January 21, 2020 Diversity

Challenging Implicit Bias on the Bench in Family Law Cases

By: Andy Wilson

In an increasingly diverse practice of family law, we all strive to promote inclusion and to fight against prejudices that our clients, and even us as legal professionals, face in their cases.  And while prejudices may be obvious – ‘headlines’ if you will – buried deep in the ‘text’ of our brains are implicit biases which “are pervasive in the practice of law and are an invisible thumb on the scale of justice".

In the practice of family law, we strive to promote inclusion and fight against prejudices that our clients, and even us as legal professionals, face.

In the practice of family law, we strive to promote inclusion and fight against prejudices that our clients, and even us as legal professionals, face.

Aartisteer/iStock via Getty Images Plus

Biases are created subconsciously over time and come from a person’s development, experiences, and societal conditioning.  They are often difficult to detect and even harder to address because they are latent in nature.  As infants, we learn to recognize our parents and caretakers and then move to associate others with our immediate circles: “you look like me and my caretakers” or “you don’t look like me or my caretakers.” Soon thereafter we start to affiliate characteristics with specific social groups whether good or bad. For instance, you may see an older person get into a car and assume that they’re a slow driver because you’ve seen a different older person drive slowly, or heard others talk about retirees driving slowly.  Eventually, that bias implants itself in the subconscious and becomes an automatic thought or reaction – the car in front of you is driving slowly, so the driver is probably old.  You change lanes and go around them and the thought disappears – but the bias has nonetheless impacted your behavior.

Rule 8.4 of the American Bar Association’s Model Rule of Professional Conduct includes within its definition of professional misconduct a lawyer that “engage[s] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  The rule broadly applies to all aspects of practicing law including how attorneys engage their clients and execute their responsibilities.  In the practice of family law, this is especially concerning when biases arise in determining what is in the best interest of a child, which parent should have primary custody, or if a parent should lose their right to have access to their own child.

Bias permeates every aspect of the legal profession.  In the Nextions 2014 publication “Written in Black & White” studies showed that an identical legal memorandum written by a hypothetical Caucasians and African-American individuals received substantially different critiques demonstrating racial bias.  If the environments at firms are clouded with bias, that bias likely impacts the attorney-client relationship and results in the case. Not only are implicit bias practices discriminatory and potentially unethical, they can also be unjust.

Implicit bias also affects the strategies deployed for clients. For instance, in a heated custody dispute a parent who owns their home and lives alone may be seen as being able to provide a more stable home for a child, versus a parent who rents and lives in a home with multiple generations. However, in some cultures having grandparents and aunts living in the same home as the parent and child demonstrates a supportive village and is deemed an asset. In evaluating the strengths and weaknesses of a case and in turn developing a strategy, inquiring into cultural nuances rather than automatically relying on one’s own standards shaped by bias could lead to more fair results. It also important to not only be aware of your own bias but also the potential bias of experts including custody evaluators.

Here’s another example – you meet with a client and they don’t look you in the eye when sharing important facts about their case.  Many people (including perhaps your judge) would view that person as untruthful or evasive.  In his article for the Florida Bar entitled “Implicit Bias and Its Application to a Life of a Lawyer,” Yasir Billoo shared how he perceived his Native American client and his tribal members to be untruthful because they did not make eye contact, but upon further inquiry he learned that he appeared untruthful to the tribe because in their culture making eye contact during conversation is disrespectful.   That’s how implicit bias works.  By being aware that everyone is biased, a law practitioner can be intentional about asking clients questions to discover cultural nuances rather than operating on assumptions. Then, the attorney is then armed to explain those differences to a judge or an expert who might otherwise assess the client based on their own biases.

How do we as professionals remove the thumb off the scales of justice and work to eliminate implicit bias?  The first step is education, and you’re already on your way by reading this article and viewing Ms. Allen’s more thorough discussion of implicit bias.  In addition, clearing space in your brain by practicing mindfulness – or at least slowing down – will help you ‘catch’ biased thoughts and allow critical processing needed to analyze facts in an unbiased way.   Exposure to the “other” is another way to help catch biased thoughts and practices.  For instance, if you tend to associate only with male family law practitioners, then spending time with female practitioners will help expand your understanding of women and thereby chip away at biases relating to women.

Even the best intentioned of us have biases that are a part of our subconscious.  Creating self-awareness and having an open dialogue about how we view people, actions, or behaviors and why we view them that way will help us as legal professionals reduce the impact of bias and hopefully result in fairer outcomes for our clients.

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Andy Wilson

Esq., Fort Lauderdale, FL

Young, Berman, Karpf & Gonzalez, P.A.

ABA Section of Family Law Diversity Committee Vice-Chair

Materials Author: Stacy M. Allen

Esq., Houston, TX

Law Office of Stacy M. Allen

Speaker, "Thumb on the Scale: How Implicit Bias Threatens Justice in Family Law," presented at the 2019 Section of Family Law Fall CLE Conference in Austin, TX, September 27, 2019