Just Mercy and Access to Justice: Illuminating Bias, Confronting Systemic Racism, and Doing the Hard Work that Needs to be Done
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Just Mercy and Access to Justice:
Illuminating Bias, Confronting Systemic Racism,
and Doing the Hard Work that Needs to be Done
Monday, October 12, 2020
Live Replay
Chris Osborn, Reeltime Creative Learning Experience
Michael Kahn, Reeltime Creative Learning Experience
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SPEAKER BIOS ReelTime Creative Learning Experiences is an international provider of dynamic, interactive workshops, conferences, law firm retreats, and professional development training programs, committed to using the most proven and effective methods of adult learning to help professionals work (and interact with one another) more productively and sustainably. Chris Osborn and Michael Kahn began providing their innovative CLE workshops on ethics, professional responsibility, diversity and inclusion and mental health/substance abuse awareness in 2007. Since January 2010, their workshops have been enjoyed by thousands of participants in 25 U.S. States, as well as throughout Australia and Canada. In August 2012, their program, “Practicing Dirt Law and Keeping Your Nose Clean”- Stress and Ethical Decision-Making for Real Estate Attorneys, received an Award of Outstanding Achievement in Programming from ACLEA, the Association for Continuing Legal Education Professionals. In addition to his ongoing work with ReelTime CLE, Chris Osborn is the founding principal of Osborn Conflict Resolution, which provides Superior Court mediation, pre-litigation dispute resolution, and collaborative law services throughout North Carolina. Chris has been certified by the N.C. Dispute Resolution Commission as a Superior Court mediator since 2009, and has assisted the vast majority of his legal clients over the years to reach amicable resolutions in a wide variety of litigation matters, including business breakups, construction and employment law disputes, and will caveat disputes. From 2012-2015, Chris served as an Assistant Professor at the Charlotte School of Law, where he taught “Interviewing, Client Counseling, and Negotiations,” Civil Procedure, Contracts, “Problems in Practice: Commercial Transactions,” and “Intro to the Study of Law.” While on the faculty, Chris’ scholarly research focused on ethics and professional responsibility, and particularly the interrelationship of both with mental health and substance abuse issues. Upon graduating from the University of Virginia School of Law in 1995, Chris began practicing litigation in Charlotte. He served as a career law clerk to former U.S. Magistrate Judge Carl Horn III before joining Horack Talley Pharr & Lowndes, PA, in 2001. During his 11 years as an associate and a shareholder with the firm, Chris handled construction and real estate litigation, business litigation, and employment disputes in Superior and District Courts, as well as in all three North Carolina federal district courts.
Michael Kahn holds a J.D. from the Dickinson School of Law, and practiced law
with the Attorney General’s Office for the State of New Jersey for 6 years. Although
he left the practice of law in 1991, his work thereafter has kept him involved in the
lives of lawyers in various capacities. Following a stint as Assistant Director of Career
Services with the Tulane University School of Law, Michael obtained his M. Ed. in
Counseling from UNC-Greensboro in 1994, and shortly thereafter became a Licensed
Professional Counselor in the State of North Carolina.
Michael’s areas of focus in his psychotherapy practice have included anxiety,
depression, grief/loss, career satisfaction, and men's issues, and he has worked with
adolescents and adults in individual and group therapy settings. In 2012, he relocated
to Oregon, where in addition to continuing his speaking career, he served as an
Adjunct Professor at the Lewis & Clark Graduate School of Education & Counseling
and co-facilitates grief groups for lawyers.
Michael currently resides in Vancouver, BC, where he serves part-time on the
counseling staff of the Lawyers Assistance Program of British Columbia. He
continues to present training seminars and workshops on ethics, grief, wellness,
diversity and inclusion, and other topics for lawyers and mental health professionals
throughout the U.S., Japan and Germany, including for the U.S. military.
