This presentation is available for MCL self-study credit if you would like to receive credit you must take three actions first click the show more text Below on our YouTube page the text will expand and show a link to download the handout materials once you finish watching this presentation please click
The quiz link to receive self-study credit once the quiz is successfully completed you will receive a certificate via email within 72 hours we hope you enjoy the presentation uh Now The Honorable Chester horn and Richard seagull will present a one-hour elimination of bias program on getting rid of Bright lines
Advancing equity in legal profession so first we have the honorable Chester horn Jr he is an esteemed jurist who has devoted his career to Public Service he served as a judge of the Los Angeles Superior Court for 21 years and presided over countless noteworthy and complex cases during his tenure as an attorney
In the California Department of Justice he quickly established himself as a skilled attorney gaining a reputation for his ability to navigate the intricacies of complex civil litigation in both state and federal courts including several high-profile cases where in he represented governmental purchasers and California consumers in multi-district treble damage class
Action lawsuits resulting in large multi-million dollar settlements in 2002 after Decades of legal practice um judge horn was appointed to the Los Angeles Superior Court over the course of his career judge horn has earned respect of his colleagues and peers for his legal Acumen and dedication to the law and he
Has won the admiration of countless litigant for his compassionate approach King insights and firm commitment to Justice next we have Richard seagull a distinguished and seasoned litigator joined adier Services Inc in 2023 to help litigant efficiently and effectively resolve disputes with his expertise in business litigation and a deep rooted passion for conflict
Resolution Mr seagull is a dedicated is dedicated to fostering cooperation and helping disputing parties find Common Ground as a former San Diego litigation practice leader and office managing partner at Pillsbury Winthrop Shaw Pitman he has a history of successful trial and appellant litigation in state state and federal courts representing
Primarily business entities from mid-market private companies to Fortune 50 corporations in individual multi-party and class action cases were managed um disputes ranging in value from tens of thousands to hundreds of millions of dollars as a mediator Mr seagull draws upon his extensive background in litigation to assess the
Strengths and weaknesses of each party’s position enabling him to provide objective and insightful guidance while in practice Mr seagull was a founder and for 17 years was a leader of pillsbury’s firmwide lgbtq plus affinity group and sat on the firm wide diverse committee he was also deeply involved in attorney
Recruiting and hiring for 27 of his 28 years at the firm including as a member of the local and firmwide hiring committees and as San Diego’s hiring partner so judge horn Rich passing it to you thank you very much Heyward uh welcome everybody uh on behalf of uh
Judge horn and myself I’d like to welcome you to this presentation uh what we’re going to be talking about today is um uh is an aspect of uh the issue of elimination of bias that doesn’t necessarily go into try and figure out why bias is there in the first place you
Heard some of that uh earlier today in the implicit bias presentation uh that our colleagues offered up this morning uh but we’re more about basically talking about how you can recognize where it fits into the overall operation of your firms or or employers and how you can manage that so that you
Can actually achieve the diversity goals that you have and to have a more representative uh employment um group in your in your business or your firm so uh what we talk about this as our main theme is uh getting rid of bright lines now the agenda for this presentation is
G know we’re going to start about uh talking about the uh the sort of the state of diversity in the legal profession right now um across the country and in California in particular and then we’re going to move on from there to the uh to look at how um issues
Of bias can inject themselves into the hiring process and how you can recognize them and get around that and then uh finally we’ll be talking about the benefits of diversity uh in the courtroom and in the context of media a now judge horn and I will be sort of
Handing off up and back uh during the course of the presentation um but I’m going to start off and then um uh and then we’ll go from there so thanks very much and let’s go on to the next slide so initially we’re going to look at uh the diversity and the legal
Profession and where we are right now so uh if we can go to the next slide all right so let’s uh look at race and ethnicity uh in the uh in the bar uh so what we have in California this is a California specific statistic is that
White people comprise 39% of the state’s adult population here in California yet represents 66% of California’s active licensed attorneys right so this is a very big disparity now how it got this way there are lots and lots of different um reasons and we’re not really going to
Get into that we could be talking about that for hours but basically what we need to start with is just recognizing that these are the numbers is that uh is that uh white people are vastly disproportionately represented in the uh in the group of practicing lawyers in California and the other ethnic groups
Are underrepresented as a result so this is where we’re starting and uh recognizing that that over time things have changed and if you look at younger attorneys versus older attorneys the numbers are quite different but basically if you look at the group as a whole this is what you’re looking at
Where where compared to the overall population in California uh the uh the attorney ranks are much wider than average so uh if we can go on to the next slide so you know the current reality is that you know nationally also the representation of women and ethnic minorities in the legal profession
Doesn’t match their representation in the general population and if you look at it on a broad brush the more senior or career Advanced the examined attorney pool becomes the more white and male it becomes so let’s look at uh some specific data when we break it down a
Little bit because and it’ll demonstrate that progress on these numbers has been very slow um and sort of surprisingly slow but it uh uh and then we’ll see where we’ve gone in the last couple of years looking at the NP report on diversity in US law firms for 2022 which
