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Monthly Theme: Bias Part 2

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This month’s theme on The Legal Advocate is Bias In The Courtroom. This is our second article on the subject. Part 1 was written by Karen Hester titled a A Trial Lawyer’s Guide to Minimizing Bias.

Interrupting Implicit and Explicit Bias

written by NITA guest Blogger Karen Steinhauser via a FB post written by Karen

I normally don’t post much on Facebook other than pictures but I needed to post this:

I recently was fortunate enough to be the co-director for the NITA National Trial Program. We had participants and faculty from all over the country. This year, we added a session to the program that we had never done before entitled, “interrupting implicit (and explicit) bias. Our focus was addressing the many types of bias that occurs in the courtroom and the effects it has on lawyers’ abilities to be effective advocates, and second how we can interrupt the bias, whether we are the victims of it or observers of it. It was truly one of the most powerful things I have ever been a part of.

A number of things were made very clear. First of all, we all have biases and it is important to recognize and understand that those biases are so that we can interrupt our own biases. Second, these issues are prevalent in the courtroom and in the legal profession in general. Third, for the victims of the bias, it is incredible painful and the pain can last a lifetime; fourth, we all have a responsibility when we see something to say something and to be mentors to others who may not know how to deal with these issues.

These issues, of course are not just limited to the legal profession, and I think these sessions need to be a part of every legal and non-legal organization. I truly believe we need to be addressing it at our law schools and other professional associations. It certainly is as much part of professionalism as knowing the basic rules of Ethics.

I have to thank our incredible faculty who were willing to share with the participants their own stories, as painful as they were, and the participants who truly understood that advocacy isn’t just about knowing how to do a good opening statement or closing argument… that it is about advocating for each other as well.

Monthly Theme: Bias Part 1

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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

August Theme: Winning with Visual Story Action

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written by NITA guest blogger David Mann

Everyone knows the best story wins. But what exactly constitutes a good story? We all know it’s important to have a good guy and bad guy, and we know it’s important to frame things in light of common sense violations of rules or principles. We know we need an interesting protagonist who is easy to identify with. But we also know we can do all that and still have a story fall flat and consequently lose an otherwise solid case.

So what’s the secret ingredient to making a story come to life for the jury and leading them to take action? For winning cases in which I’ve constructed the opening, we’ve grabbed the jury immediately with vivid visual language that is active rather than passive. Here’s what I mean. Consider the wording in this sentence from an opening:

“Paramedic Miller’s lack of attention on the scene of Plaintiff Dan Gerson’s cardiac arrest was in violation of the laws of the commonwealth of Virginia. His actions were the cause of Mr. Gerson’s death, and the evidence will show that.”

Information is provided and a strong point is being made. But it’s not visual and it’s not active. It’s impossible for a jury to imagine the scene from that description, and the whole thing is in the passive verb tense, making it seem distant and unimportant. It has a certain legal-sounding formality to it that is at odds with the general culture’s insistence on approachable, plain language. Further complicating things is the fact that the story is displaced into the future, when we’ll presumably hear and see evidence that will tell the story. While it is of course necessary to use legal references and refer to upcoming evidence, don’t do it at the expense of moving the story forward. Establish an active, vivid story before asking the jury to focus on the evidence you’ll be providing and the legal conclusions you will be drawing – all at a later date. The later addition of evidence should serve to flesh out the images they’ve already begun to form in their mind from your well-crafted opening story. You’ve got one shot to do it. If you don’t succeed in planting that story in their imaginations, you might never get them invested.

The description of the paramedic and Mr. Gerson above is the type of sentence that makes up the majority of the first drafts of opening statements I see. We then work the story through several revisions to make it come to life. Look at the difference in this way of depicting the same story:

“Dan Gerson collapses in his chair and his niece calls 911. Within two minutes the police arrive and begin administering CPR. Six minutes later, the paramedics arrive but Paramedic Miller orders the police to stop CPR. Because of the Defendant’s actions, Dan Gerson is dead.”

The second approach is a story. It is told in action language a jury can visualize. The first passage describes the events from a distance: Defendant’s “lack of attention…was a violation of…” and his “actions were the cause of…” The second passage tells it in the present, one image at a time: Plaintiff “collapses,” Police “arrive,” and then Defendant “orders the police to stop.” All actions, all parts of a story that is unfolding in our minds as we hear it.
These are subtle yet powerful ways of making a story come to life. So remember:

  1. Use language that describes things in real time and space so the jury can actually see it in their minds. Avoid lofty statements of vague purpose (“This is a case about…”) until you are certain you’ve given the jury enough concrete story images to work with.
  2. Use action language in simple sentences when you’re laying out the first description of the story. Avoid passive (but legally prevalent) phrases like “…is in violation of…” and instead use clear action words like “violated.”

For lawyers who have spent their professional lifetime working with careful, formal legal language, this may seem counter-intuitive. But it’s critical for engaging the ordinary people in the jury. When the story comes to life, they’ll respond by taking action.

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About the Author

David Mann specializes in persuasive presentation skills and storytelling. A theater artist for over three decades, David now trains attorneys and business professionals how to use performance and storytelling techniques to win. He has taught with NITA for the past five years and has served as Program Director for NITA’s Persuasive Power in the Courtroom communication programs since 2015.

Contact David Mann to get in touch doing any opening statement work: 612-756-0200 or email at: david@davidcmann.com

August Theme: Why is Storytelling Important for Lawyers? (Or how I learned to survive on the Bench)

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written by NITA guest blogger, the Honorable Christina Habas

As trial lawyers, we are masters of our cases. We know the facts of the case like the back of our hands; the law comes easily to us to know what we must prove; and finally, we know how to communicate with power. What we often forget is that our biggest task is to convey our client’s STORY in a way that can be easily UNDERSTOOD by our listener. We also want our listener to REMEMBER what we tell them.

