Shadowing the Bar: Attorneys’ Own Implicit Bias

Abstract

This article analyzes the implications of implicit bias in the legal profession, focusing on how the implicit biases of attorneys impact litigants. Part one summarizes research in the cognitive science field defining bias and explains some of the Harvard Implicit Association Tests (IAT). Part two describes some studies conducted on juror and judicial bias in the courtroom, as well as those dealing with the bias of attorneys in criminal cases. Using this background, part three provides an analysis of the impact of an attorney’s implicit bias on her strategic decision making and conduct of civil litigation, its results for clients, and its impact on the justice system. Part three also provides an argument for the American Bar Association’s (ABA) proposed rule for a negligence standard regarding ethical regulations intended to ensure that lawyers work harder to overcome biases to better serve justice. The conclusion in part four proposes a framework for interrupting biased behaviors.

Keywords: implicit bias, legal profession, attorney, litigation, cognitive science, Harvard Implicit Association Tests, IAT, juror, judicial bias, criminal, civil litigation, American Bar Association, ABA, model rules