Try Someone New:  Mediator Shortlists, Arbitrator Panels, and the power of choice as a tool for increasing diversity in Dispute Resolution. 

By Ana Cristina Maldonado

If you represent clients in mediation or in arbitration, you have proposed, selected, and hired neutrals.  Stop and reflect for a moment on the last five to ten years:  How diverse is the group of neutrals that you have worked with? 

Your answer may depend on the type of law you practice.  Family mediators skew female.  County mediators are quite diverse.  But if you practice in commercial civil law, particularly on high dollar value cases, your arbitrators and mediators are most likely all white men.[1]

According to the American Bar Association’s (ABA) Report on Resolution 105:  “Dispute Resolution [is] a segment of ‘legal’ services that has been described as ‘arguably the least diverse corner of the [legal] profession.’” [2]

Florida’s pool of lawyers and mediators also reflects this lack of diversity, as illustrated in the table[3] below.

The large national panels are heeding the ABA’s call and working to diversify their rosters of neutrals.  JAMS and the American Arbitration Association (AAA) have all sought to increase their rosters to reflect a metric[4] of 30% diverse neutrals, recruiting new panelists and tracking the rates at which they are hired.

You might be thinking “So what?”  Choosing a neutral is one of hundreds of decisions you make in a day.   Maybe you’ve delegated the choice to your paralegal from a curated shortlist of effective and experienced neutrals.  Maybe you rely on colleagues.  Today, I ask you to stop and reflect on your habitual neutral selection process.

To prompt that reflection, here are some stories:

• An African American attorney, recently trained as a Florida Supreme Court Certified Circuit Civil mediator, observed that in 20+ years of practice, he never had a mediator who looked like him. He thought to pursue mediation work only recently, when after a case, the mediator told him that he would be good at it.
• A creative and transformative mediator (and eminent retired African American lawyer) shared that throughout his career, he never served as mediator on a case where there was not at least one black person. While he has ably served his community, many people outside it will never know what they have missed.
• A white female judge from Portland, Oregon described how there were ZERO mediators of color in her state. Acknowledging her city’s “woke” reputation, she also referenced the exclusion laws that banned black people from being in Oregon Territory, which were enshrined in Oregon’s state constitution from its inception until 1926.[5]  The judge described organizing a mediator training for minority neutrals and reported that, as a result, there are now six diverse mediators working in her state.

These stories put the issue in human terms, in the context of our institution:  dispute resolution within the legal system.

The big picture emerges from choices on two levels:  policy and case-by-case.

So what should we do?

• Increasing the diversity of our bench is a long-standing policy goal. It’s time to set the same goal for neutrals and take action.  Firms (both mediation rosters and law firms who hire mediators) should implement the 30% metric and measure progress.[6]
• If you are a diverse attorney: add skills as a neutral to your toolbox and get trained as a mediator or arbitrator. Market yourself to your community and beyond.  Build your skills through experience.
• If you are an individual attorney, and upon reflection, your mediator or arbitrator short list could be more diverse: Look beyond your usual list and try someone new.  Be intentional.  Use diverse neutrals not only in cases that serve their respective communities, but in cases beyond.

When it comes to increasing diversity in dispute resolution, individual attorneys – YOU – have influence and control.  You can’t choose your judge, but you can choose your neutral.  Your choice matters.

Ana Cristina Maldonado is Chair Elect of The Florida Bar’s ADR Section (2023-2024) and was appointed in 2023 by the Chief Justice of the Florida Supreme Court to the Mediator Ethics Advisory Committee (MEAC).  A Florida Supreme Court Certified Mediator in Circuit Civil, County, Dependency and Family and a primary trainer with over 2,000 mediations, she currently teaches at Nova Southeastern University’s Shepard Broad College of Law.

[1] https://www.americanbar.org/groups/dispute_resolution/resources/aba-resolution-105/

[2] Id.

[3] Table prepared by Christopher Shulman for a CLE held at Nova Southeastern University on March 6, 2024.  The event video is available at https://www.youtube.com/watch?v=dylE6msdk6c.

[4] A metric is not a quota:  it’s a measurement that ensures accountability, tracks progress, and leaves open the option to choose. 

[5] Author’s note:  My mother’s family is from Oregon.  It took me sitting on an ADR panel with this Judge to learn this fact.

