Implicit Bias: How Bias Costs Law Firms Millions

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You are listening to the National University Podcast.

Kimberly King (00:08.59)

Hello, I’m Kimberly King. Welcome to the National University Podcast, where we offer an holistic approach to student support, well-being, and success, the whole human education. We put passion into practice by offering accessible, achievable higher education to lifelong learners.

On today’s episode, we’re talking about implied bias. And joining us is Dr. Robert Diotalevi, who has served as an associate professor and founding program coordinator of legal studies at Florida Gulf Coast University for the past 25 years. He has been a lawyer for 40 years and a member of the Massachusetts and Florida bars, and he holds four degrees and has been internationally published. In 2009, he co-authored the book The Florida Paralegal with attorney William Statsky, published by Cengage Learning.

Over the past five years, Dr. Diotalevi has developed 10 courses for JFK School of Law and taught at National University, earning the 2024 Excellence in Scholarship Adjunct Award. A former professional broadcaster for eight years with managerial roles in radio news and production, his works appear in outlets like the SMU School of Law’s Computer, Law Review, and Technology Journal.

The Paralegal Educator, the Journal of Paralegal Education and Practice, and the Online Journal of Distance Learning Administration. He also edits several peer reviewed journals and presents at national and regional law conferences and organizations. And we welcome him to the podcast. Dr. Bob, thanks for coming back. How are you doing?

Dr. Robert Diotalevi (01:46.838)

Very good, Kim. Nice to see you again and it’s nice to be back.

Kimberly King (01:49.87)

Aw, great. We talked before, but I wanted you to fill in our audience a little bit again on your mission and your work before we get started on today’s show topic.

Dr. Robert Diotalevi (01:59.694)

Sure. Well, I practice law in Massachusetts for a few years, but for the past thirty-five years I’ve been in full time academia, and that’s my mission. That’s my calling, that’s what I’m gonna keep doing, probably even after I officially retire, I keep my hand in it. You mentioned I’ve been here at National and yes, several years. It’s been a great experience so far, and I look forward to many, many more years.

Kimberly King (02:23.682)

Well, I will also say to you, of course, listening to you and seeing you, there is life after broadcast, isn’t there? And it looks like you’re doing I love how you are living your life now and giving back through education and all of the writings you have done. And so congratulations. You have a wonderful background. Today we’re talking about implied bias and so regarding implied bias, what is, what is perception and why is it important?

Dr. Robert Diotalevi (02:51.074)

Yeah, before we get into the textbook definition of implied bias, what it is and why it is important, let me give you the textbook definition of perception. This, according to psychologists, is the process, Kim, or result of becoming aware of objects, relationships, events by means of your senses. It includes activities as recognizing, observing, and discriminating.

This is the act or a faculty of perceiving or apprehending by means of the senses. We call it cognition; we term it understanding; appreciation. Those are just some of the terms that we use. And what makes up perception? It’s defined as the sensory experience of the world. You know, it’s kind of that’s I know it’s an esoteric-type definition, but it includes how we as individuals, we as people, recognize and interpret information.

And this includes how one responds to stimuli. And of course, it includes vision, touch, sound, smell, taste. And there’s something called proprioception. That’s a big fancy word in psychology, but proprioception is the sense that lets us perceive the location, movement, and actions of our bodies. And we kind of do it really without even thinking about it.

Now there are three main influences of perception. There are many factors, as I mentioned, that really are involved. But the three major ones are our motivational state, our emotional state, and our experiences. And for example, let’s take a quick short example. Let’s say that we’re doing a project. We have a deadline, something like that. Well, we’re motivated in a certain way. Maybe we’re stressed about it. Maybe we’re under the gun. So that is going to affect how we perceive things, our perception, our emotional state.

What kind of day are we having? The dog died, the cat ran away, we’re having just a terrible day, we got a flat tire on the way to work. That’s going to affect how we treat others and how we are feeling today. And of course, the last one, experience. How have we handled these things in the past? What are our experiences in dealing with such matters? Why is perception important? It not only creates our experience of the world around us, it allows us to act within our environment.

Dr. Robert Diotalevi (05:09.538)

So it’s important in understanding human behavior because every person, Kim, perceives the world and approaches things differently.