SPECIAL GUESTS
Sean O’Brien has been director of various criminal defense clinics at University of
Missouri-Kansas City School of Law since 1983, including the Public Defender
Appeals Clinic, the Public Defender Trial Clinic and the Death Penalty
Representation Clinic. Professor O’Brien served as the chief public defender in
Kansas City, Mo., from 1985 through 1989, when he was appointed executive director
of the Missouri Capital Punishment Resource Center, now the Public Interest
Litigation Clinic, where he represents clients in capital trial, appeal and post-
conviction cases.
Prof. O’Brien received his bachelor of arts in English with highest honors from
Northwest Missouri State University in 1977, and his J.D. from UMKC School of
Law, where he served on the Moot Court Board. In 2005, he was awarded an honorary
Doctor of Human Letters from Benedictine College in Atchison, Kan., for his pro bono
work on behalf of condemned prisoners.
In 1996, Ricky Kidd was wrongfully convicted of a Kansas City double homicide that
he did not commit. He was incarcerated in the Missouri State prison system for 23
years. After the tireless efforts of Prof. Sean O’Brien and Quinn O’Brien, and despite 11 adverse appeal and habeas rulings, a judge in DeKalb County, MO finally ruled that the evidence of his innocence was “clear and convincing.” In ordering Kidd’s release, Judge Daren Adkins cited recanted testimony of the state’s lone witness (who turned out to be the killer) and items of evidence prosecutors that failed to disclose. Since his release, Ricky has begun developing a career as a justice advocate, speaker, playwright & community activist, on a mission to advance all current & future generations through positive impact. He is the founder of I AM RESILIENCE, a global transformational change platform that helps people tap into their own RESILIENCE. “I was forced to become the light, illuminating everything in sight, I was forced to become the oxygen if ever I was to breathe again” says Ricky, in his book, Vivid Expressions: A Journey Inside The Mind of The Innocent. Quinn O’Brien is a private investigator based out of Kansas City, City, MO. She regularly contracts with criminal defense attorneys to provide investigative services in trial and post-conviction proceedings, including obtaining and analyzing documents, locating and interviewing witnesses, and serving process. Since 2015, she has served as an Adjunct Instructor at the University of Missouri-Kansas City School of Law, having taught courses such as “The Fundamentals of Investigation” and “Mental Health Investigations.” She has supervised and trained hundreds of law students in how to screen and investigate innocence claims. Quinn previously served as an investigator for the Midwestern Innocence Project and from 2005 – 2010 as a Staff Investigator with the Public Defender Service of Washington, DC. With the PD’s office in DC, her responsibilities included client and witness interviews, FOIA requests, gathering and organizing documents, training and supervising interns, staff training, preparing trial exhibits, and testifying at hearings and trials. Joseph Amrine was convicted in 1986 of the alleged murder of Gary Barber, fellow prison inmate, and was sentenced to death. Amrine maintained his innocence, but was convicted based on the testimony of fellow inmates, despite the lack any physical evidence linking Amrine to the crime. Six other prisoners testified that Amrine had been playing cards elsewhere in the prison when Barber was fatally stabbed. Three of the witnesses who implicated Amrine later recanted their testimony, admitting that they lied in exchange for protection.
Joe Amrine was ordered to be released from jail in April 2003 after the Missouri Supreme Court, in a 4-3 vote, overturned his conviction and death sentence, citing the alarming fact that there was not credible evidence to uphold the conviction or the death sentence. Amrine’s release was postponed, however, when Prosecutor Bill Tracket filed amended murder charges against Amrine in order to conduct DNA tests on blood stains found on the pants Amrine wore the day of Barber’s death. DNA tests were inconclusive and on July 28, 2003, prosecutor Bill Tackett announced that he would not seek a new trial of Amrine and that he would be released.
