Rationality is a Project Under Construction

Implicit bias is a predisposition that we usually don't realize we have. We have any number of conscious biases (i.e., likes and dislikes), but implicit biases sit deeply and can affect our actions and choices even if we are generally aware of them. The greatest attention in science and media has been devoted to implicit gender and racial biases. Having implicit biases does not make people "bad," it just makes them products of their culture as evidenced by the fact that it is not uncommon for women to have implicit biases against women and for black people to have biases against black people. A good example is a confession by the Reverend Jesse Jackson who once told his audience, "There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery\u2026then look around and see somebody white and feel relieved."

It turns out that a split-second is all it takes for us to make important judgments about people. Harvard scientists developed a test, available online, that detects split-second delays in the time it takes people to associate words with images.  In the test, the user is shown either a "good" or "bad" word (e.g., "happy" or "sad"), and asked to click a button indicating whether the word is good or bad. At the same time, the user is shown an image of either a white or black person next to the word. If the person taking the test has an implicit bias against black people, she will react more slowly if the "good" word appears next to a black person than if it appears next to a white person. The test works the same way for gender biases.

How do racial, gender and other implicit biases affect litigation? One obvious place is jury selection: when attorneys have to make decisions quickly, their implicit biases come out in full force.  Jurors' implicit biases could play a big role in their decision-making and that is why jury selection is so important. In addition to the usual jury selection tools, Federal Courts developed a video that helps address implicit biases directly (Jeffrey Robbins Federal Court instructions video). But the very best defense against jurors' implicit biases is a diverse jury in which different viewpoints force jurors to reexamine their assumptions and prejudices.

Implicit biases also have an impact on how litigators are treated by their colleagues, judges, court personnel, and support staff. One example of implicit biases in action is that other attorneys and the court personnel often mistake women litigators for court reporters and paralegals. White men very rarely encounter such misunderstandings. Both men and women often unconsciously assume that women and minorities in the courtroom are there in supporting, rather than leading, roles. There is no scientific evidence that men are better at trying cases than women, nor is there any evidence that women and people of color are worse than white men at persuading jurors. Yet it is extremely difficult for women and people of color to become lead litigators, especially in big cases. This is likely because implicitly we perceive litigation as war. Yet, while a certain level of confidence and aggression is required, in many aspects, litigation is not at all like war because persuading jurors has much more to do with being able to understand their perspective and to tell a persuasive story.

Within law firms and legal departments, it often takes women longer to get attention, to get their point across, and to be given responsibilities, important assignments, and lead roles - all because of implicit bias. Much more often than their counterparts, women are asked to fetch coffee, organize office parties, and take on non-billable work. Very often these actions are not intentionally discriminatory, but simply a reflection of implicit prejudices. ABA has recognized the role of implicit biases both in the courtroom and in the workplace and put together a set of helpful materials about best policies and practices. (https://www.americanbar.org/groups/diversity/women/), https://www.americanbar.org/groups/diversity/resources/).

In addition to these much-discussed prejudices, scientists have identified dozens of other implicit biases that have nothing to do with race or gender.  Three biases are particularly important for trial attorneys: the curse of knowledge (failure to realize what others don't know), overconfidence bias, and confirmation bias.

In a courtroom, the curse of knowledge can make a litigator fail to provide background information, causing a jury to fill in the gaps as best it can, resulting in decisions that can be an unpleasant surprise for the trial attorneys and their clients. In construction cases, that missing information often has to do with the planning stages, the roles of parties not involved in litigation, the owner's responsibilities, work flow, and accepted standards of communication.

Confirmation bias. Once people form an opinion, they have a strong tendency to notice evidence that supports it and discount evidence that contradicts it. We all like to be right and hate admitting that we were wrong. Over the course of litigation and discovery, it is not hard for litigators to find themselves in a place where their case seems airtight. Overconfidence bias works hand in hand with confirmation bias and is likely caused by a perceived necessity to always project confidence even when (and especially when) your position is weak. It is hard to entertain doubts while projecting utmost confidence, so eventually the mind starts believing its own propaganda. Take, for example, this statement: "Our guy did a great job on the witness stand. The plaintiff's damages expert presented completely unfounded and speculative damages figures - no way that jurors took him seriously. We are expecting favorable rulings on our motions tomorrow" - this is a rough summary of a trial report sent to a surety right before the judge rejected the motions and the jury returned a verdict of several million dollars against the party represented by the overconfident lawyer who succumbed to the confirmation bias. This implicit bias not unique to attorneys: paid experts, very senior managers, many doctors, and other professionals often experience this same effect.

What is the best medicine against overconfidence and confirmation biases? Humility. It is important to recognize that rationality is not free of unconscious desires and preferences. In fact, pure rationality does not really exist; it is more of an ideal, like a project under construction. So, all of our important decisions at the office and in the courtroom should be questioned. The best way to guarantee this is to have a diverse team of people who are not afraid to speak up and who are sometimes encouraged to disagree and to doubt, to not to be afraid to ask questions.