Addressing Implicit Bias in the LawApproved for 1.5 Ethics Credits for Washington Attorneys

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LL150728WEB • ADDRESSING IMPLICIT BIAS IN THE LAW • i

FacultyA Special Thank You to Our Program Faculty!Those who have planned and will present at this WSBA CLE seminar are volunteers. Their gener-ous contributions of time, talent, and energy have made this program possible. We appreciate their work and their service to the legal profession.

Program FacultySevilla P. Rhoads — Seattle, WA

Copyright © 2015 • Washington State Bar Association • All Rights ReservedThe materials and forms in this manual are published by the Washington State Bar Association for the use of its program registrants. Neither the Washington State Bar Association nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each at-torney must depend upon his or her own knowledge of the law and expertise in the use or modification of these materials. The views and conclusions expressed herein are those of the authors and editors and are not necessarily those of the Washington State Bar Association or any division or committee thereof. Any websites represented by screenshots, logos or ads reproduced in the materials and forms are the copyrighted material of the website owners and are included for illustrative and educational purposes only.

LL150728WEB • ADDRESSING IMPLICIT BIAS IN THE LAW • ii

Summary of ContentsProgram Schedule ................................................................................................................................................................... iii

1 What is Implicit Bias? .................................................................................... 1-1

2 Implicit Bias in the Legal Profession and Judicial Systems ............................. 2-1

3 Practical Approaches to Addressing Implicit Bias in the Law ....................... 3-1

LL150728WEB • ADDRESSING IMPLICIT BIAS IN THE LAW • iii

Program Schedule

Addressing Implicit Bias in the Law

Tuesday, July 28, 2015

12:00 p.m. Welcome and Introductions

12:03 p.m. What is Implicit Bias?Overview of the current neuroscience theory and related research, and pertinent sections of the Rules of Professional Conduct. This section includes information about what scientists consider to be the origin of the implicit bias brain function and how it developed in humans.

12:26 p.m. Implicit Bias in the Legal Profession and Judicial Systems Illustrations and examples of ways legal professionals encounter the brain and nervous system functioning underlying implicit bias, and the ethical implications.

12:49 p.m. Practical Approaches to Addressing Implicit Bias in the LawExploration of practical steps individuals and organizations can take to address implicit bias and contribute to professional and ethical conduct. The approaches are derived from research in the cognitive and behavioral sciences.

1:12 p.m. Discussion and Questions

1:28 p.m. ConclusionWrap-up

1:30 p.m. Adjourn

LL150728WEB • ADDRESSING IMPLICIT BIAS IN THE LAW • iv

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Seminar Name: Addressing Implicit Bias in the Law (LL150728WEB)

Seminar Date: July 28, 2015

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CHAPTER ONE

WHAT IS IMPLICIT BIAS?

July 2015

Sevilla P. Rhoads Attorney at Law

SEVILLA P. RHOADS has practiced labor and employment law for approximately twenty years. She represents organizations including healthcare entities and Tribes. In addition, she has a master’s degree in psychology and is a former associate mental health clinician. Sevilla has post-graduate training in behavioral and cognitive science.

Phone: (206) 795-6876 Email: counselingsr@gmail.com

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Implicit Bias

An Introduction for Legal Professionals

“Between stimulus and response there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom.”

Viktor E. Frankl

Implicit biases are the unconscious associations (internal stereotypes) which influence our behavior, conscious views, and decisions. If you are human, you harbor implicit biases because they are an essential aspect of the way our nervous systems’ process information. Implicit biases are not necessarily harmful. Some are positive and useful. Humans could not operate effectively in the world without unconsciously processing information and automatically acting prior to conscious processing. However, some decisions and behavior arising from implicit biases are harmful to others, our profession, and the justice system. We will examine how these harmful biases arise and operate and what we might do to manage them as we practice law.

Our brains1 are constantly taking in vast amounts of data about ever the changing environments around us, such as interacting with other people, and internal data from our bodies and inner thoughts. Scientists opine that in a single second of time we could be managing approximately eleven million bits of information, however our conscious mind is only capable of processing 40-50 (some say the figure may be as low as 16) of the total bits.2 So, the vast majority of information is handled unconsciously and automatically, including much of how we process data about and react to other people.

