TALKING ABOUT IT?
Allowing important decisions, including recruitment of lawyers as employees, appointment and election of judges, treatment of participants in jury and non-jury proceedings, to be made without addressing implicit bias may result in unfair results. It is relatively easy to recognize that the results of the operations of implicit biases in the brain may be the same as the results of explicit bias
Persons are classified and treated with biased processes, based on stereotypes and assumptions about the group or groups they are members of, and thereby do not obtain the opportunities they would have received if the playing field were neutral. If one’s goal is to make the court system less biased, impartial, fair and just, addressing only intentional or purposeful discrimination will leave implicit biases free to effectuate biased results. However, there are tools through which implicit biases may be interrupted. If players in the legal industry take steps to de-bias their operations in order to secure less biased results, it will increase the confidence of persons affected by court proceedings.
Some of these debiasing strategies are included in “Achieving an Impartial Jury (AIJ) Toolbox.” The AIJ Toolbox includes a “Mindful Courtroom Checklist," “Suggested Jury Instructions,” and “Suggested Voir Dire.” You Can’t Change” offers descriptions of the challenges in hiring, compensating and other actions through which implicit biases may occur together with proposed solutions for interrupting those biases. [Doc. 210]
9 Jerry Kang, at p. 6. [Doc. 270]
10 “You Can’t Change What You Can’t See, Interrupting Racial & Gender Bias in the Legal Profession”, by Joan C. Williams, Marina Multhaup, Su Li and Rachel Korn, (2018), report for the American Bar Association’s Commission on Women in the Profession and the Minority Corporate Counsel Association. [Doc. 30]
11 “Achieving an Impartial Jury (AIJ) Toolbox”, https://www.judges.org/wp-content/uploads/Achieving-an-Impartial_Jury_Toolbox.pdf, is the product of a project funded by an ABA Enterprise Grant, and developed among sections of the ABA, an Advisory Group, with input and revisions based on interaction with social scientists and practicing members of the bench and bar. p. 2. [Doc. 210]
12 Id. at pps. 13-15
13 Id. at pps. 15-22
14 Id. at pps. 22-24