Diversity Insider

Law Firms Striving Toward Diversity, Equity, & Inclusion

In the law firm context, billable hours are key, as they typically set the baseline standard for compensation, promotion, and bonus determinations for lawyers. It can be trying for any lawyer to get, hit, and maintain billable hours, particularly when one considers all of the usual distractions a typical lawyer faces on a day-to-day basis at work—in addition to their familial and extracurricular activities. Many lawyers are stretched thin and asking them to pile just one more thing on their plate, no matter how well-intentioned and necessary, can be difficult. Thus, DE&I activities, as with anything above and beyond a lawyer’s typical activities, (particularly if they may not weigh on compensation or promotion) can understandably fall to the wayside. When those activities appear to result in minimal change, as can be the case where DE&I activities are organized by and attended only by diverse attorneys and their like-minded counterparts, the added requirement can feel even more burdensome.

Previously, diverse lawyers were often the first to be called on to implement, assist with implementing, or to participate in DE&I programming and initiatives. It takes very little imagination, then, to understand the conundrum diverse lawyers faced in having a personal proclivity toward DE&I activities, feeling compelled to participate in DE&I activities when asked (not to suggest that the “ask” alone is a problem), and needing to balance all of the usual daily activities as our peers, while also maintaining billable hours. Adding insult to injury, the time spent on such activities—while demonstrating “good firm citizenship”—rarely translated into moving the needle in terms of compensation or promotion.

Fortunately, many law firms have now shifted to a paradigm that offers billable hour credit for DE&I activities. The actual requirements vary from firm to firm, but typically some kind of participation in organizations and activities that support the core principles of diversity, equality, equity, and/or inclusion—such as targeted recruiting efforts, mentorship, attending or participating in the planning of DE&I-related events, and holding leadership roles in diversity-focused organizations—will satisfy that credit. The hope is that giving such credit incentivizes all attorneys to participate and engage in difficult conversations and do the “good work,” with the reward of satisfying billable hour metrics in the process. It also evens the playing field, at least somewhat, for those lawyers faced with the “burden” of being asked to participate in such activities more often than others.

On a larger and outward scale, law firms have demonstrated their personal commitment to promoting DE&I through their participation in organizations like the Leadership Council on Legal Diversity and the Move the Needle Fund, through recruitment at diversity-oriented events and pipeline programs, and signing on to the Mansfield Rule, which requires that a firm measure whether at least a certain percentage of women, attorneys of color, LGBTQ+ individuals, and lawyers with disabilities have been considered for leadership roles, promotions, client opportunities, and senior lateral openings. Many law firms today have also hired Chief Diversity Officers to lead departments dedicated to DE&I efforts, with special emphasis on having conversations around and answering the “hard questions” noted above.

Corporate Legal Departments Taking Law Firms to Task

Corporate legal departments have expressed similar sentiment with respect to DE&I efforts, both internally and for their outside law firm counsel. Indeed, many in-house legal departments recognize that fostering diversity in the legal profession makes good business sense. They acknowledge that diversity will play a significant role in the overall success of their organizations. This is especially so in light of their necessarily diverse consumer bases.

Internally, in-house legal departments have increased diversity through recruitment and participation in their organizations’ internal DE&I programs. In support of these efforts, these organizations are reported to have conducted internal assessments of their legal departments, with an emphasis on increasing the number of women and minority attorneys hired to reflect a more accurate representation of the communities they serve.

In-house legal departments have also been vocal in encouraging DE&I efforts at the law firms which they engage. Corporate legal departments have been partnering with their outside counsel to sponsor such programming and previously stated their desire for a more diverse slate of attorneys to work on their matters. Having noted that those desires did not result in a quantitative or qualitative movement toward a more equitable and inclusive goal for their outside counsel, many have now established measurable guidelines for tracking whether and to what extent their outside counsel are meeting certain DE&I standards. Those guidelines can take many forms, but a few of the more comprehensive ones have included diversity data, billable time commitments, and relationship-matter credit disclosure requirements. Legal departments also actively seek to identify and retain women- and minority-owned outside law firms. For example, many top corporations take part in DRI’s Diversity for Success Corporate Expo, which provides a unique opportunity for selected minority and women attorneys and their law firms to network and interview with corporations and insurance companies committed to diversifying their national outside counsel panels.