Is the last data we have all right now this uh this slide shows basically three different things um it shows the percentage of women in in um law firms in 2022 as a percentage of uh of all of these different categories and it also shows the percentage of people of color
You know which which is a you know a separate vend diagram and then it talks about women of color which is a subset of the other two when you combine the two together um so when you look at this at the and you’ll notice that on the
Left side you have the senior most attorneys and on the right side you have the junior most attorneys and it sort of goes um uh from one to the other so basically if you look at this you’ll see that at the partner level women are not
Even at 30% of Partners in in law firms across the country uh in the United States and when you look at minority attorneys you’re just talking about 11% at the at the partner level and when you’re talking about women of color you’re talking about around three% it’s
A very small number um and then when you move on to the associates you know people who are more Junior than that you get more women you get more minorities and you get more women of color um and then Council which is sort of an between stage um generally between
Partners and Associates it sort of fits where you would expect it there but what’s really interesting to see is that when you talk about the non-traditional track or staff attorneys um people who are generally considered to be off partner track you find a giant spike in uh women’s representation you see that
Women comprise almost 60% almost three out of five uh in this category of attorneys who are not on track to proceed to partner and then you also see a larger percentage of of um people of color and women of color but then when you average it all together when you get
The total lawyer number you’re looking at just short of you 40% are women even though obviously 50% in the uh you know a bit more than 50% in the general population uh minority representation is under 20% and women of uh women of color also under 10% which again does not
Reach the total numbers but there is a bit of a silver lining here is if you look at summer Associates the uh the people who are coming in out of law schools right now are not yet pass the bar uh the numbers are more encouraging you actually have greater than 50% of
Summer Associates are women uh um almost 50% you know a bit more than 40% are people of color and women of color make up a uh you know almost 30% here so it’s it’s actually much more encouraging for looking down the down the line uh as to what the legal profession might look
Like several decades into the future but it’s not what it looks like right now all right let’s move on all right and here’s uh a graphic demonstration which which I think is is um is very uh shocking frankly when you look at Partners at law firms you see
Just how just how large a uh percentage are uh are white uh as opposed to the other ethnic minorities which all make up a small sliver and then on the uh pie chart on the right shows the percentage of women and the breakdown of the different uh uh ethnic groups and you’ll
See that the uh you know that the numbers of women in these particular areas uh for example you know Latina women are under 1% uh at the partnership ranks um and uh you know so so the numbers are very very small all right let’s move on to the next one
Please and then Associates you still see on these charts that uh that whites make up uh almost three4 of the people who are here and then the uh the percentages of minorities of of um of people of color are larger um and then with women it’s also larger but again it’s not
Representative of the uh of of the overall population of the United States let’s move on one more and then total lawyers you see which is effectively an average of the two numbers there uh you you still see that the practice of law is overwhelmingly white in this country and um and the
Percentage of uh of women of color is still very very small well behind their um their uh representation in the general population all right now what’s very interesting is if you that’s you know these are law firms these are private law firms that we were talking about
Before if you look at the California state employees um the state demographics report it’s an entirely different picture uh the uh the state employees are much more representative of the the general population you know people who work for the state of California you have uh almost a 50-50 ratio of women
And men and uh and then you see a much you know more diverse distribution of uh ethnic identities uh in the pie chart on the left uh for people who actually work for the state so the state has actually in its hiring has done much better than private law firms have across the
Country all right next one and then uh another slide here uh we have talking about lgbtq lawyers at law firms and uh in 2022 and this is very interesting because these numbers are actually fairly substantial it’s 4.17% of all lawyers identify remember this is about people who self-identify as
Lgbtq uh 4.17% of all lawyers and then partners are smaller Associates are larger and some are Associates we’re talking almost 10% here now it’s difficult to actually say how this Compares with with the overall population because this is a question of self-identifying and uh people who self-identify at different stages in
Their lives uh as of today uh are very different so it’s it’s difficult to tell what the actual number would be of people who are partner age uh in the country um and in the legal practice compared to what these numbers are representing but still it’s uh you know
When people give estimates of between 5 and 10% of the population you know is one you know basic estimate um these numbers are uh are are actually doing pretty well all right let’s move on uh and I’ll hand off to judge Horton Thank you Rich uh the um figures
For the courts uh are quite interesting um because they uh don’t in in the lower courts they tend to mirror U the issues that Rich has pointed out in the overall legal profession but in our Supreme Court um the data shows that there’s been U either little or no evidence uh of any
Racial bias in the selection of Supreme Court Justice in this state um from um the data shows that women have constituted a majority of our Supreme Court in most years from 2014 to 20 2023 the only exceptions were 2020 and 2021 when women held 43% or three out of the
