Don’t be alarmed, Gentle Reader. The only substance addiction I have is for sugar, and except for certain cream filled chocolate eggs, I do okay. Mostly. I did an hour in rehab alright, but it was for mental evils.
Lawyers are required to continue our education long after law school and show our work. This is one way that the profession tries to ensure at least minimal competency in practitioners. Early in my career, I looked forward to continuing legal education seminars, and not just for the time out of the office. I took more notes than I had in law school and was terrified to realize how little I actually knew about practicing law. Or anything else, for that matter.
As I gain experience year over year, the seminars tend to give me less new knowledge. The fear at how little I know is still present, but much more manageable. I am fortunate to be in one of the few professions where things get easier over time. Part of this comes from experience and the rest is from building relationships that make the adversarial system less, well, adversarial.
This year, my state’s bar added a new requirement to our yearly CLE regimen on “explicit or implicit bias, diversity, inclusion, and cultural competency.” I have groused about this new requirement to anyone who wanted to listen and others who didn’t but couldn’t escape. Like our educational requirement for professional ethics, the training is either too much for those who don’t need it or not enough for those who do. I fancy myself in the first group, just like everyone else.
To be sure, achieving more diversity in the profession is much needed. Women and minority lawyers make up over half of practicing lawyers but represent a much smaller percentage of managing law firm partners and judges. Those selecting both would deny any bias, but the numbers tell a different story.
The U.S. Supreme Court currently has more women justices than ever in our history, a whopping three. When asked how many women on our highest court would be enough, the (notorious) RBG famously said, “When there are nine.” We are unlikely to see that in my lifetime, let alone hers. White male judges remain the overwhelming majority as far as the eye can see.
At least technology has made satisfying my educational requirement less inconvenient. I attended the anti-bias seminar via teleconference, while watching the presenter’s slideshow on my computer. The course still took an hour away from my practice, but I didn’t have to look for a parking spot.
Web/tele seminars have their challenges. Making sure my phone muted was the first order of business. Other distractions were avoided by putting my phone on “do not disturb” and locking my office door. I was tempted to shop online but cheating during an ethics seminar is just plain wrong.
Fortunately, the two lawyers presenting the seminar were good speakers and made the course interesting. Parts of the seminar were truncated as they readily admitted that there was a lot of material to cover and time was short. A CLE hour only lasts for fifty minutes while biases take a lifetime to develop.
The biggest problem with implicit biases is that we can’t always recognize them. Every trial lawyer who has picked a jury knows this. It is rare for a venireperson to admit to a bias. Most would pass a polygraph denying any prejudice, depending on how the question was asked.
Trial lawyers must rely on our implicit biases because we have limited time to select a jury-one of the most important processes in a trial. No judge would allow the kind of invasive inquiries required to truly “know” the venire panel, and none of the potential jurors are hooked up to lie detectors. Attorneys are forced to deselect jurors based on generalizations and demographics. We use peremptory strikes because our gut instinct tells us when someone should not decide our client’s fate. Instincts are nothing more than biases in fancy clothing.
As a young lawyer, I tried a case against the St. Louis Cardinals. One of the potential jurors was wearing a bright red Cardinals jersey. His bias was obvious and he readily admitted it. The judge excused him for cause and my opponent didn’t even try to rehabilitate him.
It is hard to imagine a sports team that is more loved than the Cardinals are in St. Louis, yet my client won his case. The jurors must have overcome some level of bias because there is no chance we got twelve non-baseball fans to deliberate in the summertime. All biases are not created equal.
Was I rehabilitated during my hour long CLE? Unfortunately, I admit that I was not. I am unabashedly still put off by folks wearing a certain red hat. They may call it crimson and cream, but the wearers root for the University of Oklahoma Sooners and I cannot abide their ilk. Unless there is free bar-b-cue involved, I steadfastly refuse to even sit with such people. At the risk of getting called on the carpet by the state Bar, I proudly proclaim that bias. I’ll keep working on the others.
©2020 under analysis llc. under analysis is a nationally syndicated column. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St Louis, Missouri. He would probably eat free BBQ with the Devil himself, to be honest. Comments or criticisms about this column may be sent to Under Analysis via email at farris@farrislaw.net.