The Road Ahead

Law firms and corporate legal departments have obviously taken steps in the right direction to identify and correct the longstanding issue surrounding recruitment, retention, and promotion of diverse lawyers in the legal field. Thus, the legal field may be beyond the stage of identifying the problem and developing solution-based initiatives. Where we must focus and continue to require measurable change is in the enactment, implementation, and evaluation of these initiatives to ensure that we are developing a more equitable and inclusive profession.

Chelsea M. Dease is an associate attorney in Greenberg Traurig’s Atlanta office representing pharmaceutical companies and medical device manufacturers in product liability cases, as well as hospitals and medical professionals in professional liability cases. She helps advise companies on regulatory, compliance, and risk management matters, including adverse event reporting and patient inquiries/claims.

Akiesha Gilcrist Sainvil is an associate attorney in Greenberg Traurig’s Miami office, where she centers her practice on defending medical device, pharmaceutical, and consumer products manufacturers in high-stakes complex products liability and mass torts litigation. She has also defended major retailers, transportation companies, financial and health care institutions, and insurance providers in complex commercial litigation matters in federal and state courts in the United States.

Enjoliqué Aytch Lett is a shareholder in Greenberg Traurig’s Miami office, focusing her practice on pharmaceutical, medical device and health care sector litigation. She often leads bet-the-company litigation for clients in the drug and medical device manufacturing industries. She is also well experienced in mass tort and multi-district litigation, and also has substantial experience defending high-exposure medical malpractice actions for physicians and hospitals.

1. You are very articulate. Think about this comment for a minute. It presumes that Black and Brown professionals are usually incapable of having intellectual conversation or discussions. Comments like this can negatively drive expectations about performance and advancement as well since it implies that the speaker may be less competent. How can we address this? Comment on the person’s specific ideas instead.

2. I don’t see color. This is only true if you are blind. If you cannot even acknowledge that a person is Black or Brown that signals that you do not really see the person, or even worse, that you do not hold who the person is against them. Comments like this actually lead to feelings of isolation and a sense of being the “other.” How can we address this? Focus on getting to know the individual on a personal level so that you can really and truly appreciate them for who they are.

3. Where are you really from? Latinx, Asian, and persons of color from the Caribbean and Africa are often asked this question. This question is again focusing on differences. How is knowing that someone may be from a country other than the United States (and sometimes they are not) important to how you value them as a person, colleague or peer? How can we address this? By not asking this question at all. If someone wants you to know something about their identity they will share it with you when they are good and ready, which will more than likely occur after you get to know them on a personal level.

4. Why are you so aggressive? This question is based on many false assumptions that are beyond the scope and page length of this article, but at its core presupposes that Back and Brown people are angry and threatening and don’t have the right to express genuine emotions. How can we address this? Focus on the substance of the message instead. Think about this as well. Would you have the same concern with a white person?

5.  Mistaking one Black or Brown person for another. When the Black or Brown people do not even resemble each other, they feel as if they are not really being seen at all. When that happens, it adds to the feeling of isolation and feeling like the “other” and certainly not a part of the organization or community. How can we address this? It is not rocket science. Learn your colleague’s names and get to know them.

6.   Mispronouncing an unfamiliar name. A name is an important part of a person’s identity and often has cultural and familial significance. Names are special and are generally a source of pride, and reflect inclusion in a wider community. When a person’s name is constantly mispronounced, misspelled or simply ignored because it is unfamiliar to most people this can create feelings of shame and embarrassment. Some people often feel the need to apologize for someone else not taking the time or even caring to pronounce their name correctly. This is tantamount to not being recognized. When this happens repeatedly, there is a feeling of being “less than” and excluded from the wider community. Some people with unfamiliar names have even take the extraordinary step of “renaming” themselves in order to make it easier to pronounce their names. I have even heard of people being renamed by the person who had difficulty pronouncing their names, which is even worse. How can we address this? This one is really easy. Ask the person how to pronounce their name and listen when they do, so you can at least try to get it right.

