Wendell Y. Tong, Looking Within For Implicit Bias, 53-JUN Trial 27 (June 2017)
Wendell Y. Tonga1
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Wendell Y. Tong, Looking Within For Implicit Bias, 53-JUN Trial 27 (June 2017)
LOOKING WITHIN FOR IMPLICIT BIAS
The civil justice system is strengthened by diverse advocates-and it starts in attorneys’ own practices.
The path to achieving diversity in our practices requires proactive, deliberate efforts–which means reflecting on our implicit biases to overcome hurdles that we’ve unconsciously placed in the way.
The diversity problem in the plaintiff bar is readily observable and real. Record numbers of women and minorities are graduating from law schools, yet their underrepresentation among us remains a stubborn fact.1 We proudly represent women and men of every race, class, national origin, and immigration status–and along the way we level the playing field, question long-unexamined assumptions, investigate wrongs and lapses, contribute to the evolution of workplace and product standards, and debunk myths about the civil justice system. But within our ranks, we have a diversity problem: Many law firms have few or no minority and female lawyers.
The lack of diversity is not exclusive to the plaintiff bar–it’s a problem for the entire profession. According to the most recently published American Bar Association demographics, 88 percent of active, registered attorneys are white,2 while 5 percent are black, 4 percent Latino, and 3 percent Asian-Pacific-American.3 Women make up slightly more than one-third of lawyers “but only about a fifth of law firm partners, general counsels of Fortune 500 corporations, and law school deans.”4 Data on plaintiff firms is unavailable–yet when we look around, the numbers seem worse.
Confronting the diversity problem raises uncomfortable questions: Are we unfair? Are we doing our best to diversify the profession? Is it possible that implicit bias is impeding our progress? To answer these questions, we need to examine ourselves.
The Role of Implicit Bias
As trial lawyers, we know about bias. When we try a case, we need to overcome implicit bias: the unconscious and unspoken emotions and thoughts that affect a juror’s or judge’s perceptions and decision-making.5 In voir dire, we *29 know a boilerplate inquiry–“Can you be fair?”–will only elicit juror assertions of non-bias. Instead, we ask questions specifically relevant to our case so we can understand each juror’s biases and stereotypes about a party’s race, background, gender, age, or occupation. When we have an unfavorable juror or judge, we overcome bias by showing that our client is an exception to those negative assumptions. Through education, we elicit understanding and empathy.
Are we as biased as jurors? Yes. We all have the tendency to take judgment shortcuts when we do not know a person or a group. We are bombarded with negative media images and stories that disproportionately focus on certain groups. Most of us are products of widespread and longstanding residential and school segregation. Many Americans have not had the chance to get to know people different from themselves. As a result, we judge individuals or entire populations based on one moment or one example or sometimes even a television character–and often without being aware we are doing so.
We live, work, and compete in an unfair and unequal world. Implicit bias, if left unexamined, may be hindering us from fully valuing female and of color colleagues and employees, preventing us from retaining talent and reaching our potential in growing our practices. Our first, and easiest, response to this may be defensive. But we should consider how judgmental we can be. Try taking Harvard University’s online implicit bias test–the results can be eye-opening.6
A study of implicit bias in law firms showed that partners evaluated the same memo more harshly when told the author was a minority than when told the author was white.7 But it’s not just attorneys. Implicit bias has been found in a range of workplaces. One well-known study found that job applicants with African-American-sounding names fared poorly compared to those using “mainstream” American names, even when their credentials were identical.8 Another study found that in blind auditions, female orchestra musicians had a 50 percent increased chance of being selected.9
Attorneys should investigate implicit bias in the workplace. Treat it as a problem that is as toxic as the pharmaceutical products and as dangerous as the sloppy labor practices from our cases. In the long run, diversity will become standard only if we become aware of the reasons for our biases and overcome them.
Recognizing implicit bias. So how do we identify unconscious bias? Microaggressions are “apparently small events which are often ephemeral and hard-to-prove, events which are covert, often unintentional, frequently unrecognized by the perpetrator, which occur wherever people are perceived to be ‘different.”’10
Examples of microaggressions between “in-group” and “out-group” attorneys include:
- Forgetting to invite the out-group attorney to a social gathering or work training
- Not introducing the out-group attorney at a meeting
- Mistakenly calling an attorney by the name of another attorney of the same race
- Hiring attorneys who look like us
- Assigning only in-group attorneys to the “interesting” projects
- Assuming an attorney who does not have a mainstream name is the interpreter or the plaintiff
- Assuming a female attorney is rushing out of the office to make dinner for her children as opposed to meeting with an expert witness
- Describing an out-group attorney who speaks directly as “aggressive” while an in-group attorney who does the same is praised as “forthright”
- Turning one’s back on an attorney in a wheelchair, oblivious to his or her presence
- Describing an attorney of color as “articulate and intelligent”
- Commenting that a judge of color favored an attorney of color “just because.”
