Part Four: Reducing the Impact of Implicit Biases in Civil Cases

There are three basic steps to reduce reliance on implicit biases. First, become more aware of one's own thought processes. Second, develop a healthy concern for the consequences of implicit bias. Third, learn to replace biased reactions with nonbiased ones. Ways to implement each of these steps in the civil context is discussed below.

A. Notice Race

If attorneys try to be colorblind, they will fail since most people do see color. Instead, attorneys should practice mindfulness, because simple awareness is not enough to reduce bias. Attorneys should focus on thoughts outside oneself, and use:

[E]mpathy-related techniques like perspective-taking, which prompts people to consider the experiences of individuals who are different from themselves. Colorblindness is not the answer; noticing race will help. Adopting an identity-conscious perspective (e.g., accepting and considering different identities) rather than an identity-blind mindset (ignoring or denying stigmatized attributes such as race and gender) can reduce bias. Finally, deliberately setting pro-diversity goals has been found to enhance diversity-related attitudes and behaviors.

Attorneys and judges alike should aim to make race salient in the courtroom when dealing with cases that raise concerns about racial bias. Although parties may be hesitant to bring up race in a civil trial unless discrimination is at issue, for fear of being “accused of playing the ‘race card,’ race,” however is often relevant. U.S. Supreme Court Justice Sonia Sotomayor provides a powerful example of this continuing problem in criminal cases:

In February 2013, [Justice Sotomayor] made race painfully salient for one federal prosecutor by publicly criticizing his racially stigmatizing questioning of an African American defendant charged with participating in a drug conspiracy .... Justice Sotomayor made race salient by highlighting the ways in which the prosecutor's remarks relied on racial stereotypes and prejudice. Her remarks will likely encourage the prosecutor in this case and attorneys in future cases to think twice before making similar comments that draw generalizations about individuals based on their race.

The effects of implicit biases are likely largely unrecognized and unacknowledged particularly due to some viewing American society as “post-racial,” and thus are even more likely to be ignored in civil cases.

Present methods of addressing bias may exacerbate implicit bias because they are directed primarily at explicit bias. Judges should be cautioned against dominating the jury selection process because jurors do not want to give biased answers or admit bias to a judge, but may be more likely to do so to lawyers. Therefore, Judge Bennett proposes that “the implicit bias of jurors can be better addressed by increased lawyer participation in voir dire, while the implicit bias of lawyers can then be curbed by eliminating peremptory strikes and only allowing strikes for cause.” Both suggestions are provocative.

Asking a question like “Can you be fair and impartial in this case?” is unhelpful because the question “does not begin to address implicit bias, which by its nature is not consciously known to the prospective juror. Thus, a trial judge schooled in the basics of implicit bias would be delusional to assume that this question adequately solves implicit bias.” Judge Bennett understands that jurors are likely to give him the answer they think he wants (and he is rather surprised whenever jurors admits they cannot be fair). Moreover, sometimes the questions are posed in a way that educates the jurors about what would be an appropriate response and in these situations “the trial judge is probably the person in the courtroom least able to discover implicit bias by questioning jurors.”

B. Recognizing the Importance of Cross-Cultural Competency

To help attorneys and judges become more aware of the consequences of their implicit biases, some law schools offer a seminar in cross-cultural competence applying the “five habits for building cross-cultural competence” from an article by Professors Susan Bryant and Jean Koh Peters. These authors made a plea to enhance clinical education by increasing the cross-cultural competence of law students. They recognize that “lawyers and clients who do not share the same culture face special challenges in developing a trusting relationship in which genuine and accurate communication can occur.” In addition, they suggest that some version of the course curriculum could be offered as a CLE course for attorneys already in practice.

For instance, the fourth habit is described as “pitfalls, red flags, and remedies,” and it “encourages conscious attention to the process of communication,” such as asking questions that “explore how others who were close to the client might view the problem and how they or she might resolve it.” This habit has four focal points: “(1) scripts, especially those describing the legal process, (2) introductory rituals, (3) client's understanding and (4) culturally specific information about the client's problem.” Using scripts to promote better communication would foster greater understanding on both sides, and highlighting culturally specific information would better equip the attorney to address and mitigate the impacts of implicit biases in representing clients.

The fifth habit is the “camel's back,” which “proposes two ways to work with biases and stereotypes: (1) creating settings in which bias and stereotype are less likely to govern, and (2) promoting reflection and change with the goal of eliminating bias.” One way to put this fifth habit into practice is to align oneself with counter-stereotypes. In the criminal context, one author suggests having people close their eyes and imagine they are being attacked by a white man and a Black man comes to their rescue. Just that notion of switching the “violent-Black and savior-white” stereotype to “violent-white and savior-Black” can make a big difference in subsequent decisions and deliberations.