[6] Here are some resources if you don’t know where to start: 

https://www.ciarb.org/media/22276/revised-master-resource-guide-for-the-selection-of-diverse-arbitrators-and-mediators.pdf

Written by: Bryan Anderson
Published: February 2024

In 2023, the United States Supreme Court ended affirmative action in university admissions.  Relatedly, the recent Florida “Stop WOKE Act” law prohibits teachers and instructors from advocating for affirmative action among other racial equity positions, while not restricting advocacy against affirmative action.

In December 2023, the Palm Beach County Bar Association and the F. Malcolm Cunningham Bar Association convened a summit to explore these matters.

Attendees included the first African American Florida Bar President, the first African American woman president-elect designate of the Florida Bar, a distinguished lifetime scholar and advocate for racial justice from the University of Miami, as well as the current Palm Beach County Bar Association President, two past county bar presidents, and current and retired trial and appellate judges.  What did we hear and learn?

The Supreme Court’s 2023 Abolition of Affirmative Action in College Admissions

University of Miami Law School Professor Donald M. Jones explained the history behind the United States Supreme Court’s recent decision in Students for Fair Admissions v. Harvard abolishing affirmative action based on race in college admissions.

Professor Jones said there was no single majority opinion in the 1978 Regents of the University of California v. Bakke case which approved affirmative action.

A Bakke solo concurring opinion supported affirmative action, with the opinion stating that “[t]he interest of diversity is compelling in the context of a university’s admissions program.”

Professor Jones pointed out a road not taken in the Bakke case.  Justice Thurgood Marshall wrote that the legacy of unequal treatment of African Americans and the remedial purpose of the Fourteenth Amendment after the Civil War in protecting African Americans’ rights justifies affirmative action as a remedy for the effects of past racial discrimination.

Professor Jones said that in 2003 the U.S. Supreme Court accepted the Bakke “diversity” rationale in Grutter v. Bollinger, upholding affirmative action for a limited time. Justice O’Connor wrote in Grutter that the “Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Just less than 25 years later, Chief Justice John Roberts wrote the majority opinion in Students for Fair Admissions v. Harvard (“SFFA”), holding that race-based affirmative action programs in college admissions violate the equal protection clause of the Fourteenth Amendment.  The Supreme Court held that the use of race was not a compelling interest and that the programs of the universities before the Court bore little or no relation to values of viewpoint and intellectual diversity.

Professor Jones explained that the 2023 SFFA decision ignored the racial discrimination remediation purposes of the Fourteenth Amendment.  In a dissenting SFFA opinion, Justice Sonia Sotomayor wrote that “ignoring race will not equalize a society that is racially unequal.  What was true in the 1860s, and again in 1954, is true today.  Equality requires acknowledgment of inequality.”

The Florida Stop WOKE Act and Affirmative Action

In 2022, Florida enacted the “Individual Freedom Act,” colloquially referred to as the Stop WOKE Act.

The law prohibits mandatory training or instruction on eight concepts involving race and racial equity, including the concept of affirmative action as a remedy for racial discrimination.  It is not, however, illegal to advocate against the racial equity concepts.

Panelists at the Palm Beach County Bar Association’s December summit included attorneys litigating Pernell v. Florida Board of Governors, in which the U.S. District Court for the Northern District of Florida enjoined enforcement of parts of the Stop WOKE Act.

Summit panelists noted that African Americans have lower life expectancy, worse health, higher infant mortality, higher maternal mortality, higher exposure to environmental toxins, and overall worse health outcomes compared to white people.  Similar inequities show a deep racial wealth and income divide. Research shows that inequities in health and wealth are in significant part a legacy of structural, institutional and individual racism that predated the country’s founding and that persists to the present day.

In the SFFA decision Justice Roberts wrote that “Eliminating racial discrimination means eliminating all of it.”  It is difficult to see how eliminating affirmative action in university admissions eliminates stark health and wealth inequities.

Discussing these data and potential federal and state policy remedies exposes Florida professors and instructors to being fired.  A chilling effect remains while the injunction against enforcement of the Stop WOKE Act is pending because the results of the state’s appeal of the injunction are not known.

One panelist noted a Florida medical school professor who observed that not being able to teach about the causes of and possible cures for health inequity risked students concluding that racial inequity is caused by eugenic racial differences, not the ongoing self-replicating legacy of racism.

Past Florida Bar President and keynote speaker Eugene Pettis reminded summit participants that the summit could take place in a hotel conference room only because attorneys who came before us knew that segregation is wrong and had the courage to act for change.  Progress is possible.