In order to keep us alive and the human species surviving, the brain engages in essential information filtering and sorting at speeds which far exceed our ability to form a conscious thought. For example, in milliseconds, we are unconsciously scanning incoming data from the world around us and determining if there are indicators of a possible threat to our physical safety. If evidence of a possible threat is received, our bodies start reacting before our conscious minds have started to consider the situation and most often, when the potential threat is minor, our conscious minds do not question or contemplate the reaction at all. Our default method of information processing is to, whenever viable, conserve the relatively limited conscious cognitive processing resources we have. For example, the regulation of breathing operates in

1 For simplicity, I use the terms ‘brain’ and ‘nervous system’ very loosely rather than using the technical medical definitions. I oversimplify in order to communicate complex neuroscience into understandable concepts for those, like lawyers, who have little time to delve into the details. If you are interested in the accurate science details, I encourage you to read the scientific literature. I also use the term ‘mind’ very generally. My favorite description of the term ‘mind’ is from Dr. Daniel Siegel, a neurobiologist: “A core aspect of the mind can be defined as an embodied and relational process that regulates the flow of energy and information.” 2 Data derived from Kirwan Institute’s 2014 State of the Science summary.

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auto-pilot mode while we engage in the intensive thinking necessary to practice law. We would quickly run out of cognitive reserves if we had to think about a case and consciously remember to take each breath and implement all the physical actions involved in taking a single breath.

In addition to regulating to body, our brains also engage in extensive unconscious processing of the information we receive in every moment of our lives. Much of this processing is done extremely fast. Just think about all the information you’re taking in right now through all your senses and how you have reached assumptions about that data without thinking about it. In very general terms, our brains achieve the high speed sorting of data, particularly in regards to what is safe or not, through use of a primitive matching of incoming information to existing memories.3 If data being received has any resemblance to memories involving a message of potential threat, the brain errs on the safe side of preserving your well-being by activating the survival mode in the body. In this presentation, I will generalize and call this mode the sympathetic nervous system state (“SNS”). SNS, is essential the body’s stress mode where you are physically preparing for flight, fight or freeze. However, if the data matches memories associated with safety, the reaction is to move into a parasympathetic state (“PNS”) where physical resources, such as blood and oxygen, are relieved of urgent survival duties to engage in other essential and non-essential functions such as digesting, sleeping, and thinking about matters not directly related to strategies to keep the body safe. The move towards SNS or PNS mode normally happens outside your awareness and in milliseconds.

This high-speed primitive matching is not related to any moral judgments. Moral reasoning occurs more slowly and using a different method in the pre-frontal region of the brain. The automatic safety matching is a conservative front-line defense process in other regions of the brain (although they are connected). The primal association process may unconsciously trigger the SNS based on data about an approaching person whereas the conscious mind may later conclude the person is ‘good’ and deserving of respect. As first-line survival mechanisms, the primitive systems are physically dominant over the secondary cognitive abilities to make moral decisions. So your body automatically, and outside your conscious awareness, can move into a defensive mode as you interact with another person even if you think you should be open to the person based on conscious beliefs, like a theory of gender or racial equality. Your body is not deeming someone good or bad, it is simply preparing defenses based on prior memory data.

When you unconsciously react to another person as ‘unsafe’ based on neural associations, even when your conscious mind may disagree, if it knew, of your body’s stereotyping of the person, you may act differently towards that person than you do when your body’s primitive systems have concluded the person is ‘safe’. You do not consciously control or intend this different response and you are likely completely unaware of the subtle differences in your conduct and decision-making. As mentioned, you are designed to process information unconsciously whenever possible so as to conserve the limited resources for conscious thought.

3 Some scientists have found possible genetically programmed sources of associations, but we will focus on the learned associational process in this presentation.

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There are other layers of associational processing regarding other people and our environments which go beyond safe and unsafe determinations. These also operate automatically outside our awareness to influence our acts and decisions. Rather than being associations for survival reasons, they are the brain’s way of conserving resources by making generalized matches between new data and existing data. It would not be possible to process all incoming data as if it were the first time you encountered anything like it before. You have to generalize in order to function. Imagine you had to start processing without any assumptions, every time you approached a door or a chair or other everyday objects. If you did not already have a generalized idea of what a door is and how to operate the door, you would have to stop, study this object and its mechanisms and figure out what to do with it. Instead, without you having to waste any conscious thought resources, your brain rapidly takes in cues like shapes and features and automatically taps the associations stored about how to go through a door.

