Last Friday evening, MyCase hosted a Law Day event in the Big Apple. This year, the theme for Law Day was “Miranda: More Than Words,” so we thought it would be fitting to invite ABA president Paulette Brown to speak and mark the occasion.
The event was held in the NASDAQ MarketSite overlooking Times Square and was attended by nearly 100 lawyers and legal professionals. It was a wonderful evening, full of good food, thought provoking conversation, and great company. Make sure to take a look at all the photos from the Happy Hour here at our Facebook page.
The highlight of the event was Ms. Brown’s inspiring speech on implicit bias. She explained how our justice system is affected by the implicit bias of those participating in it, including prosecutors, defense attorneys, and even judges. Next, Ms. Brown offered examples of implicit bias, and shared the details of an incident that occurred during her travels to New York City. Finally, she urged everyone in attendance to do their part to address implicit bias by taking this test in order to have a better understanding of their own implicit biases.
You can view (or read) her entire speech below and learn even more about implicit bias and what you can do to help reduce its effects on our justice system and society as a whole:
Thanks so much to Ms. Brown and everyone that attended for helping to make this such a memorable and enjoyable event!
Paulette Brown: Thank you again Niki. It’s really great to be here this evening. And it’s really rather serendipitous that I would be speaking to you as we celebrate Law Day and Miranda.
I don’t know, you’ve seen the slides that we’re running about Miranda, which I found very interesting and how the Miranda and the fact that it’s more than mere words and what it’s evolved to and the interconnectedness to implicit bias.
So, you know, recently we held ABA Law Day in Washington D.C. and a lot of other places really and we recognized the genius, but the fragile nature of Miranda and how it’s reverberated throughout our system for so many decades. And looking at — if you have a chance to look at the various cases that were running through the slides — you can see how Miranda has evolved overtime and how Miranda sometimes has a different meaning than we first knew that it would.
Miranda was really not the end of protecting procedural rights, and many of the cases have actually restricted Miranda and called out exceptions to the warnings. But in some cases, the right to remain silent is really not a right to remain silent because, sometimes now, under Miranda if you remain silent, certain inferences can be drawn as a result of your remaining silent.
So, I think, how many are lawyers [in the room]? Oh good, so good, I can really tell you what the responsibilities are.
As lawyers I think that we have to do all that we can to ensure that the procedural rights that were put in place by Miranda are kept in tact as much as they can be and that we challenge any erosion of Miranda. So, you know, our vigilance with regard to Miranda extends to our being conscientious in today’s fight against prejudice and bigotry and encountering implicit bias. And although it’s a less overt form of prejudice than what burdened the system prior to Miranda, implicit bias is no less corrosive to the pursuit of justice, fairness in our profession and ultimately the integrity of the legal system.
And the thing of the matter is that lawyers really play an important and integral role in confronting implicit bias. The fact is really is that skin color, gender, age, sexual orientation, various forms of ability and religion still have a huge effect on how people are treated. It’s interesting because when people are surveyed about 85 percent of Americans consider themselves to be without prejudice. But researchers have concluded that a majority of people in the United States have some form of implicit racial bias. And when you have that many people who have that kind of implicit bias, it’s not restricted to any one race.
So that if anyone has ever taken the implicit association test, no matter what color you are, whites, blacks, all sorts of people will still have an implicit racial bias. So, you know, and it’s really true, I don’t know if anybody has ever heard of the test taken in black and white? It was a study done by Erin Reeves, where partners were given two memorandums; one — the exact same memo — they said one was written by a white third year associate.
The other one was written by a black third year associate, and the comments that came back, was the exact same, when they thought it was a white associate he had great promise and that he scored 4 point something out of 5 and the one they thought was a black associate only scored 3 point something out of five and even went so far as to say they didn’t know whether he would make it and they don’t even know how he got into NYU.
So, it was only because they had these implicit biases so people form or establish assumptions about certain people and it’s interesting because on the way over here this evening I witnessed implicit bias. There was a gentlemen on the train who couldn’t find his ticket and immediately he was confronted by the woman who was collecting tickets, saying ‘If you don’t have a ticket, you have to pay’. So, he said ‘I’m just looking for my ticket’ and then another conductor came and said ‘You have to get off of the train.’
They didn’t even give him a chance to pay. He said, ‘I’m gonna’- she said- He said ‘Well, I’ll pay’. And she said, ‘it’s gonna cost you an extra $5”. He said, ‘I’ll still pay’. So, then they told him ‘We’re getting to the next stop, Westfield. There’s a ticket thing right there. Get off and buy a ticket.’
