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AMERICAN BAR ASSOCIATION YOUNG LAWYERS DIVISION

ABA YLD LITIGATION COMMITTEE ABA JUDICIAL DIVISION ABA SECTION OF LITIGATION ABA YLD DIVERSITY TEAM ABA YLD WOMEN IN THE PROFESSION COMMITTEE ABA YLD CRIMINAL JUSTICE COMMITTEE ABA YLD IMMIGRATION AND NATURALIZATION LAW COMMITTEE ABA YLD TORT TRIAL & INSURANCE PRACTICE COMMITTEE ABA YLD MINORITIES IN THE PROFESSION COMMITTEE ABA YLD CIVIL RIGHTS AND SOCIAL JUSTICE COMMITTEE ABA YLD DISABILITY RIGHTS COMMITTEE

RECOMMENDATION AND REPORT TO THE ASSEMBLY OF THE YOUNG LAWYERS DIVISION

RECOMMENDATION

RESOLVED, that the American Bar Association Young Lawyers Division urges all courts, state and federal, to make de-biasing training a priority for all judicial officers;

FURTHER RESOLVED, that the American Bar Association Young Lawyers Division urges local and state bar associations to work with courts, state and federal, on offering de-biasing training to judicial officers free of cost and at the convenience of the courts, including the use of the ABA Commission on Diversity and Inclusion 360 materials, to ensure that such training does not conflict with the rights of litigants;

FURTHER RESOLVED, that the American Bar Association Young Lawyers Division urges all courts to implement plans of action to make de-biasing training an important part of both initial judicial training and periodic training refreshers.

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REPORT

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 their own, unique biases and de-bias themselves to ensure that litigants and counsel are afforded a fulsome opportunity to be heard solely on the merits.

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 “Biases operate in the background of every organization and are invisible to most people in the organization,” Nalty continued. “It’s important to make this dynamic more visible so that people 2 can actually begin to address it on an individual and organizational level.”

The “illusion of objectivity,” which fools us into thinking that we are not biased is a major barrier to break through. For example, being fully “colorblind, age-blind or gender-blind” borders on nonsensical. It falsely equates conscious bias (the type of bias that allows you to be aware and present and which is intentional and controllable) with unconscious bias (ever present but often unacknowledged). This false equivalence renders many unable to recognize and overcome their unconscious biases.

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.3 Nalty explained these five types 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 female 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.

1 http://www.americanbar.org/publications/youraba/2016/november-2016/we-all-have- _the-illusion-of-objectivity--recognizing-and-addres.html. 2 Id. 3 Id. 2 5YL

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 4 the organization.”

Implicit bias has been a bit of a hot button issue lately. The ABA has a Diversity and Inclusion 360 Commission and has published numerous articles addressing implicit bias, for example within law firms,5 in attorney-client relationships,6 and during arbitrations.7 There are also a number of scholarly and popular articles on implicit bias in everyday life and in specific 8 situations.

The Federal 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

4 Id. 5http://www.americanbar.org/publications/litigation-committees/jiop/articles/2014/why- effective-retention-requires-attention-to-implicit-biases.html. 6http://www.americanbar.org/publications/litigation-committees/commercial- business/articles/2016/implicit-bias-and-clients-overview.html. 7http://www.americanbar.org/publications/litigation-committees/alternative-dispute- resolution/practice/2015/why-your-arbitrator-is-biased.html. 8 See, e.g., Rachlinski, J. J., Johnson, S. L., Wistrich, A. J., & Guthrie, C. (2009). Does Unconscious Racial Bias Affect Trial Judges? Notre Dame Law Review, 84(3), 1195-1246; http://www.slate.com/articles/news_and_politics/politics/2016/10/implicit_bias_is_real_don_t_b e_so_defensive_mike_pence.html. 3 5YL training curricula.”9 The DOJ’s statement provided that: “‘The Department of Justice has a responsibility to do everything we can to ensure that our criminal justice system is fair and impartial,’ said Deputy Attorney General Yates. ‘Given that the research is clear that most people experience some degree of unconscious bias, and that the effects of that bias can be countered by acknowledging its existence and utilizing response strategies, it is essential that we provide implicit bias training to all of our prosecutors and law enforcement agents. . . .’”10 The report acknowledged 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.”11 Understanding that de-biasing “is an important step in our ongoing efforts to promote fairness, eliminate bias and build the stronger, safer, more just society that all Americans deserve[,]” the DOJ committed to training almost 30,000 employees on de-biasing strategies. The judiciary should likewise be trained.