Published: December 2023
Written by: Karla M. Armstrong & Shania Grant

KARLA: I received an email from the St. Thomas Career Development Center about the Palm Beach County Diversity Internship Program (“DIP”). I was thrilled at having an opportunity to intern within my community, and I received the email right after finals while I was on a trip with friends trying to mentally escape the pressures of law school. I read the mission statement of the DIP, and I thought it offered a perfect opportunity for me as an Afro- Latina Lesbian. I admire how it strives to bring everyone to the table.

 As part of the DIP, I interviewed with the Palm Beach County School Board General Counsel’s Office, (“OGC”), and I was told what my summer would look like if I interned with them. I knew from the moment that I spoke to them that I wanted to be a part of their team for the summer. Shortly after interviewing, the OGC called me to offer a summer internship position. I was a mixture of nervous, excited, and grateful. Even though I had a career before law school, I had never worked directly under attorneys. As the summer neared, the worry cloud started to take over. What would it be like? Am I capable? What if a real-life experience would show me that I cannot do this? One word summarized my thoughts – terrified.

SHANIA: As a high school student, mindlessly scrolling through Instagram, I came across a post about interning for the Palm Beach County School District. Ignorant to all of the different fields that go into running a school district, I thought to myself, “What could the School District have to do with my career goal of becoming an attorney?” Even with these doubts in mind, I went to the district’s website, and to my surprise, I saw the opportunity to intern with the Office of General Counsel. Once I interviewed with the OGC, I quickly fell in love with the team there, and I was inspired by its diversity. As a first-generation American and a black girl, I felt proud to see the wealth of identities and diversity in the office, as it showed that I could, in fact, get there one day. When I received a call offering from me the position, I immediately accepted, knowing the OGC would provide me with a fantastic summer internship experience.

What kind of work did you do at the OGC?

KARLA & SHANIA: We worked in four departments: personal injury, governance, labor and employment, and business operations. Each department immersed us in their work for the two weeks we were with them. For business operations, we attended the weekly meeting and researched new case law and statutory changes, for example, those dealing with garnishment and student loans. The personal injury department asked us to summarize an entire medical file in one of their cases. Governance had us reading new legislation and assessing possible impacts on the school board. Labor and employment entrusted us with summarizing deposition transcripts and researching the possibility of a four-day workweek.

Our internships overlapped with a hectic time for the OGC as they underwent many changes and adapted to new legislation. We had the opportunity of seeing OGC attorneys discussing the impacts of the changes and preparing for the worst-case scenarios, all while having a goal of providing an enjoyable and safe environment that embodies the community’s values. 

What did you take away from your experience?

KARLA: The experience at OGC taught me that passion, dedication, and heart can lead you down many roads, and that every law student should intern in different areas of the law. Every lesson is valuable – whether someone learns they like or dislike working in a specific field. Also, working with a high school intern like Shania, who knows she wants to be an attorney, was inspiring. Thank you to the OGC!

SHANIA: As a high school intern, I not only gained great experience with the attorneys at OGC, but also I gained Karla as an amazing mentor and friend. Karla is someone who I aspire to be like given all she’s accomplished, and because she is so proud of who she is. The environment in the OGC was so supportive as well. As a high school intern, I knew little about the law and all the legal jargon. However, the OGC made me feel comfortable to learn and ask for help while I was experiencing things that I never had before like my first trial, and a school board meeting. In addition, I was able to see the operational side of everything, which allowed me to better understand how the law governs and affects people’s lives. The whole experience made me believe that I can succeed while being unapologetically me.

Karla M. Armstrong is a second-year law student at St. Thomas University School of Law and is set to complete her J.D. in 2025.

Shania Grant is a senior at Florida Atlantic University High School. Shania is dual-enrolled and is currently set to graduate with a B.A. in Political Science with minors in Spanish and Criminal Justice in December 2024.

Published: November 2023
Written by: Marc Hernandez

Have you applied for a legal job and been asked where you went to law school? By itself, the question is relevant and harmless, but the question also may reflect or lead to biases that prevent consideration of the applicant as an individual.

Presumably, most lawyers are proud of our alma maters—whether they be Florida public or private universities, out-of-state universities, HBCUs, universities with a religious affiliation, and of course, Ivy League universities. We worked hard to get into our institutions, to earn our degrees, and to form long-lasting ties with our alumni networks.

