A few weeks ago I read some reports from the Yellow Paper Series—reports on studies conducted on racism and bias in the legal field. The report, Written in Black & White, discusses the way implicit bias impacts how supervising attorneys review written assignments by attorneys of color, specifically Black attorneys. Previous studies have shown that supervising attorney are more likely than not to perceive Black lawyers as having subpar writing skills in comparison to their white counterparts. Written in Black & White delved further in the topic by seeking out whether confirmation bias causes supervising attorneys to then evaluate legal writing by Black attorneys in a more negative light.
Implicit bias is a really hot topic right now, but while it may seem trendy, it’s actually really important to dissect and study. Implicit bias is bias we all—ALL—have against or for certain things/people/ideas etc. It’s usually subconscious and usually not purposefully malicious, but it just so happens that the results are less than just.
In the study, the researchers composed a memo with the same exact errors and created an associate attorney with the same name, same credentials. The only difference was that one was cast as White and the other Black. Various partners at firms reviewed the memo and overall, the White associate was evaluated better and received less critical comments.
The study went further to show that Partners were likely to assume that a Black attorney would produce subpar writing quality. Thus, they graded the memo more harshly than the White attorney—finding more errors in the Black attorney and/or overlooking the same errors in the White attorney’s memo. The critiques were also more forgiving for the White attorney, granting that he had a lot of potential, while incredulous that the Black attorney went to such a good school. Remember this was the SAME memo!
So, first, I found this fascinating because it kind of confirms a lot of things that most of us have experienced. It always confused me how is it that I struggled so much in law school, but once I started practicing I seemed to be stellar? I figured it was all me—passing the bar was a boost in my confidence and somehow that’s what made the difference.
Or could the truth be that I’ve always had the potential to be a good writer (obviously better with time/experience), but there were invisible barriers that made things a little more difficult for me. Again, not to say that the instructors were purposefully malicious with me, but it’s likely there was some implicit bias that went along with their grading. And this isn’t me playing a “victim” card. This is me being real about obstacles we face. It’s silly to ignore them and it’s unproductive to act as if they don’t exist. I know that in our heart of hearts, we all just want to be judged on our real skills and potential, on an equal playing field. But the data shows this doesn’t happen.
What are the solutions? Ultimately, this is absolutely the responsibility of those in power to 1) recognize that there is implicit bias and then 2) move to address it! There is no shame in admitting that we’re influenced by our subconscious. The shame only exists when we know it’s a problem and nothing happens. So if you’re white and want to be an ally, then you have a real opportunity to support endeavors that will even the playing field at your school and/or work.
But for the rest of us, foremost, it’s important to realize that it’s not your fault. I remember feeling like a total failure all the time in law school. Just always missing the mark. And I’ll own my mistakes and times were I just didn’t meet the standard, but it has been cathartic to realize, years later, that my experience wasn’t just because I wasn’t capable.
This also re-confirms how important it is for attorneys of color to be doubly prepared. To work twice as hard, as unfair as that is, to be placed in the same equal level as Mediocre Chad, who makes as many mistakes as we do but is given more flexibility.
And having to do more with less is exhausting. Duh. So next time you receive harsh criticism or seem to not be able to meet the mark, don’t do the default of berating yourself instead give yourself some animo, be kind to yourself. Think of ways you’ll do better next time, but don’t fall into the trap that you’ll never be an attorney or be a good one because that’s just not true.