Just Mercy and Access to Justice: Illuminating Bias, Confronting
Systemic Racism, and Doing the Hard Work that Needs to be Done
(2 hours MCLE credit, incl. Ethics & Professionalism, Bias/Access to Justice, and Well-
Being/Mental Health Awareness)
WRITTEN MATERIALS--TABLE OF CONTENTS
Illumination of Bias………………………………………………………….……..2
Vicarious Trauma……………………………...…………………………….……..6
Resilience and Practical Guidance on Self-Care………………………….….….....9
Resources………………………………………………………………………….11
308 E. Worthington Ave. / Charlotte, NC 28203 / 704.996.6208 / Info@ReelTimeCLE.com / www.ReelTimeCLE.com“Illumination of Bias”:
Understanding and Reducing the Impact of Implicit Bias
in the Practice of Law
o Develop a more robust and thoughtful understanding of the role of bias in
decision-making. Bias, in the simplest terms, can be defined as a predisposition to
prefer or favor one group, type of person, or culture over another. Understood
this way, we all harbor biases. As Derald Wing Sue notes, “our gut instincts, first
impressions and feelings of comfort are often the bases – and biases – by which we
build relationships at work.” The problem, however, is that “[w]hat is held in our
unconscious brain about groups of people often includes stereotypes; stereotypes
that we would consciously reject but unconsciously still hold [as] part of the data
stored on the hard drive in our unconscious brain.”
o Commit to understanding the potential harm of subtle forms of bias. As one
prominent study has confirmed, the long, slow drip of pervasive exposure to
subtle, seemingly “innocent” biased comments or reactions may be just as harmful
as a few overt acts of deliberate prejudice. It is therefore crucial to identify our
potentially harmful biases, and then to be mindful of their potential impact on
others, and their influence in our everyday decision-making.
o Strive for increased awareness of your own possible biases, and their impact on
the people with whom you work and interact. Eliminating bias is an unrealistic
goal, but you may well be able to improve your own self-awareness. If you want
to determine the level of influence that your biases may have on your thoughts or
actions (and thereby to begin recognizing the negative effects they may be having
on the people with whom you interact), try the following:
o Pay attention to your reactions (thoughts, feelings, etc.) when interacting personally
and professionally with individuals who are different from you. Do you notice a
pattern? Do you have an automatic reaction that has little to do with the person in
front of you? Does it adversely impact the relationship even if the other person is
unaware of your reaction?
o Consider the impact of formative events in your past. When have you felt similar
discomfort, distaste, fear, anger? When have you felt (or been made to feel) inferior
or superior to the type of person you are encountering? What about the present
2situation is similar, and what is perhaps different? What would it take for you to be
able to let the events of the past loosen their grip on your present-day mind?
o Be open to feedback or suggestions about how your actions are coming across to
those who are different from you. Many of us act or speak out of subtle bias
unconsciously and unintentionally, but remain unaware of the pain we have
caused. If someone approaches you with a concern about a potentially
inappropriate bias that may have influenced your speech or actions, here are some
suggestions for how to benefit from the confrontation:
o Listen, without feeling the need to question the details of exactly how it “actually”
occurred. Be grateful, if you can, even, for an opportunity to see how you come
across to diverse colleagues and clients.
o Ask open-ended questions, seeking more information about how the person felt or
reacted to your actions or comments. Be “curious” about why they reacted as they
did, before you get “furious” that they are being critical of you. (And above all,
resist the urge to cross-examine!)
o When tempted to discount a person’s perspective or viewpoint as an “overreaction”
or “paranoia,” imagine the cumulative effect of similar incidents occurring on a
daily or weekly basis for that individual.
• Once you are aware of your biases or presumptions about a person, race, culture,
etc., be willing to question them, and perhaps even challenge them.
o In Essential Qualities of the Professional Lawyer (ABA Publishing, 2013), lawyer
and diversity consultant Dr. Arin N. Reeves of Nextions, LLC, suggests that lawyers
“pay attention to surprises,” i.e., make note of those times when a person or group
of persons behaves in a way that is significantly counter to your prediction or
expectations. In this way, “the more you identify the sources of surprise, the better
you get at recognizing and eventually interrupting your implicit biases.”
o It has been said that “Bias is really when you see the present through the lens of the
past.” Commit to begin each interaction or experience with a new person or group
of any sort with a “clean slate.”