B. Implicit Bias in the Judiciary

Judges are not immune from implicit bias. “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.”12 It may creep in and “alter the way justice is delivered in a courtroom, including the ruling on the admissibility of evidence, sentencing, instructions or how [judges] interact with others.”13 A study by Cornell Law School and Vanderbilt Law School professors and a U.S. Magistrate Judge found that these words rung true.14 The study involved 133 judges from across the country. They were asked to take a race Implicit Association Test and answer questions based off of two hypothetical vignettes with subliminally primed racial identities for the defendants and a vignette with the race of the defendant explicit. Ultimately, the researchers concluded that “judges harbor the same kinds of implicit biases as other; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the 15 influence of these biases.”

As Sixth Circuit Court of Appeals Judge Bernice B. Donald recognized during a recent ABA 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.”16 The ABA workshop featured a 10-minute training video for judges

9https://www.justice.gov/opa/pr/department-justice-announces-new-department-wide- implicit-bias-training-personnel. 10 Id. 11 Id. 12http://www.americanbar.org/publications/youraba/2016/september-2016/strategies-on- implicit-bias-and-de-biasing-for-judges-and-lawyer.html. 13 Id. 14 Rachlinski, J. J., Johnson, S. L., Wistrich, A. J., & Guthrie, C. (2009). Does Unconscious Racial Bias Affect Trial Judges? Notre Dame Law Review, 84(3), 1195-1246. 15 Id. 16http://www.americanbar.org/publications/youraba/2016/september-2016/strategies-on- implicit-bias-and-de-biasing-for-judges-and-lawyer.html. 4 5YL titled “Hidden Injustice: Bias on the Bench.”17 The video was produced by the ABA Commission on Diversity and Inclusion 360 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.”18 In addition to the video, the ABA plans to publish a book for judges titled: 19 “De-Biasing Strategies for the Judiciary.”

Additional ABA Commission on Diversity and Inclusion 360 training materials, which are referenced in the text of the resolution, are available here: http://www.americanbar.org/diversity- portal/diversity-inclusion-360-commission/implicit-bias.html.

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 measure preferences and tendencies, including, for example, “the speed with which test participants can match concepts such as ‘violent’ or ‘peaceful’ with photos of people of different races.”22 These tests will shed light on biases engrained within judges, formed overtime and, likely, never acknowledged. As the saying goes, recognizing the problem is step one towards recovery. These tests, while a great first step, can also serve as benchmarks or checks to ensure that the de-biasing strategies are working and no new biases have been developed.

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.”23 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. This may prove a difficult task as judges are expected to understand their communities and inevitably develop knowledge of the stereotypical

17 Id. 18 Id. 19 Id. 20 Id. 21 https://implicit.harvard.edu/implicit/takeatest.html. 22http://www.americanbar.org/publications/youraba/2016/september-2016/strategies-on- implicit-bias-and-de-biasing-for-judges-and-lawyer.html. 23 Id. 5 5YL lives, challenges, and attributes of different segments of those communities. However, this strategy should be forever in judge’s minds—judge only that which is on trial.

3. Stereotype Replacement

Stereotype replacement requires that judges be 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.”24 This, again, is a difficult exercise as we often do not notice our own biases and stereotypes. However, coupled with taking and understanding the Implicit Association Tests, it becomes much easier to begin to see your biases in action. The hope is that, just as our biases became ingrained over time, the unbiased responses that we use to replace those biases will, over time, prevail.

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.”25 These counter-stereotypic people can serve as “concrete examples that demonstrate the inaccuracy of stereotypes.” Id. Individuals can also endeavor to use personal connections in counter-stereotypic imaging. While people sometimes discount those they know well as “exceptions” to certain stereotypes, this strategy reversed that line of thought and forces a re-thinking on why those stereotypes prevail.

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 This exercise can be used “either proactively, without any prompting from outside sources, or reactively, after a stereotypic response or portrayal has been detected.”27 This is a helpful exercise to see how unconscious and, perhaps seemingly innocuous, stereotypes can be harmful. It involves 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.”28 This strategy is incredibly

24 Id. 25 Id. 26 Id. 27 Id. 28 Id. 6 5YL important for judges who often only encounter stereotyped groups in unfavorable situations (i.e., when the individuals are in front of them on criminal charges or facing a civil lawsuit). It is important to build a baseline with unfamiliar groups and to develop a rapport such that when faced with different types of people, there is no longer a negative stereotype but rather a positive and more personal association.