Kimberly King (05:17.947)

I love how you’re talking about that and it almost sounds like the emotional quotient that people sometimes lack or sometimes people are aware and when we say read the room, making sure that we give people grace because everybody’s coming from a different place. So I love I love that definition. What is what is discrimination and is discrimination all bad?

Dr. Robert Diotalevi (05:40.408)

Yeah, a lot of people give a bad rap to that word, discrimination, because when we think of or hear the word, we think automatically bad. You know, age, sex, race, other types of discrimination, discriminatory practices against people. Well, discrimination refers to practice, but it refers also to any act, policy, or social structure that creates, maintains, or reinforces an advantage for some group, and their members over other groups and members.

And that’s why we point to, as I mentioned, you kind of even hinted to it, Kim, you know, the bad part of it, the way this word is taken, there’s negative connotation to it, age, sex, race, as I was saying.

Not all discrimination is bad. You’ve heard the expression, she has a discriminating taste. Well, that means that she is aware of her surroundings, she’s aware of different tastes that she might have and how things taste. And she has good taste. Maybe it has to do with food. Maybe it has to do with clothing or maybe choosing a home or whatever the case may be. So sometimes the word’s good, sometimes it’s bad. Unfortunately, when we’re talking about implied bias, it’s usually bad.

Kimberly King (06:56.236)

But thank you for also, you know, making sure there’s a disclaimer in there because it is true. I’ve heard that a lot when people say you have discriminating taste. And so yeah, that’s I like that too. What is implied or implicit bias?

Dr. Robert Diotalevi (07:12.47)

Okay, well, implicit bias is, let me just kind of start by defining the word bias in itself, and then we go up what implicit is. bias is basically prejudice. So you’re biased for someone, against somebody. It’s either for or against a thing, a person, a group, compared with other things and persons and groups. And again, usually it’s in a way that is considered unfair.

Now we can be biased toward our family, and obviously we love our family, our pets, or whatever, but normally in the connotation of implicit or implied bias, it’s a negative. Now, the term implicit bias, Kim, by the way, is believed to have been coined by a University of Washington professor. His name was Tony Greenwald, as well as a Yale University professor, Mazarin Banaji. This was in a 1995 paper in which they entitled Implicit Social Cognition: Attitudes, self-esteem, and stereotypes.

So they were the ones really that first gave this to us, but it’s existed for decades, it’s existed for centuries, but they put the label on it. Now we know what bias is, so what does implicit mean? Implicit versus explicit. Implicit means in a way that’s not directly expressed. So when you say something in an expressed way, you’re saying it right out. For example, I say to you, I love your dress, or you say to me, I love your glasses. Well, you’re expressing yourself. I’m expressing myself just right out in the open, and there’s no bones about it.

Implicitly is more of a suggested type response, where your sister might suggest that you’re the one who ate the last cookie by glaring at you and glaring at the empty plate when mom comes in. She’s not saying expressly that you did it, but by connotation, by an implicit way. Okay? So for a feeling to be explicit, you have to be able to consciously express it. So you may have expressed feelings about, again, your favorite food, color, why you hate hiking, maybe you don’t like mosquitoes or whatever, and you tell us that. Okay? But again, implicitly, research indicates that we do things sometimes, whether we mean it or not.

Dr. Robert Diotalevi (09:32.066)

And sometimes we don’t even mean the things that we say and we don’t even know we’re saying them or mean the things we do. We don’t even mean that. But toward the end of our talk today, I’m gonna give you a website, Kim, where you can take an implicit bias test and see if you are biased or not.

Kimberly King (09:48.832)

Interesting. I think that’ll be it’ll you know, when I was when I was growing up in in English, I think one of my English teachers always said the difference between explicit and implicit, much like you did, but she always said think about explicit with an explanation mark, like you were saying it out loud and screaming it, you know, not- but anyway, that test coming up will be very interesting as well. Let’s talk about bias. Is it an ethical issue?

Dr. Robert Diotalevi (10:19.18)

Well, it is, because basically it does affect our ethical decisions. There are many characteristics that trigger bias. And then in an implicit sort of way, we don’t, as I mentioned, even realize that we’re doing it. We don’t even realize maybe we’re talking a certain way, acting a certain way, discriminating in a bad way against people or against things or against groups. And there are characteristics that trigger bias. And sometimes again, we don’t even know we’re doing it.