Four seats as for racial disparities the data shows that white men exceeded their percent of the population in only two years 2014 and 215 and that uh in every other year their percentage of the Supreme Court seat seats fell well below their percentage of the population justices of as Asian descent have held
Either one or two seats on the report and therefore exceeded their percentage of the population in every single year from 2014 to 2023 uh justices of black or African-American descent have held one or two seats in the court exceeding their percentage of the population in every year from 2016 to
2023 and finally justices of Hispanic descent have held only one seat on the court in seven out of the 10 years so they have never met their percentage of the population when we when we turn our our focus on the courts of appeal the data is much much different women have slowly improved
Percentage of seats on the course of appeal from 30.5% in 2014 to 42% in 2023 but still far less than their percentage of the population uh and and of course um white white men experienc a corresponding decline during the same period as for racial differences however
White men have held More than 70% of the seats on the courts of appeals declining from a high of 78.9% in 2014 to a low of 70% in 2023 now Hispanic and Asian judges have never held a percentage of seats equal to their percentage of the population and while black or African-American justices
Have held a higher percentage uh of their percent of the population in every year except 2014 and lastly when we focus on the trial courts uh the picture is largely the same as it was in the court of appeals um women have improved their percentage of seats held from 30 2.2% in
2014 to 39.7% in 2023 uh while men held a corresponding percentage of the trial court seats this percentage still lags well behind the women’s percentage of the population as for racial disparities white judges held 70.2% of the trial court seats in 2014 and that percentage was reduced every
Year until 2023 when it reached a low of 61.1% still much higher than their percentage of the population the judges of black or African-American DEC exceeded their percent of the population in every year from 2014 uh 6.3% to 2023 when it reached 8.5% judges of Asian Or Hispanic descent
However have never reached their percentage of the population in the trial courts and one uh last interesting note is in the uh most recent uh report from the commission on uh uh judicial evaluations commission otherwise known as Jenny uh which is required to report uh the annual breakdown of of the
Persons in interviews on for judgeships under the provisions of the government code section 121.5 um the most recent data shows that there has been some progress made in recent years to address bias issues uh in the selection of judges for example of the 173 candidates evaluated
By the commission of 2022 93 were women and 78 were men nearly matching their respective percentages of the population the candidates rated extremely well qualified 37 or 67 60.7% were women and 23 37.7 were men as for the racial makeup white candle white candidates totaled 71 or 41% of the
Total candidates reviewed um Hispanic candidates total 45 or 26% of the total and Asian candidates total 17 or 15.6% and black candidates total 23 or 13.3% of the total number of candidates reviewed by the commission so U with the exception of the Hispanic candidates uh the uh racial groups fairly well matched
Their uh relationship uh their percentages with the overall population and then the last thing I would like to note is that I was before I became a judge I worked for the California Department of Justice for 25 years and there are some sort of encouraging figures uh on um the makeup
Of uh the folks who are in uh the California Department of Justice which is the law enforcement the largest law enforcement agency in the state of California with 5,088 employees of those 3,52 or 60% are women and 20 236 or 40% are men the racial breakdown is 43.8% are white
19.2% Hispanic and 22.1% Asian among the deputy attorney general classifications there are 132 Deputy attorney generals in various classes ranging from dep Deputy one to Deputy 5 which is a supervisory position um and of those 53.5% were women and 46.5% were men now the racial breakdown is 46.7% are white
93 99.3% are Hispanic and 13.4% are Asians so while Hispanics still Hispanics as in almost every other category do not match their population percentage and then as Rich mentioned earlier I don’t think I’ll repeat the data because Rich put up that chart but uh the Department of Justice figures uh
Do not compare quite as favorably with the same figures overall state employees where as Rich Rich’s chart showed it’s a much clearer uh and uh breakdown of both gender and racial makeup of the state employees as a whole uh showing that there’s been a substantial U efforts on
Part of the state of California to um trap the uh percentages of women and minority groups that have get hired over the years uh to the point where they’ve been quite successful in recent years um the only other issue I wanted to talk about free free in the um bias Arena was
How does it show up in the courtroom and the answer is in several ways um the first is by behavior of the attorneys obviously uh that they’re obvious and and and by that I mean where there’s some some evidence of uh actual bias uh uh on a part of an attorney
Appearing in front of front of the in the courts during my 21 years I only recall two instances where U an attorney displayed actual excuse me one instance where the attorney displayed a clear and actual bias based on gender and that was a male attorney uh who insisted on referring to
His female counterpart as young lady or young woman um I War the attorney to stop that and to please refer to count to his opposing Council as opposing Council and in a respectful tone now he ignored that order and on two subsequent occasions again referred to the uh to
The his opponent uh with a condescending tone of voice with as a young lady um so I imposed sanctions on that attorney at that point and his his behavior ceased the only other uh experience I remember was during my years in a criminal Courthouse there were two different
Occasions when I found that attorneys had used bias in excluding jurors from U the jury during durur jury selection as required by Batson versus Kentucky at 476 us79 and uh people versus wheeler at California Supreme Court reported at 22 cal 258 uh I held a hearing outside of the
Presence of the jurors and listen to the attorney’s attempts to explain uh uh provide rather non-racial explanations for their exercise of perm challenges during that process I found that neither succeeded so I declared mistrials and restarted jury selection in both U and in the subsequent trials that conduct did not recur