7. Can I touch your hair? In addition to being odd (especially in the workplace where it happens— trust me, I speak from experience), all this request does is objectify a person and reinforce the perception that they are different from the wider community or group. How can we address this? Do not ask that question. Get to know your Black and Brown colleagues like you would anyone else.

In addition to being a subtle form of racism, microaggressions also negatively impact the health of Black and Brown people. Research has shown that persons who experience such forms of racism have increased levels of depression, anxiety and other forms of mental problems, which have long-lasting and adverse impact on physical health. The problem and reality of microaggressions is real, serious and pervasive. Identifying the problem and addressing it are not always easy, but every day brings a new opportunity to work towards a more inclusive community so we all have to try. Discussions around race and equality are not always comfortable either, but without candid and open dialogue, internal reflection and concerted effort, we cannot achieve true inclusion and equality.

Sherylle Francis is founder and principal of Sherylle Francis, P.A. She is a passionate and seasoned litigator with more than 20 years’ experience defending major corporations in product, drug and medical device, commercial and unfair trade practice litigation, including multi-party mass tort litigation in state and federal courts. Sherylle is also active in her local community where she has served as the former Chair of Broward Legal Aid and Coast to Coat Legal Aid, past President of the Caribbean Bar Association, and former Board Member of the Lynn Mitchell Foundation and the Women’s Council of the Greater Fort Lauderdale Chamber of Commerce.

Diversity Day

“Why? Because Martin Luther King is a hero of mine. There’s this great Chris Rock bit about how streets named after Martin Luther King tend to be more violent. I’m not going to do it but it’s....”

-Michael Scott

All we have to do to learn about the best practices for developing an effective diversity training program is to not follow the lead of everyone’s favorite boss, Dundler Mifflin’s Michael Scott of the award winning series The Office. One of the most popular episodes of the show aired in the first season is titled “Diversity Day.” In the episode, Dunder Mifflin has hired a diversity consultant to train its Scranton Branch on diversity after the corporate office heard about Michael’s imitation of a famous Chris Rock routine. Upon arrival of the consultant, Michael implies that it was his idea while in reality his offensive behavior necessitated the training. When the consultant has a staff member re-enact one of Michael’s past indiscretions, Michael, not satisfied with the consultant’s workshop, decides to hold his own racial teach-in later that afternoon.

In formulating his plan for diversity training, Michael advises: “Hi. I’m Michael Scott. I’m in charge of Dunder Mifflin Paper Products here in Scranton, Pennsylvania, but I’m also founder of Diversity Tomorrow, because today is almost over. Abraham Lincoln once said that, ‘If you’re a racist, I will attack you with the North.” And those are the principles that I carry with me in the workplace.” The irony is that while Michael, as regional manager, was attempting to teach his co-workers about diversity, he was actually the most ignorant of them all. The episode is extremely funny, and also teaches us important lessons about implementing diversity training.

Buy-In from the Top—Inclusive Leadership

“Today is diversity day and someone’s gonna come in and talk to us about diversity. It’s something that I’ve been pushing, that I’ve been wanting to push, for a long time and Corporate mandated it. And I’ve never actually talked to Corporate about it. They kind of beat me to the punch, the bastards. But I was going to. And I think it’s very important that we have this. I’m very excited.”

-Michael Scott

The importance of having a diversity training program supported by the leadership of a law firm cannot be overstated. The message that diversity is important must come from the top, and all employees must understand that the diversity and inclusion initiatives are being pushed by the executive team. Likewise, senior managers, such as Michael, must be properly engaged and support the firm’s vision to help lead the firm’s implementation of its diversity initiatives and demonstrate ‘buy-in’ for the associates and staff. Michael’s attitude toward diversity training does not seem consistent with “corporate,” and such an attitude is counterproductive and should not go unnoticed by firm leadership because such behavior will undermine a law firm’s goals.

