Recognizing and Mitigating Bias in Legal Practice
Bias. It’s a word we hear more and more every day in our workplace, in the media and in our communities. When we hear the word “bias”, it automatically seems like a negative thing.
Let’s change that line of thought because the fact is that if we have a brain, we have bias.
Our brain uses bias to protect us--both to literally keep us safe from harm and also to protect us from the onslaught of information our brain is dealing with at any one time. We develop mental shortcuts to do everyday activities, and cognitive biases are the result.
Even though cognitive biases are universal, they are not neutral. They can easily lead to social biases in how we interact with each other and can be the seeds of institutional biases. When mitigating bias, it is imperative to differentiate and name the type of bias you are attempting to mitigate.
Understanding cognitive biases gives us the tools to identify our patterns and our role in perpetuating them. In the workplace, mitigating cognitive biases helps improve decision-making in team environments, promote intellectual curiosity, attain and retain top talent, improve performance, increase innovation, strengthen relationships and infuse social justice into business practices.
Although there are over 200 named cognitive biases, in the legal profession some cognitive biases come up more frequently than others. For any bias, it is possible to mitigate its impacts but only with thoughtful procedures and strategy in place.
With Like-Me Bias (or Affinity Bias), we like people who are like us. Our brain tries to determine who is a threat and who is an ally, and it makes this decision on limited information. This shortcut can provide a sense of comfort and security. However, it also means that we overvalue people who we think are like us and undervalue people who we think are not like us.
For attorneys, Like-Me Bias might show up in who works on a case, who gets hired, who is promoted and who becomes a partner. For instance, although women have been over 40% of law school graduates since the mid 1980s, they are only 21.5% of firm partners, and law firms, especially at the levels of leadership and decision-making, are still predominantly white. Like-Me Bias can easily lead to establishing informal or formal hiring, collaboration and promotion practices that further entrench this bias into the governance structure of a firm.
Egocentric Bias is the belief that “my ideas are obvious and absolute”. Egocentric Bias can occur when we overvalue experience and assume understanding from others. This bias is very common in fields where expertise is necessary, like the law or medicine. For attorneys, this is the most common of the cognitive biases. It is easy for attorneys to overvalue their own experience and their own area of expertise because this expertise is often what they are paid for. However, to best represent their clients, attorneys must put aside egocentric bias and look at multiple points of view in order to make their own arguments stronger.
Availability Bias occurs when decisions are made based on easy or incomplete ideas without looking for the fuller picture. This bias increases when we are in a rush or are under a high cognitive load. For most attorneys, this happens every day and all the time, managing complex details and tight deadlines. When Availability Bias is in full effect, we take the path of least resistance and as a result, we make unintentional errors. This might show up as confirmation bias, or only looking at information that underscores what we already know.
For attorneys, small errors can lead to large consequences when you consider the impact of overlooking important details, citing inaccurate facts in a court filing, or missing a deadline. Mitigating this strategy means allowing time to consider various points of view and to approach things from different perspectives.
With Anchoring Bias, decisions are made from the initial data point, graph or image that we are exposed to. Once we have this first reference point (whether the reference is factually accurate or not), we calibrate all other information against it. While most lawyers are taught to be skeptical and to critically question the first piece of information, jurors are not. From the voir dire questions to the opening argument, trial attorneys use Anchoring Bias to shape jurors’ opinions and to bias them in favor of their client’s case or body of evidence. While Anchoring Bias is an unconscious process, it is often used with conscious intent by attorneys.
Although we’ve discussed all of these biases in isolation, in real life they intersect and multiply impact. In a recent study, 60 partners were asked to give a writing score to the same memo which had 22 errors in it, ranging from grammatical errors to errors in analysis of fact. While a small sample size, these attorneys gave the same memo different scores depending on whether they were told that the author was African-American or Caucasian. Partners found fewer errors for the white author and praised him for his potential, while the comments for the Black author were more critical of his work. In this study, we see Like-Me and Availability biases in action. Since writing analysis is a common part of the hiring process, we can see how this score would easily influence who gets hired, and if hired, what work they get assigned.
Because most of our decisions are influenced by unconscious biases, we must clarify which cognitive biases appear in our thoughts and actions at the workplace.
Mitigating cognitive biases requires the ability to question our decision-making processes, to examine our relationships and interactions, and to identify and change the social and institutional barriers which are obstacles to fostering inclusion and social justice.
Bias mitigation is a professional skill. Like advocacy or negotiation inside and outside the courtroom, it improves with intention and practice. Awareness is the first step, but consistent use of structured mitigation techniques strengthens judgement, enhances credibility and reduces risk in everyday legal decision-making.
The Thinking You Don't Notice will continue to look at ways that our mind makes things harder and impacts our decision-making. We will explore how mitigating bias creates clarity, credibility and trust over time.
Want to find out more? At the Percipio Company we partner with business leaders to handle the tricky workplace issues no one wants to talk about. We reduce the biases that are hurting your performance. We love tackling the uncomfortable conversations most try to avoid. Follow us on Substack @ The Thinking We Don't Notice