Um the issue that one of the problems that’s always existed under the Batson and Wheeler issues that to address the uh jury selection bias problem is that neither the US Supreme Court nor the California Supreme Court established a firm burden of proof uh for uh prosecutors to establish that that their
Reasons for exercising perties were not based uh uh biased against protected racial minorities the the tradition was that uh the prosecutors would use uh very standard uh explanations such as the part of town that individuals lived in or uh uh or uh who their friends were other other personal character
Characteristics all almost all of which were related to race in one way or another so but in 20 uh 2020 that has changed um the California legislature enacted AB 370 which amends section 231.50 once a Batson wheeler objection has been made and the statute preserves the three-step process set forth in Batson
Weeder that is the judge has to hold a hearing outside the hearing of the jury the uh prosecutor must then U provide be given opportunity to provide uh non racially based the reasons for his uh exercise of peremptories and then the court has to rule on on on the viability
Of those uh explanations um the statute requires the court to make expli very explicit findings the first is that there is a substantial likelihood that an objectively reasonable person would view race ethnicity gender gender identity sexual orientation national origin or religious affiliation or perceived members membership in any of
Those groups as a factor in the use of a prary challenge and that’s found in CCP section 231.50 subdivision D1 uh the statute goes on to impose a burden on the party exercising the peremptory to establish by clear and convincing evidence that an objectively reasonable person would view that
Rationale stated as unrelated to the juror’s membership at a protected class and then finally uh the statute precludes use of a number of the traditional rationals used by uh prosecutors to justify their uh challenges the on I just mentioned such as theal location they have in people
They associate with all that sort of stuff and uh those categories that have been precluded now are found at 230 CCP section 231.50 applies only to criminal cases until January 1st 2026 at that time uh it will extend to civil cases as well um so
Uh I think that pretty well covers uh my experience with the issues of bias as as it as it shows up in the quote so rich you want to take over all right cool thank you judge horn so so now that we are looking at the landscape the question is you
Know how can we as lawyers make progress on solving these disparities between what our country and even our profession look like and what our legal workplaces look like and um there really three main you know steps the first thing is to basically acknowledge that this is a
Thing this exists there are uh there are disparities you know if you assume that everybody across the population has an you know a roughly equivalent uh desire to become a lawyer uh it the legal profession should be reflecting what our society looks like and it doesn’t um so
The question is you have to recognize that there must be things getting in the way um of a of a representative uh bar um that uh that impacts that ability to go from desire to to actual practice and if we don’t recognize that this is a
Thing we won’t be able to solve you know whatever this thing is the next thing from my perspective is that you know when it comes to Bringing people in what we need to uh think about is we need to start at the beginning of uh of someone’s career basically and from the
Standpoint of of practic iing lawyers already we need to look at our attorney hiring process um because when you uh when you impact the beginning of someone’s career it impacts everything else that follows from there um and the third thing uh which follows from that is that we need to search out
Acknowledge and modify uh points in the hiring process where gender and racial or ethnic biases might get injected into the hiring process especially inadvertently because now days most people are not out there saying I want to have an entirely male Law Firm or I want to have an entirely White Law Firm
Or I want to have an entirely xaw firm that looks like a particular thing or I want to have an entirely whatever workplace most people are are trying to be fair and are trying to be Equitable and uh and don’t want to actually uh be biased in any of their hiring decisions
But that doesn’t mean that biases don’t get injected even when we’re trying not to so we have to acknowledge that you know how can we figure out ways that um uh to avoid that and uh I think the best way to do this you know is to look at
The hiring process the way uh uh a law firm might hire a uh a new lawyer out of law school and uh and basically start at the beginning uh and we’ll start with uh with a story you know a hypothetical uh a scenario which actually isn’t hypothetical this is
Actually something that really did happen to me uh in the process of my very first time uh doing oncampus recruiting for my law firm and I started as a secondy year associate so this was back in 1992 before the internet before cell phones um before decent television
In a lot of ways and um and I’m going to tell you actually what happened I was dispatched as the lawyer in charge of doing oncampus interviewing for summer Associates um uh at a particular local law school that’s very highly reputed Ed uh and uh and we’ve gotten very very
Good lawyers from there uh and what and we’ve been interviewing there since time and Memorial uh and my Law Firm continues to interview there I believe uh my old law firm and uh when you go to a law school uh you an employer has to
Abide by the rules that they set for you and one of the big important things is uh a distinction is that some law schools basically say uh that we will send you a stack of resumés and if you want want to interview 21 people we will
Send you 21 people we the law school decide who you’re going to interview with through our own process and you take who we give you uh and then there are other law firms uh excuse me law schools that basically say uh we’re going to send you every resume that’s
Dropped for you and you can decide who you want to interview on campus and this particular law school where I was interviewing was one of the latter where I was basically given the opportunity uh by the law school placement office to choose whom we will interview and we had