The stored learned associations dictating the body’s initial reactions to others are, as some scientists believe, likely first formed as you developed in childhood and are also learned or reinforced as the brain takes in information from your environment. For example, if you were fed messaging from media, others around you, and experiences as a child, that you should be wary of people with certain features, this information could still operate to trigger the SNS mode even if your adult conscious mind does not believe the messaging. In fact, even if you are someone who devotes their professional time and energy to eradicating such stereotypes, your primal associations may still operate from the neutrally stored associations. This is particularly true if media and subsequent interactions continue to reinforce the message to your primal survival systems. For example, during a movie scene with an aggressor who fits the stereotyping in your neural associations, you may consciously tell yourself not to generalize the scene to real experiences with people of that type, but your primitive brain fear mode is activated by the movie’s violent scene and imprints the features of the person as an association with the feelings of fear you had as you tensed during the actor’s aggressive acts. You may then, before you have a conscious thought, have an SNS reaction to similar features in your next encounter with them.

Based on the foregoing theories about developed implicit biases, there is very positive news from the scientists researching how the underlying associations form and operate. Just as the unconscious pairings, such as between threats and certain physical features of others, are learned, they can be ‘unlearned.’ Some neuroscientists describing this to laypersons explain that the brain can be ‘rewired.’ How to effectively ‘unlearn’ is currently an active area of research and scientific commentary. The theories are in their infancy where some studies show promise, but more years of rigorous testing are needed before one can say any approach is truly evidence-based.

This presentation offers an introductory look at how implicit biases are formed and influence us. We then explore how implicit bias impacts legal professionals and the justice system and finally look at practical approaches which may address the undesired negative impacts of implicit bias. While neuroscientists are far from in agreement about this relatively recent area of study (it has only been forty years since development of the first modern tools for

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brain study become available), we can use the emerging theories as a basis for our own exploration of implicit bias and figuring out what is effective for each of us.

Nothing in this presentation is intended to suggest that harmful biases should be tolerated or left unaddressed. Some might take a cursory look at the science and conclude these biases are acceptable or pointless to manage because of the automatic and unconscious nature of their origins. However, I believe we can and must address harmful implicit biases. How each of us approaches our implicit biases, until we have evidence-based methods, will have to be personal choice derived from initial theories and your own experience. It is my hope you will come away from this presentation motivated to find the best approach for you and that you will continue to follow, and perhaps even support, the research on this important topic.

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CHAPTER TWO

IMPLICIT BIAS IN THE LEGAL PROFESSION AND JUDICIAL SYSTEMS

Phone: (206) 795-6876 Email: counselingsr@gmail.com

July 2015

Sevilla P. Rhoads Attorney at Law

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SEVILLA P. RHOADS has practiced labor and employment law for approximately twenty years. She represents organizations including healthcare entities and Tribes. In addition, she has a master’s degree in psychology and is a former associate mental health clinician. Sevilla has post-graduate training in behavioral and cognitive science.

Neural Procedure, and Implicit Bias in the Legal Profession and Judicial Systems

Why care about the brain processes behind our conscious thoughts and behavior? For the same reason you would not expect a positive outcome for a client in federal court if you litigated without any awareness of the federal rules of civil procedure, you might not successfully achieve desired behavioral outcomes for yourself if you do not have any awareness of the brain’s procedures. Like a court system, the brain is a complex structure with processes derived from ancient sources. Just as you cannot simply walk into a judge’s chambers, without having engaged in any litigation, and demand a verdict in your favor, you cannot demand of yourself to suddenly be rid of any influence from all internal implicit biases. In order to consider how to manage your behavior and decisions arising from implicit biases, you need to take steps consistent with the way the brain processes and reacts to information. I have made up the term “neural procedure” as a way to help legal professionals understand the aspects of their minds that impact their ability to consciously change beliefs and behaviors.

