The Discovery and Use of Implicit Biases

Bill Trine, Boulder, CO

W

e have all been asked to explore our implicit biases
and to also recognize our explicit biases and consider
how such biases affect our representation of clients
before and during trial. A personal bias, known or implicit, can
sometimes unknowingly affect the selection of witnesses, jury
selection, and our attitude and approach in the preparation of
all aspects of trial, including the cross-examination of adverse
witnesses, and perhaps our relationship with the judge.
We have touched upon these bias issues in the past at the Trial
Lawyers College when asked to explore and answer the question:
Who am I? But I was never focused on the discovery of my biases as an important element in the struggle to fully answer that
question. I know that I am the totality of all of my life experiences, and I have spent many hours in psychodrama sessions and
in self-exploration slowly discovering the answer to that question. But in the process, until recently, I did not fully recognize
my implicit biases and their contribution to who I have become.
I now finally realize that my biases gave birth to the passion necessary to achieve justice for certain clients, and that without that
passion, success was unlikely.
I have been assisted in that endeavor by the authors of the
bestselling book, What Happened To You?1 I will later refer to
this book, and I highly recommend it to assist in discovering
who you are and how life experiences—both good and bad--shape us and can be preserved in the development of the brain
starting before birth and thereafter, and how certain memories
that are preserved by the brain can become subconscious biases
that can remain undiscovered for a lifetime.

The Poor and the Working Class
So, let me start with a few of my own later-recognized and
understood implicit biases, and how those biases have affected
my life and practice of law.
For as long as I have memories, I have felt comfortable and
warm in the presence of the working class. I have only recently
recognized that I had a longstanding subconscious bias directed
toward those that I have sensed were taking advantage of this
class of citizens—the working class. Where did this bias originate, and how has it affected my life, the practice of law, and
who I became?
As a child spending summers and a winter with aunts and

uncles in a small isolated coal mining town in the Colorado
mountains, I became very fond of my hardworking extended
families that had to purchase their groceries on credit from the
store owned by the mining company. Some lived in housing
owned by the company. The small town was isolated and snowed
in during the winter months, when the narrow-gauge coal train
delivered groceries to the company store and transported injured
miners out of town to a distant hospital.
While the families did not live in poverty, their standard of
living was totally controlled by the company. The miners’ income was based on the tonnage of coals that each miner produced by pick and shovel each day. I often overheard miners’
angry statements directed toward the company, including my favorite uncle’s statement that the company was cheating him out
of wages at the weight station when the coal he produced was
weighed. Why and how the memory of this statement remains
in my subconscious for more than 80 years can be explained
by recent scientific studies on the retention of certain memories
during the development of the brain and how that can then result in implicit bias.2
What other memories remained in my subconscious over the years
that contributed to my implicit biases, and what were those biases?
My father grew up in poverty following his own father’s death at
a young age. My grandfather’s death left my grandmother and
the children struggling for survival in the years that followed.
My father’s later description of those events of his childhood had
a lasting impression on me as I visualized his stories of the ‘haves’
and the ‘have nots’—the working class and those in control of
the working class.
His childhood home was next to the railroad tracks where
the narrow-gauge coal trains often parked overnight, their cars
loaded with coal. As a young child, my father would wait until
dark, then climb up the side of a fully loaded coal car and throw
chunks of coal to the ground and retrieve them for his mother’s
use in the coal stove at home. Once, a railroad cop caught him,
gave him hell and angrily threatened him if he ever caught my
father again. I was left with the picture of Dad, helpless, reduced
to tears of fear and humiliation. Dad’s stories and this particular
memory caused my heart to go out to the poor and disadvantaged.
Are there other memories that contributed to my unconscious

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The Discovery and Use of Implicit Biases
biases that favored the poor and working classes and made those
that harmed them the enemy? There are many, both from my
childhood and in the years that followed. I will describe a few
that I now recognize had a longstanding effect on how I eventually practiced law, and the type of cases that created a passion in
my representation of certain clientele.