Put out uh as our our guidelines that we only wanted to interview people in the top 10% of their class that’s who should drop resumés the class had I believe 2 or30 or 240 members of the entire class so theoretically I should have gotten 23
Or 24 RS I got 170 RS all right so I got this huge stack delivered to me in my office and in my law firm’s process the oncampus interviewer was the person who decides who to interview on campus so I had to take this stack of 170 resumés
And I had to choose 21 to interview on on campus cuz I was there for 7 hours three interviews per hour 20 minutes a piece so I basically decided I was going to read every single resume regardless of uh of the 10% rule and uh top to
Bottom and I started off by setting them off into three piles yes no and maybe and going through the first time the yes pile was very very tiny the no pile was very very tiny and the maybe pile was the vast majority of this and so the
Exercise that took me several hours to do was to basically take the maybe pile and Whittle it down to a very small yes pile um and uh so it was you know casting off people into the no pile because you know 150 or so of these RS
Had to go into the no pile eventually and I would go through them over and over again and I would Whittle them down and I would put people you know aside that I’m going to decide this later and the pile would get smaller and smaller and smaller and eventually I ended up with
21 resumés on my yes stack and um uh and then what I needed to do I needed to alphabetize them to put them on a list so my secretary could actually type a list up that would then be faxed faxed uh to the law school to be posted on the
Bulletin board an actual bulletin board and then people would know when uh they could sign up for the interviews and so as I was alphabetizing them I noticed something strange um uh that 16 of 21 people on my list were men and mostly white men and I started noticing this as
I was alphabetizing them and I’m thinking because only slightly more than half of the 170 applicants were men you know uh that I received so I was so I asked myself it’s like wait a second how did this happen because I wasn’t looking to have three quarters men on this list
And uh and mostly white men uh so I went back and I started thinking what criteria were I using that might have skewed this uh this sample where where the the numbers tilted heavily in favor of men and mostly white men and and I realized that there were several you
Know ostensibly objective criteria that were doing this and none of them were outwardly gender or race based uh which which is really really interesting because they were infecting injecting gender and race biased into my selections and let me tell you what they were we had a preference at the time for
Day program students over night program students all right and if you look at who goes into the day program these are people generally who are right out of law right out of college all the straight throughs um and uh and night program people tend to be people who
Have jobs and have to keep their jobs uh while they’re going to law school so they spend four years going to law school rather than three and they go at night this tends to involve more working moms it involves people uh from lower socioeconomic status who can’t just
Afford to go through another three years of school without having to work and so that has a gender skew and it also has a uh an ethnic skew another thing was we had uh very good experience in our office with people with prior military service and so there were a couple of
People on my list who I saw that’s like oh this is somebody who came out of the military uh you know we had good experience with them so you know that helped them get on my list and certainly in 1992 when I was doing this the military the United States military was
Overwhelmingly male um and so obviously the alumni of the United you know Veterans of the United States military were also overwhelmingly male it’s slightly more female now than it was but it’s still overwhelmingly male so odds are the people who would end up on my list with military backgrounds were
Going to be men the third one was just something that was just a personal preference of mine I saw people that I liked because they went to my college you know and that has a function of who’s actually doing the selections you know in the back of my head somebody who
Goes to the same school as me you know was a decent school and I figure you know what I’m going to give that put that person on the list just because of that and at the time even though it’s not true now 60% of all graduates from
My college were men so that also tilted things and the other thing the last one was I put a guy on there because he was in my fraternity you know and you know as a tiebreaker he got on the list and of course women are not in fraternities
They’re in sororities so as a as a member of a fraternity that excludes half the population is possibly getting that benefit um and when you looked at all of these things together it skewed you know the outcome even though none of them were saying I want men or I want
White men um so after I went back and I did it again my list you know being more cognizant of this my list became 11 men and 10 women which was roughly percent you know roughly comparable to the uh to the percentage represented in the stack
So next slide please so my lesson out of this is in subsequent years I started the process you know when I got my stack by taking stock of my applicant pool before I made my interview choices so that I sort of knew what I was dealing
With so I could be cognizant of it and then I started and I did effectively the same thing that I did before but but in advance I knew wait a second this is roughly half women or this is roughly 25% ethnic minority uh people of color
Uh or uh later in later years when when lgbtq people would self-identify on their resumés you know issues like that just knowing in advance what what you have makes it more obvious when um when you’re doing something that ends up a little bit out of
Whack so so how do you design a process a recruiting process that minimizes this sort of inadvertent bias you know where you’re not looking to do anything uh that skews it and in fact you may even be looking not to skew it um so how do
You design a process that does this you know the first thing is that you know you have to recognize again that this is a real issue it happens even when we’re not intending to be biased and like I said even when we’re trying not to be um
We also have to acknowledge that the ostensibly objective criter we use for screening and making hiring decisions are not as objective as we think they are you know even facially objective criteria do not always impact different groups the same way so what do you do in