3o Seek out more direct, deliberate, and dignifying (and therefore effective) ways of
learning about people of different races, cultures, religions, ethnicities, etc. When
we purposefully put ourselves in environments with people who don’t look or
sound like us, it can be uncomfortable, and perhaps even stressful. The discomfort
itself may be helpful, however, as the experience may well awaken or expose our
subtle prejudices and give us a new level of awareness. And the process of
interacting with real persons (in all their depth and variety) of a group will give a
lot more data upon which to form any judgments or opinions. Moreover, we may
actually learn something new, interesting and perhaps even useful in the process.
(And likewise, they may learn a thing or two about you and your culture, and
correct a few of their own stereotypes in the process.) Try some or all of the
following:
o Determine the validity of assumptions about different groups of people from sources
within the group. Exposure to music, TV, films, poetry, artwork, books, or other
writings from diverse authors can provide a more accurate view of the thoughts,
hopes, fears, and aspirations of the people they represent, which may lead to greater
understanding and identification of commonalities upon which bridges may be built.
o Make sure to seek out sources beyond those that you run across in your work and
beyond the caricatures that tend to show up in the “lowest common denominator”
of pop culture or mass media. Lawyers are often exposed to a small segment of the
population that suffers from emotional distress, so it is easy to associate negative
features to specific populations.
o Seek out businesses owned by those in marginalized groups. Also, consider inviting
those regarding whom you hold stereotypes to your home. Or how about visiting
churches, synagogues, temples, or other places of worship different from those that
you usually frequent?
o Consider engaging a “cultural guide” – a member of the “different” group who is
willing to introduce you to new experiences, answer questions, and dialogue openly
about your reactions.
4• Help create a more genuinely inclusive culture in your firm, agency or
organization: The buzz-word in the area of diversity used to be “tolerance.” That
may have been a good start, as far as it went, but it set the bar relatively low, so to
speak. Navigating the changing cultural landscape of our country (especially for
those of us who will be interacting with all different kinds of people through the
legal system) will require us to strive for something more. The concept of
“inclusion” is designed to recognize and leverage the value of the contributions
that different cultures or people or groups can make towards a better product,
system, or outcome. Acknowledgement, acceptance, and respect of differences can
open doors to new avenues of collaboration and cooperation. Consider the
following questions in assessing how your workplace is doing in this effort:
o How are colleagues, staff and clients who are different treated in your practice?
What is said about those individuals when they are not present?
o How do you respond when you observe someone being talked about or treated
inappropriately? What is your ethical responsibility as a lawyer?
o Make note of whatever thoughts or concerns keep you from speaking up or
intervening when you see someone being discriminated against or mistreated based
on their immutable characteristics. What concerns or fears lie behind your
reticence? What might it cost to take a stand that may be unpopular? Might the
cost be worth paying, in a given instance?
5Vicarious Trauma and the Costs of
Caring About Our Clients
o Vicarious Trauma and Secondary Traumatic Stress:
o Indirect exposure to difficult and disturbing images and stories of the suffering
of others -- humans and sometimes animals -- and the way it impacts us as
individuals/professionals.
o Repeated exposure to difficult content can have a negative impact on our
functioning and overall mental health.
o “The expectation that we can be immersed in suffering and loss daily and not
be touched by it is as unrealistic as expecting to be able to walk through water
without getting wet.” Kitchen Table Wisdom 1996, Rachel Naomi Remen,
MD
o Vicarious Trauma: (Pearlman, L.A. (2012). Vicarious Trauma. In CR Figley
(Ed.) Encyclopedia of Trauma)
o Profound shift in world view that occurs in professionals when they work with
individuals who have experienced trauma (i.e. a child abuse investigator may
lose trust in anyone who approaches their child).
o “Vicarious trauma is not a sign of weakness. It is the cost of working with
people who have experienced trauma and abuse – of bearing witness and of a
empathic engagement with those affected.” The Innocent Justice Foundation
o Secondary Traumatic Stress: (Bride, B. (2012). Secondary Traumatic Stress.
In CR Figley (Ed.) Encyclopedia of Trauma)
o Hearing about a traumatic event experienced by someone else without having
been exposed directly.
