(Interview conducted on January 29, 2023)
Q: Thank you for joining the OBA civil litigation section. You’ve opted to remain anonymous, so I won’t say much about your background. The only points relevant to understanding this interview are that you are a mid-career South/East Asian woman.
What does unconscious bias mean to you, and when might it arise during the litigation process?
A: Unconscious bias is a preconceived notion or stereotype that people have that they’re unaware of. It’s a judgment that forms in their mind when they meet someone, before they get a chance to know them. In the context of litigation, it can arise in all stages of litigation, from the first conversation with a client or first interaction with other lawyers. When you join a firm, it can manifest in the files or assignments you get, or opportunities to go to events.
Q: Can you share any specific examples of unconscious bias you have experienced, or heard about?
A: It comes up in my day-to-day. For example, people assume that I am more mellow, more docile, under-spoken, or not very assertive, all because I am an Asian woman. So when I’m handling files where the lawyer on the other side is known for being abrasive or unreasonable, senior lawyers sometimes assume that I’m unable to stand my ground. And when I act as assertive as any other lawyer, I get called aggressive. Many lawyers have reached out to me, especially new calls, complaining about the same issues.
We also have to deal with the assumption that we’re assistants, or clerks, or students. Opposing counsel ask whether we are actually counsel of record, or just filling in. Even judges sometimes ask to confirm that I am, indeed, the lawyer arguing a motion, and not a student or junior there to observe.