Diversity and Inclusion Matter: Why and How
The Bencher—March/April 2017
By Dana M. Douglas, Esquire, Joseph K. West, Esquire, and Judge Ivan L.R. Lemelle
We should all recognize by now that diversity and inclusion do indeed matter. We practice it in every aspect of our legal work. We utilize mock arguments and juries to ensure that we view cases and issues from various viewpoints outside of our own, which serves as confirmation that we understand innately that a diversity of perspectives informs our conscience and makes us smarter.
Lawyers have struggled to make real gains in diversifying our workforces, despite recognizing the fundamental importance of diversity of thought to effectively and efficiently create solutions for our clients. Over the past several decades, the legal profession has seen sporadic attempts to incorporate meaningful diversity and inclusion into its DNA.
Despite these efforts, the legal profession still remains the least diverse of all white-collar professions, according to the Bureau of Labor Statistics. But why? How is it that a profession that prides itself on critical thinking and that spends millions of dollars annually on mock trials and juries to gain different perspectives and inform their strategies for success consistently lag behind other professions in this critical area?
A number of barriers to full inclusion still exist at each stage of the legal career trajectory, including a constricted pipeline of entering or interested students, the cost-prohibitive nature of a legal education, and lackluster recruiting efforts. Leading researchers have also pointed to unconscious and implicit bias as a key issue affecting decisions around hiring, retaining, and advancing diverse talent as a reason for our lack of progress.
Ironically, a confluence of factors makes diversity and inclusion more important to our profession than ever before, starting with dramatic demographic changes. According the most recent census data, between 2010 and 2015, the percentage of the U.S. population identified as Caucasian fell from 63.7 percent to 61.6 percent. During the same period, the Latino population went from 16.3 percent to 17.6 percent; African-American from 12.6 percent to 13.3 percent; and Asian from 4.6 percent to 5.6 percent. Currently more than 35 percent of the U.S. population is considered multi-cultural. In 2015, the threshold was reached wherein most babies born in the U.S. are non-white; by 2044, no one racial or ethnic group will dominate the population in terms of numbers.
These demographic shifts have also had impacts on corporate America. From 2000 to 2013, buying power for African-American households increased by 78 percent. For Latino households, the increase was 14 percent, and for Asian-American households the increase was 160 percent. (Source: Catalyst. Buying Power: People of Color in the US. New York: Catalyst, May 20, 2015. www.catalyst.org/knowledge/buying-power-people-color-us). In 2012, only three Fortune 500 companies had a chief diversity officer, but by 2015, more than 75 percent of those companies had a CDO and in many instances they were C-level positions.
The 2015 Minority Corporate Counsel Association (MCCA) Annual General Counsel Survey, which has been compiled since 1999, showed the largest numbers and percentages of women and minority general counsel in the Fortune 1000 since the survey’s inception. Mark Roelling, General Counsel at Mass Mutual, says, “There is a clear recognition that an organization is only as good as its talent and teams. If you want the best talent you need to be going after everyone. We must attract and retain diverse individuals.”
Has the legal profession finally come to realize the value and power of a diverse and inclusive workforce? There is evidence to suggest that in nearly every arena of the profession—on the bench, in corporate legal departments, among both civil and criminal practitioners—we may be approaching a “tipping point” wherein an appreciation for and meaningful approach to embracing a diverse and inclusive bar may finally be a reality.
This summer, the ABA’s House of Delegates passed Resolution 113, which calls on clients to direct a greater percentage of the legal services they purchase to diverse attorneys. More than 20 lawyers from Fortune 1000 companies have signed a pledge to do just that. It is important that the bar, much like the corporate sectors and communities it serves, recognize the value of the collective intelligence that diversity and inclusion add to the practice of law.
Attorney Val P. Exnicios, recipient of the 2009 American Inns of Court Professionalism Award for the Fifth Circuit, says “Diversity is an important quality for all professions but it is especially important to the practice of law. As officers of the court, it is our job to represent our clients to the best of our abilities. The clients we represent come from diverse backgrounds, and so, having a diverse bar permits us to reflect the various cultures, values, experiences, and perspectives of those we represent. While the law does not bend to the personal viewpoints of any individual, a different and diverse perspective can allow one to more fully understand a client and how to best articulate that client’s position in a way that everyone can understand. Diversity enhances not only an attorney’s ability to work with and for his or her clients, but also with other attorneys, experts and judges. Diversity fosters the ability of individuals from different backgrounds to learn from one another, grow, and work together. Diversity fosters communication tailored to a more diverse audience, a reality of today’s society. A greater understanding of the role of diversity and its personal and professional impact allows us to better serve others and ourselves as it enables us to have a more complete and fulfilling experience as both a lawyer and an individual. In short, diversity matters, whether in the courtroom, boardroom, or conference room, or simply at home in our own living room.”