Ways to Mitigate Implicit Bias
How can we stop doing something that is unconscious and shaped by generations of negative and distorted popular images of minorities and women?
Practice affirmative behavior. Mary Rowe, ombudsperson at the Massachusetts Institute of Technology, recommends micro-affirmations: “tiny acts of opening doors to opportunity, gestures of inclusion and caring, and graceful acts of listening. Micro-affirmations lie in the practice of generosity, in consistently giving credit to others …. [They] include the myriad details of fair, specific, timely, consistent and clear feedback that help a person build on strength and correct weakness.”11 This is the conscious practice of desired behavior to actively displace the unconscious behavior.12
In a law firm, micro-affirmations would include identifying good things someone did instead of focusing exclusively on mistakes, shortcomings, and imagined inferiority. This helps overcome our unconscious tendency to unfairly look only for flaws and confirmation of negative stereotypes.
For example, commend an attorney who revisited an overlooked fact to save an argument, or who located an expert witness from an unlikely source to clinch the case. We should point out the attorney who was able to draw out a fearful client in a way that no one else could. We should *30 credit the attorney who goes the extra mile and does not give up, and celebrate an attorney who has improved.
Achieving diversity means working well with people from other backgrounds. We have an implicit bias to feel comfortable with and thus favor people who share the same background. A client once told me that she chose my firm because another firm looked like a “frat-boy house.” So it is important to set diversity standards and goals. For example, your goal could be that in five years, your firm will include at least one woman, a person of color, and someone of a different faith.
Standards and goals are equally important for diverse attorneys once they are in your firm. Requirements for promotion and advancement should be objective and clear–for example, the “face time” hours they should work, the number of clients they should bring in, the volume of cases they should handle, and how they are expected to contribute to the practice.
Express requirements provide a level playing field and a merit-based system. Because it is easy to favor people in your in-group, you should constantly ask whether you have applied standards evenly to everyone. And this should go without saying: You should pay people of different backgrounds the same for doing similar work.13
We should also train ourselves to provide positive affirmations to combat the silence that can be hard for an out-group attorney to interpret, as well as to combat our inclination to praise in-group attorneys only. Rowe emphasizes that employees should be commended when they do something well to reinforce that they have met a standard.14 As a junior attorney, I often heard colleagues of all backgrounds complain that the lack of feedback made them feel unwelcome or as though others thought they were not contributing.
Negative criticism is equally crucial. I have known in-group attorneys who were reluctant to offer criticism to out-group attorneys because they were afraid those attorneys might take it the wrong way. Frustratingly, those same in-group attorneys may be mentoring and giving thoughtful critiques to people from their own group.
Negative criticism should be given equally because it helps any attorney improve his or her practice. Don’t be scared–we can take it. And firm leaders must make a hands-on effort to break the ice among their diverse employees and help them build common experiences and respect for one another. Do not be a bystander to unconscious bias.
Pay attention to others who have succeeded in achieving diversity–from other firms to your clients. It is no coincidence that employment law firms often are richly diverse in women and minorities because they are in the business of investigating and exposing bias.
Learn about people. We should approach the challenge of achieving diversity with the same passion we devote to telling our clients’ stories. A helpful trial technique is having the plaintiff testify and showing jurors a “day in the life” video depicting a severely injured client’s real-life difficulties in doing the most ordinary tasks. This helps jurors get to know the plaintiff and empathize with him or her.
You may be well-acquainted only with attorneys who share your background and not with attorneys with disabilities or LGBT attorneys or attorneys who are immigrants. Reading generally and broadly about race and gender is a great start. Read across genres–history, fiction, biography, memoir, whatever you enjoy–on slavery, wars, imperialism, colonialism, industrialization, the Civil Rights era, suffrage, and more.