For better or worse, all law schools have a reputation, including for academic rigor, utilization of a particular teaching method, emphasis of either practical skills or theory, association with a jurisprudential school of thought, and success of their graduates in passing the bar and practicing as lawyers. However, reputation does not always match reality.

Many law schools invest significant resources to obtain a high ranking from publications like U.S. News & World Report. But recently at least 16 law schools—public and private institutions ranked between #1 and #49—voluntarily withdrew themselves from the ranking system. Deans of these institutions—with their names deliberately omitted—have expressed the following concerns:

• “Overall, the [S. News ranking] methodology creates incentives that work against schools’ interest in attracting and retaining classes of students with a broadly diverse set of qualities and experiences, and in supporting the widest possible array of career choices for their graduates…”
• “They create the wrong incentives by rewarding schools for the amount they spend, regardless of whether this money is spent directly on the student experience, rather than prioritizing outcomes that really matter to students, such as the long-term employment of graduates.”
• “[L]aw schools to a greater or lesser degree sometimes are forced to consider the effect of any changes in their programs on their rank. . . . While [our law school] has consistently resisted the pressure to take actions that are contrary to our mission, the demands of the S. News algorithm always lurk in the background.”
• “Rankings can provide helpful guidance, and S. News has long aggregated data about law schools. . . . That said, overreliance on a single source can distort decision-making, and any given ranking is only as useful as the relevance and accuracy of the comparative information on which it is based.”

These concerns complement my own observations, which have been that a graduate from a “lower-tier” law school can be smarter, more successful, and a better overall advocate than one who graduated from a “top” school.

None of this means it is inherently wrong to ask lawyers where they went to law school. If you have been on a hiring committee, the question is often well-intentioned when asked in a manner designed to connect with the applicant, or to get a brief sense of his or her background. However, overreliance on the question—just like overreliance on law school rankings—can be problematic if we form preconceived notions about the applicant that cause us to ignore other data points showing an applicant from a “less prestigious” school is more qualified than an applicant from our “preferred” school.

Fortunately, a recent trend of employers considering more than an applicant’s law school pedigree is emerging. Justices on the U.S. Supreme Court have traditionally selected their law clerks from the most elite law schools, but Justice Clarence Thomas—himself a graduate of Yale Law School—has disagreed with this approach. Believing that other justices are biased against lower-tier law schools and have created a “new or faux nobility” among lawyers, Justice Thomas has been critical:

“Isn’t that the antithesis of what this country is supposed to be about? Isn’t that the bias that we fought about on racial terms, or on terms of sex, or on terms of religion, et cetera? My new bias, which I now embrace, is that I don’t eliminate the Ivies in hiring, but I intentionally prefer kids from regular backgrounds and regular students. . . . I never look at those rankings. . . . There are smart kids every place.”

Although this way of thinking used to be isolated, other justices have come around to Justice Thomas’s approach. Members of the U.S. Supreme Court’s 2023 clerkship class graduated from 13 different law schools, a historically high number. The Court’s newest justice, Ketanji Brown Jackson, has hired three non-Ivy League law clerks in a little over one year, and going forward, Justice Jackson has committed to a transparent hiring process that is open to all.

This is not to say that every lawyer deserves to be hired for an elite position like a U.S. Supreme Court clerkship. Rather, this article merely calls for a recognition that lawyers of all educational backgrounds excel at prestigious jobs. As a result, lawyers of all educational backgrounds should be considered when hiring for them.

Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath.

Published: October 2023
Written by: Kimberly Rommel-Enright

The Legal Aid Society of Palm Beach County (LASPBC) has long been a beacon of hope in the community. For almost 75 years, it has provided a voice to those people in Palm Beach County who would otherwise have no one to speak up for them. Many of the lawyers in Palm Beach County know that Legal Aid represents children, families, and individuals in a myriad of legal proceedings including dependency, immigration, domestic violence, and housing. What fewer lawyers may know is that Legal Aid has had a long history of providing legal services to the LGBTQ+ community. Now, more than ever, LASPBC is here for LGBTQ+ community members who experience discrimination, harassment, domestic violence, and suicide rates at higher levels than many other populations.

