No one likes to think that they might harbor biases or prejudices about other people. The truth, however, is that everyone has unexamined and often unconscious biases that affect their decisions. Because they often exist below the surface, so to speak, people might not be aware that they are acting based on biased views or opinions. Addressing the negative impacts of this kind of bias requires introspection, education, and above all else humility. Legal professionals are not exempt from cultural biases. As the nation’s population grows more diverse, understanding cultural bias is essential for lawyers. This article addresses the meaning of the term “cultural bias,” how it can affect legal representation in criminal defense and personal injury cases, and what lawyers can do to recognize and deal with their own unconscious biases.
A significant amount of research in recent years has examined the role of bias in numerous professions. Debra Chopp, a law professor at the University of Michigan, provides a useful definition of “cultural bias” in a 2017 article published in the N.Y.U Review of Law & Social Change. She begins by defining “culture” as a broad set of shared identities and attributes, including values, beliefs, and practices. Our cultural identities influence “[o]ur choice of words, our tone of voice, [and] our proximity to another person when we speak to them,” to name only a few examples.
Culture also affects how we perceive others. Someone’s conduct might appear admirably confident or assertive to one person, while another person might perceive it as rude. Some cultures view looking a person in the eye as a sign of honesty, while others believe that not looking someone in the eye is a sign of respect. These perceptions are often the product of a lifetime of cultural conditioning. Learning how to move past one’s own perceptions and to relate to other people’s cultural viewpoints takes time and discipline.
Cultural bias occurs when someone interprets another person’s actions solely through their own cultural lens. This often occurs without any sort of malice or ill intent. People act based on their own cultural beliefs, values, or ideas, and they assume that those same beliefs, values, or ideas apply to others.
Bias can be explicit or implicit. An individual who harbors explicit bias is aware of it, although they may take steps to conceal it. Some bar associations have taken steps to address explicit bias in legal representation. California’s Rules of Professional Conduct, for example, prohibit attorneys from discriminating with regard to accepting or declining clients “on the basis of race, national origin, sex, sexual orientation, religion, age or disability.”
Implicit bias tends to be a bigger concern when it comes to legal representation. An individual with implicit biases is not consciously aware that they have these views or beliefs. For this reason, implicit bias may also be known as “unconscious” bias. Before a person can overcome implicit bias, they need to become aware of its existence.
Bias and prejudice tend to have negative moral connotations in American society. Given this country’s history, that is not an unreasonable association. The goal here, however, is not to cast aspersions. Neither explicit nor implicit bias necessarily implies a moral failure on someone’s part. People may have unconscious biases for many reasons, such as a lack of contact with people from a particular culture. The focus of efforts to combat cultural bias should be on strategies for learning and improving rather than on blame for harboring biases in the first place.
Lawyers have an ethical duty to provide competent representation to their clients, which may include understanding how their clients’ cultural outlooks shape their actions. This can be critically important when defending someone against criminal charges or advocating for them in personal injury matters.
Cultural bias can interfere with a lawyer’s services to their client because of misinterpretations or misunderstandings. It can damage the attorney-client relationship by preventing trust from developing between the two. Trust is vitally important for trial lawyers who represent criminal defendants or civil plaintiffs. Cultural bias can also harm a lawyer’s reputation in a community, such as when a client tells others about their unsatisfactory experience.
Implicit biases about clients themselves are not the only type of bias that can adversely affect client representation. Attorneys can have implicit biases toward clients’ family members or others involved in a case. Unconscious bias can affect jury selection, which can potentially have severe consequences for clients.
Examples of how cultural bias, including unconscious bias, can affect a lawyer’s representation of their clients may include the following:
The way a client speaks, behaves, or dresses can spark unconscious biases in a lawyer. Unfamiliar patterns of speech, the use of regional accents or dialects, or speaking English as a second language can all produce biased responses, especially when a lawyer is part of the dominant culture. This can be a function of many possible factors, including race, ethnicity, national origin, age, or disability.
Lawyers may make incorrect assumptions about a client’s understanding of their legal matter, or their ability to be an active participant in the process based on unconscious bias. They could misinterpret a client’s mode of communication, such as a lack of eye contact, as indicating evasiveness. This can affect how they communicate with the client. They might not ask enough questions to get to the heart of a client’s problem, assuming that the client has nothing more to say. This could result, for example, in a failure to include all of a client’s injuries in a personal injury claim because the client was not comfortable disclosing certain conditions right away.
