Implicit bias hurting justice system—and profession, says ABA president

October 2015 | Around the ABA

When Paulette Brown was sworn into office on August 4 as the first woman of color president of the American Bar Association, she outlined as one of her key initiatives the association’s No. 3 goal — Eliminate bias and enhance diversity.

Brown talked about why that goal is the centerpiece of her yearlong presidency and why the ABA should be out front on the issue as the keynote presenter on the webinar “Implicit Bias 101: What All Lawyers Need to Know.” The webinar explored some of the cognitive biases most relevant to the law and how to identify and overcome them. She was joined on the panel by Eric York Drogin, an attorney and forensic psychologist with Harvard Medical School; Judge Karen Arnold-Burger, a member of the Kansas Court of Appeals; and Robert G. Knaier, an attorney with Fitzgerald Knaier LLP in San Diego, Calif. The program was moderated by Joan Rose Marie Bullock, a professor of law at Florida A&M University College of Law.

Brown, a partner and co-chair of the firmwide Diversity & Inclusion Committee at Locke Lord LLP in Morristown, N.J., began by talking about diversity and inclusion in the legal profession, which she said is woefully underrepresented when it comes to diversity. She cited U.S. Labor Department statistics that show:

  • 88 percent of all lawyers are white

  • Women constitute about 47 percent of law students and more than one-third of the profession, but only about one-fifth of law firm partners, general counsels of Fortune 500 corporations and law school deans

  • Women account for 17 percent of equity partners

  • Only 7 percent of the nation’s 100 largest firms have a woman as chairman or managing partner

  • People of color make up fewer than 7 percent of law firm partners and 9 percent of general counsels of large corporations

  • In major law firms, only 3 percent of associates and less than 2 percent of partners are African-American

“We need to know that diversity can never be numbers alone,” Brown said. “It’s critically important to improve the numbers, but real diversity is achieved when diverse employees feel valued and included in their organization.”

Brown said that while significant progress has been made in combating more explicit inequalities, implicit bias – the subtle and sometimes not-so-subtle prejudices we may unconsciously hold – is a more understated and equally harmful threat to our justice system. And she emphasized that “none of us are exempt from having implicit bias.”  Citing reports that say the legal profession is the least diverse in the nation, Brown said there is an increasing lack of confidence in the justice system. She cited a recent Harvard study that showed 66 percent of African-Americans said they had not much or no confidence in the system’s fairness, while 53 percent of Hispanics expressed similar misgivings.

“The ABA has an important role to play in rebuilding the nation’s confidence in our justice system and I am confident that we can do that. But we must work together to eliminate bias and enhance diversity and inclusion,” Brown said.

She noted that there are several types of biases, including what she called confirmation bias, where the brain takes a mental shortcut so that we see people as we understand them to be rather than what they are. “We have certain expectations of them or not, and then we do things to make sure those expectations are realized,” Brown explained. She pointed to a report called Written in Black and White, which involved 60 different partners from 22 law firms. The study’s authors created a poorly written research document that was purportedly the work of a third-year litigation associate — one a white graduate from NYU and the other an African-African NYU graduate. The document was reviewed by people of all races and the comments split along racial lines.

“When it came to the white graduate the comment was ‘he had potential,’” Brown reported. “When it came to the black graduate it was ‘can’t believe he went to NYU.’ With the white graduate another comment was ‘good analytical skills’ but the black graduate was ‘average at best.’”

Brown said this study and many others like it show that implicit bias permeates our justice system.  “As jurists, legal professionals and community leaders we have an important role to play in promoting open and frank discussions about implicit bias so that we can stem the tide of its negative impact within our profession and on society at large, Brown said.

According to Knaier, an important aspect of implicit bias is that it involves unconscious ways in which we pass judgment and make decisions.  And that carries over into the courtroom and how lawyers, judges and prosecutors interact with clients and defendants. Knaier looked at how we make decisions, how we might be persuaded to make decisions, how we might persuade others to make decisions and the ethics of exploiting implicit, unconscious mechanisms that largely control those decision-making processes. 

“The one point I want everyone to get is that you are not in control of your brain, nor are the people you are trying to persuade,” he said. “It turns out that our brains are constantly, and without our conscious control, using shortcuts. But these shortcuts do not always yield correct results.”

Knaier listed five ways the brain uses shortcuts:

  1. Priming – Using words, images and concepts to influence thought. It is a matter of using the brain’s natural tendency to associate words and ideas even at an unconscious level.

  2. Forcing — Helping the brain resolve an ambiguity by providing it with an answer with sufficient strength that would cause the resolution to stick.

  3. Shaping — Retrospectively shaping memories by using images and words.

  4. Anchoring — Priming people with numbers “Even numbers that are random or otherwise have nothing to do with the topic under consideration can affect our judgment and conclusions,” he said.

  5. Halo effect — Making split-second judgments about people, particularly about likability, and once we have passed judgment it morphs into believability or the halo effect.

Drogin, an attorney and forensic psychologist who also serves as a trial consultant, agreed that implicit bias has its negative aspect but said there are some positive implicit biases, “things that we like to think that we are going to see in ourselves and that we are going to be seeing in our colleagues and other folks in the system and in jurors and litigants. So it’s possible to play to those positive implicit biases as well as to the negative ones.”

The webinar was sponsored by the Center for Professional Development, Commission on Disability Rights, Commission on Racial and Ethnic Diversity in the Profession, Commission on Sexual Orientation and Gender Identity, Commission on Women in the Profession, Criminal Justice Section, Judicial Division, Section of Civil Rights and Social Justice, Section of Litigation, Section of Science and Technology Law, Section of State and Local Government Law, and the Young Lawyers Division.