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by Phyllis Pollack
January 2012

PGP Mediation Blog by Phyllis G. Pollack

Phyllis  Pollack

The January 2012 issue of the California Lawyer contains an article about tattoos in court. As the blurb intrigued me, I read the article, entitled “Tattoos as Evidence” by Ryan Lozar (pp 37-39) (Tattoos as Evidence ) in which the author discusses the existence of a tattoo on a criminal defendant as potentially biasing a jury:

It’s a fact of life that people make snap judgments about each other’s character based on discretionary aspects of physical appearance. . . . This is especially true when it comes to tattoos, whose bearers-depending on the nature of the tattoo itself – may be viewed as seedy, provocative, or downright dangerous. The consequences of such judgments can be serious for a tattooed criminal defendant. . . . (Id. at p. 37).

The author goes on to describe how in a race-related murder trial in Florida, the court granted the defendant’s motion to have the state pay for a make-up artist to come each day before court to cover up a swastika and barbed wire tattooed onto his head. The court agreed with his counsel that such a tattoo was likely to offend, intimidate and/or frighten jurors to the point of losing their objectivity. (Id. at p. 37).

There is no doubt that tattoos are a much more serious matter in a criminal matter than a civil one. The criminal defendant has much more at stake than does a civil plaintiff or a civil defendant. But, a tattooed civil plaintiff or defendant still impacts the jury, and impacts the other party who is deciding what to do about settling the matter.

I have conducted a few mediations in which either the plaintiff or defendant has tattoos – sometimes small, sometimes not so small. In such instances, I have, at times, taken his/her counsel aside and pointed out that the tattoos may give the wrong impression to a jury. While the response I often receive is that if the matter does go to trial, the party will wear long sleeves or other clothing to hide the tattoos, my comments are not lost on counsel; if counsel has not already had that conversation with her client, she proceeds to do so during the mediation.

It is wrong to make snap judgments; but, as the author of this article notes, we all do: it is a fact of life! It is “appearance bias” about which I have previously blogged. But this time, it is quite specific: tattoos. We all have opinions about them, and probably strong ones: very much in favor or very much against. And, our views are probably generational. While the World War II and baby boomer generations are most likely to be against tattoos, the Generation X’ers and the “Y” Generation most likely think they are “cool” and see nothing wrong with them!

So, I guess the point here is that “beauty is in the eyes of the beholder.” If you are a baby boomer or older person like me, be cognizant of your appearance bias against tattoos. Try not to make a snap judgment about the person simply by the tattoo being displayed. And, . . . if you are the person wearing the tattoo, be aware that everyone does not think tattoos are cool; quite the contrary – they may be biased against you simply because of your tattoo! Opportunities may be lost simply because of the art being worn on your body!

Tattoos and bias! A fact of life.

. . .Just something to think about!


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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