Here is a crash course in ‘neural procedure’ to provide us with a foundation upon which to discuss how implicit bias plays a role in our work as legal professionals:

Consider this simple scenario:

You are in a courtroom acting in some capacity as a legal professional such as a judge or an attorney for a party. A person enters the room. You have some role to play in regards to this person, perhaps you are going to make a judicial decision which will have some impact on the person or perhaps you are going to elicit testimony from the person.

Let’s take a look at some aspects of what might be happening in your brain as you encounter this person4:

First, approximately six neural ‘processors’ light up5 and start intensively examining the incoming data. Three of these processors, the ones primarily designed to perceive the sensory information such as sights, sounds, tastes, and smells, are initially very active as you gather just enough raw data about the person to determine if they are a threat or not. I will refer to these first three processors as the direct experience processors. These direct experience processors excite our sensory mechanisms into exploring and gathering just as much data is needed to find a match with any stored associations regarding what is safe and unsafe.

The other three processors, which I shall refer to as the associational processors, are also lit up as they are in high gear sorting and searching the incoming data to determine what matches

4 The processes described in this section are largely taken from the work of Dr. Daniel Siegel. 5 I use the term “light up” because most of the research is conducted using scanners that reveal increased blood flow to areas of the brain in response to stimuli. On the scans, it appears as if the activated areas ‘light up’ on the images.

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information stored in your data banks of prior learnings6. Normally, these associational processors are dominant such that, as soon as they have found sufficient matches in the data banks to determine basic survival information such as whether there is a potential safety threat or not, they shut down the direct experience processors. This shut-off mechanism helps preserve resources for other brain functions. Unfortunately, it also means our default unconscious mode is to prematurely stop directly experiencing others.

Dominant associational processors play a critical role in our survival. These processors are based on an ancient design which have served us well in the survival success of our species. Long before we gained more evolved neural structures that allow us to use language and engage in moral reasoning, our associational processors were operating in our primitive ancestors to keep them alive. Although these associational processors are key mechanisms underlying our implicit biases, we also need to appreciate their essential role in our daily lives. If we did not have the ability to react instantaneously to data before our relatively slow conscious reasoning activates, you would likely be dead. If your ancestors had not instantly leapt out of the way of the predators, our species would not be here worrying about the implicit bias side-effects of a very effective system for searching data for threats.

Our associational processors make certain matches with stored data. For example, we very roughly sort the stored data in two primary categories: safe and unsafe. If a characteristic of the person in the courtroom scenario matches something in the unsafe category, your brain sends high speed alerts to systems designed to help you survive dangerous situations. One such system is the sympathetic nervous system (SNS).

I want to keep emphasizing that the brain errs towards activating the SNS because it would rather not take any chances with your physical survival. So, SNS may be triggered even when the person has minimal features which are associated with threats.

Generally speaking, the SNS prepares you for fight, flight, or freeze. The SNS causes a number of changes to occur in the body such as your heart rate increases and you release certain hormones and other biological chemicals into the blood stream. You are now in a more vigilant state; watching for danger and ready to defend.

An important aspect of the unsafe alerts and defend mode is the corresponding shutting down of higher level cognitive functioning. Sensibly, when on high alert, the primitive survival systems do not want you to waste energy and time engaging in sophisticated moral reasoning or looking for the perfect poetic word to describe your demise. Instead, some oxygen and blood flow are redirected away from the parts of the brain which engage in executive cognitive functioning. Neurobiologists theorize this reduction of capacity for higher level thinking could impede your ability to consciously override the implicit biases triggering the SNS mode.

All the foregoing brain processing has occurred at an extremely high speed and largely outside the awareness of the conscious mind. The reactions described above have taken place, literally,

6 Again, some scientists have research results indicating there may also be innate associations present when we are born. For example, they have detected SNS reactions in infants shown images of spiders and snakes where the infant has no prior exposure to these creatures.

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faster than you can think. Depending on how self-aware you are, you may or may not have noticed any of the SNS reactions in your body as you first encountered the person in the courtroom. You likely have no idea you are physically reacting to the person in such a way that is causing you to be more wary and less able to process information using your higher level of cognitive abilities.

