Diversity, Equity, Inclusion, and Belonging Committee: Exploring Implicit Bias Without Shame or Blame

When I was asked to write an article for this month’s edition of The Advocate, I immediately knew what I wanted to discuss. While conversations around implicit bias are extremely valuable, many are reticent to engage on the topic because it’s so inherently discomforting. As a result, the implicit bias conversation may not include everyone because many naturally put up barriers when made to feel defensive.

By making space for a bold conversation in a judgmentfree zone we can reach a broader audience and engage more meaningfully. What progress could be made if we agree to approach these conversations with empathy and understanding, recognizing that implicit biases are a natural part of human cognition and can be influenced by a wide range of factors? Or if we agree to explore implicit bias without assigning blame or invoking shame?

“Why would I voluntarily put myself in a situation where I’m forced to feel bad?” I’ve encountered this question before, and frankly, it’s tough to answer. Discussing our biases is inherently difficult, requiring a profound level of openness, vulnerability, and trust. Unfortunately, shame and blame work against this openness. Shame is an internal response to a perceived failure or inadequacy, where one feels personally responsible for a mistake or shortcoming. At the same time, blame is an external response to a situation or behavior, an attempt to hold another accountable for an act or omission. The commonality between the two is the effect on the recipient – resistance and shutting down. Learning or growth cannot occur when we are in a defensive posture. Engaging on the topic of implicit bias is made more difficult without a frame of reference. Implicit biases are, by definition, not easily seen or recognized, and identifying them requires a more profound level of selfreflection than we may ordinarily employ. And not just the larger biases concerning such topics as race, gender, and disability – even harmless biases can be challenging to recognize. Perhaps, someone can’t easily observe their own bias against those of a certain race, but may readily express favor of a specific dog breed or product – think of the diehard Chevy owner who wouldn’t be caught dead driving a Ford. Acknowledging that we’re capable of bias opens the door to a deeper conversation with more meaningful exploration.

It’s essential to approach the conversation about implicit bias without feeling shame for what we might learn about ourselves. Shame is a deeply powerful emotion that can negatively impact our sense of self-worth and self-esteem. When we feel ashamed, we are less likely to take risks or explore new opportunities. We may avoid situations or experiences that could help us grow and develop as individuals because we are afraid of failure or rejection. While conversations about implicit bias can expose vulnerabilities and highlight negative traits, these don’t need to induce shame. How much better is it to view these realizations as an opportunity for growth? Instead of allowing shame to drive us away from these conversations, we can actively create space for safe and constructive acknowledgment of implicit bias as part of the human experience and an opportunity to work collaboratively to understand and address it. This allows us to engage in more productive and constructive dialogue.

Exploring implicit bias without shame requires a safe and respectful environment where we can feel comfortable sharing our experiences and perspectives. We create this space by acknowledging that everyone has implicit biases – we all have unique experiences and backgrounds that shape our perceptions of the world around us. Therefore, it’s essential to approach the conversation with an open mind and a willingness to learn, acknowledging that implicit bias is a natural and often unconscious part of being human beings.

Additionally, exploring implicit bias without blame requires approaching the conversation without judgment or defensiveness. Empathy and a willingness to listen to others’ experiences create a more productive dialogue that leads to personal growth, stronger relationships, and a more inclusive society. Finally, it’s important to recognize that exploring implicit bias is an ongoing process, and there is always more to learn and understand.

When we can set aside shame and blame when discussing implicit bias, we can make space to continue to educate ourselves, seek feedback from others, and actively work on challenging our biases and assumptions. It’s worth the effort. We’ll be all the better for it.

The Diversity and Inclusion Committee, in collaboration with FreeState Justice and co-hosted by the Maryland Office of the Attorney General, cordially invites you to participate in our 3-part virtual series “Exploring Implicit Bias without Shame or Blame” on April 26th, May 10th, and May 24th from 6 pm - 7 pm.

– Rob Daniels, Esq.

Family Law Committee: Process for Handling Family Law Motions

Do you ever wonder what happens to your Family Law Motions once they are filed? On Monday, March 27, 2023, nearly 100 people attended a Family Law Committee’s Lunch and Learn session to understand better the Motion’s process in Family Law cases. Magistrates Suzanne Farace, Michael McBee, and Carrie Polley provided great tips for filing Motions:

Tip 1 – Understand the Motions Process. The Clerk’s Office automatically holds all Motions for 18 days or until the response is docketed. Then, the Clerk puts the Motion in the Magistrate’s queue for review. The Magistrates reported receiving 35-40 motions per week, and they aim to review and make recommendations on each Motion the same week it is put into the queue. After review, the Magistrates draft a memo recommending a ruling. Next, the Motion and the memo are put into the queue of the Motion’s Judge for Family Law that month (the assigned Judges rotate that responsibility). The Judge then independently assesses the Motion and is not bound by the Magistrate’s recommendations.

Tip 2 – Proposed Orders – Should you File? The Magistrates admitted that, in most filings, they pull out the proposed Orders and replace them with their own recommended Order or memo. Ensure the relief in the “Wherefore” clause is specific so the Magistrates know what you want in the Order. While you can continue to submit a proposed Order, do not be surprised if the signed one looks different.

