1 How Diverse Attorneys Can Handle Difficult Situations with Dignity and Poise Tanya M. Lawson Sedgwick LLP 2400 E. Commercial Blvd, Suite 1100 Ft. Lauderdale, FL (954) Judy Perry Martinez Northrop Grumman Corp 5100 River Rd Avondale, LA (504)
2 Tanya M. Lawson is a partner in Sedgwick s Fort Lauderdale, Florida, office. She represents clients in general commercial, products liability and toxic tort litigation, including asbestos and silica matters. She also has experience defending employment litigation cases and has successfully defended cases brought under Title VII, the ADA, the ADEA, and other employment laws. Ms. Lawson has a wealth of experience in all facets of litigation and has achieved beneficial results for clients at the early stages of litigation. In addition, Ms. Lawson is co-chair of the firm s Inclusion and Diversity Committee. She is an avid proponent of greater diversity in the profession and has spearheaded a number of firm programs aimed at increasing the pipeline of diverse lawyers. Initiatives implemented under Ms. Lawson s leadership contributed to the firm being listed by American Lawyer magazine as one of the top firms for diversity in 2011 and 2012, as well as the firm receiving many other recent accolades from bar and industry organizations. Judy Perry Martinez is Vice President and Chief Compliance Officer of Northrop Grumman Corporation. Prior to serving as CCO, she served as Assistant General Counsel- Litigation, managing the company s docket for the Western half of the country. She also serves on the Northrop Grumman Diversity and Inclusion Leadership Council. In , Ms. Martinez served as the American Bar Association Representative to the United Nations. She currently chairs on the ABA Standing Committee on the Federal Judiciary, which evaluates all perspective nominees to the federal bench. She served on the ABA Commission on Women in the Profession and chaired the Commission on Domestic Violence. She chaired the Louisiana State Bar Association Committee on Minority Involvement in 1985, its inaugural year.
3 How Diverse Attorneys Can Handle Difficult Situations with Dignity and Poise Table of Contents I. Introduction II. Vignettes How Diverse Attorneys Can Handle Difficult Situations with... Lawson and Martinez 113
5 How Diverse Attorneys Can Handle Difficult Situations with Dignity and Poise I. Introduction This interactive presentation will be given by Sedgwick LLP partner and co-chair of the firm s Inclusion and Diversity Committee, Tanya M. Lawson and Judy Perry Martinez of Northrop Grumman Corporation. Attendees with be given a unique opportunity to listen to vignettes on modern experiences of diverse attorneys in the workplace with a practical, creative, and interactive approach to addressing the issues raised. The audience will be encouraged to participate and provide further insights based on their own experience. II. Vignettes Vignette Number 1 Yoshie, a junior level Japanese female associate, is working on a product liability litigation matter for one of the firm s most important clients. Yoshie is very knowledgeable about the facts of the case. Jason, an older more experienced Hispanic male partner, leads the litigation and asks Yoshie to attend a litigation strategy meeting with the client, Sophia, an older and seasoned white businesswoman. Before they meet with the client, Jason cautions Yoshie that Sophia can be quite tough and unpredictable. He suggests that she let him do most of the talking. When they arrive at Sophia s office, a Chinese food luncheon is set out for them. Sophia whispers to Yoshie, Oh, I bet this is just your cup of tea. I am not much of a Chinese food eater as I always fear that they sometimes use dog meat in their dishes. Realizing that Yoshie may have been offended, Sophia quickly followed up by saying, Don t worry, that was just a bad joke I love Chinese people -- you are all usually so smart. Remembering Jason s counsel, Yoshie simply smiles and nods at Sophia. Jason also laughed off the comments. During the rest of the lunch, Jason and Sophia engage in a lively conversation regarding the litigation while Yoshie quietly takes notes. Yoshie notices that Jason states a number of factual inaccuracies regarding the case, but she remains silent as instructed. During a break, Yoshie and Sophia walk to the bathroom. Sophia questions Yoshie about Jason s earlier comment regarding the product s design and consequent replacement value. Recalling the inaccurate comment, Yoshie replies, Oh, I remember Jason saying that, but it wasn t correct. Sophia frowns, Are you telling me now that the replacement cost of this product is double Jason s estimate? Sensing Sophia s anger, Yoshie feels compelled to state the facts accurately and nods in agreement. They return to the meeting and nothing is said to Jason about the discussion during the bathroom break. The following day, Sophia angrily phones Jason. She demands that Jason remove Yoshie from the case. She just sat there quietly like a pretty lotus flower. If I didn t ask her in the bathroom about the number of receptors, she would have said