And these include a few of these I mentioned: race, sex, age, ethnicity, language, the way somebody speaks, culture, where they come from, and the different cultural differences that we have with them, socioeconomic factors, maybe they come from the different side of the tracks that you do. Religion, skin color is absolutely a big one on this one. Weight. Sometimes we’ll look at somebody and not take them as seriously because they’re thin, because they’re overweight or whatever. Sexuality and gender identification, national origin, where they’re from, any disability that they might have. And I have a story regarding that in just a moment. Political views and today’s country and today’s what’s going on that we see in our nation between liberal and conservative and independent, boy, this one is a big one, you know?

Professions. Maybe we look at certain professions. I know we lawyers sometimes we get a bad rap in our profession. I heard it was so cold in Florida last night that they found an attorney with his hands in his own pockets [laughter]. Now that is cold, in more ways than one. Other characteristics that trigger bias, marital status, physical attractiveness, or maybe lack thereof. Height, believe it or not. We look at folks sometimes that are shorter than us and we have a negative opinion. Or class. And those are some I’m not I’m not saying anything against you, Kim.

Kimberly King (12:18.094)

I heard you say short and I’m like, he’s talking about me.

Dr. Robert Diotalevi (12:20.974)

I hit a nerve with Kim there. Okay, I’m sorry. I’m not gonna sing Randy’s short people song or anything.

Kimberly King (12:27.374)

Thank you. Would that even be allowed today? No.

Dr. Robert Diotalevi (12:30.242)

But I had a friend, just a real quick story, and his name was John, and he had a withered arm. And when I was a disc jockey and a news director in Massachusetts when I did radio stuff, production and the like, he had a job and he spun records back in the old days when we spun the 45s and sometimes 33 and a thirds. He went for an interview one time, he told me, and the station manager said to him, Come on now, you can’t be serious. And he said, What are you talking about?

Well, you can’t spin records, right? You’re not able to put them on the record machine and put the arm on and keep up. And my friend John said, Thank you very much, sir. Have a nice day. And he left. And back then, way back in the day when I was in radio back in the seventies and eighties, we didn’t really follow up on lawsuits and things like that. And I wasn’t an attorney yet, but I would have told him to sue. That was discrimination based upon his disability. So it happens, you know happened back then, it happens every day.

Kimberly King (13:30.36)

Wow, that’s in that’s an incredible story. And you know, it and it’s true. I think the world that we’re living in, there are a lot of terms that you know, really we have to think about before we say them. But they’re old fashioned, but we do need to check ourselves and make sure that we’re not going to offend. I think one term kind of talking about the story you just said is an all hands meeting. I don’t think you can say that anymore because maybe not everybody has

hands. So I don’t know. Like I’m sure this might be in that bias test. Interesting. Wow. let’s talk a little bit about law now. So what is what is the economic impact of implied bias in law?

Dr. Robert Diotalevi (14:17.164)

Well, there are a lot because basically there’s a definition here, this was from a June 2015 source I have. It was an article entitled Legal Ethics and Confirmation Bias. And it states, quote, a phenomenon wherein decision makers have been shown to actively seek and assign more weight to evidence that confirms their hypothesis and ignore or underweigh evidence that could disconform their hypothesis.

Judges do this and they don’t realize they’re doing it. Sometimes we lawyers will take a client or won’t take a client based upon this. You know, it’s like the old joke, the police officer, if you’re a very cute, sexy blonde rolling up in a sporty car, you’re gonna get a warning maybe, as opposed to somebody that looks like me, I’m gonna get the ticket. That’s a type of bias.

And it says further, Kim, what this means for the average person is a tendency to seek out information or to view things in a way that conforms what you already believe. Although this isn’t generally good, it can be disastrous for attorneys. And look at some of the things you just asked me about. Here are five risks that I’ve listed to myself here that creates law firm and in-house counsel problems if you have bias.

