The Positive Impact of Inclusion on MDL

by | Dec 10, 2018

How diversity can benefit your multidistrict litigation

Published in the New Jersey Law Journal, December 10, 2018

By Mark Eveland and Deb Zonies 

If we were able to step back in time and enter a courtroom in the 1960s it’s likely that there would be no minorities in the room, and the only woman would be the court reporter. In the 1960s, fewer than 5 percent of law school students were women. In the last 20 years, approximately half of all law school graduates have been women. In 2016, people of color received approximately one third of all law degrees. Today, 30 percent of federal and state trial court judges are women and 20 percent are minorities.

While things have certainly improved since the 1960s, it’s clear we still have a way to go. For example, a 2017 study found that female attorneys accounted for just 25 percent of all attorneys appearing in commercial and criminal cases. The more complex the civil litigation, the less likely a woman was to appear as lead counsel, with the percentage shrinking from 31 percent in one-party cases to less than 20 percent in cases involving five or more parties. In class action litigation, women appeared as lead counsel only 13 percent of the time.

According to Dana Alvaré’s study for the Women in Legal Leadership Project of the Sheller Center for Social Justice at Temple University’s Beasley School of Law (“Vying for the Lead in the ‘Boys’ Club’: Understanding the Gender Gap in Multidistrict Leadership Appointments”), in federal multidistrict litigation (MDL), which accounts for over a third of all federal litigation, approximately 16 percent of leadership appointments from 2011 through 2016 were women. It wasn’t until late 2015 that the first majority-female leadership structure was appointed in the Power Morcellator MDL. And, according to the Bureau of Labor Statistics, law is still among the least racially diverse professions in the country.

New Jersey has often been at the forefront of addressing the diversity issue. The first task force to examine gender bias in the law was established in New Jersey in the early 1980s, and within a decade most states had followed suit. These efforts were spearheaded by the National Judicial Education Program to Promote Equality for Women and Men in the Courts, a program created by the NOW Legal Defense and Education Fund, and cosponsored by the National Association of Women Judges. Some jurisdictions also established separate commissions on racial and ethnic bias, or gave one commission responsibility to consider all diversity-related issues. To date, an additional 65 state and federal courts have issued reports on bias in the justice system.

Because the leadership of mass tort and class action cases still does not reflect the diversity of the clients, the community, or the jury pools for the complex litigation matters, it’s not surprising that the issue still has the attention of judges. In 2014, the Duke Law School MDL Conference issued their Standards and Best Practices for Large and Mass-Tort MDLs, and diversity within an MDL leadership team was specifically included as a best practice. Earlier this year, judges, corporate counsel and trial lawyers gathered for a Leadership Conference at Emory Law School’s Institute for Complex Litigation to foster strategic thinking around talent development and parity in opportunities in class action and multidistrict litigation.

Research has shown that employers who successfully promote inclusion are also the most successful in financial terms such as economic growth and return on investment. An organization’s ability to take full advantage of the entire pool of talented professionals positively impacts its productivity. According to an ABA study, clients, colleagues and the public all benefit from a diverse workforce that can bring different experiences, perspectives and concerns to the resolution of legal problems.

According to the Acritas Research 2016 Diversity Report, for law firms serving corporate clients, the benefits of diverse teams are clear as more diverse teams generate higher performance levels, an increased share of legal spending, and a higher likelihood of being recommended to clients’ peers.

In the courtroom, a diverse litigation team can favorably impact the outcome of a trial. As Craig C. Martin & David J. Bradford asserted in Litigation: Why You Want a Diverse Trial Team:

A team rich in various life experiences and perspectives may be more likely to produce a comprehensive and balanced assessment of information and strategy. A diverse team is also better equipped to collectively pick up verbal and nonverbal cues at trial as well as “read” witnesses, jurors and judges with greater insight and precision. Accordingly, a team with diverse voices may be more capable of communicating in terms that resonate with a broader spectrum of courtroom decision-makers.

This was further reinforced by a 2012 report from the ABA, which stated that:

[T]he attorneys on a diverse trial team bring their individual skills, cultural values and abilities to connect with a diverse jury panel. The personality and power dynamics that may aid in persuading the jury are more robust when there is diversity on the trial team. A diverse team offers more perspectives on the issues. The essence of teamwork is the melding of different points of view to achieve the best possible solution to a client’s problem.

This melding of different points of view is often the very thing that leads to innovation and new perspectives that benefit clients. It’s interesting to consider whether the increase in the number of women and minorities in the legal profession has led to an increased prevalence of cases in our legal system dealing with issues impacting women and minorities, such as Title IX and discrimination cases, and recent MDLs focused on medical devices such as transvaginal mesh products.

The fact is that diversity represents today’s reality. Census data shows that millennials, defined as those born between 1980 and 1996, are a more diverse group than prior generations. Almost 40 percent of millennials are minorities, and one in five same-sex couples are millennials. Millennials are now the largest generation, having overtaken baby boomers last year. A 2015 study by Deloitte and the Billie Jean King Leadership Initiative found that they think about inclusion as a culture of “connectedness that facilitates teaming, collaboration, and professional growth.” Having an inclusive team conveys the message that you value talent and are open to the benefits of those diverse experiences and points of view. This is true whether you are hiring for your firm, choosing a trial team, or selecting a litigation support vendor.

As Justice Ruth Bader Ginsburg noted during the ceremony marking her 1993 appointment to the U.S. Supreme Court, “women, like persons of different racial groups and ethnic origins, contribute … [to the U.S. Judiciary] a distinctive medley of views influenced by differences in biology, cultural impact, and life experience.” Inclusion of this “distinctive medley” is beneficial to clients and crucial to the fairness and advancement of our legal system.

Mark Eveland is the CEO of Verus, LLC, a litigation support services provider headquartered in Princeton. Deb Zonies is Verus’ General Counsel and Vice President, Mass Tort Services. 

Reprinted with permission from the December 10, 2018, issue of the New Jersey Law Journal. © 2018 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

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