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February 28, 2018 Practice Points

Diversity and Inclusion in Litigation: Less Talk, More Action

By Kasey Mitchell Adams

Imagine for a moment that you are a marketing executive. You are sitting at your desk, mindlessly flipping through hundreds of proposed ads for approval. You see one of an adorable child wearing a “coolest monkey in the jungle” hoodie. But the adorable child wearing that hoodie is black. Does that instantly give you an uncomfortable feeling? Or do you see it as a cute child modeling a sweatshirt you think kids would love to wear?

Many of you may recognize this real world example as the very ad H&M got blasted for just last month. This raises a question: How does the second largest global clothing retailer in the world, made up of presumably intelligent executives, not see the insensitivity of such an ad in 2018? Importantly, soon after the controversy hit headlines, H&M hired a diversity manager. Nicola Fumo, H&M Hires Diversity Manager in Wake of Racist Hoodie Fiasco (Jan. 18, 2018, 2:43 PM), Do you think this ad would have made it past the first round of production had H&M already had a diversity manager in place?

H&M is certainly not the only company facing this issue. There are countless examples—just in the last few months—of companies retracting advertisements and issuing apologies for racial, gender, ethnic, religious, cultural, and/or social offenses. And law firms are not immune to this either. Not only do we need to be better equipped to advise our clients on these issues, but in terms of firm culture—are we actually walking the walk when it comes to diversity?

How many of your businesses or law firms have a mission statement on diversity? I know mine does. But when it comes to putting together a team for a pitch to a client, staffing a new piece of litigation, or choosing who will make up trial counsel for a big case, do we do as we say? Are we just going through the motions to say we are “diverse” or are we actually living out our diversity mission statement?

It should not be a surprise to anyone reading this that the leadership make-up of mass tort MDL and class action lawsuits still does not reflect the diversity of our clients, communities, or jury pools. So why are we, as a legal community, not making a greater effort to be an agent for change? How do we ensure minority talent is truly utilized and not overlooked?

One step being taken is an immersive program hosted just last month by Emory Law School’s Institute for Complex Litigation. In January, judges, corporate counsel, and lead counsel from both the defense and plaintiffs’ bars gathered together to address why we are still lacking diversity and inclusion within mass tort litigation leadership. See Emory Institute for Complex Litigation, (last visited February 22, 2018).

At this program, attorneys were able to discuss hard topics and pool resources to find actual solutions. One interesting approach taken by a federal judge in the last few months was to amend his local courtroom rules to note “junior members of legal teams” are “invited to argue motions they have helped prepare and to question witnesses with whom they have worked.” The reasoning behind the new rule was to improve opportunities for female and other minority lawyers in federal courts. Alan Feuer, A Judge Wants a Bigger Role for Female Lawyers. So He Made a Rule (Aug. 23, 2017),

At Emory’s program, this judge’s approach was discussed in detail, which led to interesting conversations about the role of the courts in improving opportunities for diverse attorneys. Panel discussions involved creative ideas for how to increase retention of diverse attorneys, better address demographic imbalances, and utilize different perspectives to the common benefit. Participants were forced to face the tough questions, not only addressing global issues but specifically identifying what they can do as officers of the court, and individuals, to actually bring about change.

The biggest takeaways are specific things we can do to work toward a better, more diverse future for all of us, including:

  • Supporting immersive programs which address these tough issues
  • Accepting and supporting rules which encourage diverse participation
  • Leading by example
  • Not just saying you are diverse, but actually being diverse
  • Sponsoring diversity scholarships
  • Partnering with local schools to encourage diverse students to pursue legal careers

Kasey Mitchell Adams is with Butler Snow LLP in Jackson, Mississippi.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).