6o The negative effects of secondary exposure to traumatic events are the
same as those of primary exposure.
o Intrusive imagery, avoidance of reminders and cues, hyperarousal,
distressing emotions, and functional impairment.
o For most severe instances STS may warrant a diagnosis of
Posttraumatic Stress Disorder (PTSD).
o Develop a sense of your individual warning signs. (Transforming the Pain,
Saakvitne and Pearlman (1996))
o Physical signs: Insomnia, headaches, GI distress, heart palpitations,
hypochondria, exhaustion, illness, teeth grinding
o Behavioral signs: Increased use of alcohol/drugs, anger/irritability,
avoidance, indecisive, feeling helpless/hopeless, personal relationship
problems, imposter syndrome
o Emotional Signs: Exhaustion, depression/anxiety, guilt, cynicism,
hypersensitivity to emotional stimuli, numbing, reduced ability to feel
empathy, suicidal thoughts
o Develop a warning system. (Tendacademy.ca)
o Use a scale of 1 to 10 (1 being the best you have ever felt about your
work/compassion/energy).
o Identify Secondary Traumatic Stress symptoms. What is a 2? 6? 7?
o By identifying symptoms you are better able to implement strategies
before it gets to the “red zone.”
o Identify what interventions work for you.
7o Self-care practice. (Figley Institute (2012))
o Physical: Monitor your body for tension and learn techniques to ease
the tension, effective sleep maintenance, monitor food and drink,
move/exercise
o Psychological: Relaxation time, frequent contact with nature, creative
expression, assertiveness, challenge negative thoughts,
spiritual/religious practice
o Social/Interpersonal: Identify at least five people, including at least two
at work, who are highly supportive, know when/how to secure help, be
involved in creating a better world
o Professional: Make a commitment to set time boundaries at work,
manage multiple social and professional roles, know what you can
change and accept things you can’t change, pay attention to the joys
and achievements of the work
o Other healthy coping strategies:
Remember you have options
Name and feel your feelings
Use your sense of humor
Spend time alone
Do activities that you previously enjoyed
Find new activities that are enjoyable
Take mini-breaks
Note activities and people that deplete your energy and plan
activities to replenish your energy
Create a comfortable environment at home and work
Play
8Practical Guidance on Self-Care
o Strive for Self-Awareness. It is beneficial—in fact necessary—for lawyers to pay
attention to sources of stress, fear, or pressure. Consider:
o What are the warning signs that I am under stress, pressure, anxiety or fear? What do I do
with these emotions or sensations when I realize that they are present? What has worked
in the past?
o Which sources of stress are legitimate, and to be expected in my practice? Which ones can
I do something about, and how?
o Is there anyone helpful I can talk to about it?
o Take Inventory. Seeking perfect balance between your personal and professional lives
may be an exercise in futility. Instead, consider the idea of there being a rhythm to your
life: periods of engagement, which may be intense as needed, but alternated with regular
periods of reflection, recreation, relationships, rest etc. Here are a few questions to
consider in evaluating how well the rhythm of your professional life matches your
personality, temperament, and desires:
o Do I consistently have enough energy for things that are important to me? Where, when,
or while doing what do I tend to run out of energy most frequently? What gives me energy
and engages me? How often am I doing those things?
o If I could have two extra hours in a day, what would I spend them on?
o Do I have mental space to reflect on what I have been doing, and to proactively plan what
I need to do next?? How often am I able to take a step back periodically and assess what’s
working and what is not?
o What are the 3-5 things I need in my life to be happy and healthy (i.e. having dinner with
my kids most nights, a regular “date night” with my spouse, sleeping 8 hours etc.) What
can I do to ensure that these things happen?
o Take time to try to look at life as a comedy, rather than a tragedy. Find places for humor
and play in your life. Take yourself lightly and your work seriously.
