Lessons From Behavioral Science: Implicit Bias
One of the most under appreciated aspects of human thinking is that most of it is subconscious (or so split-second it might as well be). Generally, we tend to think of deliberate thought and decision making as the ideal. As Malcolm Gladwell captured effectively in his book Blink, however, subconscious thought is not only indispensable but sometimes more effective. But not always. The key for us in our law practices and in our everyday lives is to become aware of where our subconscious decision making fails us, and to make a conscious effort to correct that failures.
One fundamental area for such conscientious correction is stereotyping. While stereotyping is superficially useful, it is phenomenally dangerous, both personally and collectively. As a society, we have sharply lowered our tolerance for overt discrimination along racial, gender, and other lines, but insidious stereotypes persist. As we act on those stereotypes, we not only disadvantage the objects of those stereotypes, we also impair our own decision making. When we pass over a highly competent job applicant because of age bias, we and our firms lose along with the rejected applicant. When we pick juries (or reach verdicts as jurors) based upon stereotypes about race and gender, we not only compromise the integrity of the courts but also hurt our clients (and in my experience, every seasoned trial lawyer has at least one good story along these lines).
A good way of beginning to examine one’s own biases is to take the ingenious implicit bias test, which can be taken quickly online. Its probes subconscious bias as to race, gender, sexual orientation, age, obesity and other attributes. Most people are shocked by their results. Once you have yours, consider how you can act deliberately to avoid stereotyping in a way that will enhance your law practice and generally sharpen your judgment and decision making. Fortunately, strides are already being made by leading institutions within in the profession. The ABA’s Litigation Section in particular has led the way in partnership with the National Center for State Courts. Drawing upon the subject-matter expertise of Cornell Law professor Jeffrey Rachlinski, they have initiated awareness efforts with the leadership of Judge Delissa Ridgway and Philadelphia’s own Dean Joanne Epps of Temple Law. Those efforts have included major CLEs at the ABA’s 2011 mid-year and annual meetings, led by Professor Rachlinski and distinguished litigators including celebrity attorney Mark Geragos.