Systemic and institutional forces have created and perpetuated race and gender inequality. As U.S. Supreme Court Justice Sonia Sotomayor once commented, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race … with eyes open to the unfortunate effects of centuries of racial discrimination.”15
Mass media, such as movies and television, have helped to plant and perpetuate negative stereotypes–for example, that young African-American men are criminals or athletes, that Asian-American men are nerdy accountants, that young Latina women are arm candy for male leads. Becoming aware of media biases begins our detoxification. To recondition ourselves, instead of being passive consumers, we should actively search for alternative media that depicts people of color and women in their truthful complexity.16
We also should make it a priority to get to know real people. Invite people who are from a different background to lunch. Talk and learn about each other. Don’t be embarrassed if you don’t know any diverse attorneys. Join and volunteer at an interfaith or interracial organization and meet new people. Taking yourself out of your usual context is a humbling experience that leads to tremendous insights. The more we get *31 to know others, the more we see that we are all the same–just with different facades. When people are less mysterious, we can be less fearful.
Take time for self-reflection. Our automatic and unconscious behavior developed over a long period. We need deep reflection on why we are so entrenched in our beliefs. No workshop or training will be a magic bullet. We must commit to rigorous self-examination: What is the basis for our beliefs? Are some of our beliefs about others unfounded? Do we have preformed narratives in our minds, and do we select only for facts that fit those narratives–even when the narratives are false? Capturing and documenting these fleeting moments of unconscious behavior is essential. Keeping a journal of our thoughts is one of the best ways to become aware of our unconscious biases.17
We should also reflect on the advantages we may have received: Did your parents teach you how to properly conduct yourself in a professional environment? Did a teacher call you aside to identify areas you could improve in or to say that you had unfulfilled potential? Was there a time when you were clueless and someone gave you a tip, boosted your confidence, and encouraged you to go on?
Many attorneys who are women or of color did not receive this encouragement. I have heard many friends say that they were even actively discouraged. They went on to achieve high career goals anyway, but many without societal and familial support do not. Extending the generosity that you received in the past to out-group attorneys would go a long way in equalizing opportunity. I am grateful to every law firm leader who reached out and advised me on how to be a lawyer.
Diversifying the plaintiff bar means collectively building the cultural and linguistic competency among ourselves to provide legal services to an ever-broadening client base to the best of our ability.
Diversity is not optional: Litigators should come from all backgrounds because those viewpoints are valuable when telling our clients’ stories. Failing to diversify will limit our ability to fight the good fight.
|Wendell Y. Tong is counsel to Sullivan Papain Block McGrath & Cannavo in New York City. She can be reached at email@example.com.
|The most recent available data show 25.5 percent of 2013 graduates are minorities and 47.3 percent of 2011 graduates are women. See Am. Bar Ass’n, Totals and Minority Students (1984-2013), http://www.americanbar.org/groups/legal_ education/resources/statistics.html; JD & LL.B Degrees Awarded (1981-2011), http://www.americanbar.org/content/dam/aba/administrative/legal_education_and_ admissions_to_the_bar/statistics/jdJlb_degrees_awarded.authcheckdam.pdf.
|The most recent numbers are based on U.S. Census Bureau data from 2010. Am. Bar Ass’n, Lawyer Demographics Year 2016, http://www.americanbar.org/content/dam/aba/administrative/market_research/lawyer-demographics-tables-2016.authcheckdam.pdf.
|American Indian attorneys were too small in number to be accorded a percentage point.
|Though the data is based on studies of “Big Law” (corporate law firms whose clients are large businesses), anecdotal observation of plaintiff firms yields similar conclusions. See, e.g., Deborah L. Rhode, Law is the Least Diverse Profession in the Nation. And Lawyers Aren’t Doing Enough to Change That, Wash. Post (May 27, 2015), http://www.washingtonpost.com/posteverything/wp/2015/05/27/law-is-the-least-diverse-profession-in-the-nation-and-lawyers-arent-doing-enough-to-change-that/?utm_ term=.fc2fe4013253; see also Am. Bar Ass’n, A Current Glance at Women in the Law–January 2017, http://www.americanbar.org/content/dam/aba/marketing/women/current_ glance_statistics_january2017.authcheckdam.pdf.
|The ultimate guide to understanding juror biases may be David Ball and Don Keenan’s Reptile: The 2009 Manual of the Plaintiff’s Revolution (2009).
