The Legal Advocate

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September 2014 Executive Director’s Letter: Speaking of Bias in the Courtroom . . .

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Lockwood_KarenImplicit bias – the silent judgment-maker that we are not aware of in a jury, our courtroom, our witnesses, our judge, our selves.

On August 19, 2014, I presented a free NITA Webinar on how important it is for a trial lawyer to understand implicit bias. And to learn to recognize where it might lurk.

On November 7, 2014, NITA is presenting a full 90-minute CLE on this important subject, dealing directly with the question, “what does a lawyer do about implicit bias in the courtroom?” Join us at the Annual Convention of NAPABA – the National Asian Pacific American Bar Association. (NAPABA members, sign up now here.)

Why? This is a subject that, like NITA’s mission itself, directly affects the quality of justice. It affects “both sides of the courtroom.” To be clear, I am not talking about lawyers who litigate discrimination cases. I am talking about all of us – no matter the side, the practice, the claim, or the faith that we ourselves are unbiased.

Lawyers who seek a deep understanding of implicit bias will better represent their client, better handle the sometimes messy give-and-take of witness examination and credibility, and have a better shot at justice. Here is why:

  • Many of us are sure that we do not discriminate, we are fair. Good; so far as our behavior is concerned that is essential.
  • Some of us, further, are savvy to our own implicit biases. Those lawyers develop “stops” to check their judgments, decisions, and behavior in order to negate their biases. They are more ready for the courtroom.
  • Not a single one of us can erase the implicit biases we now own. They are our bear, looming behind us, making judgments for us that we are unaware of. (Some are good biases—embedded in the fight or flight center of our brains.) Many are destructive biases, changing perceptions, shortchanging objective judgment, instilling fear.

Since every human brain on earth relies on it to act quickly and “intuitively,” it follows that implicit bias joins all the players in the courtroom. Those of us who seek justice through advocacy are dealing with implicit bias throughout every witness examination, for example. Is the witness expressing a judgment, or recalling “events” changed by an unconscious reaction rooted in bias at the time of the event? Is implicit bias active in the discourse or conduct of counsel?

More to the point: a woman advocate wonders what underlies the behaviors and judgments directed her way. An African-American advocate in a North American courtroom sees some typical signs of bias and wonders how to deal with them. A witness is apparently confused by a racially biased perception, and the cross-examiner wonders whether to tread into the area, and how.

Of course, implicit bias is a topic much broader than “grouping” stereotypes: broader than gender, race, LGBT individuality, profession of religion, ethnicity, etc. But these visible and invisible differences among groupings of people are rife with stereotypes that predictably harm justice.

Reading more always raises our own awareness. And thus earns us some savvy thinking time as we consider ways to defuse negative implicit bias in the courtroom. You can start here: the first starts slow, using study testing implicit biases other than “grouping” stereotypes.

Impartial experts (expert conclusions on propensity for repeat offenses of sexual violence varied with whether prosecution or defense retained the expert )

DecisionQuest summary for ABA (implicit bias issues in jurors, counsel, judges).

Kang et. al article at UCLA (team of academics, scientists, researchers & federal judge seek ansers: “what if anything should we do about implicit bias in the courtroom”);

NITA free Webinar introducing the subject for trial lawyers (implicit bias in courtroom, “what and why / see it and address it”)

NAPABA Convention, Convergence of Bias and Reason on November 7, 2014 from 9:15am – 10:30am

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Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

About Karen M. Lockwood

Karen is the Executive Director at the National Institute for Trial Advocacy. Karen brings the insights and creativity rooted in serving corporate and business clients, first-chairing numerous jury and bench trials, and arguing appeals. Her specialty areas have included construction litigation, large disaster cases, multi-party commercial disputes involving all types of contracts, antitrust, trademark and copyright, and ADR.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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