The Catholic Church
My best friend in grade school, Lynn Griffith, was the youngest in an impoverished family of 16 children who lived across the
railroad tracks from me in Grand Junction, Colorado. His struggling father used his children to help him deliver coal to residences in town using an old broken-down truck. Lynn and I did
everything together—hunted rabbits with slingshots, climbed
buildings looking for pigeon nests, sold the local newspaper after school each day in bars and restaurants and to troops on the
troop trains carrying soldiers destined for World War II.
Lynn questioned why my mother made me and my sister,
Adrienne, go to the Catholic Church each Sunday without her,
and I explained that Catholics went to church to confess their
sins and take Holy Communion which allowed them to go to
Heaven, and otherwise they would go to Hell. One day he asked
if I would take him to church with me the following Sunday, so
that he would also go to Heaven. When he met me in the alley
behind my home that Sunday, he was clean with combed hair,
wearing clean hand-me-down clothes, and wearing shoes. I then
remembered that because he had not gone through the rituals
of becoming a Catholic, he could not go with me to take Communion, and when I explained this, he looked devastated, and
fighting tears, he headed home. As I walked to church without
him, I remember feeling a deep sadness and some confusion over
the harm this had created to my best friend, who I now realize I
loved as a brother.
At that time, none of the Catholic Church ceremony was in
English except the short sermons, and I was always bored and
anxious to leave. My only memory of a Sunday service occurred
at age six or seven, when the grey-haired priest went to the podium to deliver his sermon, and in a loud and angry voice, he told
the Mexican families seated in the back pews of the church, that
they were not welcome and should leave because they never contributed money to the church. I remember having a sad feeling
for the Mexican families, and some anger toward the priest and
church. The priest later came to our home wanting my mother
to enroll me and my younger siblings in the Catholic school.
She explained that she had no money for the tuition and could
not do so. The priest unsuccessfully persisted and embarrassed
her in the process.
When I became old enough to say “no,” I stopped attending
church. In later years I recognized that my bias was against the
Church and its policies, and not the parishioners. My maternal
and paternal extended families, whom I loved, were all Catholic.
This was an important distinction in considering how my bias
may have later affected my representation of some clients.
In later years other events occurred that contributed to my
bias against any person, group, or organization that seemed to
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take advantage of the poor and those in the working class. At age
16, I found summer employment working on an assembly line,
and joined the Teamsters Union. My job consisted of removing
heavy lead trays filled with frozen food products from a long
tank, dip the tray into a tank of steaming hot water to separate
the items of food, and shove the tray down the assembly line
where several women worked separating and sacking the food
products. We worked as a team and I became very fond of these
older hardworking women who would discuss their problems
and hardships during coffee breaks. I still remember their names
and low income status despite their hard, sweating work, and
Union representation.
Another memory ingrained in the lower part of my brain occurred in later years when, as a young adult, I was hunting deer
in the mountains outside the coal mining town that I earlier
described. I heard the noise of what I thought was an elk coming
through the timber. I aimed my rifle in that direction and a very
large Native American man emerged riding a horse and holding a gun across his saddle. I lowered my rifle and apologized. I
learned that he was the only Native American coal miner in the
small mining town. When I explained that I was the nephew
of coal mining uncles that I named, his face broadened into a
wide friendly smile and he described his friendship for my uncle,
Tony Byouk, who, he explained, came to his rescue one night in
a local bar when some of the drunken White miners were trying
to physically remove him from the bar. My uncle later explained
that he did in fact stand side-by-side with his Indian friend and
fight off the other miners.
I became a friend of the Native American and his family and
learned that he and his wife were Apache Indian descendants,
and I was invited to their home on several occasions. I was with
him in his pickup truck one day on a muddy road when he
spotted a car stopped in the roadway with a flat tire. I noted a
total change come over him as he quickly stopped and became
very deferential to the other driver and insisted that he change
the tire so that the other driver would not get muddy and dirty.
Afterwards, I asked him why he treated the other driver with
such deference, and why the other driver seemed to expect it.
He shrugged and said that the other driver was his boss in the
coal mine.
This memory registered in my subconscious as another example of how the working class can be taken advantage of by
the corporations and people who control them, and how the
poor and the working class are expected to show deference to
this treatment.

My Mother
Perhaps the suppressed memory that I eventually recognized
to be a major influence on my later life actions, occurred when
I told my mother, at age 18, that I had changed my mind about
joining the Marines with two of my friends because they had
changed their minds and had decided to go to college. I didn’t
want to join the Marines without them. I told her that I had
decided to join my friends in enrolling at Colorado A&M College that fall. I thought that she would be delighted because no

The Discovery and Use of Implicit Biases
one in our extended working-class families had attended college.
Thus I was bewildered when she burst into tears and said something about losing me and my becoming too important. I didn’t
understand—I thought she was just worried about the expense.
I assured her that I could work my way through college.
In retrospect, her emotional reaction was not the money, but
the fear I would become one of those people that looked down
on the poorest in the working class. In the years that followed, I
subconsciously wanted Mom to know that I remained a member
of the family and the working class, and acted accordingly. It
wasn’t until after her death that I recognized how the suppressed
memory of her tearful reaction had turned me against anyone I
felt to be anti- working class.
I now know those memories are the foundation of some of my
unconscious biases. Why and how did I suppress those memories
for so long, and how have they impacted me in the practice of law?
First, let me address the scientific evidence which explains why
and how certain memories are suppressed, but are retained in
the development of the brain.

