The other day, I conducted a mediation that lasted a while which gave me the opportunity to converse with plaintiff’s counsel and to get to know her a little bit. As this was my first mediation with her, I wanted to get to know her. In the course of our chatting, she told me about the trials she had won and lost, especially the ones she lost and why. In fact, she had made a list of the reasons why she had lost (according to the jurors) that she was willing to share with me. Surprisingly, the losses had everything to do with “appearance” bias, and nothing to do with the merits.

As I have blogged about bias a few times over the past years, and most recently, “appearance” bias, I requested permission to reprint the reasons. The attorney agreed. The reasons bring home the concept of “appearance” bias far better than my abstract thoughts ever could:

She observed the things Jurors had told her after trial:

“You know, your client claimed that she had a back injury but for over a week she wore heels that were more than 2 inches and were open toed. She appeared to be very comfortable in them and used to wearing them and so we didn’t believe that she really had a back injury”

“We didn’t believe anything that your client said. She wore dangling earrings with flashy nail polish and excessive makeup and just didn’t seem like the kind of person who would take offense to her employer’s advances.”

“We just found it odd that your client would come to trial claiming to be sexually harassed yet wearing tight fitting clothing that was low-cut, a short skirt with animal patterns and colored contact lenses with red lipstick. She didn’t seem like she was the victim of anything.”

“Your client claimed that as a result of being hit in the sidewalk she was unable to work and that her savings was drained. But we found it odd that she came to trial with a very expensive handbag, leather pants, and a very nice watch. We just didn’t believe that her appearance fit well with what she was claiming.”

“Quite frankly we were offended by your client. He walked outside of the courtroom like he owned the place while he was smoking cigarettes. He was also very obnoxious, he chewed gum in court and also parked in the jury parking lot in a very over-sized truck, which he had no problems getting in and out of. This did not seem like somebody who sustained a terrible neck injury.”

As the attorney summarizes:

This goes to show you that appearance is everything. It’s difficult enough to successfully address the merits of a case let alone having to worry about getting defensed over your client’s appearance. Therefore, this is one thing that you have control over and you should make sure your client looks appropriate. Especially if he or she is a plaintiff. You can rest assured that we do that now.”

Appearance IS everything; even at a mediation or any type of negotiation. Whether we like it or even admit it, people DO make decisions about others based on their appearance… As one saying goes, one does not get a chance to make a first impression twice! So. how you appear is just as important if not more important than what you say or the merits of your position! Appearances DO count!

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by Phyllis G. Pollack

Phyllis G. Pollack is a full time neutral in Los Angeles where, as President of PGP Mediation, she focuses on business, real estate, contract and “lemon law” disputes. She may be reached at Phone: 213-630-8810 / phyllis@pgpmediation.com / Website: www.pgpmediation.com