Hire The Right Diversity Trainer

“I have something here. I want you to take a card. Put it on your fore...Don’t look at the card. I want you to take the card and put it on your forehead and...Take a card, take a card, any card. UM...And I want you to treat other people like the race that is on their forehead. OK? So everybody has a different race. Nobody knows what the race is, so...I want you to really go for it because, cause this is real. You know, this isn’t just an exercise. This is real life. And...I have a dream that you really let the sparks fly. Get er’ done.”

-Michael Scott

To implement diversity initiatives such as training, law firms often hire an outside diversity consultant to lead the training. See generally Carisa Crawford-Chappell, The Power of Diversity Consultants: Helping to Achieve an Inclusive Workforce, Diversity & The Bar (September/October 2004) (“More and more, attorneys committed to a diverse work environment are turning to diversity consultants in hopes of achieving a multicultural work environment.”) (last visited June 5, 2018). Diversity consultants attempt to educate lawyers about their colleagues, by “(a) alerting them to differing and sometimes incorrect perceptions they may have about each other, (b) pointing out the possibility that some minority lawyers believe that they are being discriminated against, and (c) illustrating how stereotypes can often result in discriminatory behavior.” David B. Wilkins and G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 Calif. L. Rev. 493, 592 (1996). A law firm must be careful with the diversity trainer that it hires because there have been instances where diversity trainers have promoted racial stereotypes, and lawsuits have ensued. See Diversity Training Backfires (last visited September 21, 2020).

Although Michael’s dialogue and purpose for engaging in stereotype training appears on its face to be counterproductive, it can actually be helpful to allow participants to understand why their own values may be contributing to the lack of firm-wide inclusiveness. That said, Michael Scott is undoubtedly the worst person to lead a meeting on diversity even if he is “two-fifteenths Native American.”

Diversity Training Gone Wild

“You may look around and see two groups here: white collar and blue collar. But I don’t see it that way, and you know why? Because I am collar-blind.”

- Michael Scott

One of the first examples of diversity training gone awry occurred over twenty years ago. In Hartman v. Pena, 914 F. Supp. 225 (N.D. Ill. 1995),the Federal Aviation Administration was sued for sexual harassment after it subjected employees to three days of diversity training that made white males feel like scapegoats. In Hartman, the plaintiff was forced to participate in an exercise where males were forced to walk through a gauntlet of female employees to mimic the sexual harassment that the women at the FAA experience. Id. at 227. The plaintiff contended that the women touched his genitalia and that he was ridiculed by the male participants. Id. In denying summary judgment, the court noted:

because the gauntlet exercise was designed to demonstrate sexual harassment in a ‘hands on’ approach, it is difficult to accept the argument that an exercise created to be sexually harassing was not. The fiction, Hartman contends, took on life. Hartman would not distinguish pretense from reality in terms of the alleged touching of his genitalia. At a minimum, there is a genuine issue as to whether and at what point the simulation became the act. Accordingly, summary judgment is denied as to the claim of sexual harassment.

Id. at 30. 

In Stender, v. Lucky Stores, 803 F. Supp. 259, 266 ( N.D. Cal. 1992), a group of employees of Lucky's grocery chain filed a class action complaint on behalf of African-American and female employees working in retail stores in Lucky's Northern California Food Division alleging lack of promotions for women. The court ordered Lucky to turn over the notes of the managers’ comments elicited at a sensitivity training for managers.

Specifically, the court noted:

[The Diversity trainer] requested that each person at the meetings volunteer a stereotype that they had heard in the workplace. In response to this question Hoffman remembered hearing that "women won't work late shifts because their husbands won't let them;" "the crew won't work for a Black female;" "women are better with customers than men are;" and "women need training and an opportunity to do floor work." R.T. at 6-923-24 (Hoffman).

Id. at 292–93.

These comments were held by a court to be admissible as evidence of discriminatory intent within the organization, and plaintiffs were awarded over $90 million in damages. Stender v. Lucky Stores, Inc., No. 88-cv-1467 (N.D. Cal. Apr. 20, 1994) ($107 million settlement; fees and costs consumed 12.8 percent of recovery) (reported in 18 Class Action Reports 338 (May-June 1995)).