Why Some Memories Are Suppressed
Dr. Perry describes in elaborate scientific detail how each section of the brain has the capacity to restore memory; but as the
brain develops in children, it is the brainstem and lower portion
of the brain that reacts to the body senses of smell, sound, sight,
and touch. In young children, the cortex of the brain has not yet
fully developed to enable a child to interpret the early memory
traces resulting from any stressful events created by the body
senses. Yet those memories remain in the subconscious and can
unknowingly surface in the form of biases throughout life.3 Dr.
Perry writes:
The most powerful categories to our brain come from our
first experiences, usually in early life. This contributes to
our tendencies for bias4 … One of the hardest things to
grasp about implicit bias and racism is that your beliefs
and values do not always drive your behavior. These beliefs and values are stored in the highest, most complex
part of your brain—the cortex. But other parts of your
brain can make associations—distorted, inaccurate, racist associations. The same person can have very sincere
anti-racist beliefs but still have implicit biases that result
in racist comments and actions. Understanding sequential processing in the brain is essential to grasping this, as
is appreciating the power of developmental experiences
to load the lower parts of the brain with all kinds of associations that create our worldview.5

of beliefs about the superiority of one race over others.
In the United States, racism is the marginalization and
oppression of people of color by systems created by
White men to privilege White people. You could say
that racism is embedded in the top, ‘rational’ part of
your brain, whereas implicit bias involves the distorting
‘filters’ created in the lower parts of the brain. When a
child or youth is exposed to overt racial beliefs, possibly
in their home or peer groups, those beliefs can become
‘embedded’ in the filters. The result can be a deeply ingrained set of feelings and beliefs that cut across multiple
regions of the brain.6
So, how do we correct or overcome the destructive biases that
we are able to identify, or make better use of those that we feel
are beneficial. I am now satisfied that my biases against people
or organizations that harm or take advantage of the poor and the
working class have had the beneficial effect of providing me with
the needed passion necessary to put my heart and soul into the
representation of many of those people without thinking about
or even realizing what was creating that passion. I also eventually
overcame some of my biases to some extent, by spending time
with individuals belonging to the organizations that I disliked
because of my feelings that they were the enemy of the poor and
the working class. But my passion, arising out of my biases, was
more important to me, than attempting to control or change
those biases. But according to the experts, biases can be changed
over time.
Dr. Perry explains how those changes can be made or can occur. For example:
Even the most hateful racist belief system can be changed.
Remember that the cortex is the most malleable; the
most changeable part of the brain, Beliefs and values can
change. But implicit bias is much more difficult. You
may truly believe that racism is bad, that all people are
equal. But those beliefs are in the intellectual part of your
brain, and your implicit biases, which are in the lower
part of your brain, will still play out every day—in the
way you interact with others, the jokes you laugh at, the
things you say.

Subconscious memories created by stressful events can continue
to be stored in the lower portion of the brain throughout life,
as demonstrated by numerous stories and examples throughout
this excellent book. Dr. Perry also explains the difference between implicit bias and racism:

It is interesting to watch how this relates to the Black
Lives Matter movement. In the wake of the murder of
George Floyd, so many conversations have been sparked
about structural racism, implicit bias, and white privilege. This has illuminated so much misunderstanding
and resulted in so much expressed pain. And, of course,
so much defensiveness. ‘I’ve never been racist.’ ‘I don’t
have a racist bone in my body. ‘Well, the issue isn’t your
bones. It’s your brain. All of us have ingrained biases, and
lurking among these are racist associations.7

Implicit bias suggests that the bias is present but not
‘plainly expressed’—sometimes even unintentionally expressed. Racism, on the other hand, is an actual overt set

