Eliminating bias: Expert steps attorneys through the process

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– Photos by Cynthia Price


By Cynthia Price

Legal News

A roomful of attorneys alternately clapping and banging loudly on their tables was not the sign of a heated competition between their law firms or favorite football teams.

Instead, the attorneys were learning how their own cognitive processes may reveal biases of which they may not be consciously aware.

National expert Kimberly Papillon led the attorneys through an exercise that simulated the Implicit Association Test (IAT), which uses combinations of words such as "Black," "Good," "White," and "Bad" to determine the degree to which pre-analytical prejudices govern responses to pictures and data.

Papillon led this June 29 exercise as part of a session called "Blind Spots: How to Avoid Poor Decisions and Bad Outcomes," held jointly by the State Bar of Michigan and the Grand Rapids Bar Association. SBM Executive Director Janet Welch said the State Bar has held a successful session in Detroit and tries to service lawyers across the state.

Papillon, an attorney, has developed in-depth expertise on the subject of implicit bias over decades delivering lectures and workshops on decision-making and the neuroscience behind it.

A faculty member of the National Judicial College since 2005, she regularly speaks to lawyers, judges, physicians, and other groups about the role of implicit bias, and her appointments include the National Center for State Courts National Training Team in Implicit Bias.

A graduate of the University of California at Berkeley and Columbia University School of Law, Papillon has aproduced nationally-recognized documentaries on the subject and created comprehensive written resources which were available to the 100-plus attendees. Those who would like to take the IAT may access it at https://implicit.harvard.edu/implicit/takeatest.html.

After leading participants through the lively simulation, Papillon delved into neuroscientific findings that are the basis for many of her conclusions. She noted that, "Anybody can find a study that will support what they have to say," and she therefore makes sure research results are backed up by multiple additional sources, as many as 50 for some of those presented in Grand Rapids.

"I'm going to need you all to have a favorite part of the brain." she joked. "Mine is the amygdala, which among other things registers Fear Threat Anxiety and Distrust. When neuroscientist researchers flash up photos of spider and snakes it lights up."

When using functional Magnetic Resonance Imaging (fMRI), researchers find the area that "lights up" is the area being used. When the amygdala lights up in response to faces with male African-American features, which it does consistently in the literature, it can be assumed it registers similar fear and threat responses.

In a similar way, there are implications to be derived from which part of the pre-frontal cortex activates, which has led to one of the most important findings about implicit bias.

When given a description of two white males, research subjects were asked to choose which one they felt was most like them. In later questioning, the fMRI indicated that subjects used the ventral medial prefrontal cortex when answering about the one they chose as well as themselves, and the dorsal medial prefrontal cortex to answer about the one chosen as "the other."

The unconscious ways in which this manifests are surprising. One study sent two resumes out to hiring professionals and asked which they would interview; the only difference was that one came from a person with a European-American-sounding name, the other from a person with an African-American-sounding name. The differences in response were significant, but in addition comments made were devastatingly different. The same held true for professionals' assessments of a memo by an associate attorney.

Papillon said that the purpose of raising awareness on implicit bias is not to make people feel badly about themselves. "It's not that we're bad people, it's that we don't have all the requisite information. The most difficult people to teach about implicit bias are people who value fairness the most. They think they're already fair, so it's going to be more painful for them.

"You could go and find a place where people aren't doing great work on diversity already - where they're not working with young students on the pipeline and getting them excited about going into the legal profession as you do, which really shows commitment. With people who recognize and will extol the virtues of their conscious biases, you can make some change just by showing them the statistical basis for their being wrong. For them, it's not as hard to hear."

Papillon offered a number of recommendations and resources for attendees. Read more at https://equaljusticesociety.org/law/implicitbias/primer/.

Published: Thu, Jul 14, 2016

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