Finally, in Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1262-63 (10th Cir. 1995), the jury awarded the plaintiff $250,000 for emotional distress resulting from the defendant's refusal to contract with the plaintiff for allegedly discriminatory reasons, however, the court remanded for a new trial because the evidence suggested the award was the product of passion and prejudice. Id. at 1265.

While an effective diversity training program is crucial to success in today’s legal marketplace because clients demand their work be performed by a diverse legal team. Through an effective diversity training component added to the overall law firm diversity strategy, law firms will “move the needle” with respect to their diversity numbers to the top of the heap. However, law firms must remember the lessons learned (of what not to do) from Michael Scott in order to avoid liability down the line.

Conclusion

The laudable goal of increasing diversity in a law firm should not be used against the law firm, but law firms must ensure that they utilize a properly certified diversity trainer with professional references in order to reap the benefits of diversity without unwittingly creating legal problems for the firm. Taylor Cox, Jr. & Ruby L. Beale, Developing Competency to Manage Diversity 17 (1997) ("Managing diversity, by contrast, is driven primarily by business trends and the quest of organizations to maximize economic performance.") Thus, while the importance of diversity training cannot be overstated, all diversity training should focus on communicating appropriate workplace behaviors rather than seeking to learn about employees privately held attitudes about race, disability, gender, or other protected characteristics. See, e.g., Victoria Chapa, Diversity and the Workplace, Experience by Simplicity  (“The challenge that diversity poses, therefore, is enabling your managers to capitalize on the mixture of genders, cultural backgrounds, ages and lifestyles to respond to business opportunities more rapidly and creatively.”) (last visited September 21, 2020). However, law firms would be wise to steer clear of initiatives like Michael Scott’s version of “Diversity Day.”

Kenneth E. Sharperson is a partner with Weber Gallagher in Bedminster, New Jersey. Kenneth concentrates his practice on defending insurance carrier and corporate clients in coverage disputes. He is Chair of Weber Gallagher’s Diversity Committee and the Editor of Weber Gallagher’s Diversity Matters newsletter.

Ten traits of great litigators:

1. Integrity – honest, moral and principled

2. Team player – lifts as she climbs, celebrates her team’s successes, gives credit where due

3. Gritty work ethic – she will work as hard as it takes, for as long as it takes, with passion and perseverance to reach her goals

4. Practical – she takes a fair, rational, common sense approach

5. Storyteller – the ability to hold her audience’s rapt attention

6. Good listener – the ability to actually hear what someone is saying, and what she is not

7. Patience – with her discourteous adversaries, with the ever-changing landscape of litigation

8. Excellent judgment – she makes good decisions and knows when to seek advice

9. Prepared – organized and ready to take whatever comes her way

10. Master negotiator – she can read her adversary like an open book and close the deal

Isn’t it interesting that the traits of a great litigator are also those of a great mother? For anyone who has ever held your child spellbound with your ability to spin a good yarn, negotiated afternoon snack down from sugar cookies to raw almonds, or gone through the exercise of walking your sleep training toddler back to bed eight times in one evening, you get it. Listening to what’s being said is just as important as hearing what’s not being said—whether it’s an expert witness you are cross-examining or your child who is struggling with sharing his fears. Overpreparation will serve you well at trial, and in your diaper bag.

When the world went into lockdown, working mothers faced the superhuman task of juggling two full time jobs while keeping their families safe.

For my husband, Jon, and me, safety is paramount. Our son’s fragile start to life informed our conservative approach to COVID and self-quarantining. Born 8 weeks early weighing 2 lbs. 10 oz., Jude spent his first 53 days in the NICU at Bryn Mawr Hospital, initially on breathing support. At 18 months, Jude was hospitalized for bronchiolitis and transferred from Bryn Mawr’s ER to Nemours Children’s PICU in Wilmington, DE during a snowstorm.

