial bias was a factor in the jury’s verdict. At that hearing, the court must presume racism was a factor in the verdict and Thompson bears the burden of proving it was not.

Henderson’s argument, that defense characterizations made her out to be the “angry black woman” and that she was doing this for a financial windfall were racist tropes about black women, and the Supreme Court agreed. At the same time, there is nothing that happened at trial that wouldn’t happen at any other trial under similar circumstances. If a witness is combative, you argue it. If a litigant asks for a huge damage award, you argue it. But if the plaintiff is a black woman and the defendant not, it’s presumptively racist?

The Court directs that an evidentiary hearing be held to determine whether banal arguments between white (or black?) litigants, where the defendant has the burden of proving the negative, wasn’t racist. Aside from saying so, and arguing that the  plaintiff’s grievances are no different in this trial than any other with similar circumstances, it would be impossible to sustain that burden. What would defendant (or is it defense counsel?) say, that some of her best friend are black?

Then there’s the question of whether a black defense counsel can make arguments about a black plaintiff that a white attorney cannot. Or if the judge was black, would her ruling have withstood scrutiny? What if there was a black person on the jury? Would that make the verdict sustainable?

The potential impact of racial variations on the people in the courtroom aside, what is a litigant left to argue?

When a participant in the trial uses language that could evoke racist stereotypes, courts should not presume that such language has no effect—on them or on the jurors. The harm in an appeal to racial bias is in its effect on the decisionmaker, regardless of the intent  behind the reference, because “people will act on . . .bias far more often if reasons exist giving plausible deniability.”

Is there anything negative to be argued about a litigant’s testimony that wouldn’t fall into some vague claim of implicit racist trope, made even word by the “plausible deniability” of being an entirely fair, accurate and ordinary challenge to the witness’ testimony and demeanor? And even though it may be entirely fair, accurate and ordinary challenge to credibility, an argument that it’s an appeal to racial bias is sufficient to shift the burden onto the defendant to sustain the impossible burden of proving it wasn’t racist. Can a white defendant with a black lawyer make the argument? Who knows?