On matters of race, lawyers can do better

Sybil Dunlop, BridgeTower Media Newswires

Has it really been less than a month since Minneapolis police officers killed George Floyd? It seems like a lifetime since then. But it is less than a month. Less than a month since I watched the horrifying video of his death. Less than a month since I stayed up all night listening to helicopters and watching the National Guard move in. Less than a month of protests around the world.

But while I’m surprised that less than a month has passed, horrifyingly, I wasn’t surprised when I heard about George Floyd’s murder. I’ve grown used to hearing news about the police killing an unarmed Black man. And, as we do with gun violence, we come to expect the next horrible event as inevitable. But I was surprised by our society’s collective reaction to this event. Perhaps it is because we have been home for months, thinking about what really matters. Perhaps it is because this was a bridge too far — an action that forced white people to confront what has always been obvious to Black people.
But collectively, now, we are all saying “no more.”

But here’s where it gets harder. How do we fix this problem? Because it isn’t just about our police shooting a massively disproportionate number of Black men. The problem is at the root of our country’s existence. This is a problem that starts when people are born (a Black child’s mother is more likely to die in childbirth than a white mother) and it ends at death (the average lifespan of Black Americans is significantly shorter than that of white Americans). In between, Black Americans have fewer educational opportunities, make less money, receive worse health care, and the list could go on and on. Our entire system is unfair to the core. This is devastating. I am at a loss to know how to even go about fixing everything. Because everything is broken. And I — a white person — know that I have benefited from an unfair system. I don’t know what to do. I don’t know how to fix it. I don’t even know what to say.

When I know nothing, I somehow find myself returning to Rene Descartes. Descartes doubted everything. What if he didn’t even exist? What if there was just an all-powerful demon trying to deceive him into thinking that he existed when he really didn’t? Descartes finds a way out by concluding that he would have to exist for a demon to deceive him. Therefore, because he thinks, he exists. He knows one thing and can build from there.

So I find myself taking a page from Decartes’s book. I take stock of what I do and don’t know. I don’t know how to fix the police department. I don’t know how to fix our educational inequities. I don’t know how to fix our health care discrepancies. (And I’m dubious of all the white people showing up and explaining how they know how to fix these long-standing problems right now.) But here’s what I do know. I know that I can do more. I know that I can do better. And if we each do more and do better our country can’t help but take long-overdue steps forward. (Oh, and we should also rely on experts who have studied these issues to fix the police department, our educational system, and health care discrepancies.)

So how can I do better?

As lawyers, we have access to tools and opportunities to change systems and laws. I sometimes worry that law school taught me to focus on what the law is and not what it should be.

But Rule 11 does not require us to solely focus on what the law is—we have an ethical right to advance nonfrivolous arguments for extending, modifying, or reversing existing law or for establishing new law. And so many of our laws are unfair—our drug laws, our immigration laws, our voting laws. So I will exercise this right. I vow to take more time to think about what the law should be (and take on cases that will help me address inequities in our nation’s laws).

As employers, we can identify, hire, and promote Black attorneys and staff. Law is the least diverse profession. We are 88% white. And this isn’t just a pipeline issue. We are judging lawyers differently based on our expectations about race. Resume studies show that we are more likely to hire someone named Emily than someone named Lakisha. Another recent study demonstrates the ways in which we assess the quality of Black and white associates differently. Researchers asked law partners to rate the quality of a legal memo, telling half of the partners that a Black associate wrote the memo and they told the other half that a white associate wrote it. Horrifyingly, the law partners who thought a white lawyer wrote the memo rated the memo 28% better than the law partners who thought a Black attorney wrote it. The partners also found 43% more errors when they thought the memo was written by a Black attorney than a white lawyer.

I vow to identify institutional changes that my firm can make to minimize the impact of these biases. We need to affirmatively seek diverse pools of attorneys to hire from. We should remove racial identifiers from resumes when we review them. We should offer associates blind feedback. We should review partner feedback to minimize bias. And we should educate partners about the ways in which bias can impact work assignments, mentoring, sponsoring, and perceptions of quality. Finally, we should hold ourselves accountable and set quantifiable and measurable goals for improvement.

As colleagues, we can consciously include our Black colleagues. Research suggests that our Black colleagues can feel isolated. In a recent study, one Black professional reported that “a lot of times, there are things that people exclude me from because they say, ‘Oh, she’s going to be the only Black person there ... just don’t invite her, she won’t feel comfortable.’”1

Bobby Earles,a Black partner at Kirkland & Ellis, provides some pretty basic advice as to how to fix this problem:

• If you are working on a deal, and you have a Black counterpart, say to her, “Hi Nicole. When this deal is finished, let’s have coffee and talk over how it went.”

• If you are a senior executive, and there is a Black executive being considered for a different, senior position, say to him, “Hi, Rashad. I think you have a real shot at this. Let’s have a call to talk about the points you need to cover on the interview.”

• If you are a senior partner, and there is a Black associate in your group who shows potential, say to her, “Hi, Keisha. I really liked your work on X. If you are open to it, I would love to mentor you and help you further develop your skills in this area.”

• If you play golf, and there is a Black person at the company who also plays golf, say to him, “Hi, Larry. I heard you play golf. I’m planning to hit the driving range on Friday. If you’re free, let’s go together.”
These things, says Earles, speak louder than just talk. I vow to do them.

As members of a bar, we can advocate for a diverse judiciary. Right now, our society includes 38% people of color. Yet only 20% of our state court judges are people of color. And this isn’t just about doing better by Black people. Here’s the part where some white people blanch — but we are casting too large a shadow. For example, white men are only 30% of the U.S. population, but they are 58% of state court judges. In other words, it is not just that Black people are under-represented; white people are over-represented.

Why does this matter? The judiciary’s long-term institutional legitimacy requires that it be perceived to be fair to all people. Professor Sherrilyn Ifill emphasizes that the “public’s confidence in the judiciary must be earned. The public wants to know ultimately not that its views will always win the day, but that the deck is not stacked.” A non-diverse judiciary undermines this confidence. For example, one poll shows that 83% of white judges, but only 18% of Black judges, believe that Blacks are treated fairly in the criminal justice system.

Protestors take to the street when they do not believe that they can change the system from within — a problem exacerbated when a community does not trust the judiciary in part because it does not reflect the communities it serves, but instead only a favored class. I vow to work to fix this problem and advocate for change.

As lifelong learners, we can educate ourselves about additional ways to work for change. Law school taught us how to teach ourselves. Indeed, I remember, a week before my civil procedure final drawing pictures (slowly) of claim preclusion vs. issue preclusion. I finally got it. And in the process, I learned how to teach myself something that I had failed to learn in a class.

I need to do that now. I am reading new books. I am listening to new podcasts. There is much I don’t know. But I do know how to learn.

I care about doing better because I don’t want to live in an unfair society. Much like our founders chafed at taxation without representation, I don’t want my life to be lived in a system that is stacked against certain people. I don’t want this to be my country’s legacy. I want to be part of a solution. And to do that, I have to do more. I have to do better.

Endnote

1Harvard Business Review (Mar. 24, 2015) (discussing a new study by Joan C. Williams, Katherine W. Phillips and Erika V. Hall) (available at: https://hbr.org/2015/03/the-5-biases-pushing-women-out-of-stem).

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Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.