This case you know what you need to do is you need to go back to the first principles for what you’re seeking in your recruits in the first place you know who is going to be a good lawyer who’s going to help me in my practice
Who’s going to add value to my clients and then try to find proxies and applicants backgrounds that implicate those fact factors even if they’re not what you might call traditional hiring criteria all right and so things like you know does somebody have job experience in the subject matter area
Where you’re working that isn’t necessarily just quality of law school and grades um it’s uh you know you can you can look at all sorts of different things you know you know examples of how they’ve presented things in public which might help when you’re going in front of
A court or going in front of a client or going in front of opposing Council you know things that may not be just the you know the check box things that we have traditionally relied upon and overall you know the best thing to do really is to eliminate bright line criteria such
As the nobody in that isn’t in the top 10% should apply that basically if you’re more flexible and holistic in your evaluation of individual applicants and look at them as whole people you can you know take into account things that wouldn’t otherwise be be sort of easy
Check offs that might because of how people got there um you know have uh an inadvertent bias in it and one thing that we need to remember is that Talent is equally distributed across all groups but opportunity is not and so anything that impacts somebody’s
Opportunity to get to you or to get past you and to get into your place of employment is something that doesn’t necessarily impact how good they’re going to be as a lawyer so now let’s go through the hiring process from start to finish to identify where you can find
Bias injection okay let’s start with we’re going to decide on the candidate pool where are we going to interview all right how do we choose what law schools we’re going to go to now this can have a huge impact because it’s kind of when you know the the the fuel that goes into
The machine produces what comes out of the machine and and when we’re starting at a law school if the law school itself has a diverse group of people in it when it comes to uh when it comes to uh people of color a different sexual orientations and gender identities men
And women uh and then you’re just starting with that’s who’s in your stack you’re going to get you know better choices uh more representative choices uh for example if you decide that when you’re looking at the law the various law schools that you’re going to include for example Howard University law school
Which is almost entirely uh black uh that’s obviously going to bring more black candidates into your pool if you go to certain schools that just happen to be located in certain places where the population that they feed from primarily is very very white like a university where my where my nephew went
Which turned out to be you know uh 90% white just because it was a school out of you know where he grew up that just happens to be a very very white state if you’re going to go to a place like that you’re going to get a different you know candidate pool to
Begin with all right you know so you ask yourself is the student body sufficiently representative and then you know next slide please you know once you have your law schools you know how do you choose the candidates to interview at that law school all right so if
You’re going to say well we want to look at academic criteria because after all we’re trying to find Smart lawyers who are going to be able to do things well and that’s that’s a traditional way of of looking at things but a couple of things that you need to think about are
How are students graded at these law schools for example is uh is it a blind grade where it’s just based on your blue books at the end of the semester uh and the professor doesn’t know who they’re grading or is it something where the professors can include things like participation in class because
Statistically you know it’s been shown that uh that women tend to be more um likely not to participate in class in law schools as as men do uh for various social reasons um and we you know that’s not something we need to get into it’s just it’s just true and so if you’re
Including uh participation in grades women tend to not do as well on those things so so the grades themselves might be gender biased um and then you also have to remember you’re only looking at first year grades generally when you’re hiring for summer Associates this is everybody’s first shot at taking a law
School exam which in my experience anyway is an acquired skill and not everybody acquires these things things at exactly the same rate and so there’s a certain Randomness that gets into that and it might be skewing what you’re doing all right um other things for example uh are they on law review Mt
Court or trial team things like that generally employers look well upon that because it tends to give people good experience it gives them good writing experience it teaches them how to stand up in front of people it’s you know it’s generally a good academic credential but
The question is who can actually has the time to do these things all right um because they are enormous time commitment when you’re on law review particularly if you’re an editor of a law review and if you’re doing mood cord competitions trial cord competi trial team competitions not everybody has the
Time to do that what if you have kids what if you have a job not everybody has equal access to the time commitment available for this and this might impact people differently you know job experience you know um are you looking at job experience or is this something
Which is secondary to other things you know day versus night programs like I said earlier you know it tends to be skewed who’s in the day program versus who’s in the night program and then also who’s making the choices like the example was that I was choosing who to
Pick and I happen to be a frat guy and so that was a benefit for somebody and that had a skewing effect I happen to have gone to a particular school and that had a skewing effect for certain people so who is actually making the decisions on these points can actually
Inject bias unintentionally as well next point is you know on the next slide what qualifies when you interview somebody as a successful or highquality interview you know and so you have to think how well do your interview criteria match the first principles for hiring and practice at your firm in the