The article by Professor Chopp mentioned earlier provides an interesting example of how cultural bias can lead to miscommunication about how best to represent a client. She notes that much of U.S. culture views each individual “as an independent, autonomous decision-maker.” In some cultures, however, people might view themselves as “part of a collective” who must consult with the community with regard to important decisions.
A criminal defense attorney might assume, in Professor Chopp’s example, that “negotiating a plea deal in exchange for a reduced sentence” is in their client’s best interests. If the client’s cultural self-image is less individualistic, however, they might believe that a guilty plea “would bring shame on the community.” The lawyer’s assumption will put them directly at odds with their client’s goals.
In personal injury cases, an attorney might make assumptions about a client’s goals based on factors like race, gender, or income level. For example, a client’s top priority might be to ensure that they have access to medical care to deal with their injuries, while their attorney assumes they want the biggest payout possible without regard to healthcare issues.
Psychological research has found that the more overworked and stressed a lawyer is, the more likely they are to act on implicit biases. Psychologists use the term “cognitive load” to refer to the high number of complex tasks an individual must handle at once. Busy lawyers, particularly in areas of practice like criminal defense, must deal with significant cognitive loads. In this kind of situation, the human brain seeks shortcuts, which can take the form of biased judgments and decisions. Certain features of the criminal justice system, such as forced confessions, can add to this phenomenon, making it more likely for criminal defense attorneys to push certain clients toward plea bargains.
Personal injury lawyers are also susceptible to these kinds of pressures. Implicit biases could lead an attorney to prioritize one case over another for reasons based more on the attorney’s implicit bias than the urgency or value of the cases.
Many researchers and advocates use the term “cultural competence” to describe how lawyers can recognize their own biases and work to eliminate or overcome them. Cultural competence places principles like openness, equity, and non-discrimination front and center in attorney-client relationships. The following strategies can help attorneys improve their own awareness and apply it to their law practices.
The first few strategies are primarily about introspection. Even if someone is not overtly prejudiced, they have unconscious or implicit biases that could affect their interactions with others. Having these biases does not mean that they are a bad person. We are all products of our cultures, and we all have blind spots. Acknowledging that these biases exist is necessary before a person can begin to work to overcome them.
Once someone has acknowledged that they can have biases even if they do not intend harm, they have to maintain that level of introspection. Just because someone has identified one type of implicit bias does not mean they cannot have others that remain undetected. This is an ongoing process. It requires both discipline and humility. It is not a pleasant process — in fact, it can be quite grueling at times — but it is important to commit to it.
Harvard University has developed a series of Implicit Association Tests (IATs) that can help people recognize areas where they make biased judgments. Available IATs address associations related to factors like race, gender, sexual orientation, gender identity and expression, national origin, religion, and disability. They can be a useful tool in this process.
Perhaps the most important strategy for overcoming implicit cultural bias is to seek out education, first about how to do so, and then about other cultures. It is not necessary for an attorney to become an expert in every culture they might encounter. They only need to be aware of how their own way of seeing the world might lead them to make mistakes when dealing with others.
One way to do this is to listen without judgment to other people’s experiences with cultural bias. This can be difficult to do at times, but keep in mind that, as mentioned above, acknowledging bias is not a moral judgment. Everyone can benefit from this process.
Many resources are available to help attorneys learn about their own cultural biases and how to overcome them. The American Bar Association’s Implicit Bias Initiative, for example, offers a toolbox that includes videos and reading materials.
Law professors Sue Bryant and Jean Koh Peters created a program called “Five Habits of Cross-Cultural Lawyering” for use in clinical legal education. The program consists of five practices that can enable people to address cultural biases as they appear:
Dealing with unconscious bias is an ongoing task. Attorneys can use tools like those described above to educate themselves, but they should never assume that this type of education is complete. Continued training is important, as is continued introspection and evaluation of interactions with clients and others.
Attorneys who oversee other attorneys and support staff should be sure to provide regular training to everyone in their organizations. Implicit bias at any level in a law practice can have negative effects on clients and their cases. This can range from a prospective client’s experience prior to or during an intake interview to how they interact with clients once the representation has begun.
This can be a difficult process, and no one should try to go through it on their own. Attorneys can form groups to motivate each other and hold one another accountable. This could involve attending continuing education programs together, or lawyers could get creative about ways to explore implicit biases. They could, for example, form a book club that reads and discusses works dealing with various forms of bias or other injustices.
The National Trial Lawyers offers legal education programs that help civil plaintiff and criminal defense attorneys develop and improve their knowledge and skills. This includes resources that can help lawyers learn more about cultural bias and its impact on legal representation. To learn more about the National Trial Lawyers and the benefits that we offer, visit our website or contact us today.
