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.
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. 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:
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.
 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.”
Authors and Professors Peter Hoffman and Stuart Israel provide an informative text that takes litigators through the stages of discovery in their latest book, Effective Discovery: Techniques and Strategies That Work. This book is a companion to NITA’s best-selling, The Effective Deposition. Together, the two volumes provide and in-depth guide to discovery in all its forms.
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Longtime NITA faculty member Stephanie Smith Ledesma has been appointed as the Associate Dean of Experiential Learning at Thurgood Marshall School of Law (TMSL). In her new role as the Associate Dean of Experiential Learning at TMSL, Professor Ledesma will restructure, help define, and expand the Experiential Learning Department at the law school while increasing the initiatives and offerings in the area of experience-based education. Currently, the law school offers a variety of clinical experiences, over 100 externship opportunities, trial simulation taken by hundreds of students each year, and the NITA Client Interviewing program, a weekend module specifically for law schools that was co-designed by Ledesma and other NITA faculty, including Mark Caldwell, Mike Dale, and Marsha Levy.
Of her promotion, Professor Ledesma said, “I look forward to working with colleagues at TMSL, students, and NITA partners to help build upon and expand the powerful attributes of ‘learning by doing,’ for the benefit of every law student that chooses TMSL as their training ground.”
Professor Ledesma has served as a faculty member, a team leader, and a program director, teaching at NITA public service trial skills and deposition programs and custom trial skills and deposition programs around the country. In 2016, she was one of six faculty members that donated more than 100 hours of her time toward NITA volunteer efforts.
“As a servant-leader, I think one of the most important responsibilities that I have to the legal community, and those whom the legal community serves, is to teach what I have been taught and to share with others as others have shared with and mentored me. I was inspired by NITA faculty and their service to others. These NITA faculty not only became my friends, but my mentors. In fact, these mentors are the reason that I sought an academic position in the legal academy to begin with,” Professor Ledesma remarked to The Legal Advocate.
“I was further inspired by NITA’s ‘learn by doing approach to teaching attorneys how to raise the bar of legal practice and make excellence their goal. By bringing the tried and true NITA pedagogy and methodology to the legal classroom, I believe that I not only fulfill my duty to the legal profession, but I am helping feed future generations of lawyers and attorneys that will continue to have a positive impact on legal representation and advocacy in every corner of the world,” said Professor Ledesma.
NITA wishes to extend its congratulations to Professor Ledesma for her promotion and thank her for her continuing service to the legal community through her work with NITA.
For more information about the Client Interviewing program for law schools that Stephanie and her NITA colleagues designed, please email Michelle Windsor.
This year, NITA joined forces with the Children’s Immigration Law Academy (CILA), which is an expert legal resource center created by the American Bar Association (ABA) for a public service trial skills program, August 2-4 in Houston. There were over 70 participants in this program which ranged from a large number of Texas non-profit attorneys and pro bono attorneys representing children in asylum matters. NITA Program Director Tom Swett led the program while working with Senior Staff Attorney at CILA, Yasmin Yavar.
This three-day trial program covered skills such as case analysis, making and meeting objections, direct and cross examination, witness preparation and more using NITA’s learning-by-doing method. Tom Swett stated NITA’s ten faculty for the program came from across the United States and volunteered their time to teach. CILA recruited ten faculty members who were experienced immigration trial attorneys in order to co-teach and master trial skills.
At the end of the program, Yasmin Yavar stated, “We are so thankful to NITA for taking us on as a public service program and putting on such an invaluable training… the training was also a great learning experience for volunteer faculty new to NITA’s tried and tested methodology of teaching. The feedback we have received has been great, and we hope to partner with NITA again the future.”
Furthermore, the attendees of this program felt as though their trial skills were greatly improved. One participant stated, “The course was excellent. I appreciated the learning-by-doing approach, as well as the very direct and honest feedback. I think this should be a must for any attorney practicing in front of adjudicators.”
Likewise, another attendee stated, “This was the most practical and comprehensive training I’ve attended. The interactive sessions were supremely helpful – both as the performer and as the observer.”