First place uh is it uh are you looking for people who can answer the question about favorite flavors of ice cream or if you’re a tree what kind of tree you would be uh or are you looking for how well people present themselves in General on any subject that they’re
Looking at um there there are just infinite numbers of ways that you can uh that you can look at interviewing criteria um but but it’s just a function of are any of the things that you’re actually selecting on uh going to have one of these un you know unintended
Biases um and then very very importantly how much does fitting in count um you see this is something that’s that really is important to uh to the success of a of any you know place of employment is that uh and what I tell people what I
Used to tell people all the time when I was doing recruiting is that when you join you know a law firm or or a government entity you’re going to be spending more time with the people that you work with than the people you live
With at home just an hours in the day so you darn well better like them so actually being in a place where you feel comfortable is uh is very important and when you’re hiring that’s also something that you have to take into account um but the danger is that you tend to just
Reproduce the same type of person over and over again who is going to be like us who’s going to fit in with our environment with our culture and and very often people who are not like you won’t fit in quite as well and it tends to perpetuate the same thing over and
Over again so you have to be careful when you’re talking about the fitting in qualification and then finally you know how are you know post interiew hiring decisions made once the interview is done is this a committee that makes a decision or is it individual decision makers who make a decision for example
Um do you then get all of the interview reports together and a group of five or six people sit down as a hiring committee and go through everything or is it that well for the litigate for the litigation position the head of litigation makes a decision for the
Corporate position the head of corporate makes a decision for the head of intellectual property makes a decision for an IP candidate and if you have groups of people making these decisions you get more information you get more experience and you kind of dilute whatever individual biases a single
Person might have when you have groups of people making these decisions versus an individual person making a final hiring decision by him or herself brings their own baggage with them like you know as as I demonstrated and that can skew what happens um and then uh you know that’s also you
Know a centralized hiring you know hiring a class versus dispersed hiring Authority for individual positions like I described are you SL are you are you able to look at an entire class at the same time to say well if we’re hiring 10 people and we go through the first cut
And 10 of them are white or nine of them are men you can actually look back and say you know maybe we should look at this again uh is this really representative are we doing you know is there something that’s coming in and affecting us but if you break it up into
Little pieces and everybody’s just looking at one thing nobody is looking at who other people are hiring and you could end up with these sort of odd uh results as you go um like I described so all right uh now the the last thing here is that you know there
Are long-term effects you know of your hiring practices on people’s careers you know because um you know how you start people in their career will Define their career trajectory after that because your first job leads to you know progression within that job but it also might lead to your second job or your
Third job or your fourth job and as you step up through your career and you go place to place uh you know who’s going to look at you is very often impacted by where you came from before and so your very first job you know stepping onto
The ladder uh where you step onto the ladder can be very important and you know is you know is it are you going to a place that that uh sends feeders to the Judiciary is it going to uh send you to a place that’s going to get you an
In-house job is it going to send you to a place that’s going to get you a job in the government um and so so what you do at the beginning is really important to somebody’s entire career in the law and um yep so that’s that’s what we’ve got on that
One all right now uh I was going to say Katie remind me is this one mine or is this one judge uh judge horens we’ll be uh moving on shortly but I think we’re just introducing our final topic of discussion here okay right here
You go right okay so um all right so so there are you know benefits to having a diverse team you know uh that go on and you okay so this one you’re right this one is Judge horn thank you Rich sorry about that that’s all right uh the three categories we’re going to
Focus on is first how you how how you create your trial team and what what effects Can it have uh in the Dynamics of the courtroom and the second is the same issues for the jury selection process uh the U you know trial team uh issue for example it’s often times uh
You’ll see especially on the defense side there will be two often times three attorneys on the defense side of the courtroom there may be only one or two on the plaintiff side except in multi-party cases um and the um you know the the statistical data show in my own experience supports this
Quite a bit is that the uh the team members uh are overwhelmingly all white uh for most of the firms uh that uh appear in my courtroom uh that was true whether I was uh uh you know at the airport horse during Courthouse during criminal trials or in Santa Monica where
I spent the last part of my career doing civil trials uh there was a there were there were a number of fir firms that um had on their teams for example uh you know either a woman partner or or a woman you know female uh Associates on
The team um but again they were always overwhelmingly white and when you when you’re looking at a when you’re thinking about how is what how is the jury perceiving this and what impact it could have on the um uh the jury deliberation process is something issues you should
Probably think about um because there will be U the jury election process will involve uh men women and people of diverse uh racial backgrounds uh and the the Dynamics of the trial team uh could create some issues uh for you as you move through the trial process um and of
