Be Aware of Your Blind Side: A Game Plan for Dealing with Implicit Bias

Simply put, Oher’s arrival exposed the Tuohys’ implicit biases, which are attitudes or stereotypes that we all have and that affect our understanding, actions, and decisions in an unconscious manner. (See Kirwan Inst. for the Study of Race and Ethnicity, Ohio State Univ., Implicit Bias). The Tuohys clearly are a loving and accepting family. No one could refer to them as racially insensitive when they welcome an African American teenager into their home. However, once Oher joined their family, they saw the world from a different perspective. They recognized how people in their community treated Oher based on stereotypes and misconceptions. They also had to come to terms with their own perceptions about race and poverty, those biases that lurked in the shadows ready to strike like a linebacker coming around the end toward the quarterback.

We all need to do the work necessary to handle the implicit biases we hold. Fortunately, you do not have to adopt, or feed, a 300-pound, six foot four offensive lineman to deal with your own bias issues. The following is a game plan to assist you in tackling these false predilections, which will improve your skills as a trial attorney as well.

Game Plan Point No. 1: Everyone Has Biases to Confront

The following are some examples of how implicit bias plays a role in the legal profession:

• You are sitting in opposing counsel’s conference room waiting for a deposition to begin. A young woman walks in and you immediately ask her where she will set up her stenographer machine. Or you ask her to grab you a cup of coffee. Later, you learn she is the attorney defending the deposition.
• You purposefully do not engage with a senior partner at the firm, an older white male, because you assumed he wants to “Make America Great Again.” He actually is a leading fundraiser for the Democratic Party.
• A senior partner abruptly asks a Latina litigation associate to attend a pitch meeting with a Mexican-based corporation. In the meeting, she does not speak. No one asks her questions or discusses her background.

Lawyers ask the tough questions; they do not answer them. And yet, evaluating what your implicit biases are—whether they match the examples noted above or not—will necessarily involve turning the lens on yourself. Coming to terms with your own unconscious biases may take you to uncomfortable or dark places. You rightfully feel exposed and vulnerable because you are questioning your thoughts and past actions. As you intentionally explore these biases, you may realize situations you handled poorly and feel ashamed. You cannot change the past; you can only learn from it a move forward.

Striving for the personal growth associated with recognizing and removing implicit bias has a professional upside, too. A differentiating factor for a good trial attorney is his or her level of emotional awareness. Trial attorneys must build bonds with individuals across several constituencies—clients; judges; colleagues; opposing counsel; and, more importantly, juries—to gain long-term respect and success in today’s profession. As the profession becomes more diverse, there will be more pressure on your ability to communicate effectively with people from different backgrounds. To meet those goals, you will need to evaluate the biases you have and how they affect your actions and perceptions.

Game Plan Point 2: Know Your Squad

My college basketball coach would routinely remind the team that “you are who you hang out with” during the off-season. This was one of many nuggets of wisdom we relied on to stay out of trouble. Her advice is just as relevant today in professional life, especially when you are attempting to remove biases from your decision-making process. Take a look at the 5 or 10 people you spend the most time with in your personal and professional life. Do any of these individuals reinforce the biases you hold? How do these individuals influence your perceptions of others from different backgrounds and experiences? Do you have a relationship with anyone who can challenge your biases? Have you built trusting relationships with colleagues who can be honest with you about biases you may not even be aware exist?

Answering these questions could lead to the conclusion that your circle of influence lacks the diversity necessary to identify and evaluate your biases. The simple solution is to draft new friends and coworkers. Over time, building trusting relationships with others who have different life experiences will allow you to speak candidly about your biases or how you bias affects you. Having a more diverse circle of influencers is another way of protecting your blind side from the unforeseen impact of implicit bias.

Game Plan Point 3: Go All In on an Implicit Bias Course

During grueling preseason conditioning drills, our coach would remind us that that the only way to improve is making it through difficult and trying challenges. You can challenge yourself by participating in a group course. (The American Bar Association offers an online Implicit Bias Initiative course.) Exploring implicit biases in a group setting, while potentially uncomfortable, can be very enlightening. The benefits greatly outweigh any sense of discomfort you may feel.

Prior to starting the course, prepare yourself to gain the most from the training. First, fully commit to participating in an open and authentic way. Do not just sit on the sidelines or go through the motions. Second, listen more than talk. This is a unique opportunity to learn about others’ experiences of being negatively impacted by biases. Listen to how your coworkers deal with their own implicit bias. Also, hear your coworkers explain why they held certain biases so that those misperceptions can be resolved. Third, share your biases and how others’ biases have affected you. Proactively seek advice from others on how to identify the unconscious biases you have yet to explore. Fourth, empower your coworkers to protect your blind side by advising you when you are making decisions not based on facts but on stereotypes or emotions. For example, I have spoken up during voir dire because I thought counsel was making strike decisions on biases rather than facts to the detriment of our case. That was only possible because the lead counsel was open to my feedback and I was empowered to provide it to him.

Conclusion

We all have been impacted by or acted on our implicit biases. The days of juries resembling the characters in the movie 12 Angry Men are over. It is now imperative that we do the hard work of proactively evaluating our implicit biases. This is necessary work that will improve your emotional intelligence and your ability to create bonds with clients, opposing counsel, and jurors, and to develop trial strategies. It is time to protect your blind side by exploring the unconscious biases you may hold.
 

Amy M. Stewart is the founding partner of Stewart Law Group PLLC in Dallas/Fort Worth, Texas. Tasheena L. Byrd is an associate at the same firm.

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