He said ‘If I get off and buy a ticket, you’re gonna leave me.’ She said, ‘No, we’re not gonna leave you.” The other guy said,’Yes, we will leave you.’ But the point is that the conductor told him ‘No you don’t have the money to pay for your ticket. You were hiding in the bathroom before.’ And then he told him, ‘You didn’t need to be in the bathroom that long.’
But the point is that the gentlemen made, he was African American, he had on a cap and a sweatshirt, the point he made is that when people generally say they can’t find their ticket, the conductor will collect the other people’s tickets and then come back to them. And I thought about that and I said that is absolutely correct. They usually go, and then he said ‘And for them to think I didn’t have money to buy a ticket-” He said, “I have money.” And so these people made assumptions about him, I would venture to say, because he was a black man with a baseball cap on and a sweatshirt, that they assumed he didn’t have a ticket and he didn’t have money to buy a ticket and actually, he had both.
And so you know, that is the thing that we have to protect ourselves, he has no idea that I’m using him as an example today, but, you know, when I watched this unfold I said this is implicit bias in action right before my eyes and so, for those who are working in the justice system from police, to prosecutors, to judges and public defendants, and just everybody in general, the consequences of implicit bias is really broad and it has far-reaching and sometimes fatal consequences.
And so we know that there’s plenty of data to demonstrate that many people of many different races and backgrounds who commit the same offense are charged differently. I would submit that prosecutors have a lot more power than most anybody else in the justice system, and so, and some get this sense, but who was I talking to earlier? Wasn’t it you? Yeah, former public defender Niki who talked about how judges could not believe that when a pretty young woman came before them, that they couldn’t possibly have committed the crime and so they get more leniency because people have assumptions about people and the way they look and what they’re capable of doing.
And so it’s no wonder why more than half of young people believe that our justice system is not fair. And 66 percent of African Americans feel that our justice system is not fair, and 53 percent of Hispanics. And so, with that notion, with that many people believing the justice system is not fair in my opinion that threatens the rule of law because if people don’t believe the justice system is fair, then why are they inclined to abide by the rules and so when you don’t abide by the rules because you don’t think that they’re gonna be fair application to you anyways, why would you do it?
And so when people don’t abide by the rules there is utter chaos and the rule of law is completely damaged. And so we know that as lawyers we have a duty and an obligation uphold the rule of law. And so when we think about implicit biases really not limited to our justice system like I told you today, we see it in our offices, in our practices, women and lawyers of color struggle to advance.
Women constitute more than a third of the profession but only a fifth of law firm partners and general counsels of Fortune 500 companies. And people of color make up less than 7 percent of partners and African American women, it’s less than 2 percent, I think it’s 1.8 percent of partners. And women of color in general, only 2.5 percent.
And so, generally when you look at the spectrum of all statistics, women of color are always at the very bottom. So as lawyers we must not only be up to the challenge of confronting implicit bias, we must lead the effort. But the only way we can do that is to understand and acknowledge that no one is exempt from having implicit bias. I have them, I know what mine are, I’ve taken several different implicit association tests; don’t ask me what they are because I’m not telling.
But I recognize what they are and I have acknowledged so that I will not allow those biases to affect my decision making, so that a person of a particular — and I will tell you that I — it’s not just limited to race and ethnicity, you know it has to do with age, it has to do with weight, it has to do with religion, it has to do with a lot of different things.
So, you know, and even with seeing females in the role of a career and so we have to really look at that and ask ourselves the tough questions about — and determine what our biases are and how they can impact others.
And you know as I just said, and I don’t feel any shame and nor should you because there is no shame in admitting we have biases. It’s helpful to really identify what they are and then to acknowledge them. When you discuss bias and in particularly as it relates to race it is a very difficult thing to do. It’s difficult generally in the United States to talk about anything related to race.
But if we don’t move towards things that make us uncomfortable and towards things that we’re not really satisfied with if we don’t move in that direction, we can never push through it and do better as a society and as a whole and make everyone feel comfortable in our justice system.
So you know, I mentioned the implicit association test. How many of you have taken any of the tests? Okay, not many. So I will tell you is that implicit.harvard.edu and don’t be upset when you get the results.
We have done in the ABA a video on implicit bias where we have three judges that acknowledge and admit to their implicit bias one judge on the test said that he took the test and even though he grew up with African Americans, it showed he was biased against African Americans and he said he couldn’t believe it so he thought the test was wrong. So you know, that was his first assumption. It didn’t give him the results he wanted and he said ‘I’m a judge, I’m always right.’