Course the same thing is true uh in the jury selection process as well the you know our Supreme both of our Supreme Courts the US Supreme Court and the California Supreme Court has made it clear that a representative jury serves a very important function uh in
Our our legal system and so the uh the importance of having a uh diverse jury uh has read has led to rules like weeder decision and a Batson case uh and the process of getting that uh is very important there are a couple of procedural barriers sort of built into
The system at the moment uh for example um the jury selection the pool from which jury pools are selected is largely the voting roles and U the uh jurors who have uh California driver’s license or other registered identification cards uh and statistics show that those
Uh two groups uh are far less diverse in terms of race anyway than other possibilities that that could be used U there have been a couple of suggestions for example that uh it it might be a much more representative jury pool if we if we used utility bills and addresses
Uh to U from which to select our the jurors that are actually called to serve in the courtrooms uh and uh and and then there there are some other possibilities as well um and it’s something that uh we think would those things are ought to be uh
Considered um and the other is sort of financial wealth you know uh um you know for obvious reasons people who are at the lower income scales have a harder time uh coming into uh a courtroom to serve our juries for five six seven days and miss work uh as a result and that’s
That’s a probably the most common excuse that you get for serving on a jury um when you’re when you’re a trial judge there’s a very interesting uh experiment that’s going on up in uh the City and County of San Francisco um they have a program they started in
1922 2022 excuse me called be a juror uh where they have for they do a little Financial screening of people in their jury pools and for th those in the lower income levels they pay $100 a day uh for jury service rather than $15 a day and
And the result has been a uh a fairly dramatic increase in the diversity pool of jurors actually being chosen to serve our juries ever since they started the program um and then I think the last way way these things have an impact is just on on uh courtroom Dynamics which is
Again dealing with other Council uh during the trial process dealing with jurors during the trial process and dealing with Witnesses uh during the process uh if you you know if you don’t have um you know men and women and people of color uh rep representing your
On your jury teams uh there you know there can be issues about the treatment of witnesses uh during the examination and other issues and the same thing with jury selection so it’s just a it’s just a thought on how you how we need to think about what we’re
Doing uh U as we put together our trial teams and and then think about the Dynamics of dealing with who who we are dealing with in the in the courtroom so I think that about covers it rich yep uh so the last point is uh you know in the context of mediation you
Know as judge horn mentioned there are obvious you know benefits to having a diverse team uh in a courtroom but it’s but also in mediation uh having you know being cognizant of issues like this and having the available availability of a of a deeper bench and I don’t mean bench
In the court sense but bench in the baseball sense um uh you know can can really be very helpful uh when you’re trying to resolve a dispute through mediation because remember resolving a dispute is partially rational and partially emotional uh and you know some people are just mad and
People are angry and they’re and they’re wrapped up in the case and uh and both needs have to be addressed to be successful and having a team that understands their clients and the opposing clients helps to build the you know the credibility the connection and the trust necessary to a successful
Negotiation um uh and a lot of times you know having uh different types of people you know in your in your Bullpen uh depending on who your clients are whoos opposing parties are uh and where they come from can be very helpful in sort of establishing all of that and uh you know
Because part of the understanding credibility connection and Trust often derives from common experiences or backgrounds or frames of reference and it’s about relating you know as human beings when you’re in a mediation um as much as a lot of times people are just you know think of them as the enemy but
But that’s really a lot of times what goes on and so having you know people from different backgrounds on your team will allow you to put the right people in the room to get the benefits of that understanding and connection with a wider range of clients and opposing uh
Parties so it uh it’s certainly one of those areas where uh at a minimum it’s you know can’t hurt you know might help uh and but but just from a psychological standpoint and from from a human relations standpoint um it it’s it’s actually quite uh quite a
Benefit so that’s the end of our uh of our presentation and we we have Heyward do we have a minute to uh to take a question or should we uh just um if you have any closing remarks I think um you know perhaps we could end the presentation on some closing
Remarks okay J you want to go I just want to uh uh thank the staff at ADR in particular at my uh my trial team Ella Fishman and Jesse Lee for all the work they done who helped me with this presentation and for all the other things they do for me over the
Over the time and uh and thank the management of ADR for giving me this opportunity to participate in this program yeah I I’d like to reinforce that as well and also just to to let people know that this isn’t about uh uh you know trying to check
Some sort of box this isn’t about trying to you know achieve something that you can put on an Alp form this is about trying to make your own firms and your own you know place of employment a better place and a more effective Place uh and this is about getting as much
Talent as you possibly can for as many from as many different places as you can into your uh into your shops so that they can help you that you can help your clients better so um it’s uh it’s something that helps us all if we focus
On it and thanks very much for listening ADR Services Inc has been your unwavering partner in alternative dispute resolution but as the world changed so did we from virtual and hybrid hearings to our ongoing on demand CLE program ADR Services Inc continues to keep resolution and legal education
At the Forefront woman owned and operated from the start there is someone for every situation we are ADR Services Inc
source
