“How do reactions in our brains and unconscious preferences affect our judgment and the application of justice?” asks the flyer for a workshop offered at Allen Matkins. We all know that the subconscious has, well, a mind of its own. Despite our best intentions, it can react to external factors we’re not even aware of and impact our judgments. This can have an effect not just on our relationships with others both socially and in the workplace, but also in the courtroom, where attorneys expect to persuade judges and juries to agree with their side of a dispute.
To help Allen Matkins staff and attorneys better understand the dynamics of the subconscious and unconscious preferences that affect judgment and the application of justice, the firm brought in attorney A. Kimberly Papillon to conduct a workshop called “Neuroscience: Bias and Decision-Making in the Law.” Papillon, a judicial professor for the California Judicial Council’s Administrative Office of the Courts’ Education Division and on the faculty of the National Judicial College, conducts these workshops for judges, appellate justices, and court personnel in California.
In January, Papillon taught workshops in all Allen Matkins offices entitled Neuroscience, Bias and Decision-Making in the law: The Brain and Preference. The workshop begins by doing a visual word association game. Do you associate women with careers, men with family, black with joy, white with failure—or vice versa? This “Implicit Association Test” is a project of Harvard and can be found and taken by anyone on its site. The idea is to identify which responses come easiest when it comes to making associations based on gender, ethnicity, sexual orientation, age, disabilities, and a host of other groups. Anthropologically, she said, we are used to having certain reactions to people who are unknown to us. Do we have automatic associations and what does that mean in the courtroom? More important, how can they be turned around?
Rules in our brains
Papillon took the workshop groups through other exercises, some reinforcing those same issues of bias or stereotypes, others to demonstrate to the attorneys how different areas of the brain function. The dorsal lateral prefrontal cortex (DLPC), for example, sets rules. So, when there’s a conflict between a situation and the rule, the more we try to change our responses, the more tightly the DLPC holds to the rules, creating internal conflict. And while that’s all very interesting, Papillon explained that this has implications in court and legal proceedings. Attorneys who understand this will know that those who subconsciously have a bias about something can’t simply be persuaded to change their mind. They have to find the tipping point that will enable the DLPC eventually to change the rule.
One of the attorneys acknowledged that she could relate to this situation in a case she’s been on in which, “I’m trying to please 30 people in court, each with their own rules—particularly jurors.”
The best example of this is the movie 12 Angry Men, Papillon pointed out. The only way to persuade jurors of a point of view wasn’t to break the associations, but to seek out more information that helped dismantle the associations.
Changing the rules
To help them as individuals with their own biases in this dismantling process, Papillon suggested the attorneys use continuous “noise” in the form of a screensaver—for example, a woman in a hardhat holding a baby with a bottle.
“It helps open up cognitive doors to make new associations,” she explained. “The process of trying is what activates the basal ganglia.” And behavior switching takes place in this group of nuclei.
Those who want to work at breaking down their unconscious biases have to do the work, Papillon insisted. It’s not about guilt, but it is a process of self-auditing, which can be frustrating and overwhelming. Along with the screensavers, she suggested the attorneys take the Implicit Association Test regularly to help with processing information and changing courtroom interactions.
And, as Guy Rounsaville, Jr., Director of Diversity, pointed out after the workshop, working on changing subconscious responses can also help inside the firm with staff retention and outside in bringing in new clients. “This is going to help us be more effective as individuals and as a firm,” he said. “The best asset a law firm has is its people.”