Lawyers discuss implicit bias, solutions at MSBA session

OCEAN CITY — A room full of attorneys and judges received a primer on implicit bias and how it is manifested in court at the Maryland State Bar Association Legal Summit and Annual Meeting on Thursday.

Implicit bias describes subconscious categorizations that affect conscious behavior, said Russell A. McClain, associate dean for diversity and inclusion at the University of Maryland Francis King Carey School of Law.

McClain, using a website that allowed attendees to respond to questions, asked about the attorneys’ core values — answers included honesty, justice, integrity — and what they sought to gain from the session — answers included insight, tools to confront bias, information for the court.

McClain said his goal was that attendees leave the session knowing that implicit bias exists.

Of the session, McClain said, “This is really more, in my view, of a conversation starter than a conversation finisher.”

Attendees shared stories of bias they had seen from the court, from other attorneys and from the public. One example concerned an attorney’s experience with a judge, who asked if she would translate a passage from Urdu; the attorney, of Indian descent, did not know the language.

“It’s really hard being a person who’s a part of a marginalized group and constantly facing these slights,” McClain said.

McClain said the brain makes many decisions subconsciously. As an example, he described walking to his car expecting the keyless entry to work as always — but the door remained locked. After a few minutes of trying, he realized he had the wrong car.

“It interests me to kind of wonder what’s happening in my brain at that moment, because my brain had already decided this was my car,” McClain said.

Some of the brain’s subconscious activity includes processing information and assigning it to categories, which then are assigned characteristics, he said, adding that bias happens when the brain does this kind of “sorting” with people.

“We may not actually be quite as neutral as you think,” McClain said.

McClain had the group take Harvard’s Implicit Association Test, which measures general attitudes toward topics and groups. Those subconscious attitudes don’t always line up with people’s conscious beliefs.

“There are bad actors in the world, but not every bad act is the result of a bad actor,” McClain said. “I think these are conversations that need to happen as a bar.”

McClain said awareness and training are important to combat bias, as are  “replacement narratives,” positive images of particular groups.

He said he was optimistic about change: “I actually think there’s hope.”