AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

AUGUST 14-15, 2017

RESOLUTION

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RESOLVED, That the American Bar Association urges all courts to develop plans of action to make de-biasing training an important part of both initial judicial training and continuing judicial education; and

FURTHER RESOLVED, That the American Bar Association urges local and state bar associations to work with courts to offer de-biasing training to judicial officers free of cost and at the convenience of the courts.

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REPORT

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All of us have implicit biases – biases that are in our subconscious, which we use to make decisions. Like the rest of us, the judiciary and its staff have these biases. Recognizing them and being trained to overcome these biases is an important way to help the judiciary and its staff to fairly administer the cases that come before them.

I. Courts Should Make Judicial De-Biasing Training A Priority.

Understanding implicit bias is the first step to implementing de-biasing strategies. Judges should be trained on how to recognize and address their own biases to ensure that litigants and counsel are afforded a fair opportunity to be heard solely on the merits of their cases.

A. Implicit Bias in General

Everyone carries with them implicit biases formed throughout their life. While sometimes innocuous and generally subconscious, these biases inform our everyday lives. They help us make decisions, for better or for worse, and they are ever present in our interactions with others. The judiciary is not immune. Judges, after all, are only human and come to the bench with implicit biases that could, if unabated, leak into their decision-making. As with everyday individuals, judges likely do not notice their own biases and may not fully understand the effect such biases have on their decision-making.

As Kathleen Nalty of Kathleen Nalty Consulting LLC in Denver explained, “Today’s biases are common and mundane and that is why people don’t always notice them.”[1] Nalty explains in her book Going All In on Diversity and Inclusion: The Law Firm Leader’s Playbook, that there are five types of implicit bias: availability bias, attribution bias, anchoring bias, confirmation bias, and affinity bias.[2] During a 2016 ABA webinar, Nalty explained these five types of bias as follows:

1. Availability bias – This is where we automatically employ information that is top of mind or what’s most likely based in our available memory. Nalty explained how availability bias can play out in the practice of law: You are at a deposition and a woman of color walks into the room and you assume she is a court reporter or client and instead she is the lawyer on the case.

2. Attribution bias – “We tend to give people in our inner group second chances and people in our outer group less of the benefit of the doubt and we judge them by stereotypes,” Nalty said. “An example of attribution bias would be making a judgment about someone’s ability to be a successful lawyer based on the law school they attended.”

3. Anchoring bias – This is a type of bias in which the initial valuation influences the final valuation without you knowing it, and is most common in supervisors evaluating employees. Women typically grade themselves harder on self-evaluations than men, Nalty said, which could have an anchoring effect in which the supervisor will grade them harder as well.

4. Confirmation bias – This type of bias allows you to naturally pay more attention to things that confirm your beliefs and disregard things that are contrary to your beliefs.

5. Affinity bias – This is the one to focus on with respect to diversity and inclusion efforts in the legal profession, Nalty said. “Affinity bias is at the heart of the hidden issues that are fueling higher attrition rates – who is being invited to networking events, who gets the key assignments, who is getting mentored, who is getting promotions, the benefits of the best intangibles and who is falling through the cracks?” “Affinity bias supports gravitating more toward people who are more like you, which causes you to underinvest in people who are different from you in the organization.”[3]

Implicit bias has been a bit of a hot button issue lately. In 2015-16, a special ABA commission, called the Diversity and Inclusion 360 Commission, published numerous articles addressing implicit bias, for example within law firms,[4] in attorney-client relationships,[5] and during arbitrations.[6] There are also a number of scholarly and popular articles on implicit bias in everyday life and in specific situations.[7]

Recognizing the impact of implicit bias, the U.S. Department of Justice announced on June 27, 2016, that “it will train all of its law enforcement agents and prosecutors to recognize and address implicit bias as part of its regular training curricula.”[8] The DOJ’s statement recognized that: “The Department of Justice has a responsibility to do everything we can to ensure that our criminal justice system is fair and impartial,” and that “[s]ocial science has shown that all individuals experience some form of implicit bias but that the effects of those biases can be countered through training.”[9]