Similarly, priming with counter-stereotypical words and phrases can impact decision making. For instance, thinking about words like “educated” and “intelligent” or “hard-working” and “responsible” before considering an employment discrimination claim can activate a different part of the brain that puts a minority former employee in a better light than doing nothing, which might leave the brain to fall back upon availability bias and unstated stereotypes like “chronically unemployed” and “entitlement-seeker.”

During trial, the court should talk about the concepts of implicit bias and the transparency theory with jurors, so they can be “trained” in this area, similarly to how police officers are “trained,” to try to combat implicit bias. For instance, to prepare jurors to be mindful of the consequences of their biases, Judge Bennett shows a video clip from a television show involving hidden cameras that captured bystanders' reactions to various situations with varied race and gender actors to show how people respond differently. In addition, he gives a specific jury instruction on implicit biases at the beginning of each case.

Judge Bennett also notes judges do not have the same resources to address implicit bias in prospective jurors and they do not have the same knowledge of the case to fully understand the impact of implicit bias in a particular situation. He shows a PowerPoint presentation about implicit bias and believes providing information upfront “may mitigate the effect of the bias.” In addition, he recommends the use of jury instructions, though he recognizes many of his colleagues are not receptive to the idea “fearing that implicit biases will only be exacerbated if we call attention to them.” Judge Bennett uses the following jury instruction:

[A]s we discussed in jury selection, growing scientific research indicates each one of us has implicit biases, or hidden feelings, perceptions, fears and stereotypes in our subconscious. These hidden thoughts often impact how we remember what we see and hear and how we make important decisions. While it is difficult to control one's subconscious thoughts, being aware of these hidden biases can help counteract them. As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions that we make. Because you're making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.

Some jurors will try to follow the rules and will decline to apply racial stereotypes and generalizations if specifically asked not to do so, and other studies have confirmed that noticing race actually makes a difference in race-salient cases. Still, few courts give jury instructions to counter-stereotypes and prejudice.

C. Moving Toward More Deliberative Decisions

As Professor Blasi and others have noted, implicit biases can be changed. In order to make a conscious decision, the decision-maker has to have time to deliberate and not just react. Being overworked or rushed makes a difference in one's reliance upon the shortcut of stereotypes and unconscious bias. To combat this, courts can try to reduce time pressures. Since so few civil cases go to trial, there should be plenty of time for civil trial attorneys to assess, evaluate, and check for biases.

Professor Bassett proposes a standardized training program for all lawyers and clients, jurors and witnesses, as well as all court personnel, which integrates three approaches from prominent psychological studies: “diversity education, educating individuals about unconscious bias, and appealing to individuals' beliefs in equality and fairness.” The education components increase awareness, and the appeals to fairness enhance concerns about the consequences of implicit biases. She notes Professor Gary Blasi's conclusion that “if our values include fairness and treating people as individuals, then anything that increases self-awareness should decrease our application of stereotypes.”

Exacerbating the problem, studies note that judges “tend[] to favor intuitive rather than deliberative faculties.” Judges need to recognize that the decision they reach is not necessarily the right one. Others note:

Intuition is also the likely pathway by which undesirable influences, like the race, gender, or attractiveness of parties, affect the legal system. Today, the overwhelming majority of judges in America explicitly reject the idea that these factors should influence litigants' treatment in court but even the most egalitarian among us may harbor invidious mental associations.

One way to reduce implicit bias is to go back and question how a decision was reached, why it was reached, and what else might have impacted it. Having conversations with others can bring implicit biases to the foreground and judges are often constrained from using this tool except in open court. Attorneys and judges should take the time to fill in informational gaps with actual information, rather than using stereotypes and implicit biases as shortcuts.

The authors of the Blinking on the Bench study explain that inducing deliberation and more deliberative thought processes to judges could result in less bias. The authors conclude that:

“[W]e believe that most judges attempt to ‘reach their decisions' utilizing facts, evidence, and highly constrained legal criteria, while putting aside personal biases, attitudes, emotions, and other individuating factors.” Despite their best efforts, however, judges, like everyone else, have two cognitive systems for making judgments--the intuitive and the deliberative--and the intuitive system appears to have a powerful effect on judges' decision making. The intuitive approach might work well in some cases, but it can lead to erroneous and unjust outcomes in others. The justice system should take what steps it can to increase the likelihood that judges will decide cases in a predominantly deliberative rather, rather than a predominantly intuitive, way.