9• Recognize the physical dimension of your life. Yes, we lawyers work primarily using our
brains, but the brain is interconnected with the body, and therefore how you treat your
body (proactively and reactively) has a profound impact on how well your brain
functions. Consider the following simple suggestions:
o Avoid high caloric foods. Instead, eat a healthy diet with fruits and vegetables, and a good
source of protein—especially early in the day.
o Exercise regularly and remain physically active throughout the day (i.e. use the stairs, park
farther from the office door when weather permits), but not close to bedtime.
o When taking up exercise, choose an activity that you truly enjoy--not just something that
you think you “should” do (or see other folks doing) to keep “fit.” The more you have a
healthy passion for the activity, the less you will have to “make yourself” do it.
o Take short breaks when working and/or studying.
o Get enough sleep. Make your room completely dark. Reduce brightness of lights as
bedtime approaches, then brighten in a.m. Taking a hot bath or shower prior to bedtime
may also help you fall asleep.
o Minimize intake of caffeine, stimulants, and alcohol.
o Practice the 4 x 7 x 8 exercise or any deep breathing exercise. It is physiologically
impossible to stay anxious or stressed while deep breathing.
• Engage more fully and purposefully in positive, healthy, non-demanding relationships.
Law is a service profession, and you have plenty of people who need you. Look for positive
ways to engage with the people in your life that you enjoy.
o Spend time with friends. For many, it is the first thing eliminated under stress. Human
beings simply cannot bond as well over the phone, or by texting, chatting, or emailing.
o Avoid distractions that appear to offer a temporary escape, but provide little or no enduring
value. If you notice yourself drawn into “flipping channels” or excessive internet surfing
(e.g., spending hours on your iPad, or social media sites like Facebook or Twitter, or
plowing through 5 or more episodes of a show on Netflix at one sitting), ask yourself if
that is really how you want to allocate your time.
o Get a pet (or spend more purposeful time with one(s) you already have!)
10• Make regular time for the kinds of things that move you, refresh you, or nourish your
soul. In Dead Poets’ Society, Mr. Keating said, “We read and write poetry because we
are members of the human race and the human race is filled with passion…. Poetry,
beauty, romance, love, these are what we stay alive for.” Would bringing more of the arts
into your life improve your wellness? Consider these other quotes in that regard:
o “Music is a basic need of human survival. Music is one of the ways we make sense of our
lives, one of the ways in which we express feelings when we have no words, a way for us
to understand things with our hearts when we cannot with our minds.” Karl Paulnack,
Dean, Ithaca College School of Music
o “Art enables us to find ourselves and lose ourselves at the same time.” Father Thomas
Merton
• Pay Attention to Your Thoughts. No one else talks to you more than you do. Would you
continue to spend time with any other “friend” that constantly ran you down, or focused
on your flaws? Watch out for negative “self-talk” that interferes with self-care.
o What are the "should" statements that prevent you from leaving the office earlier, saying
"no" to requests from colleagues or others, or taking a lunch break?
o Notice when overly critical self-talk may be affecting your mood, or contributing to
habits you would like to break.
o The study and practice of law trains us to be left brained/analytical. Give yourself
permission to feel your emotions. Your emotions can provide valuable information.
• It takes commitment and practice for a new behavior to become a regular part of your
life. In order to make lasting change in your wellness consider following these steps:
o Begin by choosing one thing to change, and then report your plans to another person
(perhaps a loved one, friend or professional coach or therapist). Give that person
permission to follow up and ask how you are doing with your commitment.
o If you have difficulty making the change, consider what has gotten in the way. Do you
really want to make the change? Was the amount of change too ambitious?
o You don’t need to reinvent the wheel. What can you learn from times that you have
successfully made life changes?
11RESOURCES FOR LAWYERS
National
ABA Commission on Lawyer Assistance Programs
http://www.americanbar.org/groups/lawyer_assistance.html
Provides contact info for all known state and local Lawyer Assistance programs, as
well as general mental health and substance abuse awareness and recovery
resources.
National Task Force on Lawyer Well-Being
www.lawyerwellbeing.net
National Suicide Prevention Lifeline
http://www.suicidepreventionlifeline.org/
1-800-273-TALK (8255), National, Toll-Free, 24 Hours
National Helpline for Judges Helping Judges
1-800-219-6474
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