Chief Justice Bernette J. Johnson of the Louisiana Supreme Court, a charter member and former president of the A. P. Tureaud American Inn of Court, notes that she is constantly reminded about the value of diversity when interacting with fellow Inn members. “We have the obvious diversity in terms of race and gender, but we also have members from small firms and large firms. Some do primarily defense work, while others represent plaintiffs. We have members from the public sector. Some practice in state courts; others have a federal practice. We are able to have intergenerational conversations with members of the bench and bar,” she says. “These conversations are important because judges often feel isolated from the normal social discourse. Our Inn is a safe place to exchange ideas without fear of being misunderstood, or worry about recusal issues.”
Diversity not only matters in law firms and in the corporate sector but also among the judiciary. A former president of the Thomas More-Loyola Law School Inn, Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana, observes, “Judges, like everyone, approach their jobs using their own life experiences. For that reason, it’s important to seek the experience and wisdom of others from different cultures and backgrounds.” He suggests that one way to do this is by reaching out to a diverse pool of applicants when hiring law clerks.
“What I have learned from my 18 years of interacting with my clerks is how differently we all look at the world, often because we are of a different gender, race, social background, or culture. This experience has undoubtedly made me a better judge,” he says. Judge Bernadette D’Souza, of the Civil District Court for the Parish of Orleans and a first-generation American who emigrated from India, adds that she sees diversity as the “hallmark of equal justice for all people.”
In 2015, the MCCA partnered with the Just the Beginning Pipeline Organization, which was founded by a group of members of the federal judiciary, to release a research report entitled “The Integration of the Federal Judiciary.” The interactive portal contains complete demographic, real-time information on every diverse federal judicial appointment. According to the data, the federal bench is a diverse as it has ever been in history. And nationally, including state courts and administrative tribunals, nearly one-third of all matters being decided by a trier of fact will be heard by a woman or person of color. Members of the bench have come to understand and appreciate the value of diversity both among their own ranks as well as among the practitioners with whom they interact.
In 2014, upon taking the helm as the first African-American female president in the American Bar Association’s 138-year history, Paulette Brown established the ABA Diversity and Inclusion 360 Commission and charged it with developing meaningful metrics, principles, and standards in various areas of the profession. “Eliminating bias and enhancing diversity is one of the ABA’s four core co-equal goals…We must each do everything that we can to interrupt bias and fight against injustice wherever we find it,” she says. Among the accomplishments of the commission are the creation of a toolkit that includes three training videos for judges, prosecutors, and public defenders on the impact of implicit bias and suggestions for combating it. The commission also established amendments to the ABA Principles for Juries and Jury Trials by adding marital status and gender identity to the list of groups that should not be excluded from jury service and recommended that jurors be educated about implicit bias in the decision-making process. The commission also created a Model Diversity and Inclusion Plan; sponsored an amendment to the ABA Model Rule of Professional Conduct making it professional misconduct for a lawyer to discriminate on the basis of a diverse status; and passed Resolution 113, encouraging corporate clients to utilize diversity as one metric in their retention of outside counsel.
The implications of these changes are clear: A meaningful approach to diversity is not just a nicety or the right thing to do. In a corporate setting, it actually makes good business. In the decision-making realm, it helps judges and jurors fulfill their sworn duties free of the implicit bias that can skew results or destroy lives needlessly. In the workplace, it enhances productivity and morale by ensuring that all members of the team are respected and their contributions valued.
An inclusive and thereby richly diverse nation reinforces public confidence in our justice system and, moreover, the inherent goodness within us. The first three words of the Constitution of the United States of America, “We the People,” exemplify the unity we should all strive to make actionable, day by day.
Dana M. Douglas, Esq. is a partner at Liskow & Lewis, where she practices commercial litigation. She is a member of the A.P. Tureaud AIC and the Thomas More Loyola Law School AIC in New Orleans. Joseph K. West, Esq. is a partner and the chief diversity and inclusion officer at Duane Morris, LLP, in Washington, DC. He was previously CEO of the Minority Corporate Counsel Association. Judge Ivan L.R. Lemelle is a senior district judge in the Eastern District of Louisiana. He serves on the American Inns of Court Board of Trustees and the editorial board for The Bencher. He is a member of the Thomas More-Loyola Law School AIC.
© 2017 Dana M. Douglas, Esq., Joseph K. West, Esq., and Judge Ivan L.R. Lemelle. This article was originally published in the March/April 2017 issue of The Bencher,
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