And um, you know, lawyers pretty much the same. We think than we’re always right too, so but he said that you know, he did further research and he took the test over again and basically he got the same result. That he did have some biases. So, since my notes fell [ notes fall off podium], I guess I’m on my own now to do the rest.
As we practice sometimes and we look at things, sometimes it requires us to change course in the way that we do things, in the way that we look at things and we have to be very mindful. And it doesn’t happen sort of magically that things will be better. Sometimes we have to be extremely intentional about it. And we have to again examine ourselves to make sure that we not necessarily are free of bias but that we understand them.
When we see other people engage in activities that we will speak out to the extent that we can. It looks like everybody in the audience is maybe mature enough to speak out because sometimes you can’t, you’re too young in your career or whatever, you can’t just say, ‘Oh no no no no can’t say that to the boss. Did you see what you just did to the one person?’
You can’t do that, but if you are established in any way, there’s always a way you can bring it to someone’s attention. You don’t have to call them out publicly. You can pull them aside and you can say it in a really nice way: “Did you understand what you just did? Do you understand what you just said?” So that they won’t feel threatened about it but they can have a better understanding of what it is they are doing.
So you know, in our nation of laws we cannot move forward as a diverse and multicultural society when the majority of the nation’s young people think that our justice system is not fair.
As lawyers, we have to do better, we must do better. And because we have to ensure, we have to ensure that our legal profession lives up to it’s reputation. That we are the greatest profession in this nation. We are also the least diverse profession in this nation.
88 percent of all lawyers are white. We are less diverse than accountants, than engineers, than architects, than surgeons. That should not be the case and so we have to do all that we can to make sure that our profession is more diverse and inclusive and by doing that then we can set an example for the rest of the nation to follow and combat implicit bias in all of the things that hold us back from being a great nation and a great profession.
Each one of us can do it individually and collectively with whatever group to which we belong, we can make a great impact. You know, we may not think sometimes that we can do anything as just a single person. I can assure you that each one of us can make a difference and you know, when we look at populations we have to really look upstream and reach out really really young people in the kindergarten to twelfth grade level because if they can’t get through high school they can never get to college, then they can never get to law school, and I will tell you that it really makes a difference.
One of the things that I’ve had an opportunity to do is to visit Boys & Girls Clubs wherever I go. So I’ve been to about 30 of them so far and I will tell you that the impact that it had with them having the opportunity to meet not just me but a variety of lawyers of all diverse backgrounds, of all diverse practice areas had made a difference in their lives because they, like me, had never met a lawyer — I didn’t meet a lawyer until I was in college and so they are so excited to know a lawyer.
And for those that are older, after college I’ve heard so many of them say, I had no interest of being a lawyer before but after visiting at the ABA at your annual mid-year meeting, I had a chance to talk to so many different types of people. I think I’m at least going to minor in something that will allow me to go to law school. And so that is just one person doing something. Imagine if everyone in this room would reach out and touch someone, the change would be dramatic.
And so, I am asking all of you to think about what implicit bias you may have, how it may be affecting your decision making, not to be ashamed if you realize you have one, and think about the unconscious messages that are being given to us on a daily basis.
You know, we’ve seen so many of them from time to time, but they’re still, these subliminal messages are still being given to us, telling us what’s good and what’s bad, and my new favorite one is a pharmaceutical commercial where the lady can’t sleep and she talks about how this thing that gets her to sleep is a little squiggly thing that says sleep and then there’s another little squiggly thing where she can’t sleep.
The little squiggly thing that makes her sleep is white and the little squiggly thing that keeps her awake is black. So, we are still getting messages that white is good and black is bad and we have to be on guard for it, I mean think about that visual.
And so we have to be on guard and if I wasn’t President of the ABA because I can’t get involved and send the letters, but I’m gonna send them a letter when my term is over and ask them whether they realize — because I’m sure they don’t realize what it is that they’re doing, but we have to be careful about the subliminal message that we send and subliminal message that we receive and know and appreciate these message are being given all the time and so I could really probably stay here and talk a longer time about implicit bias because it’s something that I’ve studied and I acknowledge my own, but you know I just want to leave you with the fact that, we are the guardians of rule of law.
Without lawyers almost nothing in the world can happen, so we have a great responsibility to ensure that the justice system is fair and that we are all doing our part to ensure that that’s the case. So I thank you very much for your kind attention.