In addition to the associational processing described above, the brain has an additional useful factory setting that may have been activated as the person entered the courtroom. To protect you on a number of levels, including psychologically, you have unconscious brain circuitry designed to keep certain unpleasant feelings outside your awareness. If something about the person triggered certain painful associations, your unconscious brain mechanisms may repress the feeling or perhaps prevent that feeling from becoming conscious at all. These automatic avoidance mechanisms can also obscure the painful reaction by covering it up or distracting your conscious mind with a secondary reaction such as worrying, craving, or perhaps a physical symptom. You could have a reaction to the person which seems completely unrelated and so ignored as relevant.

Some researchers believe that already being under stress (i.e. already in an SNS mode) heightens the likelihood you will default to implicit biases. So, if you are feeling pressure in your role in the courtroom – perhaps anxious about the testimony or pressured to make decisions quickly, some theorize you are more susceptible to relying on the associational matches rather than conscious beliefs.

If the person in the courtroom did not trigger your SNS, then your nervous system goes into the parasympathetic mode (“PNS”). The limited brain resources are allowed to be used for higher level cognitive functioning and the body is primed for activities which occur when your brain senses you are not in immediate danger. These activities include digesting, sleeping and connecting with others socially and cooperatively.

Recall that, at any given moment, our brains are processing a vast quantity of information. Our brains have approximately 1.1 trillion cells of which about 100 billion are neurons. The neurons generally make five thousand connections (synapses) with other cells. Neurons are firing between five to fifty times a second depending on the information input situation. Thus, in one second, there could be 500 trillion synapses occurring.

Also recall that the brain needs a lot of energy to perform all its essential functions and our automatic defenses are, in part, designed to manage the energy by prioritizing survival activities. Scientists believe the brain systems, despite their relatively small size, consume over one fifth of the energy derived from our food. The brain is only two percent of our body weight, but requires twenty percent of our energy. It is the most energy consuming organ in our body.

Therefore, when our brains are suppressing non-survival information and using stereotypes rather than details, they functioning in alignment with default neural habits (or ‘wiring’) rather than our aspirations for how we react to others. However, researchers believe we can manage these neural habits in several ways: First, we can consciously choose to repeatedly expose our brains to positive information about others such that we lay down new

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pairings between safe and positive and features of other people. The idea is to change the information in your memory such that when the associational processors get to a match of data to an association, it is a match indicating the body is safe and can move to the PNS mode. The new associations can also counter non-threat related generalizations. For example, you could have a screen saver of different types of people engaging in non-stereotypical activities.

We will discuss different approaches to managing implicit associations in more detail later. When considering the approaches, it is useful to consider some additional theories about brain functioning. Some neurobiologists opine that we can gain more conscious access to, and perhaps even control over, normally automatic out-of-awareness processes if we exercise the ‘muscles’ of attentional control and introspection. Over the last thirty years, there have been studies of people who do brain exercises designed to increase their ability to sustain conscious attention on automatic processes. For example, people are asked to practice focusing on their breath (normally an automatic habit) for a sustained period every day for eight or more weeks. Researchers have examined if these people then have any increased ability to influence their internal modes and it appears that not only have these study participants increased internal awareness and control, but there are noticeable changes in the amount of grey matter in regions of the brain associated with positive rather than SNS states.

Another brain theory which may assist us in deciding how to manage biases relates to how scientists have found the SNS state can be triggered by internal as well as external stimuli. Up to this point, we have discussed how the brain reacts to people and external environments. An interesting discovery is how the SNS is also activated when we imagine a threat that does not really exist externally. For example, when researchers ask people to conjure up frightening images or events in their minds, their bodies react as if the feared thing was real. This has been tested using merely words representing a feared object without asking the person to do more than hear the word. From these studies, some posit that we can assist our process of relearning by conjuring up positive and safe internal states which trigger the PNS state. Since we know our higher cognitive functioning operates more effectively in a PNS state, we assist our efforts to have conscious awareness at the helm when using calming and non-fear based internal encouragement.

I should note that, in addition to the foregoing theory about creation of a PNS conducive environment to relearn, is the theory that negative associations are most quickly and deeply learned under stress. Following this line of thought, some advocate for trying to forge new associational pairing with other people by having them in competitive or adverse situations where the types of persons internally stereotyped as threats are allies in survival or adrenaline producing activities. This approach is not contrary to the PNS mode approach, but another way to learn and unlearn neural associations.

