This is a review of the June 27 CLE presentation, How Implicit Bias Impacts Decision Making In Our Legal Profession
By Gwen Abler
All attorneys are taught in law school to treat everyone respectfully, equally, and professionally. We are supposed to masters at controlling our emotions; we are supposed to be able to make fair and just decisions; and we are supposed to be able to treat our clients without personal prejudices, biases, and judgments getting in the way of our work. Unfortunately, sometimes our personal judgments get in the way; decisions are made quickly instead of fairly; and our emotions control our reactions. This all occurs without us realizing what is happening. Implicit bias exists within every person, in every community, and influences our decisions without our realization.
During a CLE (continuing legal education) talk, present Brenidy Rice, the criminal justice program’s manager of the Colorado Judicial Department explained what implicit bias is, how it affects everyone, including attorneys, and what we can do to reduce these biases’ negative consequences. Her talk was meant to be “depressing” but give us “bumpers” to help us realize when our biases are affecting our decision-making and work on controlling biases.
What is Implicit Bias?
Implicit bias occurs everywhere, in all communities and countries, and occurs unconsciously. Human brains tend to take unconscious mental shortcuts in decision making; these shortcuts usually consist of past stereotypes or attitudes that affect our decisions. These mental shortcuts are called schemas, and they make snap judgments about behavior rather than allowing the frontal lobe to rationally process each situation and make the appropriate decision. This mental process does not just present itself in attorneys, but the general population. One way that implicit bias presents itself in the community is when we consider the disproportionate amount of African American young men within our criminal justice system. Data shows that African American young men are less likely to be placed in prison diversion programs and more likely to be placed in juvenile detention or prison. These decisions often compound together, putting these young men further into the system instead of helping them. So why does this happen?
People do not like making judgments based on observations but we do it anyways. We have aligned categories in our brain and associated people with feelings due to our upbringing, past experiences, culture, and media. Unfortunately, we favor our own groups or races and we associate different groups (or races) as “bad.” These associations start at a young age, as early as three, and are engrained into us by exposure to our culture, community, family and upbringing. We are automatically taught to associate certain things with certain feelings unconsciously. Scientists have defined this phenomena as implicit bias, where attitudes or stereotypes affect our understanding, actions, and decisions in an unconscious manner.
Furthermore, our biological processes are affected by implicit bias. Studies have shown that our amygdala, or “flight or fight” center of the brain, lights up when we see African American men. Our amygdala, or fear center, is triggered causing us to react unconsciously. More often than not, the amygdala causes the brain to bypass any rational decision making from the frontal cortex and causes us to respond, unconsciously, without using our more developed frontal cortex. These implicit biases are pervasive within every person and often contain a racial aspect. Although we may explicate our beliefs verbally after logical reasoning, implicit associations and decisions are often different and based on snap-reactions rather than the logical reasoning of our frontal cortex.
Depressed yet about the fact that we make decisions that do not involve rational decision-making? Fortunately, implicit biases are malleable. We can set up decision making to realize that implicit bias is controlling our thinking and then react accordingly. However, we cannot fully remove implicit biases from our brain. Here are some ways that implicit bias may affect our work:
- Credibility: Why do you have a “gut feeling” that your client seems untrustworthy?
- Comfort level: Why are you more comfortable talking to certain people?
- Level of due diligence: Why do some clients experience more due diligence than others?
- Various retainer amounts
In Colorado alone, many attorneys of color have reported that they have been mistaken for court reporters, clerks, and even the defendant. Furthermore, Harvard found that judges, who are supposed to be neutral, score within 1% of the general population for having implicit biases.
How to Fix Implicit Bias
Implicit bias has led to a young African American girl of the age of 6 becoming arrested and charged with multiple misdemeanors and felonies because the teacher’s fear reaction bypassed her rational frontal cortex. Instead of ignoring race or other biases, we should unpack and reshape associations. Within implicit bias exists five types of biases but here are ways to prevent this biases from occurring.
Similarity bias exists when we associate ourselves with another person due to a physical feature. Instead, we should identify other similarities, such as mutual hobbies. We must keep an open mind. As attorneys, we must know what questions we ask to our clients beforehand, without changing them. If we have to change our questions, we have to ask ourselves why. We also cannot get information about people beforehand. Another suggestion would be to ensure that both parties get equal time during mediation in order to prevent one side from talking and allowing the other side to share entire story.
Implicit bias also consists of expediency bias, which occurs when we make quick decisions. These quick decisions are often based on stereotypes. To prevent this, we must take time to make decisions (which is difficult in this age) but we must also take notes of our decisions, analyze previous decisions, and identify stereotypes in hopes of preventing them from influencing our decisions.
We also are biased due to our experiences. We may think that we know “everything”, especially as attorneys. We have to assume that we do not have all the information. We should use our coworkers and value their opinions and different takes on a situation. The same prevention techniques need to be used for distance bias: awareness, document, and review. We also experience “safety” bias where we feel unsafe due to implicit biases, leading to quick decisions. Therefore, we must critically self-reflect on why we reacted so quickly, stay curious, and become more aware of how we are seen when entering a room.
Finally, as a community, we must engage in open and honest dialogue, cross-train employees, diversity our teams, receive and implement client feedback, offer culturally specific services (when appropriate), and actively ensure that our institutions remain accountable.
Implicit bias affects every member of the population, including attorneys and judges. We cannot erase these biases but by becoming more aware of them, we can take time to rationally make decisions when we notice these biases creeping in. By doing so, we will create a more fair and more just legal community for Colorado and for the future.