|Project Implicit, https://implicit.harvard.edu/implicit/takeatest.html. If you read one article about implicit bias in the law, make it Kristin A. Lane, Jerry Kang & Mahzarin R. Banaji, Implicit Social Cognition and Law, 3 Ann. Rev. Law & Soc. Sci. 427 (2007).
|Arin N. Reeves, Nextions Yellow Paper Series, Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills (2014), http://www.nextions.com/wp-content/files_ mf/14468226472014040114WritteninBlackandWhi.
|See Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, Nat’l Bureau of Econ. Research Working Paper No. 9873 (July 2003), http://www.nber.org/papers/w9873.
|Claudia Goldin & Cecilia Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, Nat’l Bureau of Econ. Research Working Paper No. 5903 (Jan. 1997), http://www.nber.org/papers/w5903.
|Mary Rowe, Massachusetts Institute of Technology, Micro-affirmations & Micro-inequities, J. Int’l Ombudsman Ass’n, Mar. 2008. at 45.
|Id. at 46.
|Id. at 46-47
|The U.S. Bureau of Labor Statistics reported in 2016 that male lawyers make median weekly earnings of $2,086 compared to female lawyers’ $1,619. Median Weekly Earnings of Full-Time Wage and Salary Workers by Detailed Occupation and Sex, http://www.bls.gov/cps/cpsaat39.pdf.
|Rowe, supra note 10, at 47.
|Justice Sotomayor dissenting in Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014).
|Author and cartoonist Alison Bechdel created the “Bechdel Test,” which uses three criteria to determine a movie’s diversity: at least two women talk to each other about something besides a man. A list of movies that passed and failed the test are available at http://bechdeltest.com/.
|Gerald P. Lopez’s Rebellious Lawyering: One Chicano’s Vision of Progressive Law Practice (1992) has trained generations of public interest and poverty lawyers to serve a diverse client base by listening carefully and reflecting deeply on clients’ inequality and exclusion and about how attorneys’ own biases may prevent us from providing legal services successfully.
Counsel to the Firm
Sullivan Papain Block McGrath & Cannavo PC
Wendell Y. Tong is Counsel to the Firm with Sullivan Papain Block McGrath & Cannavo PC, one of New York’s oldest plaintiffs’ personal injury law firms. Her practice areas are toxic torts, products liability, and mass torts. Her clients are working people who have been injured by consumer products that, due to design defects or failure to warn, should never have been sold. She has litigated cases against manufacturers of pharmaceutical drugs, medical devices, unreasonably flammable products, and industrial equipment. As part of the plaintiffs’ co-liaison counsel team in the World Trade Center Disaster Site Litigation, Wendell has represented 9/11 rescue and recovery workers who had not been provided with respiratory protection equipment and subsequently became afflicted with severe injuries. Wendell graduated from the UCLA School of Law in 2000 after earning a B.A. from Brown University and M.A. from Columbia University, both in comparative literature (English, Chinese, Japanese, and Spanish).
In re World Trade Center Disaster Site Litigation, 503 F.3d 167 (2nd Cir. 2007), 521 F.3d 169 (2nd Cir. 2008), 754 F.3d 114 (2nd Cir. 2014).
Litigation Concerning Dietary Supplements, American Jurisprudence Trials, 128 AMJUR TRIALS 111.
The Law of Product Warranties – Warranties under the U.C.C., § 9:5. “The buyer’s duty to give notice of breach – Affirmative pleading by the buyer.” PRODWARR § 9:5.
98 Pajamas, American Law of Products Liability 3d Product Citator, ALPL PC § 98 Personal Products.
State Unfair Trade Practices Law (C.C.H.) 2012 WL 4973746, 2012 WL 9504624.
Settlement In Suit Against Maker Of Pajamas That Caught On Fire, Verdicts, Settlements & Tactics, 33 No. 6, Verdicts, Settlements & Tactics art. 54 William Jordan (June 2013).
Hammer v. Vital Pharmaceuticals, Inc., 2012 WL 1018842 (D.N.J. 2012), 2013 WL 5470007 (D.N.J. 2013).
In re Paxil Litigation, Andrews Product Liability Litigation Reporter, 14 No. 1 Andrews Prod. Liab. Litig. Rep. 4 (February 2003); 18 No. 11 Andrews Pharmaceutical Litig. Rep. 3 (February 2003); 10 No. 1 Andrews Class Action Litig. Rep. 21 (February 2003).
Long v. Allen AME Transp. Corp., 43 A.D.3d 1114 (2nd Dept. 2007).