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CHAPTER THREE

PRACTICAL APPROACHES TO ADDRESSING IMPLICIT BIAS IN THE LAW

July 2015

Phone: (206) 795-6876 Email: counselingsr@gmail.com

Sevilla P. Rhoads Attorney at Law

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SEVILLA P. RHOADS has practiced labor and employment law for approximately twenty years. She represents organizations including healthcare entities and Tribes. In addition, she has a master’s degree in psychology and is a former associate mental health clinician. Sevilla has post-graduate training in behavioral and cognitive science.

Practical Approaches to Addressing Implicit Bias in the Law

Whenever we encounter someone when we practice law, whether in person or from information provided to us about the individual, our implicit biases automatically arise. Whether it is a client, another lawyer, court staff, a juror, a witness, an applicant for a position in the organization, or anyone else involved in our work, we have unconscious associations which arise as we interact, in any way, with the person.

The question is how we manage these biases effectively to reduce any harm they might cause others in our profession and in our judicial system. There are two realms where we can manage the biases: 1) unlearning implicit stereotypes; and 2) reducing the impact of our current implicit stereotypes.

As briefly discussed above, negative neural associations can be unpaired and re-paired with positive or neutral associations. Just as the associations were originally paired with negative or unhelpful stereotypes, the same process can override the implicit memories which arise when processing data about another person. There are studies and research underway to determine the best method of unlearning, but this area of study is relatively new.

Unlearning and re-pairing approaches suggested in the current literature include the following:

• Using positive visual images such as screen savers, art work, and images in youreveryday environments. The choice of the images will depend on the implicit biases youseek to override.

• Choosing not to exposure yourself, when possible, to media and environments where thestereotypes are reinforced.

• Interacting and getting to know people with different features than you and with whomyou normally have little contact. Research has shown direct positive experiences canreduce implicit biases as measured by IAT scores before and after the interactions.

• Engaging in activities where you align towards a common goal with someone differentthan you, particularly in competitive or survival related activities (including simulatedsurvival games).

• Paying more attention to your physical reactions when encountering others so you cannotice when others trigger SNS or PNS modes in you. Learning what methods return youto the PNS and using those to reduce the SNS impact on higher cognitive abilities whenencountering others.

• Learning attentional control with brain exercises. Brain exercises include some forms ofmindfulness meditation. One preliminary study showed a reduction of implicit biases(measured by the IAT) after a group of students engaged in a mindfulness meditation.

• Acknowledging implicit biases exist and use the most objective formulas and criteria aspossible to make decisions about others. For example, taking identifiers off resumes andusing strictly objective criteria in performance and promotion decisions.

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Sevilla Rhoads

Notice your reaction to the presenter Body temperature Muscles Stomach Jaw Body position Emotions (positive? negative?) Thoughts Assumptions Associations

Implicit bias is a form of unconscious brain processing.

This unconscious process impacts your ability to control your conduct.

If you do not seek awareness of the underlying process, you may not be able to effectively manage your behavior.

Could you effectively litigate a case in federal court without reading and following the Federal Rules of Civil Procedure? If you want to control your biases, you need to follow ‘neural procedure’.

You think you are fair and objective, but are you actingconsistently with this honest belief?

Are you always able to align your conduct with your ideals for yourself?

-diets, procrastination, controlling emotions

IAT – Implicit Association Test Implicit.Harvard.edu Take the free tests “Ultimately, we believe our decisions are consistent with our

conscious beliefs, when in fact, our unconscious is running theshow” Howard Ross, 2008.

This is the frightening point: because [implicit bias is] an automatic and unconscious process, people who engage in this unthinking discrimination are not aware of the fact that they do it” Wilkenson, 2013.

