Implicit Bias in the Legal Community

By Liza Honaker, Staff Writer

A bias is a decision-making shortcut developed by the brain to help it process the world efficiently.^[1] Some biases are helpful, like when a driver automatically associates a red stoplight with applying the brakes of their vehicle. However, many biases are based on harmful stereotypes and lead to misinformed and inaccurate decisions.^[2]

Picture the following phrase: “After being chided by the judge, the defendant stared at the witness while the expert witness was being questioned by the prosecutor.”^[3] According to research, of the people who participated in this exercise, “over 85%… see a male judge (75% see a white male judge); over 90% see a male defendant (70% see a male defendant of a racial/ethnic minority background); about 65% see a male expert (60% see a white male expert); and about 60% see a male prosecutor, with the same percentage seeing a white male prosecutor.”^[4] This exercise illustrates the aspect of implicit bias and why they are so difficult to combat.^[5]

The pool of practicing lawyers in the US is disproportionately white. According to the 2020 ABA National Lawyer Population Survey, 85.9% of lawyers are white, while only around 60% of the US is white.^[6] The percentage of lawyers who are Black has not increased from 2010 and sits at a slim 5%, even though Black people make up around 13% of the US.^[7] In fact, white people are the only over-represented demographic; only 5% of all lawyers are Hispanic, while 18.5% of the US population is Hispanic, and only 2% of lawyers are Asian, while almost 6% of the US population is Asian.^[8]

Performance evaluations within the legal field also disproportionately favor white men and underserve women and people of color.^[9] In research conducted by Nextion, half of a group of law firm partners evaluated a research memo presented as authored by a made-up Black associate, while the other half were asked to evaluate the same paper but were led to presume it was written by a white associate.^[10] Although the memo was exactly the same, the law partners who thought it was authored by a white associate evaluated it much more favorably.^[11]

The “open box” portion of most performance review forms serves to disadvantage nonwhite and nonmale employees by serving as a vessel for the reviewer’s implicit bias.^[12] Numerous studies have shown that “without structure, people are more likely to rely on gender, race, and other stereotypes when making decisions – instead of thoughtfully constructing assessments using agreed-upon processes and criteria that are consistently applied across all employees.”^[13] The Center for WorkLife Law, a company dedicated to introducing bias-interruption methods to the legal community, found that only 26% of white men had a mistake mentioned in their yearly evaluations, while 43% of people of color and 31% of white women had at least one.^[14] WorkLife also found a drastic decrease in instances of implicit bias in performance evaluations where the “open box” standard was tossed in favor of more directed questions offering reviewers more structure.^[15]

Bias in the legal system has a dismal effect on public welfare. In a study based in Connecticut, researchers found that judges “set bail at amounts that were 25% higher for Black defendants than for similarly situated white defendants.”^[16]A study focused on judicial sentencing practices found that “federal judges imposed sentences on Black Americans that were 12% longer than those imposed on comparable white defendants.”^[17] Additionally, research on capital punishment shows that “’killers of White victims are more likely to be sentenced to death than are killers of Black victims’ and that ‘Black defendants are more likely than [w]hite defendants’ to receive the death penalty.”^[18] Unfortunately, judges are not immune to allowing implicit biases to creep into their decision-making processes. However, “when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, and are motivated to suppress that bias, they appear able to do so.”^[19]

Learning how to recognize and interrupt biases is an essential part of supporting a just legal system. Six accredited law schools already require diversity and cross-cultural education as a part of their curriculum.^[20] Many companies, like the Center for WorkLife Law, specialize in introducing schools and companies to easily applicable methods of bias interruption that lawyers, professors, and law students, some of whom will be future judges, can carry with them for the remainder of their careers.^[21]

^[1]https://www.americanbar.org/groups/judicial/publications/judges_journal/2015/fall/the_ineffectiveness_of_efficiency_interrupting_cognitive_biases_for_critical_thought/

^[2] Id.

^[3] Id.

^[4] Id.

^[5] Id.

^[6] https://www.2civility.org/aba-profile-of-the-legal-profession-diversity-and-well-being/

^[7] Id.

^[8] Id.

^[9] Id.

^[10] http://shenegotiates.com/blog/2014/4/16/oops-your-implicit-bias-is-showing

^[11] Id.

^[12] https://hbr.org/2019/01/why-most-performance-evaluations-are-biased-and-how-to-fix-them