August 31, 2016	First ambulance ride

When Jon and I started learning more about Covid-19—lung complications, acute respiratory distress, ventilator dependency—we freaked out. Despite the fact that Jude is now a robust, thriving four-year-old, the memory of your newborn baby struggling to breathe never leaves you. We flashed right back to the NICU, with its beeping machines and high flow nasal cannulas. Jude’s early days shaped me as a mother, and that instant protective response has muscle memory. When you watch your child struggle to learn how to do things in the world that they were meant to have done in the womb, your heart aches in a way that’s indescribable. I stood guard at his Isolette, jumped at the sound of a cough or sneeze and scrubbed my hands and forearms so many times each day that they cracked and bled.

When the severity of Covid-19 became clear, we reflexively jumped into hyper-protective mode: Hours spent wiping down groceries with Clorox wipes. Having everything delivered—groceries, toilet paper, pantry staples. Not letting anyone in the house. Waking in the middle of the night to check on Jude.

The transition to pandemic life was not a graceful one. One day bled into the next as we juggled work, parenting and the obsessive wiping-down of every can of seltzer in the grocery delivery. The pace of the early lockdown days was not sustainable: Simultaneously working and parenting seven days a week, not working out and barely sleeping. When I attempted to close my eyes at night, all the emotions that I buried throughout the day rose to the surface of my consciousness: Guilt over keeping Jude from his family and friends, but being too afraid to expose him to something that could attack his respiratory system. Guilt over sticking him in front of the TV again or leaving him to play by himself for hours on end so I could work. Anxiety over managing working and parenting full-time.

I knew that to manage everything on my plate while maintaining my sanity, I needed to draw upon the skills that make me a successful litigator.

Time Management: I rose long before the sun to squeeze in early morning workouts over Zoom or to address the housework that didn’t make the cut the day prior. I learned to shift from work task to home task and back, to accommodate the needs of my clients and my son. I scheduled meetings and phone calls around virtual home schooling on the days that Jude’s school was closed for in-person education. I returned to working after family dinner, while Jon cleaned up and spent time with Jude. It wasn’t always pretty, but we made it work.

Organization: My transition to working fully remote was pretty seamless. Given my prior travel, court appearances and other meetings out of the office, I was already doing a fair amount of work at home and had a dedicated office space. Many of my clients had travel restrictions through their companies, and expected Zoom meetings and mediations, which were easily accomplished from home. Keeping myself and my work space organized was vital to my success.

Mission Control

Communication: You can be supremely organized, but if you don’t properly communicate your plan with your team—whether your team is your spouse at home or your colleagues at work—it will inevitably fail. In these virtual times, it became critical to make sure the people I depended on were on the same page as me, and vice versa. Having Zoom meetings to check in with my litigation team, encouraging regular e-mail communication and phone calls, making sure no one felt like they were alone on an island without having support from the firm. Jon and I discussed our schedules weeks in advance to make sure we didn’t both book important day-long meetings on the same date. We included each other on calendar invites for work and home events so we could both be reminded of our respective obligations.

Flexibility: Despite the best-laid plans, things popped up, schedules changed, and adjustments needed to be made. While Jon and I were largely able to juggle work and parenting, some days were rockier than others. There’s nothing like having your four-year-old tell 100 of your colleagues over Zoom to “Say excuse me before you start talking, Mommy.” Fortunately, it was a Women in the Law meeting, and many could relate to the comedic pitfalls of Zooming from home—if anything, they were relieved it didn’t happen to them!

Discernment: As September drew closer, our anxiety levels steadily crept back up. Jude was starting at a new Montessori preschool, and the final week of summer was fraught with uncertainty. Every hour, we reassessed the numbers: the Covid infection rate, confirmed cases, any data available in and around Delaware County, Pennsylvania. We went back and forth over whether to pull him from school or hire a nanny. Ultimately, we were comfortable with his school’s health and safety plan, the small class size and the school’s commitment to mask wearing, social distancing, disinfecting regularly and keeping the children as safe as possible. Jude went back to school and stayed healthy, made new friends and learned new things.

