Trial lawyers are paying more attention to the matter of implicit bias because of its role in the link between presentation of facts at trial and the brain’s ability to judge those facts fairly. I presented a webinar yesterday on this topic for the International Association of Defense Counsel. Our NITA community is equally interested in this important aspect of influencing decision-makers to “do justice.” Here are some thoughts. I welcome your comments in response – just write to us below.
Together, neuroscience and social psychology prove that each human brain adopts, retains, and relies on shortcuts to thinking, and is totally unaware of these shortcuts. Project Implicit is an interesting way to experience this subject. Indeed, not only is each of us unaware of what our bias may be on a subject, but we also are helpless to even recognize the effect of a deep implicit bias in a situation (thus the term “implicit”).. This is not always a bad thing – I can instantaneously jump off the sidewalk when I hear tires screeching and a nearby engine racing, and wait to gather facts by looking back after I know I am safe. My brain knows the danger based on experience. It makes me act first; I can gather facts and think later. Or don’t gather facts or think later – simply act upon what I can proudly look back on as quick reactions and a wise move.
Acting upon what I perceive to be “wise” and moving on, without even knowing that a bias was a short-cut to thinking that influenced my judgment, is the heart of the justice issue for trial lawyers. Particular with juries, but equally with judges (or your significant other or work partners), trial lawyers cannot know what biases lurk in the minds of their audience. You know the feeling of waiting for the jury to return – hopefully they heard and remembered the facts, hopefully together they understood the facts, hopefully they relied on the facts they heard and not on outside influences. But to know that their brains bring implicit biases that short-cut or discourage their full consideration of the facts – without their even being aware of the influence – that is something more to worry about. Their oaths are intact; they are helpless to know whether “values” and “biases” are mixed up in a quagmire of assumptions that now influence their verdict. Until someone calls it to their attention; hopefully not too late. Please see NITA’s February 6 blog post for such a story.
Research in social psychology, cited by Professor Joan Williams at The Hastings College of the Law and others, shows that once the influence of a taboo bias or set of assumptions, such as race, is recognized by a jury, the members of the jury will self-correct, or attempt to do so. There are powerful implications for the attentive trial lawyer who is preparing to present to a jury.
The research in this area is not light stuff. It does, however, suggest new practices and skills for trial lawyers. Doing justice better by effectively presenting to juries whatever their human foibles is a sweet spot for NITA. I hope you will share your comments on this topic.
Karen M. Lockwood, Esq.