Excerpted from: Chris Chambers Goodman, Shadowing the Bar: Attorneys' Own Implicit Bias, 28 Berkeley La Raza Law Journal 18 (2018) (209 Footnotes) (Full Document)
What is it that attorneys fail to see because of biases they do not believe they have? They are quicker to note explicit biases and try to counter them, yet so many do not even consider the possibility they may have acted according to implicit biases. While explicit biases are less pronounced, less tolerated, and less often spoken, unconscious biases impacts decision making every day, and there are many open questions still to explore.
For instance, what are the driving factors behind “prosecutorial discretion,” in charging decisions generally and the death penalty specifically? When defense lawyers defend their clients, which “stock stories” do they use, which ones do they believe and which ones do they encourage in their efforts to convince the judges and juries whose decisions can be influenced by their own explicit and implicit biases? On the civil side, can attorneys become better at understanding why they may make certain strategic choices for one client and different strategic choices for another?
This article analyzes the implications of implicit bias in the legal profession, focusing on how the implicit biases of attorneys impacts litigants. Part one summarizes research in the cognitive science field defining bias and explains some of the Harvard Implicit Association Tests (IAT). Part two describes some studies conducted on juror and judicial bias in the courtroom, as well as those dealing with the bias of attorneys in criminal cases. Using this background, part three provides an analysis of the impact of an attorney's implicit bias on her strategic decision making and conduct of civil litigation, its results for clients, and its impact on the justice system. Part three also provides an argument for the American Bar Association's (ABA) proposed rule for a negligence standard regarding ethical regulations intended to ensure that lawyers work harder to overcome biases to better serve justice. The conclusion in part four proposes a framework for interrupting biased behaviors.