nothing. I need my people to speak up and those people are simply not aggressive enough to litigate cases, Sophia snaps. Jason assures Sophia that Yoshie is a good and effective litigator, has worked hard on the case and knows the matter almost better than he does. He also reminds her that replacing Yoshie with another associate would be costly based upon the time it would take to get someone else up to speed. Sophia insists that she wanted Yoshie taken off the case or she would take her work elsewhere. Jason asks Sophia to give him a day to consider her demand. Jason begins to wonder whether Yoshie is suited for litigation because of her perceived quiet and conciliatory demeanor. He ponders what to do to handle this difficult situation and discusses it with his partners. How Diverse Attorneys Can Handle Difficult Situations with... Lawson and Martinez 115
6 Sophia is his largest and most profitable client and, given the state of the economy, the firm is simply not in a position to lose her business. They also discussed the fact that although Yoshie is a very industrious associate, she is generally less seasoned as their litigators go and this is the second time that she has made a less than favorable impression on a client. The decision is made that Yoshie has to be pulled from the case. Jason explains to Yoshie that the client pulled the plug because she lacked confidence in Yoshie s ability to aggressively defend the case and that he had no other choice. Yoshie is incensed and feels that the decision is unfair. 1. Thoughts regarding what, if anything, Yoshie can or should do in her own defense. 2. Are there ways Yoshie could potentially turn this negative situation into a positive outcome for herself and her career? Vignette Number 2 Mary Levine, a mid-level associate, works on a very busy docket of construction defect cases for one of the most reputable Partners in the firm, James Owens. Mary suffered from polio as a child and, as a result, presents with certain physical deformities in her limbs and walks with an affected gait. Mary also has some ongoing medical issues which she has been trying to address without any adverse impact on her work assignments. She has had to take some time off from work and is conscious about how this may be viewed by James, who is himself a workaholic and a sticker for perfection. Although James has not generally been pleased with Mary s attendance in recent times, Mary has always gotten excellent results. In fact, James and his client are so pleased with her work that James assigns her to work on several more complex cases with another female associate, Sarah Pickens. Mary informs James that she has to undergo a surgical procedure in a few weeks and needs to take some time off for the surgery. She nevertheless accepts the new assignments from James and assures him that she can handle the work. Mary also confides in Sarah that she is having certain medical challenges and that she would need to take some time off in the near future. In the short time that Sarah has worked with Mary, she has observed the respect and admiration shown to her by James and is a bit envious. Sarah and Mary work together for a couple of months and then certain issues begin to arise. Sarah becomes reluctant to allow Mary to do any work on the cases and tries to do all the work herself. On one occasion, after realizing she could not handle the work alone, Sarah dumped over 100 discovery requests on Mary to complete the day before the responses were due. Mary worked all day and night, but completed the responses in time to be filed by the deadline. Mary is frustrated, but never complains to James because she does not want to give the impression that she cannot handle the new cases that she has been assigned. The problems continue. Sarah nearly misses several filing deadlines and sends incorrect documents and information to clients. Mary points out the problems to Sarah and Sarah downplays them, then asks Mary to fix it. Mary continues to work with Sarah and continually has to fix her mistakes. Two weeks prior to Mary s medical leave, Mary makes preparations to ensure that all of her cases are well-organized and that all upcoming deadlines have been addressed. She also leaves Sarah a memorandum regarding the status of each of her cases. Sarah thanks Mary for her hard work and tells her that she is looking forward to her return. Mary takes 4 weeks of medical leave. While she is out on leave, several clients contact her regarding their cases. Mary explains that she is out on medical leave and directs them to Sarah. Meanwhile, Sarah practically abandons the cases and doesn t do any work on them during the entire time that Mary is out on leave. When James questions Sarah about the cases, Sarah tells him that all the cases are in a shambles because Mary failed to meet prior filing deadlines. James is infuriated. He takes Mary off the cases and re-assigns them to another associate. When Mary returns from medical leave, James informs her that her cases have been re- 116 Diversity for Success May 2013