B. Implicit Bias in the Judiciary and Efforts to Address It

“A judge’s task to be the most impartial member of the legal system is a great responsibility for any single person to carry, but nearly impossible when it comes to implicit bias.”[10] But Judges are not immune from implicit bias. A study by Cornell Law School and Vanderbilt Law School professors and a U.S. Magistrate Judge found that these words rung true.[11] It concluded that “judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases.”[12]

As Sixth Circuit Court of Appeals Judge Bernice B. Donald recognized during an August 2016ABA program, “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” all judges “view[] the functions of [their] job through the lens of [their] experiences, and all of [them] are impacted by biases, stereotypes and other cognitive functions that enable [them] to take shortcuts in what [they] do.”[13] The ABA workshop featured a 10-minute training video for judges titled “Hidden Injustice: Bias on the Bench.”[14] The video was produced by the ABA’s Diversity and Inclusion 360 Commission and is said to be the “first tool of its kind to raise awareness and provide practical tips for America’s judge on the damage caused by implicit bias and the necessary steps to combat it.”[15] In addition to the video, the ABA plans to publish a book for judges titled: De-Biasing Strategies for the Judiciary.[16]

Stakeholders have begun efforts to address implicit bias in the judiciary. For example, the National Consortium on Racial and Ethnic Fairness in the Courts provided implicit bias training to judges and court staff in 14 states and the District of Columbia.[17] The National Center for State Courts reported that some jurisdictions formed racial fairness task forces and commissions.[18] Individual jurisdictions are also providing implicit bias training to judges and court staff.[19] However, implicit bias training and de-biasing training are by no means universal and should be implemented in all jurisdictions.

C. De-Biasing Strategies

A recent ABA article recommends six strategies to “mitigate implicit bias and successfully ‘de-bias[.]’”[20] It recommends that judges re-evaluate their implicit biases and undertake these strategies on a weekly basis:

1. Becoming Aware

Before trying to de-bias, judges should address their current implicit biases to identify the stereotypes that affect, often unknowingly, personal perceptions of the character and qualities of different races and ethnic groups. There are Implicit Association Tests available online, prepared by Harvard University.[21] These tests will shed light on biases judges may have.

2. Individuation

Individuation is a strategy that “involves gathering very specific information about a person’s background, tastes, hobbies and family so that your judgment will consider the particulars of that person, rather than group characteristics.”[22] In the judicial context, it is a reminder that judges should evaluate the persons before them as individuals and not as parts of particular racial, socio-economical, or other groups or categories.

3. Stereotype Replacement

Stereotype replacement requires that judges by present and mindful. It involves judges actively thinking about their actions to ensure that they can recognize when they are being stereotypical and, once recognized, can think through “the reasons and factors leading to th[e stereotypical] response and actively replace th[e] biased response with an unbiased one.”[23] Coupled with taking and understanding the Implicit Association Tests, it becomes much easier to begin to see biases in action, and address them.

4. Counter-Stereotypic Imaging

In conjunction with stereotypic replacement is counter-stereotypic imaging, where a judge can reflect on and supplant her stereotypes by “think[ing] of examples of famous people that show the stereotype to be inaccurate.”[24] These counter-stereotypic people can serve as “concrete examples that demonstrate the inaccuracy of stereotypes.”[25] Individuals can also endeavor to use personal connections in counter-stereotypic imaging.

5. Taking Perspective

A strong de-biasing strategy is to try to place oneself in the shoes of the person whom you are stereotyping. “Think about how you would feel to have your abilities questioned, or to be viewed as lazy and potentially violent on the basis of your appearance.”[26] Doing so promotes an understanding of the fairness of stereotypes and biases and forces the individual to step into the shoes of those they are judging.

