Implicit Bias in the Courtroom: Where Do We Go From Here?

Implicit Bias in the Courtroom: Where Do We Go
From Here?
Thursday, March 14, 2013
Presented By the IADC Products Liability Committee
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Moderator
Craig Thompson
Venable LLP
Baltimore, MD
cathompson@venable.com

Presenter
Karen M. Lockwood
National Institute for Trial Advocacy
Boulder, CO
KLockwood@nita.org

• Remove your lawyers’ lenses
• Rethink your context
• Listen to your assumptions

The Human Brain
The brains you influence
The brain that betrays you

• Not what you intend
to say
• Not the way you want
to be understood
• Actions speaking
louder than words
• Never to your
advantage
• When your words
belie more
• When you do not see
what others hear you
say
• Unaware of your own
actions
• When you cannot
recognize the bias

SOME SOURCES:
IAT Test: Experiment on
yourself at
https://implicit.harvard.ed
u/implicit/demo/
“How (Un)ethical Are You?,”
Banaji et al, Harv. Bus Rev.
(2003)
The Harvard
IAT Test
• Distinguish: Unwilling from
Unable
• Isolate: Learned immutable
attitudes that form the
foundations for judgments of
values, danger, propriety, the
good, the weak, the evil etc.
“The Development of Implicit
Attitudes: Evidence of Race
Evaluations From Ages 6 and
10 and Adulthood,” Baron et
al, Psychological Science 17.1
(2006)
• Practice: Broadening
experience reduces fear, weakens
strength of implicit bias.

• Implicit
Attitude:
“success is
male”

• JURY
SELECTION

• OPENING
STATEMENT

• DIRECT
EXAMINATION

• CROSS-
EXAMINATION

• PICK THE
TRIAL TEAM
• ???????
• The Best
• The Most Expert
• The Jury Appeal
• The Most Experienced
• The Trusted Advisor
• The Most Senior
• The Most Experienced
• The Client’s Choice

• PREDICT
MOMENTS
OF BIAS
• ENVISION, KNOWING
• The Parties
• The Lawyers
• The Claims & Defenses
• The Story
• The Impeachment
• The Clients
• The Tensions
• The Credibility Battle

• SPEAK TO
“REGULAR
PEOPLE” ABOUT
THE CASE ---
• ---AND LISTEN TO
YOURSELF
• Language discloses Bias
• Ex Tempore Reveals Implicit
Attitudes & Judgments
• Visual Feedback Are “Tells” That
Spot Your Unrecognized Bias In
Action
• Chance to Ask About Your
Words, Assumptions, and Biases

AT TRIAL,
• IN THE
MOMENT,
EVERY
MOMENT
Implicit Bias Is Not “Cured”
Awareness Enables Self-
Correction
Develop The Habit of Self-
Examination
Acknowledge and Correct,
Don’t Ignore

• Call Out
• Implicit
Attitudes In
Action:
“success is
male”

Questions for Presenters?
Karen M. Lockwood
National Institute for Trial Advocacy
Boulder, CO
KLockwood@nita.org
Craig Thompson
Venable LLP
Baltimore, MD
cathompson@venable.com

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