7 assigned and that he was very disappointed to hear about her dropping the ball on the cases. Mary is livid and unsure of how to respond without creating friction with James and Sarah and is afraid of losing her job especially in light of her health situation. Mary needs some advice on how best to handle this sticky situation. 1. Thoughts on handling the issue with James. 2. Thoughts on addressing the matter with Sarah. 3. Thoughts regarding involvement of management, human resources or other third parties. Vignette Number 3 Raj Patel, an Arab American male senior associate, is working hard to make partner at a large, international law firm. In the last year, he has obtained three defense verdicts for his clients and generated several million dollars in business for the firm. He is well-regarded by the partners and is frequently invited to both professional and personal events. Unbeknownst to anyone at his firm, Raj is gay and has a domestic partner that he has been with for over ten years. Raj is uncertain how the revelation of his sexuality would affect his professional standing with the firm, so he has never given any indication about his sexuality or marital status to anyone. He has been present, however, when a few of the partners have made jokes and other negative comments aimed at gays and knows that the reception would be lukewarm at best. One day, the managing partner of the firm, Tanner Smith, invites Raj over to his home for dinner. Tanner tells Raj, Bring a gal pal with you so my wife will have someone to chat with while we talk business. Raj laughs nervously and tells Tanner that he would prefer to come alone since they will be talking about business. Tanner agrees and Raj skirts past the issue of his sexuality another of the many times he has done so. Then, as the holiday season approached, Tanner sends out an to all the associates announcing the annual firm Holiday party and inviting everyone to bring their significant others. Raj does not confirm his attendance for the party, so Tanner personally approaches Raj to ask him if he was planning to attend. Tanner asks Raj, Are you going to keep that little lady of yours in hiding for the Holiday Party too? Raj is growing frustrated with avoiding the issue. In addition, he is tired of having to hide his significant other who he feels he should be able to proudly take to firm events. Raj is troubled by the entire situation and does not know what to do. If he takes his significant other to the party it may severely compromise his standing in the office and shatter any hopes of him becoming partner. Perhaps he just needs to keep this hidden just a little while longer. Of course, there is no guarantee when or whether he will make partner so the question is whether he will have to keep this up indefinitely. If Raj is certain of anything it is that he will not be able to or wish to keep this a secret forever. He feels that he needs to confront this issue head on. 1. Thoughts on handling the invitation to the holiday party and whether Raj should bring his partner 2. Thoughts on handling the issue in the context of his firm in general. 3. Should Raj contemplate leaving the firm? Vignette Number 4 Peter, a mid-level white associate, had been working on products liability cases for a major manufacturer for more than two years when his cases abruptly were transferred to Susan, a less experienced Hispanic female. By all accounts, Peter had been doing excellent work on the cases and had a good relationship with the client. The managing partner, however, transferred Peter s cases to Susan, because the client s general counsel was a Mexican American female who had expressed an interest in seeing more diversity on her docket. Moreover, one of the major cases originated in Puerto Rico and Susan s fluency in Spanish would be advantageous. How Diverse Attorneys Can Handle Difficult Situations with... Lawson and Martinez 117
8 Most of the documents produced in the case were written in Spanish and the witnesses primarily spoke Spanish. Peter spoke and read very little Spanish. After the transfer of products liability cases, Peter was forced to work on lower rate personal injury work, which was among the least desirable work in the firm. He was not pleased about the transition but decided to make the best of it. The work gave him a great deal of autonomy and there were also greater opportunities for him to gain desired trial experience. He would work up the cases to the point of trial, prepare all witnesses, pre-trial motions, and take all expert depositions. He would often suggest the strategy for the trials to his inexperienced partner supervisor who would go along with his suggestions. Although he was technically second chair to the partner in charge, he did much of the examinations during several trials they did and was so effective in his presentations that he received kudos from judges, jurors and opposing counsel. He won several trials as second chair to the partner in charge and was on cloud nine. New work was also coming in from the personal injury client at a faster pace. Peter could not believe his luck and decided that even though he initially