Bias: What would you do?

I recently attended a fantastic gathering of advocacy coaches, directors, and advisers, American’s Second Annual Coaches Clinic. What a joy it was to spend time with a group of individuals dedicated to training students to be excellent advocates.  And so, refreshed, I return to begin preparing my students to compete in moot court. And I bring insights about the psychology of judging.  And while the focus was on competition judges, the psychology applies in daily practice.  For instance, we discussed implicit and in some cases, explicit, biases that some competition judges may have regarding race or gender.  These same judges practice law in our communities and serve as judges in our courts. 

I want to ask how we can combat those biases, but I don’t think that is the answer.  Confrontation will not necessarily change the way a person thinks or feels, and as advocates, we are merely a representation of our client, so we have to consider the ramifications of taking a stance.  But in certain circumstances standing up against indignities is absolutely required.

Unfortunately, we are raised in a civilized society.  We don’t expect anyone to be blatantly biased, and we are shocked when it happens. If we haven’t thought about it beforehand, and planned what our reaction would be, we become paralyzed by that shock.  As a coach, I have begun to consider the worst case scenario, and am trying to plan how and when I would step in.  I talk to my students about bias and we discuss the how and when.

Where do you draw the line?  Have you considered what you would do if a judge, competition or real, were to say something that exhibits explicit  bias towards you, your client, or your team?  Have you considered what you would do if a judge were to exhibit such bias to your opposing counsel or team, or to another person in the room?