Not only did the attorneys who attended the program find the program to be successful, but Tom Swett agreed that putting on this public service program was very worthwhile. “Education is the most powerful weapon which you can use to change the world (Nelson Mandela). NITA and CILA brought this quotation to life when we partnered to teach over 70 immigration trial attorneys and improve their trial skills. Their clients are children who seek asylum in America, having fled from war torn countries where gang violence, child trafficking, and abuse often threaten their survival… NITA’s public service programs are essential to promoting the rule of law and equal justice for all. Being a part of this program is a humbling experience that reminds me of how important it is to ensure trial attorneys are trained to zealously represent their clients.”
NITA faculty member Judge Matt Williams has what you might call a larger-than-life personality. He’s a judge on the Washington State Superior Court bench and a Black Belt in Tae Kwon Do. He’s extensively traveled the world—Africa, Central Asia, South America, the Middle East, and all over the United States—with NITA to teach trial advocacy skills. He’s taught martial arts and self-defense classes. He even flies his own planes and wrestles alligators in his spare time . . . ok, we’re kidding about the alligators, but it wouldn’t be a surprise if he did. In 2016, NITA saluted his creativity in teaching methodology by honoring him with the Prentice Marshall Award for the Development of Innovative Teaching Methods. We hope you’ll enjoy getting to know Judge Williams as much as we did.
How did you first meet “Auntie NITA”?
It was the summer of 1989. I had just completed a grueling traumatic brain injury trial that involved a lot of travel and living in a hotel for five weeks . . . it was my last trial as an Assistant Attorney General, and I was up against one of the top trial lawyers in Washington.
After the jury’s verdict was read, I went home, slept for two days, then immediately got on a plane to Daytona, Florida, where I journeyed to a remote federal training facility in the wilds of eastern Florida. I was starting a new job as a Federal Aviation Prosecutor. As part of the orientation to that position, I was required to attend a two-week aviation orientation/training program.
It turned out that a full week of that program was an in-house NITA advocacy program. The NITA faculty included iconic trial lawyers Ron Williams, Tom Martin (now a retired federal judge), and Stan Davis. For reasons that still escape me, they took me under their wings and adopted me into the NITA family.
For the next five years, I served as faculty, then as the program director of that aviation-based program. In the meantime, Mike Reiss (then the program director of the Seattle programs) recruited me to teach for NITA in Seattle. He made arrangements for me to attend teacher training in San Francisco
Why do you teach?
We learn so much from our students! Not only do they teach us new and better ways to approach the work, but it is a joy to see advocates grow and advance in their craft.
As a judge, I have the great pleasure of watching my students from NITA programs and from the law school gain experience and master their craft. In the process, they show me evolving best practices.
Each generation of advocates brings new perspective to the science of advocacy. They incorporate past practices, but also they innovate new methods in the context of our evolving social structures. Each generation creates new solutions and new best practices. I think that you have to be in the room and see those techniques and practices to understand how they are received.
Teaching (and practicing these new techniques) helps me keep current and keep my skills sharp!
Earlier this year, you joined the Washington State Superior Court after six years as a King County District Court Judge. What differences in your work life have you observed going from one bench to the other?
The pace is far more deliberative.
What is wonderful is that I am always in trial. I get to work with some of the best advocates in Washington. I get to see the latest (and best) technologies and methodologies being put to practice, and I get to interview the jurors afterward to find out what worked and what was a total bust.
Finally, I also have the opportunity to mentor and guide less-experienced advocates as they make the transition to more weighty criminal and civil trials.
What is the earliest recollection you have of realizing that being a member of the judiciary was something you’d be interested in and capable of?
In 1987, I tried a med-mal case in a small county in Iowa. The local judge was very gracious, but also very smart and extremely prepared. I remember thinking how much I admired that Judge’s demeanor.
Since 1991, I’ve had the great honor of working closely with Judge Jack Nevin (although some call him Brigadier General Nevin). Jack is one of those incredible minds that comes along once in a generation and who can’t help but inspire everyone around him
Tell us about your work in support of anti-corruption initiatives and the international rule of law. Where do you go? What do you do?