Number one, unconscious bias. And that’s what this is. It’s implicit, it’s not explicit. It leads to bad decisions. Maybe to take a client, not to represent a client as well as we could. a judge, again, making the wrong decision or assuming the wrong things about evidence. It could lead to violations of our ethical duties. And here’s where you had asked a while back: how does this involve legal ethics? Because we have ethics as attorneys for competence, communication, diligence, zealous representation, this can lead to supervisory and partner vicarious liability. We are responsible for our employees, we’re responsible for our partners and each other.

So if somebody does something, and now, like I mentioned with my friend at the radio station, this is going to get all of us in the lawsuit. That could lead to bar complaints, the third one. And that’s going to lead possibly to suspensions, revocation of our licenses, malpractice suits, number four.

Now we’re talking more on the civil end, where again, as like my friend could have done, we might get sued civilly for some type of malpractice or negligence or maybe intentional action. We lose the case and it’s our fault- the clients are going to sue us for malpractice. And finally, and a big one to me loss of clients and bad feelings in the office. If we’re discriminating against our clients, against our employees, against our partners in crime, no pun intended, then you know it it’s going to look bad toward us, it’s gonna cause morale to go down. So these are just some of the things that really we have to be on guard regarding the law firm.

Kimberly King (17:13.632)

And thank you. I did kind of jump ahead a little bit. So I we went back and talked about how this bias could occur in law and then some of those examples of implied bias in law. So thank you for doing that, for answering those. How are bar organizations trying to combat implied bias in law?

Dr. Robert Diotalevi (17:30.604)

Well, there are some American Bar Association model rules, believe it or not, that they don’t necessarily, Kim, address implied bias, but in a way they help. So here is one from August 2016. The American Bar Association adopted the following rule: it is a professional misconduct for a lawyer, and I’m quoting directly here, to in subsection G, engage in conduct that the lawyer knows or reasonably should know, that is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender orientation, marital status or socioeconomic status in conduct with the relationship to practicing law.

And ABA model rule eight point four, comment three, also says, quote, a lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based on, and they list them again, race, sex, religion, and so forth, violates the model rules.

Some states, Kim, have even gone so far as to adopt anti-discrimination and anti-harassment rules. Right now, 25 jurisdictions have adopted some form of anti-discrimination or anti-harassment in black letter rules. Thirteen jurisdictions of these 25 have adopted language from the model rules that I just told you about. A number of states also have imposed a CLE – continuing legal education requirement- in the areas of diversity, inclusion, and elimination of bias.

So now, as you go up to renew your license every few years, in Florida here, it’s three years, now have to take a course on this and prove to the bar that you’re competent in this. The Committee on CLE, again, continuing legal education of the New York State Bar Association says, quote,

“The bar considers increasing diversity and inclusion and elimination of bias in the profession and in the practice of law to be essential to respond effectively to the needs of our changing society.” So the bar associations are taking this seriously.

Kimberly King (19:43.81)

Wow, that’s really interesting. And then is this all like within the past couple of years or is this this is just information that has just come out about how-

Dr. Robert Diotalevi (19:52.056)

Well the ABA ,it’s in within the past about ten years, but the local bar associations, yes, within the past few years.

Kimberly King (19:59.576)

Wow. You mentioned just a little bit ago, Dr. Bob, that we can be tested to see if we’re biased in any way. Can you talk a little bit more about that?

Dr. Robert Diotalevi (20:08.344)

Sure, there is a test that Harvard came up with, and it’s called the implicit association test. Now, if you’d like to Google that, just put in Harvard, implicit association. But if you go to HTTPS, colon double backslash, the standard web address, implicit.harvard.edu. So it is https colon double backslash implicit dot harvard.edu, and you’ll see a link there and you can take this test, Kim, to see whether or not you do have some of these biases that we’ve been talking about today.

Kimberly King (20:45.024)

Interesting. Yeah, but it’s true. I mean we all need to check ourselves, I think. So that’s that’s good. Okay, thank you for sending that information out. Do you have any other suggestions for combating implicit and implied bias?

Dr. Robert Diotalevi (20:59.756)

Yeah, I came up with what I call a game plan. And I think if there are some points here, if I could just go over them real quick. Try to understand, Kim, first, we should, where our own implicit biases lie. We really have to do a self-examination type thing. We have to do a self-testing, not only that implicit test that Harvard has, but until a bias is identified, it’s impossible to unlearn it and reprogram yourself.