So, how have my recently acknowledged implicit biases impacted
my life and the practice of law? One of my earliest cases in the
1960’s was a lawsuit I filed to seek removal of a Boulder County
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The Discovery and Use of Implicit Biases
Commissioner who forced a Mexican employee to work without
pay on the Commissioner’s personal properties on weekends.
When the employee finally asked for payment, he was fired. I
remember the feelings of outrage upon hearing my client’s story,
and the passion I felt in pursuing the litigation that resulted in
my client receiving damages and in the County Commissioners
resignation from the Board.
This was the first of many cases that I filed in subsequent years
and throughout my career, involving conduct harmful to the
poor and the working class. Cases that created a passion in me,
with no understanding at the time that an implicit bias was creating the passion. I filed lawsuits to assist the working people
poisoned by the asbestos industry; lawsuits involving defective
products that harmed workers at their places of employment;
lawsuits that involved the creation of new appellate law that
would offer protection to generations of future workers.8 And,
lawsuits against the operators of private prisons that exploit prison laborers for profit.9
In retrospect, my implicit biases were instrumental in my enthusiasm to become one of the co-founders of Trial Lawyers for
Public Justice (now ‘Public Justice’), a Board Director of The
Human Rights Defense Center, and perhaps, more importantly,
my activities in the Trial Lawyers College. It was as members of
the Board of Directors of TLC, that J.R. Clary, Cyndy Short and
I revised the by-laws to insure that the college would only educate and train lawyers who are committed to represent and obtain justice “for individuals: the poor, the injured, the forgotten,
the voiceless, the defenseless and the damned, and to protecting
the rights of such people from corporate and governmental oppression.—We do not offer training for those lawyers who represent government, corporations or large business interests.”10
My passion in helping to draft this Mission Statement, as Chair
of the committee, was obviously the result of my implicit and
explicit biases. The grades that I gave to applicants to the college
for over 20 years were obviously influenced by my implicit biases. Since April of 2020, my passionate objections to the conduct
of the minority Directors who could have destroyed the College
or substantially altered its course, has also been the result of my
implicit biases that favor the poor and the working class.
I now realize that my subconscious memories and biases also
played a major role in my written opposition to the University of
Wyoming’s dismissal of fourteen black football players in 1969
who were protesting racial prejudice. My letter to the University
president, a former acquaintance, asking that the black players
be re-instated, was ignored. But in my subconscious bias, this
again represented a powerful institution that was not only harming members of a working class, but also promoting racism.
So the discovery of our implicit biases can be critically important in our life’s decisions, and for me, in creating the passion
necessary to constantly fight for the poor, the working class, and
those who are often victims of the rich and powerful.
But many implicit biases that are helpful, can also be harmful in life changing ways. I finally recognized this following my
mother’s death. When I married and began practicing law, I re-

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sisted purchasing items for family or myself that might make it
appear that I was now a member of a higher class that I subconsciously felt looked down on the working class. I didn’t want a
fancy home or car that might make my mother uncomfortable
when visiting. I was subconsciously torn between a lifestyle that
I felt would satisfy my mother, and a new life that was inclusive
of the professional class that I was now a member of. In addition, I was uncomfortable asking jurors for money damages and
therefore reluctant to recommend a large sum. I identified with
lawyers representing the ‘working class’.
Then my mother passed away, and I couldn’t understand why
I no longer felt guilty when associating with lawyers who were
financially successful, and I began feeling more friendly and
comfortable around those lawyers who were wealthy, many of
whom became very close friends over time. I questioned why I
felt somewhat relieved and free after my mother’s death, a mother I deeply loved. I was confused.
It was then that I discovered, with the help of a psychologist, that I had an implicit bias toward those that I had assumed
took advantage of my extended family, the working class and
the poor. I was in the process of understanding and overcoming that bias to some extent. I was then able to overcome my
reluctance to ask jurors to assess large monetary damages when
justice demanded.
Before discovering this unconscious bias, did it at times result in my rejecting a juror who would have been favorable and
fair? Did I sometimes unnecessarily attack an adverse witness
because of this bias, and offend the jury? Did I sometimes treat
certain defense council with undeserved disrespect? Perhaps, but
that’s water over the dam and I’ll never know. I do know that
I have overcome this particular implicit bias to some extent. I
now wonder if I have other unconscious biases that I haven’t yet
discovered, and was pleased to learn, through Dr. Perry’s book,
that there are ways of overcoming such biases.

