Implicit Bias: In-House Edition
In-house counsel biases can lead to inefficiency, confusion, frustration -- and worse, creating more problems than solutions.
Over the years, there has been a plethora of content created about the importance of recognizing your own implicit biases and consciously “checking them” to make more equitable decisions. Although way more important to society that this musing of mine, that is not what this post is about.
Rather, this post is about the underlying presumptions that in-house lawyers, as a group, tend to make (based on my unscientific observation over the past six years). And these biases can lead to inefficiency, confusion, frustration — and worse, creating more problems than solutions, which is not a good look for the legal department at any company.
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In case you want to check your own biases, here are a few to look out for.
The Bias For More Information
This presumption is a tough one to be mindful of because its foundation is grounded in truth — the truth that to provide valid legal advice, you need to know relevant facts. At the same time, when you’re in-house and decisions need to be made in real-time, getting ALL the facts may not only be impossible but also not necessary in reasonably assessing risk and advising on a path forward.
This is by no means advocacy for impetuous decision-making; rather it is a reminder to be intentional about seeking more information, especially if a lot of delay and extensive manual labor is required.
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So before you kick the can down the road and suggest a follow-up meeting in three weeks so that more information can be gathered before making a decision, take a moment to pause and consider whether the information you’re asking for is truly impactful to the decision to be made.
Likewise, when someone asks you whether they need to pull all the data or you only need a specific subset, resist the urge to ask for “everything,” and take the time to really strategize on what you need. I get that it’s faster in the moment to say “give it all to me,” but consider how inefficient it is for copies to be made of documents that are not relevant (as well as to sift through them).
The Bias Of Expertise
Easy to spot in others, but perhaps more challenging to be self-aware is the bias of expertise. This is the idea that the lawyers are the smartest people in the room, that they know best, and the only solution is the one that they suggest — because they are the experts, after all.
Hyperbole aside, this shows up often. It’s when a lawyer jumps right in with “I think we should . . .” without asking the client to frame the issue or without asking clarifying questions to help the client frame the issue. It’s when the most senior lawyer in the meeting definitively shares his proposed solution without leaving room for collaboration or disagreement.
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To check yourself, allow clients to provide the background on any issue and take the time to ask questions such as — what do you want to do? — before jumping in with what you think they ought to do. When offering a solution, leave space for others to concur or disagree. Instead of prematurely and inadvertently shutting down brainstorming with THE solution, change the article you’re using to — here’s A possible solution . . . what do you think?”
The Bias For Airtime
Perhaps related to the Bias of Expertise, the Bias for Airtime is when a lawyer cannot help but “chime in” even when the point has already been made. It can be as basic as interjecting a thought as a “new” contribution although it has already been said. But it can also show up as sharing a “war story” or example that is only tangentially related under the guise of “just my two cents” or “in my experience.” It can also show up as interrupting someone before they have finished their question or thought.
Like any other type of implicit biases, it is difficult to be self-aware enough to know whether you’re perpetuating these biases — but if you are able to curb these tendencies, you may be able to see more team engagement and a boost in efficacy.
Meyling “Mey” Ly Ortiz is in-house at Toyota Motor North America. Her passions include mentoring, championing belonging, and a personal blog: TheMeybe.com. At home, you can find her doing her best to be a “fun” mom to a toddler and preschooler and chasing her best self on her Peloton. You can follow her on LinkedIn (https://www.linkedin.com/in/meybe/). And you knew this was coming: her opinions are hers alone.