Secondly, develop cultural competence. One way to expand your horizons is to have open conversations with those from diverse backgrounds. And I think that’s what we’re doing right now. You know, we have folks in California, I’m in Florida, we have African-American folks, we have Caucasian folks, Asian folks, maybe watching online certain videos and the like, learning more about this, and of course, listening to our broadcast today.

That’s good. And I applaud you because that’s what you’re doing. You’re learning some new things, I hope, today, maybe revisiting some old things. And now you can unlearn things that you really shouldn’t have learned in the beginning. Maybe it was your parents, maybe it was your culture, whatever, you know. Third, commit to learning something new every day. I remember from Mr. Rogers, Mr. McFeely, the mailman. Yeah. And he was named, by the way, after Fred Rogers, because his middle name was McFeely.

That was his mother’s maiden name. Man, Mr. McFeely. Yeah. And Mr. McFeely said, Learn something old every day. So, you know, there’s not much new under the sun, but sometimes can we have to unlearn some old things every day?

Number four, build an exclusive law firm or business or whatever you’re doing, education, wherever it might be, at your university, by adopting diversity and inclusion as core principles. Don’t just sweep them under the rug. You know, we put up those nice little nifty signs about the ADA and sex discrimination and all usually in our copy room, in in our printer rooms, and we don’t read them. We put them sometimes in our courses as academicians, and we don’t even go back and read them. You know, read them.

Okay, offer implicit bias workshops. And I’ve done those around the country. I’ve done them online live, and that’s what we’re kind of doing now here. We’re having a mini workshop. Okay. During the hiring process, remove any references to gender or race from resumes. Sometimes people will do that thinking they’ll get an advantage, or they just do it innocently. Once you see it, exit out, put the resume away for a few days, mix them up, try not to put the name to the color of the skin and the like.

Increase retention of women and minorities. And how do we do that? By getting rid of biases. Because we found, and you asked me just a moment ago, the economic impact of all this, especially we lose a lot of good folks, minorities, women, African Americans, Latinos, Asians.

A 2014 report was conducted by Wright Profile and JD Match, and it said, Kim, when an attorney leaves a firm, the cost ranges from $400,000 to $800,000 to replace them, and if the damage that’s done, especially they might take all their clients with them. It’s just irreparable. The cost of replacing a female lawyer, get this, is higher than the cost of replacing a male lawyer. So by being discriminatory, you’re costing yourself money and time.

The time to replace a male lawyer is six to eleven months. To replace a female lawyer is almost double that. And so as a result, you get a bad reputation. People don’t want to work for you. And there’s a lot of, especially sex bias out there. The top reasons that women and minorities leave firms, all of them can be traced back to implicit bias and explicit bias, lack of mentoringship and sponsorship. Unsatisfying upward mobility.

They don’t see themselves advancing because of their sexual preference, because of their color, race, whatever. And it’s being made known to them. Limiting meaningful work. They’re given many times, menial things to do. The wage gap that still exists today, many times. They get vague feedback. They don’t get good feedback as their male counterparts. And a lack of work-to-life balance. Many times, they’re worked literally to death.

They think that they have to do that to make up, and to, you know, strive and to get a little bit more up the ladder. So those are some of the things that we mentioned today, and I think we went through a myriad of them today, Kim, that there are so many issues involved in this type of bias, we really should do our best to curb it, completely stomp it out if we can.

Kimberly King (25:58.42)

And thank you. All of your information is, I think, very relevant right now. And also I love how you said be a learner, be a lifelong learner or learn or unlearn things, almost like a new language. So, wow, interesting. And we really appreciate you sharing your knowledge, Dr. Bob. Thank you so much. And if you want more information, you can visit National University’s website at nu.edu. And again, thank you so much for your time. It was great chatting with you again.

Dr. Robert Diotalevi (26:27.116)

Always a pleasure, thank you, folks.

Kimberly King (26:29.016)

Thank you. You’ve been listening to the National University Podcast. For updates on future or past guests, visit us at nu.edu. You can also follow us on social media. Thanks for listening.