was disappointed, this change in practice areas was the best thing that ever happened to him. In the meantime, the work that Susan was doing in the products liability area started to dry up. The partner in charge, therefore, put Susan on some of the personal injury cases. He was impressed with Susan s work on the product liability cases and her ability to connect with a major client. Susan had some minor roles on the personal injury cases, especially those cases involving Hispanic plaintiffs, but Peter was still the point person on these cases. After another successful trial in which Peter was a critical member of the trial team, the client set up a meeting and requested that the firm lawyers handling the client s matters give a presentation on the recent trial victories. The client indicated, however, that the firm could only bring two lawyers to the presentation. The partner invited Susan to go with him to make the presentation to the client. As part of the firm s diversity initiatives, he thought that it would be good to have a minority female present at the presentation. He also thought that her fluency in Spanish might be advantageous in future cases. Issue Peter was angry that he was not included on the team to make the presentation to the client. After all, he had had tremendous litigation and trial successes for the client. He suspected that Susan was invited to the presentation solely because she is a Hispanic female. He resented the impact that the firm s recent diversity initiatives have had on his opportunities and development at the firm. Questions 1. Was the partner s decision to take Susan to the meeting reasonable or appropriate under the circumstances? 2. In advancing diversity, what obligations do we have to foster a dialogue which includes voices from all sides of the spectrum? Vignette Number 5 A mid-level African American female associate, Karen, is working on national discovery for a major manufacturing company. An older white male attorney, Bob, is brought in to run the discovery. Bob meets with Karen and her paralegal and sets down some pretty stringent ground rules and further indicates that he needs to see all discovery leaving the office. After a short while, he becomes less and less hands on and ultimately leaves the associate to handle all the discovery. He then begins moonlighting doing side legal work and is often nowhere to be found. He does not review the discovery as he indicated he would and Karen is left to deal with all the discovery issues and briefs all the discovery motions. The partner in charge, Everett, is well aware of Karen s work in connection with the discovery and the fact that she has almost single-handedly 118 Diversity for Success May 2013
9 handled the discovery issues from start to finish. Everett attended an early hearing that she covered, however, and never forgot the judge s overtly condescending treatment of Karen. He always wondered how that might adversely impact the client and/or the case at a time when it really mattered. An out-of-town hearing is set with regard to the discovery motions. Karen excitedly plans to cover the hearings but the partner in charge declines to let her do so. His stated rationale is that they need someone with gray hairs to handle the motions. She interprets his comments to mean that he wants an older white male to handle the hearing. The partner called Bob in and told him to handle the motions. Bob frantically goes to see Karen because he has virtually no familiarity with the issues and knows that Karen is the person most knowledgeable about the discovery issues. Bob also begged Karen to go with him to the out-of-town hearing to help him prepare for the hearings, essentially burdening the client with the undue expense of having two lawyers attend an out-of-town hearing. Karen s boss agreed to have Karen go with Bob and they spent virtually the entire night before the hearing preparing Bob for the hearing. Bob argues the motions the next morning and was so relieved at the outcome that he personally paid for Karen to fly home first class. Karen is unhappy because this was one of many times that she has done the grunt work but was precluded from handling the hearing or doing that which would bring her the experience and credibility she needs to succeed as a trial lawyer. Issue Karen is upset that she did not get to argue the motions she prepared and thinks it is unfair that she was sidelined in this way. She believes the decision not to allow her to cover the hearing has something to do with her race. She wants to discuss the matter with her boss but doesn t know the best way to approach the situation as she does not want to suggest that her boss did not allow her to argue the motion because she is African American. Questions 1. Is Karen s assumption that the decision to have Bob cover the hearing was racially motivated a reasonable one? 2. Whether or not the decision was racially motivated, what is the best way to address this situation to assure the best possible outcome? How Diverse Attorneys Can Handle Difficult Situations with... Lawson and Martinez 119