I’ve had the great privilege of working with multiple governmental and non-governmental organizations to provide training, resources, and perspective on the development of culturally specific solutions to the problems of case management, corruption, and human trafficking that plague many nations. Some of that work is as simple as teaching techniques of gathering, analyzing, and presenting information in ways that are non-invasive but effective (think OFLQ and OEQ).
Some of that work is to assist in the development of solutions to problems that may seem insurmountable. Part of that process is overcoming the common misperception that the American Justice System is one unified justice system. This perception is shared by many around the world, and even many attorneys within the U.S. It is spread by the relative uniformity we see in federal court practice (although even that practice can be quite diverse) and the fact that most attorneys practice within one court system or geographic area.
In fact, the American system of justice is actually hundreds (if not thousands) of small, culturally specific justice systems, all of which operate under the umbrella of our federal Constitution.
When we look at the essence of what each process or procedure within any justice system is trying to accomplish, we quickly realize that all justice systems are basically trying to accomplish the same thing. There are just many different starting places and many ways to “skin a cat.” Just because they are different doesn’t mean they are wrong . . . they are just different. The difference between the adversarial system of justice that we have here in the U.S. and the inquisitorial system that is used in many other parts of the world is a good example.
Most of my work is in understanding the underlying goals and then finding transferable solutions, techniques, and systems that can be explored, developed, and then taught in a sustainable fashion. Some of those solutions are easily recognizable within our systems . . . some less so. The key is to find the solution that will support and be supported by local cultural values, rather than in conflict with those values.
If you could go back and give yourself one piece of advice when you were just starting out as a young lawyer, what would it be?
Follow your own path. There is no “track.”
What led you to becoming a pilot?
Fear of heights. (Besides . . . airplanes are just cool.)
What is the most interesting flight you have ever piloted?
Ferrying an aircraft from Des Moines, Iowa, to Seattle, Washington. Over the Rocky Mountains. In the dead of summer. Can you say “density altitude,” “updraft,” “downdraft,” or “thunderstorm”?
You’re a Black Belt in Tae Kwon Do. When did Tae Kwon Do enter your life, and what made you pursue it all the way to Black Belt?
My teachers taught that the martial arts are not a set of physical skills but, rather, a matter of focus and philosophy. They taught that the force that “breaks the board” doesn’t come from the body, but from the mind. Many of their students who loved the physicality of the sport (think UFC) never made the transition to Black Belt within their school. It took a different philosophy and focus. Interestingly, before he was a Tae Kwon Do instructor, Mr. Heintz was a Deputy Attorney General in the Iowa Department of Justice.
None. I’d run away! (Or I’d call the court marshals . . . they are really good with aggressive rock stars . . . and not just because I bring them donuts every Friday!)
You’re a judge, a pilot, and a Black Belt. If you could have any other superpower, what would it be?
Friends are the greatest superpower of all. As individuals, we are isolated, narrow-minded, and without perspective. But as a community, we can accomplish anything
You have twenty-four hours in Seattle without a single commitment. Describe your perfect day in Emerald City.
Two shots of Nespresso (to wake me up enough to drive to Starbucks), then to Starbucks for “my drink” (see below). Cycle 25 miles on some of King County’s excellent river/waterfront trails. Shower and meet friends for a waterfront lunch. Fly up to the San Juan Islands to meet family for a beach walk. Cook dinner for a group of friends at the island cabin. Play board games and watch the stars. Drift off to sleep to the sounds of R&B.
Coffee or tea?
Venti quad-shot, almond-milk mocha, with 14 pumps of sugar-free mocha and 12 Splenda (five carbs).
Rain or shine?
I live in Seattle . . . like there’s a difference?
iPhone or Android?
I currently have an iPhone (and two iPads) . . . because “there’s an app for that.”
Movie theater or Netflix?
Yes! Although most of the movies I watch seem to be on airplanes.
Fruits or vegetables?
I know all 78 ways of preparing broccoli and cauliflower. (Seriously.)
And finally, what is your motto?
“Thought before action . . . if you have time.” (Thank you, Dick Francis!)
Enjoy this interview? Find more of our Asked and Answered interviews with NITA personalities here on The Legal Advocate.