2020 was a year that tested, challenged and pushed pandemic mothers to the edge of sanity. But it was also a time of growing, learning and transforming. The pandemic forever changed us—as people, mothers, spouses, lawyers. We gained an improved skill set, an increased ability to multi-task, and a more efficient approach to managing the demands of trial. We have a sharpened perspective on balancing our clients business goals with the demands of litigation. We are who you want on your trial team. We are who you need on your trial team.

Lynne Ingram is a member of Campbell Conroy & O’Neil, P.C., in Philadelphia. A seasoned trial lawyer with a diverse civil litigation defense practice, Lynne specializes in defending catastrophic, high exposure losses, and has significant experience in matters involving gas fires and explosions. She represents clients in cases across the country, through all stages of litigation. Lynne works with clients in a broad range of industries, and her practice areas span commercial and construction litigation, mass disasters, personal injury/negligence, and premises and products liability. Prior to entering private practice, Lynne spent more than five years as an ADA in Philadelphia, where she tried over 40 felony jury trials. She is the co-chair of her firm’s Diversity Committee, is active in DRI and FDCC leadership, and volunteers at her local hospital’s NICU. Lynne lives in the Philadelphia suburbs with her husband, son and two dogs.

While we enjoy the many different cultures in our country, the cultural divide in America seems to be widening. We live in a society that, unfortunately, positions urban versus suburban, majority versus minority, native born versus immigrants. These same dynamics play out in a courtroom setting.

When an insurance company evaluates a large loss, the claim committee or team which conferences the case and decides if that case is going to be tried, typically meets at their suburban offices far removed physically and psychologically from the actual venue of the trial. We should remember that the word “venue” comes from the late French word “visne,” meaning “the neighborhood.” It represents the neighborhood from which the jury is drawn. Conversations in the carriers’ offices where the file is being discussed often fail to take into consideration the changing complexion of the people who are going to decide the case. Members of the team all may agree with each other that the case has little or no value, but are the crucial questions asked: Will the jury think the case has no value? Will the jury sympathize with the plaintiff? Will the jury be moved by the witnesses? The question is not how the insurance executive feel about the case, but rather how will the jury feel about the case.

Many insurance companies’ home offices are located in sprawling office parks far from where the large majority of their cases are venued. Many insurance company executives also live far from where these jurors live. Dense urban areas are the largest source of premiums and claims. When was the last time claims professionals visited these venues? When was the last time the insurance executives sat in a jury room in these venues? What pre-conceived notions and implicit bias do they bring to the claims committee meeting? What pre-conceived notions or implicit bias do these jurors bring to the courtroom? Our firm always encourages the company: come to the trial, see the jury, and gauge their reaction to the plaintiff and the witnesses. Walk in their shoes.

Defense counsel must sufficiently explain to the claims professional that the jury’s potential opinion is what will ultimately matter and encourage the examiner to make that a significant part of the analysis of the claim. An attorney does his client a disservice when he or she nods in agreement when a company evaluation is not considering the potential jury compilation. In the short term, it may result in confidence and more work for the law firm. In the long term, the result can be disastrous for the firm when a “nuclear” verdict is rendered.

An important cause of “nuclear” verdicts in personal injury cases can also be due to a lack of diversity in the insurance companies themselves, especially at high policymaking levels. Many insurance companies are not yet fully reflective of the American population and this can be true at home office, claims committees and high exposure and pre-trial prep units. Whatever the particular name given by the company to the team that evaluates the potential jury verdict and values, this team should hopefully be reflective of the population or, at least, mindful that they may not be reflective of the jury makeup and must adjust.

We as an industry should become more familiar with the world of our clients, the insured, and the potential plaintiffs and jurors from the social and economic areas from where the overwhelming number of premiums and claims are generated.
Diversity is not only a physical description. It applies to a mind-set, economics, culture and geography. A case and a jury must be viewed through the prism of diversity. This prism should be used to achieve reasonable settlements in order to avoid those “nuclear” verdicts, which result in unwanted publicity and second-guessing all up and down the chain of command. We should not be tone deaf to this reality.