Overcoming Implicit Biases
Dr. Perry explains that
the challenge of addressing implicit bias is first recognizing that you have it. Reflect on when your biases have
been expressed. Anticipate when and where you may
likely express your bias. Be courageous enough to spend
time with people who are different from you and who
may challenge your biases. It can be uncomfortable. But
remember: Moderate, predictable, controllable stress can
build resilience. Create new associations; have new experiences. Ideally, you go out into the community and
spend time with people who are different than you are.
You need to create real, meaningful relationships so that
you get to know individuals based on their unique qualities, not based on categories.
This is what really changes implicit bias and racism:
And this is why you can’t be a corporation and address
these issues by simply having everyone go to an anti-racism course of cultural-sensitivity training. You don’t get

The Discovery and Use of Implicit Biases
trained in cultural sensitivity—you go spend time immersed in the culture, spend time with other people. ***
You can’t become culturally sensitive from a three-hour
seminar.11
The long-term solution is to minimize the development
of implicit bias. We have to think about ways to raise
our children with more opportunities to be exposed to
the magnificence of human diversity earlier in their lives.
And we have to change the inherently biased elements of
so many of our systems.12
So, changing subconscious bias can be far more difficult than
what it may seem. This is particularly true if implicit biases can
be passed on from one generation to the next in the DNA of the
developing brain, as new scientific research has disclosed.13
So, based on all of the current medical and neuroscience evidence, TLC can work to help its students, faculty and staff in
beginning to discover their implicit biases, which must be discovered to fully answer the question, ‘who am I’. The College
can attribute its unique success to several important factors: (1)
a team of the best and most experienced and dedicated psychodramatists available; (2) the careful selection of students representing racial, sexual and ethnic diversity; (3) hours then spent
in psychodrama sessions using re-enactments of life events and
reversing roles with one another, which develops mutual compassion, understanding, and lasting friendships; and (4) living
together in the kind of environment that Dr. Perry recommends
to “create real, meaningful relationships” necessary to discover
and change implicit biases that are harmful, and discover those
that may be advantageous and helpful. With this training, and
in this college environment, harmful implicit biases can change.
Student graduates then continue to use this knowledge and
experience in joining or forming small working groups throughout the nation, and the environment that dispels harmful biases
thereby continues to grow. I have been fortunate to participate
in this environment for more than 20 years, discovering and using the passions created by my implicit biases, both in my everyday life, and in the practice of law.
Thanks to our dedicated Board of Directors, faculty, alumni,
staff and psychodramatists, the Trial Lawyers College has survived and continues to grow despite the pandemic and challenges presented, and will assist thousands of trial lawyers in future years in answering the question, Who Am I. In the process,
many will discover and address their implicit as well as explicit
biases. No other program is presently adequately prepared to
render this assistance. q

2

3
4
5
6
7
8

9
10

11
12
13

See What Happened to You? for a discussion of the scientific studies of the brain as it relates to the subconscious retention of certain early memories that can then result in implicit biases.
See, ‘What Happened To You’, pgs. 29-34; 76-78; and 223-4.
Id at 234.
Id at 236.
Id at 239.
Id at 240-241.
Some of these cases are described in ‘Ways in Which Trial
Lawyers Can Make a Difference’, by Bill Trine, The Warrior,
Summer 2016, at page 26.
See, ‘A Broken Criminal Justice System and Prisons for Profit’, by
Bill Trine, The Warrior, Fall 2021, at page 7.
See Bylaws of the Trial Lawyers College adopted by the Board of
Directors and signed by Gerry Spence as Chairman of the Board,
and Jude Basile as President on February 1, 2011. (Ed. note: The
Bylaws were thereafter revised on May 6, 2020.)
See footnote 1, ‘What Happened to You?’ at page 241.
Id at 242.
See, Mark Wolynn, “It Didn’t Start With You”, published in2017
by Penguin Books, describes some of the latest neuroscience
research showing that the memories of traumatic experiences
residing in the DNA of brain cells can be passed on to the next
generation and the next.

Bill Trine lives in Boulder, Colorado with his wife, Jeni. He has
retired from the practice of law, where he was a proud and active
trial lawyer for 55 years. He is a past president of the Colorado Trial
Lawyers Association, a founder and past president of the Washington
D.C. based Trial Lawyers for Public Justice (now ‘Public Justice’),
and on the Board of Directors of the Florida based Human Rights
Defense Center which publishes Prison Legal News. He served on
the teaching staff of the Trial Lawyers College from its inception in
1994 until his retirement in 2015, but continues to be active in the
College as an Emeritus member of the Board. He is the co-author
of a bestselling book for lawyers, and the author of more than 75
published articles regarding the practice of law.

Endnotes
1

This is a New York Times bestseller published in 2021. Authors
include Bruce D, Perry, M.D., Ph.D., a child psychiatrist and
neuroscientist who is a senior fellow of the Child Trauma
Academy, and an Adjunct professor of psychiatry at the
Northwestern University School of Medicine in Chicago. I am
forever indebted to my son, Jeff Trine, for introducing me to this
book, which contributed to my discovery of my biases.

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