6. Increasing Opportunities for Contact

The final de-biasing strategy urges individuals to go outside of their comfort zones and to branch out to groups unlike themselves. It asks people to “[a]ctively seek out situations where you are likely to have positive interactions with stereotyped groups.”[27] This strategy is incredibly important for judges who may encounter stereotyped groups in unfavorable situations (i.e., when the individuals are in front of them on criminal charges or facing a civil lawsuit).

II. Bar Associations Should Help Defray The Cost of De-Biasing Training.

As we know, funding for the judiciary is already strained. Consequently, while de-biasing training should become an integral part of the training afforded judges and court staff, it is important to provide low- or no-cost resources. Consequently, the ABA will continue its efforts regarding implicit bias training to provide resources, and encourages state and local bar associations to develop resources that the judicial may use as well. Examples might include video series that could be streamed on the web, and only have to be produced once. Law firms might assist with the cost or production of such videos as part of their commitment to pro bono service.

III. Courts Should Plan for Initial and Refresher Training.

Again, while there are courts that have provided implicit bias training, it is important to recognize that this training is part of a process. Consequently, it is important to have periodic refresher trainings or, at the least, periodic reminders to the judiciary and its staff to keep implicit bias and the de-biasing strategies in their minds.

Respectfully submitted,

AnnaM.Romanskaya, Chair

Young Lawyers Division

August 2017

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GENERAL INFORMATION FORM

Submitting Entity: ABA Young Lawyers Division

Submitted By:

AnnaM.Romanskaya, Chair

Young Lawyers Division

  1. Summary of Resolution(s). This resolution urges courts nationwide, federal and state, to make training on implicit bias and de-biasing strategies for both new and existing members of the judiciary priority. As expressed in a recent ABA article: “A judge’s task to be the most impartial member of the legal system is a great responsibility for any single person to carry, but nearly impossible when it comes to implicit bias. Implicit bias in judges may alter the way justice is delivered in a courtroom, including the ruling on the admissibility of evidence, sentencing, instructions or how they interact with others.” While the Judicial Division held an informative and helpful workshop for judges and lawyers on recognizing and working against implicit bias at the ABA’s Annual Meeting, more should be done nationally and in a uniform manner to ensure all judicial officers are aware of the potential for implicit judicial bias and are taught de-biasing strategies.
  1. Approval by Submitting Entity. This resolution was approved on February 4, 2017 by the ABA Young Lawyers Division Assembly. This resolution was also approved by the ABA Judicial Division’s Council and the ABA Section of Litigation’s Council on January 15, 2017.
  1. Has this or a similar resolution been submitted to the House or Board previously? No.
  1. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? The resolution is consistent with and supports ABA Goals II, III, and IV. This resolution is also consistent with Resolution 116, approved by the House of Delegates at the 2016 Annual Meeting, which, in relevant part, amended Principle 6(C) of the ABA Principles for Juries and Jury Trials to state that the court should “[i]nstruct the jury on implicit bias and how such bias may impact the decision making process without the juror being aware of it.” Similarly, this resolution is consistent with, and indeed is a logical follow-up to Resolution 115, approved by the House of Delegates at the 2016 Annual Meeting, which, in relevant part, urged all federal, state, territorial and local legislative bodies and governmental agencies to “support ongoing implicit bias training for teachers, administrators, school resource officers, police, juvenile judges, prosecutors, and lawyers and others involved with students.”
  1. If this is a late report, what urgency exists which requires action at this meeting of the House? N/A
  1. Status of Legislation. (If applicable) N/A
  1. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. The Young Lawyers Division would provide support to local and state bar associations on implementing the policy in a way that works for each state and federal court by providing consultation, advice, and the ABA Commission of Diversity and Inclusion 360 materials.
  1. Cost to the Association. (Both direct and indirect costs). There are no known costs to the Association.
  1. Disclosure of Interest. (If applicable) There are no known conflicts of interest.
  1. Referrals.

On January 15, 2017, the ABA Judicial Division and the ABA Section of Litigation agreed to cosponsor this resolution.