The best method of communicating concepts to be UNDERSTOOD and REMEMBERED is story. We tell ourselves stories all of the time, even when we are asleep, our brain is telling itself stories. As human beings, we are incapable of putting together large amounts of data in an understandable way unless we have the framework of story. And, as trial lawyers, we often must explain something to jurors who may have no personal experience or history to give them an understanding. If a juror has never before met a person who is paralyzed, they will have no concept of how that person copes with the world unless we find a way to connect with their own life experiences, making our client’s case more real.

We also know that if there is not a cohesive and coherent story in a case, the jurors will likely tell themselves their own story as they hear about a case. If my passion is to ride bicycles, I may listen to a case about a bicycle accident from the perspective of the cyclist – on the other hand, if I have unpleasant experiences as a car driver with bicyclists, I will likely listen with that perspective. This means that the listener will fill in any gaps in a story with their own story that fits into their own personal experiences and philosophy. This is how verdicts are sometimes perplexing, because the jurors have made a decision based upon the story they tell themselves, and that story is not necessarily in lock-step with the evidence presented at trial.

Storytelling is also effective because of the way we are hard-wired: when we listen to a story, our brains are transported into a calm, receptive state. We know, as the listener to a story, that we will not be called upon to actually participate in the process, and we have “mirror neurons” that fire the portion of our brain that would fire if we were actually participating in the action, as we listen to a description of the action.

Finally, if the listener can actually VISUALIZE your case in their own mind, you have a much better chance that the listener will not only understand what they are listening to, but also remember what they heard. This is the way a good trial lawyer will arm jurors so that the jury will reach the verdict that supports the lawyer’s client’s version of the case. It will ingrain the action in a way that makes the juror unlikely to be swayed away from that vision of the case.

August Theme: A Guide to Crafting your Story in Court

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written by Mark Caldwell NITA’s Director of Resources

Remember how you saw the world before you went to law school? That view was far different from your view of the world today. Sometime in your first or second year of law school you began to think and speak as a lawyer. You ceased to see the world in multi-hues and it became black and white. This starkness allowed you to apply facts to the law and reach a legal conclusion. Think about your frame of mind when you first hear about a case – before you perform a legal analysis of the case and begin structuring your potential claims, defenses and motions. This is when you hear your client’s pure story of the events that occurred in a persuasive form. You are either persuaded to take up the client’s cause by that story, or you reject it because you are not persuaded.

Our training and experience in legal analysis is essential to building or defending a case. In getting ready for trial this process often hinders our ability to communicate persuasively and making a case memorable to judges, juries, and others we need to persuade. What we need to do as lawyers is to convert our legal analysis back to its purist form of story. It needs to have a clear beginning, middle, and ending. Parties and witnesses, including experts, need to be introduced as characters which illustrate a central conflict and offers a fair solution.

We sometime confuse case story with other advocacy concepts. Your case story is not just a theme – such as “A man’s word is his bond.” Too often we select a theme that resonates but fails to present the facts in a persuasive fashion. A case story is not the legal theory. For example, a child is neglected or dependent if: the child lacks proper care, through the actions or omissions of the parent. This may hint at a story, but it is not a very good one. Likewise, a case story is not just a tag line – “This is a story of a promise; a promise made and a promise broken.” Instead, think of your case story in the same way that historian Ian Toll describes writing about history as an “episodic narrative, picking key episodes to write about that, in their composite, provide an accurate portrait of what happened, without bogging down in too much minutiae….”

In crafting your own case story it may be helpful to think in the terms taught to fledgling authors. You can translate common components of good story writing to trial. Your case theme is akin to the Premise Line of a story. A Premise Line tells the listener, “What is your case about?” When properly conceived, your premise expresses your whole story in one or two neat sentences. Let me give you an example from the movies – A treasure-hunting archeologist races over the globe to find the legendary Lost Ark of the Covenant before Hitler’s minions can acquire and use it to supernaturally power the Nazi army. It is your “elevator speech” that defines your protagonist (your client), shows the antagonist (the opposing party), offers a sense of setting, conflict, and stakes, and hints how the action plays out. It is not what some think of as the “grabber” that starts your opening statement.

Next comes the Designing Principle or what lawyers may think of as the theme. This is what organizes your story as a whole and makes it hang together instead of a lose series of facts. Your Designing Principle suggests how and where you will begin your story – is it a chronology or a topic driven revelation of the facts that complete the legal elements.

Every story, including trial stories, has a Central Conflict that shows the harm done to your client. It also reveals the remedy or equitable solution that will make things fair and right.

Each case has parties and witnesses. These are the Characters who populate your case story. Some will be fully fleshed out individuals who you spend time accrediting while others will be flat characters who serve a purpose but do not need a full development to be credible. Here is a flat character example – the police officer who first arrived on the scene of a crime but did not conduct the full investigation. He is important to the story but not someone who defines the story.

Finally, you must understand and develop your Plot, or the factual theory of your case. These are the facts that fill in the elements to prove you have met the burden of the proof. Your organic plot must show that each event is causally connected; that each event must be essential (not facts that clutter with useless information); that is proportionate in its length and pacing; and has a sequence that has a unity and totality of effect. Your plot structure gives you the map on how you call witnesses, introduce exhibits, and have the story play out in a persuasive manner.

Changing your thinking from black and white legal theorist to storyteller brings color back to your cases, it makes the facts more memorable, provides a reason to feel good about the decision, and persuades in the way that maintains attention – just as story has done throughout history.

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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