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

A. Limited Resources for Judicial Training

Public courts, understandably, have limited resources available for judicial training. It is beyond cabal that the courts are already currently taking full advantage of the funds available to them for their current training programs. While de-biasing training should become an integral part of this training, it would be thoughtless to fail to acknowledge the cost associated therewith.

The ABA has already developed an implicit bias toolkit that bar associations and courts can use in developing de-biasing training for judges.29 Use of existing materials can help ease any financial burden associated with implementing this resolution. In addition, during the ABA’s 2016 Midyear Meeting, former resolution 10730 was passed by the YLD Assembly and adopted by the ABA House of Delegates.31 That resolution encouraged bar associations and other licensing and regulatory authorities with mandatory or minimum continuing legal education (MCLE) requirements to modify their rules to include as a separate credit programs regarding diversity and inclusion, and programs regarding the elimination of bias. That resolution also recommended that the ABA, through its Goal III and other entities, assist in developing those programs for lawyers, the idea being that those programs could then be tailored to minimize costs. Ideally, programs developed under former resolution 107 will take into consideration judges as a potential audience, but even if they do not, they will provide another resource for the bar associations and courts seeking to implement de-biasing training for the judges in their jurisdictions.

B. Benefits to Public and Bar if Training Implemented

Having the bar involved with judicial training on implicit bias and de-biasing strategies would be beneficial for all involved. Attorneys would benefit from working directly with members of the court and the court would benefit from working directly with diverse bar members. Any resultant camaraderie developed through the training would be beneficial to the public.

III. Courts Should Plan for Mandatory Initial and Refresher Training.

29 http://www.americanbar.org/diversity-portal/diversity-inclusion-360- commission/implicit-bias.html 30http://www.americanbar.org/content/dam/aba/administrative/young_lawyers/meetings/2 016/midyear/107 31http://www.americanbar.org/groups/young_lawyers/about_us/assembly/2016_midyear_ meeting.html 7 5YL

All of the above de-biasing strategies are not a one-and-done arrangement. De-biasing is a lifestyle change and must be worked at day in and day out. While an initial de-biasing training for judicial officers is a wonderful step in the right direction, refresher trainings are of the upmost importance to ensure that our judiciary is as impartial as possible.

After the initial training, courts should implement periodic refresher trainings or, at the least, periodic reminders to the judiciary to keep implicit bias and the de-biasing strategies in their minds. Despite best intentions, training implemented once can easily fall to the wayside in favor of pressing, immediate issues.

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ABA YLD GENERAL INFORMATION FORM

Submitting Entity: Litigation Committee

Submitted By: Lauren Mariscano Richard Rivera Selena Molina

1. Summary of Recommendations:

This resolution would urge courts nationwide, federal and state, to require mandatory training on implicit bias and de-biasing strategies for both new and existing members of the judiciary. 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.

2. Date of Approval by Submitting Entity:

[Insert]

3. Has this or a similar recommendation been submitted to the Assembly or ABA previously?

While not identical, the purpose and goals of former resolution 107 dovetail with the purpose and goals of this proposed resolution. That resolution encouraged all state, territorial and tribal courts, bar associations and other licensing and regulatory authorities, that have mandatory or minimum continuing legal education requirements (MCLE) to modify their rules to include as a separate credit, programs regarding diversity and inclusion for the legal profession of all persons regardless of race, ethnicity, gender, sexual orientation, gender identity or disabilities, and programs regarding the elimination of bias. Former resolution 107 was passed by the YLD Assembly and adopted by the ABA House of Delegates at the 2016 Midyear Meeting. Essentially, former resolution 107 applied to lawyers, while this proposed resolution applies to judges.

4. Are there any Division or ABA policies that are relevant to this recommendation and, if so, would they be affected by its adoption?

This resolution would be consistent with the YLD’s mission statement in its Bylaws, which provides that the YLD’s “mission is to further the Association’s goals and purposes, and thereby to serve the community and the legal profession . . . .” YLD Bylaws § 1.2. The mission statement

9 5YL continues that the YLD will “help shape the policies . . . that affect young lawyers and the legal culture in which they practice. . . .” Id. The resolution is likewise consistent with and support ABA Goals II, III, and IV.

5. Does this recommendation require immediate action at the next Assembly? If so, why?

[Insert]

6. Status of Legislation (if applicable):

N/A

7. Cost to the Association:

[Insert]

8. Disclosure of Conflict of Interest (if applicable):

N/A

9. Referrals:

[Insert]

10. Contact Person (Prior to the meeting):

Lauren Mariscano ABA YLD Litigation Committee Chair [email protected] (954) 309-0070

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