Andrea M. Alonso was admitted to the bar in 1982 in New York. She is also admitted to practice in the U.S. Supreme Court, U.S. Court of Appeals, Second Circuit; U.S. District Court, Southern and Eastern Districts of New York. Ms. Alonso graduated from St. John's University (B.A., 1978) and then from St. John's University School of Law (J.D., 1981). She is a managing partner in the law firm of Morris Duffy Alonso & Faley.

Kevin G. Faley is a partner and the senior trial attorney for Morris Duffy Alonso & Faley. Mr. Faley specializes in litigation and trial work with an emphasis in construction litigation. He has published numerous legal articles for The New York Law Journal, The Torts Insurance and Compensation Journal of the New York State Bar and The Defendant and is a frequent lecturer on Insurance Defense topics.

Understand the Issues

Before developing an action plan for DEI, make sure you understand the relevant issues, including the root causes of discrimination, systemic problems that result in inequity, the differences between disparate-treatment and disparate-impact discrimination, and the effect of implicit and explicit biases in the workplace. Additionally, take an honest look at which groups are underrepresented in senior leadership and your workforce as a whole.

Hold Leaders Accountable

Make sure each manager, leader, and executive understand the needs and goals for your DEI plan and hold them accountable during performance evaluations. Discuss DEI during leadership meetings and share feedback from employees. To demonstrate the importance of DEI to your company's culture, explain what actions you are taking to address inequality and inequity and the difference between the two, and consider including it in your employer branding.

Expand Recruiting

Relying on one or two recruiting methods may limit the quality and diversity of your applicant pool and increase the time it takes to fill the open role. Consider using multiple avenues to target communities that are underrepresented in your current workforce. For instance, build relationships with professional organizations, schools, and community organizations and attend conferences and job fairs that attract minorities.

Diversify Your Hiring Committee

Include a diverse group of individuals in the screening and selection process to help prevent biases from affecting hiring decisions. Train decision-makers to avoid basing decisions on explicit and implicit biases. If you use technology to help screen and select candidates, make sure the data it uses is accurate, job-related, and from a diverse pool. For example, if information about the background needed for a particular role is based solely on your current workforce, relying on such data may create a barrier for groups that are not already well represented in your workforce. Ensure all hiring decisions are reviewed and hold hiring teams responsible for identifying clear job-related criteria by which they will assess applicants.

Give All Employees Development Opportunities

Discussing an employee's career interests and personal strengths can help make them feel valued. Even if your company does not have a lot of opportunities for upward mobility, you can still help employees develop skills and knowledge that will serve them and your business in the future. Assigning new responsibilities to help stretch an employee's skills or capabilities can be an effective way to develop their talents and increase engagement. Meet with each employee and discuss their short-term and long-term career goals. Create a development plan accordingly and follow-up regularly to check on their progress.

Encourage Ideas and Feedback

Solicit employee feedback about the work environment through regular employee surveys, one-on-one meetings, and exit interviews. During staff meetings, ensure that each employee who speaks is heard. When employees do share ideas and feedback, thank them and let them know you will take their suggestions seriously. Remember to recognize employees for their contributions and give them credit for ideas that are implemented.

Diversity, Equity, & Inclusion is moving from an ideal to implementation across the board in many spaces. Those who have and continue to see the most success are companies and corporations who are honest about where they are deficient and make improvements with lower- level and higher-level employees within their organizations. Interpersonal skills continue to be the driving force for healthy relationships within companies. It is imperative to operate in a space of equity by removing barriers and obstacles opposed to only creating blanket equality, which does not factor in direct and implicit bias. As your company does its internal assessments, remember to actively engage with your employees.

Source: ADP HR Tip of the Week, “15 Ideas for Improving Diversity, Equity, and Inclusion”

Lacresha D. Wilkerson is an associate at Simon Peragine Smith & Redfearn LLP with the firm’s commercial litigation section. Her primary practice concentrates on defending transportation, premise liability, maritime, and construction claims.