The three-part theory of brain (nervous system)functioning Triune theory not used by contemporary comparative

neuroscientists Current research has significantly refined neuroscientist

Paul MacLean’s original version Used for illustrative, educational, not scientific purposes Nervous system is more interconnected and complex than

triune theory Theory is vehicle to inspire self-awareness of brain’s role

and processes Reference: Daniel Siegel M.D.’s book Mindsight

1. Basic survival habits such as urge tobreathe and regulation of body temperature.

2. Unconscious instincts to connect andprotect (“limbic”).

3. Neocortex (pre-frontal) cognitive abilitiessuch as thinking and consciously engagingin professional activities.

Pre-frontal executive cognitivefunctioning is conscious thought process

We tend to think our conscious thought processes are in charge of our behavior.

HOWEVER, pre-frontal functioning is often ‘secondary’ to dominant, more primitive, unconscious functioning areas, because of insufficient capacity to process volume of nervous system data.

Brain stats: 1.1 trillion cells, of which about 100 billion are

neurons Neurons generally making 5,000 connections

(synapses) with other cells Neurons firing between five to fifty times a second,

depending on input At any given moment, there could be 500 trillion

synapses communicating

Too much data for your relatively small consciousthought processes Humans have developed efficient ways of rapid

organizing and processing data without need forrelatively slow conscious thought processes

11 million bits of information a second, but only 40-50 are processed consciously

In order to survive, we must rapidlyidentify and prepare for danger.

Data is first screened to determine ifit is safe or unsafe. Primitive generalized sorting process Designed to default to ‘unsafe’ category

to preserve species

Sorted by determining if datamatches something in implicitmemory banks. Brain associatesdata with existing data learned fromexperience (with some innatetriggers).

If data associated with ‘unsafe’ then SNS modeactivated. This is the mode where you prepare todefend, flee or freeze. Stress Physical markers Heart rate Muscles Blood flow Internal chemicals Direction of internal resources such as oxygen Away from non-survival functioning such as higher

level cognitive functioning

If ‘safe’ then PNS mode Resources directed to non-emergency survival activities such as higher level cognitive

functioning Most effective mode for thinking clearly as a lawyer Most effective mode for communicating professionally More creative thinking More collaborative mode Eat, rest and digest mode and promotes sustained well-being

Associations with features as possible threat

Unknown feature – default is SNS mode

Unconscious SNS activation with encounter Reaction if detected I should not feel this way Further tensing If not detected, may influence behavior and decisions

Conserve pre-frontal reserves with limiting unnecessary processes to challenge expected behaviors based on associations.

2004 Bertrand and Mullainathan study of ‘White’ or ‘African American’sounding names on resumes. 50% more callbacks for interviews despite resumes of ‘White’ sounding applicants

having less qualifications and experience Eight years of experience equated to ‘White’ sounding names Not clearly based on implicit versus explicit biases, so further tested in 2005

Confirmation bias (implicit directing conscious attention) Beattie 2013

Does implicit bias influence public defenders when theyprioritize cases? Richardson & Golf, 2013

Does implicit bias influence juries? Cynthia Lee, North Carolina Law Review, 2013 Casey Reynolds, Law and Psychology Review, 2013

Sentencing Kimberly Papillon, 2013

Decisions made by judgesDecisions made by juriesDecisions made by lawyersDecisions made by clients

Implicit biases may operate at everylevel

Professionalism

How we treat each other in our profession

How we treat clients and others in the judicialsystem

How we communicate with words, actions andbody language

Studies regarding patient satisfaction withproviders Blair, Steiner et al., 2013

Implicit bias impacting how we talk toclients Hagiwara, et al., 2013 study of race, implicit

bias and provider communications

There are ways to ‘rewire’ the neural associationswhich result in implicit biases

New associations combined with self-awareness canresult in ‘debiasing’

Biases may be learned during development, so canbe unlearned Telzer, et al., 2013 (study regarding development of

implicit bias in children)

Counter-stereotypic exposures Visual input Screensavers Art What media you choose

Empathy opportunities

Self-linking to other groups with jointgoals and activities Particularly when under ‘threat’ – allies

with others

Increased self-awareness Noticing body cues Increasing ability to sense internal states Noticing the reactions of others Seeking and being open to input of others Decrease SNS and choose less fear-inducing

environments and methods

Objective systems to curb implicit assumptions Remove identifiers from hiring, performance, case related materials

Adhere to objective criteria

Build in mandatory check points to question assumptions