The Impact of Implicit Bias on Litigation

The Impact of Implicit Bias on Litigation

Thus far, we’ve discussed implicit bias and examples I’ve experienced in everyday life. But, how does implicit bias impact the courtroom, and more importantly, how does implicit bias impact your family when in court?

Since the beginning of time, we have formed biases in response to fears and to help keep us safe. What if the first cavemen hadn’t quickly learned to run from mammoths and giant sloths? None of us would be here today. While there may have been a few peaceful sloths out there, it was safer for the cavemen to assume that all sloths were dangerous and that they should run and hide when approached by one. This implicit bias helped Neanderthals to survive and evolve.

The same theory translates to the present. If we constantly hear in the media that young black men are dangerous, and if we repeatedly see footage of white police officers shooting them even when they are unarmed, our brains naturally create a bias against young black men. Implicit bias explains why there may be a disparity in how black defendants are treated in criminal sentencing, as compared to their white peers. Not only are black defendants less likely to be offered plea bargains than whites charged with similar crimes, they are also more likely to receive longer and harsher sentences than are white defendants.

The information deficit model is a theory that, when people make the wrong decisions, it is because they don’t have the correct information. It is why litigators work so hard to get their “right” information into evidence so that the judge (or jury) has what she needs to make the “right” decision. However, due to implicit bias, even when faced with correct information, we will take shortcuts based on our own histories and possibly come to the “wrong” decision. Judges are human, and they bring their own histories and biases into the courtroom. Even if all of your evidence is submitted to support your case, a judge will subconsciously dismiss some of it because of her own biased assumptions. A lawyer can try the same case in front of ten judges and rarely receive the same ruling.

Implicit Biases In Family Law

These biases are especially scary in the family law context. Why would a divorcing spouse want to leave his family’s future up to the natural biases of a judge who only gets a snapshot of the family’s story and then is asked to make important life-changing decisions that will impact this family’s future for years and years?

In divorce court, attorneys portray the opposing spouse as a bad parent and an inattentive, purposely underemployed, substance abusing, and/or abusive spouse. They do this hoping that the judge will use this limited information to make what they believe is the right decision . . . that their clients should receive the kids, the house, and alimony. And while they might “win” these issues for their clients, has the family really won as they have helped to tear it apart?

And we don’t always “win.” When we feel that we have lost for our clients, we are often confused because we have a naïve belief that the judge would surely interpret the facts that we presented in the same way that we do, and come to the same decision , i.e. that our client should win. We ourselves have likely looked at the facts and subconsciously misperceived that we are correct about the client, even though we likely have only processed a limited understanding of the most important information.

When There Are Many Sides, There Are More Biases

And we have really only heard half of the story, the story from our client’s perspective. When we ardently advocate for our client’s position, we ignore the reality that there are at least three sides to every story . . . our client’s, his spouse’s, and what really happened.

Just like us, those around us, i.e. the judge and opposing counsels, tend to make decisions early on that will affect their final interpretations of a matter. And once those analyses are made, it is very difficult to change them.

Divorce attorneys often advise clients that it doesn’t matter who files the petition for divorce first because, at trial, each party will get a chance to put on his case. Some even argue that the respondent spouse who goes second will have a better chance of swaying the judge because her argument will be fresh in the judge’s mind. But consider how opinions are formed quickly and difficult to change; when divorcing, it might make sense to be the filing spouse who puts on his case first.

Confirmation bias is the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories and to disregard information that discredits one’s beliefs. We are more likely to remember facts that support what we already believe and to actively forget those that contradict our beliefs. This helps litigators as they argue to the judge and against opposing counsel.

But does this natural inclination provide the judge with a true sense of the reality of the case? Implicit biases and all the rest impact litigation. In family law, it can mean that a judge may make a wrong decision as to what she believes to be in the best interest of your family.

Don’t Litigate, Collaborate!

Litigation puts your family’s most difficult decisions in the hands of a judge unfamiliar with your family. Judges claim to be unbiased in the courtroom, but implicit biases are often unrecognizable. Whether a judge admits to his/her implicit biases, they exisit. Keep your family’s restructuring in your own hands.

And stay tuned for our fourth, and final, blog in this series: The Impact of Implicit Bias on Collaboration.

If you’re looking for divorce attorneys, look no further. At Open Palm Law, we emphasize the positives of collaborating, not litigating. We see it fit that families make their own decisions, without courtroom implicit biases. Call us today!

Learn more about collaborative divorce. Follow Open Palm Law.

Need advice now? Contact Joryn!

About this week’s author, Joryn Jenkins.

Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, two of which she served as a professor of law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen Award, an honor bestowed in the United States Supreme Court upon those who have provided exceptional leadership in the American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.

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