Tip 3 – Discovery Motions Require Multiple Efforts. Discovery Motions are the most common filings in the Family Law queue. Before filing a discovery Motion, read the rules and make good faith EFFORTS (emphasis on the plural) to resolve the dispute. One attempt at resolution will not get a discovery Motion granted. If the other side is pro se, make an extra effort to contact them, as not all pro se litigants check email as frequently as lawyers do. Please also review the Scheduling Order to see if the deadline for filing discovery Motions has passed. If the deadline has passed, your Motion will likely get denied.

Tip 4 – Read Kadish to Learn about Discovery Sanctions. The Appellate Court of Maryland case, Kadish v. Kadish, 254 Md.App. 467 (2022) provides guidance on alternate discovery sanctions in Family Law disputes. Read Kadish, and understand the relief available to your client in Family Law Discovery disputes.

Tip 5 – Be Careful What You Call Your Filing. If you file a “Petition,” it does not go into the Motions Queue. Understand the difference between a “Petition” and a “Motion” and title each filing correctly.

Tip 6 – DSS Records Take Time. If you request DSS records, DSS automatically files to quash the subpoena or issue a Protective Order. The Judge will likely order an in-camera review of the records and assign a Magistrate to the task. After the review, the Magistrate issues a recommendation as to what should and should not be released. The Judge then considers the Magistrate’s recommendations and issues an Order. Because this is a two-Order process, please allow at least 60 days for a ruling. If you are too close to trial, consider a postponement.

Tip 7 – Check your Scheduling Orders. If a new issue arises in a case and discovery needs to be reopened, file a Motion to Amend the Scheduling Order. Otherwise, the Scheduling Order deadlines control discovery motions.

Tip 8 – File your Financial Statement. If you file a request for child support or alimony, please also include the correct Financial Statement. Before filing a Motion to Strike the pleading for failure to include the Financial Statement, reach out to the other side to see if this can be resolved by agreement instead of rushing to file a Motion to Strike.

Tip 9 – If Custody is at issue, no need to oppose a request to vacate a default. If a Defendant files a Motion to Vacate Default in a custody case, it will be granted. Save your client’s time and money, and do not oppose it. The law requires the Court to hear all testimony related to the best interests of the child.

Tip 10 – Keep an Eye on Your Outstanding Motions. We are so fortunate that the Family Law Magistrates and Judges quickly review and rule on Motions. However, if you are concerned your Motion may have been missed, please call the Clerk’s Office to inquire. The Clerks can easily track the status of the Motion in Odyssey and provide a status update.

– Laurie M. Wasserman, Esq. Steffani L. Langston, Esq., and Virginia Yeoman, Esq.

A lawyer writes in…

Dear Trial Doctor,

I need some advice. I have a case in which I need to prove the value of quite a few items of personal property. Many of the items do not have significant monetary value but I will have to prove the value for other reasons. Will I need to hire an expensive expert to provide an opinion as to the valuation of these items?”

Valued Reader

Dear Valued Reader,

Your question has opened the door to a discussion of the admissibility of lay opinion evidence. While lawyers are most familiar with opinion evidence as expressed by experts in their fields, there are a significant number of areas in which lay opinion testimony is admissible if the proper foundation is first laid.

The starting point for this discussion is Md. Rule 5-701 which permits the introduction of lay witness testimony if those opinions are:

1) Rationally based on the witness’ perception, and

2) Helpful to understand the witness’ testimony or the determination of a fact in issue.

Such opinions must be based on the first-hand knowledge of the witness, Green v. U.S. Fisheries Inc. 113 Md. App. 674 (1997).

Some examples of these kinds of lay opinions include: an individual’s handwriting, an individual’s emotional state (angry, happy, nervous), an individual’s sanity, an individual’s apparent physical state (drunken, in pain), the speed of an automobile and the reasonableness of attorneys’ fees, just to name a few. See Maryland Evidence, McLain, L., 3d Ed., §701.1 for more information.

Importantly for you, a lay witness who is personally familiar with real or personal property may testify as to its value. Owners are almost always able to testify as to the value of their own property. Just as with any opinion, the witness should be permitted to state the factual basis for the opinion and should be prepared to do so.

So, to answer your question, an individual with a firsthand familiarity with the items of personal property and a rational basis for their valuation may testify as to their value. No expert testimony is required.

Thank you for your question in such a valuable area of inquiry.

– The Trial Doctor

Ppresent Resent

FEE

ARBITRATION -

FEE ARBITRATION - an under-used gem an under-used gem to resolve client to resolve client grievances and fee grievances and fee disputes disputes

Thursday, 12 noon on ZOOM

April 13th

FREE

Click HERE to Register

Zoom LINK will be provided upon registration

BCBA's Fee Arbitration program is a valuable resource! Join us to learn about adding a fee arbitration provision to your engagement letter and how to best use the program.

Speakers: Tom Dolina, Esq. Ari Kodeck, Esq. and Irwin Kramer Esq.

BALTIMORE COUNTY BAR ASSOCIATION

Criminal Law Committee Presents: