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A Trial Lawyer’s Guide to Minimizing Bias

By Karen Hester, CEO of Center for Legal Inclusiveness

There’s a lot of talk about bias these days and unfortunately, it seems to be just that … talk. Many people have an idea about what it is and most just don’t know what to do. This blog post is a primer about bias – what it is, why it’s relevant and, most importantly, how you as a trial lawyer can reduce the impacts of bias in the courtroom by starting with three-steps.

What is bias?

Implicit biases or unconscious bias are those attitudes, beliefs or stereotypes that affect our understanding, actions and decision-making. These biases are not always inherently bad, in fact, they help us make snap decisions. Problems arise, however, when we continue to make generalizations and don’t take into account new information that contradicts it[1].   

Why it’s relevant?

As attorneys, we are charged with the mission to zealously represent our clients – be they rich or poor, white or black, popular or disdained – with the objective to ensure fairness and equity under the law. Yet, research repeatedly concludes that attorney bias can and does impact the communication, counseling and representation of clients; interactions with jurors, witnesses and court actors; the evaluation of evidence, prioritizing cases and strategy; and recommending, accepting or rejecting offers related to pre-trial release, sentencing or probation.

We know that bias can impact jurors, judges and other attorneys, but this blog focuses on trial lawyers.  I encourage you to look internally and use these three affirmative steps to mitigate the effect of implicit bias.

Step One: Get Real

This is probably the easiest step of them all. If you’re breathing, you have implicit bias. Sorry, no two ways around it. Don’t take my word for it, start with a free online, anonymous test already taken by over five million people. The Implicit Association Test (IAT) is produced by Project Implicit and measures an individual’s unconscious attitudes about characteristics or traits[2].  The IAT measures bias related to race, ethnicity, gender, age, weight and other characteristics. After you take the test, my hope is you’ll be motivated to move forward to take the next steps to overcome your bias.   

Step Two: Do Better

As the saying goes “If you know better, do better.”  There are many things you can do to “do better.”  They are not intrinsically hard, but they likely won’t come naturally, and may actually increase the amount of time it takes to make decisions. But in this case, the end does justify the means.  Here are a few things you can do now:

  • Create a Decision-Making Process: Be transparent and operate within a well thought-out structure to make objective decisions. I really like using a checklist. Many biases occur when we tend to identify with someone who reminds us of ourselves. When that happens, we may give that person more benefit of the doubt or be more willing to work with them. But for those with whom we don’t have a natural affinity, we may be less inclined to go that extra mile. Use your checklist to check yourself.
  • Challenge Stereotypes: Once you are aware of your stereotypes, affirmatively replace those responses with non-stereotypical ones. Keep doing that until those initial stereotypical responses are automatically replaced with unbiased ones. For example, my mom loved Perry Mason, and as a kid, I would watch the reruns with her. Having never met a lawyer, I thought they were all white men, and defense attorneys were smarter than both the police and prosecutors. But my career path proved otherwise as I met attorneys of various backgrounds – plus, both my brother and sister-in-law are deputy DAs, so I know they’re smart too.
  • Out-Group Contact: Do a self-check. With whom do you typically spend time? With whom do you have an affinity? It is natural to be comfortable with people like yourself, or people who have the same experiences or who live in the same environment – typically these people are your “in-groups.” Your biases and generalizations about those outside your circle, your “out-group,” won’t change unless you push yourself to be around others who are unlike you. So make it top-of-mind and action to widen your experiences by engaging in positive interactions with out-group members.

Step Three: Be Mindful & Repeat

Implicit bias is not something you can ever completely remove but that doesn’t mean that you can’t decrease its impact on the decisions you make. Take the time to make a well-thought out, objective and informed decision, especially since you’re in a profession where others are dependent on you.  Repeat Step Two, until it becomes an unconscious action on your part.

Karen Hester is CEO of Center for Legal Inclusiveness, a nonprofit in Denver which works to make the legal profession more diverse and inclusive. CLI provides bias training year-round nationally and at its annual May conference, the Legal Inclusiveness & Diversity Summit.

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[1]  For more in-depth discussion about bias in the workplace generally, see my February 2017 NITA webinar on the topic entitled “Barriers and Bias in the Workplace and Winning Despite Them.”
[2] https://implicit.harvard.edu/implicit/education.html

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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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