The LGBTQ+ community continues to face challenges, especially as new laws are implemented affecting LGBTQ+ individuals, such as the Safety in Private Spaces Act – F.S. 553.865, requiring individuals to use certain school and public building restrooms that align with the sex they were assigned at birth. The attorneys, staff, and volunteers at LASPBC are here as resources to help interpret the ever-changing legal landscape and provide legal advice. LASPBC is dedicated to ensuring that all Palm Beach County residents have equal access to the fundamental rights they deserve. It aims to enhance the quality of life, personal dignity, and right to self-determination of individuals experiencing economic and social needs such as:

• Housing Discrimination
• Medical Provider Discrimination
• Probate Issues
• Same-Sex Marriage/Divorce Issues
• Domestic Violence
• Family Law
• Transgender Name and Gender Marker Issues

Through its Fair Housing Project, the Legal Aid Society of Palm Beach County investigates and represents victims of discrimination by housing providers against buyers or renters of all protected classes including sexual orientation and gender identity and expression. For instance, LASPBC assisted a transgender woman who was looking for an apartment to rent. The client saw an apartment with a for rent sign indicating that it was available. The client called to inquire about the apartment and was given a time to view the unit and meet the landlord. When the client arrived for the appointment dressed as a woman, the landlord told the client that the property was not available. The client felt that it was odd that the landlord would not have canceled the appointment made the prior day if the unit was rented. The client contacted LASPBC feeling that the landlord was treating the client differently based on the client’s appearance. The Fair Housing Project intervened and found that the rental unit was still on the market. It conducted a test of the property and discovered the landlord was turning prospective tenants away based on their sexual orientation and gender identity and expression. This case represents the type of important aid LASPBC can offer to LGBTQ+ individuals.

LASPBC also does proactive outreach and educational work for Palm Beach County’s LGBTQ+ youth. Its Education Advocacy Project provides advocacy and legal services to overcome barriers to public education for school-age children.

LASPBC’s dedicated attorneys are also readily available to provide name and gender marker change assistance to transgender individuals. Over the past five years, LASPBC has represented almost one hundred transgender adults and children in securing legal name changes. Many of them, like “Steven” (real name not used for confidentiality), a young adult with the birth name of “Stephanie,” had lived his entire life with a gender and name that did not conform to how he felt and identified. After he transitioned, all of his legal documents reflected his birth or “dead” name, not his chosen name. This created complications in his daily living, school, and eventually work, as his name did not reflect his appearance and how he identified. Steven came to the LASPBC to seek help with a name and gender marker to change so that he could live his life as his true self. The office completed the name change for him and assisted him in obtaining his legal documents with the correct name and gender. This simple legal proceeding now allows Steven to engage safely in the community with less fear of discrimination and retaliation.

The Legal Aid Society of Palm Beach County doesn’t just celebrate Pride in June, it is a concept embedded in our mission every day, and we pride ourselves in being a safe space for all. If you would like to volunteer for pro bono work generally, or specifically assist our LGTBTQ+ community, please reach out to Jerry Leakey, Esq. at Jleakey@legalaidpbc.org.

Kimberly Rommel-Enright is a supervising attorney at the Legal Aid Society of Palm Beach County, Inc. Ms. Rommel-Enright has been an attorney with the Legal Aid Society since 1992. In addition to her supervisory duties, Ms. Rommel-Enright handles select adoption, custody, paternity and guardianship cases, as well as a range of cases for members of the LGBTQ community.

Published: July/August 2023
Written by: Harrell Watts, Esq.

This year marks the seventy-fifth year anniversary of Justice Felix Frankfuter hiring William Thaddeus Coleman Jr., the first African American to serve as a Supreme Court law clerk. Since then, members of diverse groups have strived to follow in the footsteps of Attorney Coleman, looking to obtain clerkships at all levels of the judiciary. However, many have found the process of obtaining federal clerkships to be an insurmountable task.

The percentage of diverse law clerks highlight the legitimacy of these sentiments. An article published by the ABA Journal cited to a recent study that found of graduates with clerkships, 79.2% were white, 7.9% were Latinx, 6% were Asian, and 4.1% were Black. Ultimately, the low numbers in diversity amongst federal law clerks is an unfortunate trend that has persisted even in light of advances in opportunities for minorities in other aspects of the legal profession.

How to Improve Diversity in Clerkships?

Recently, a law professor and two judges produced an article entitled Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeal. This article provides a unique look at the way judges consider diversity in the hiring process. Despite the low numbers cited above, most judges surveyed in the study ascribed positive value to racial diversity and consider race to some degree in evaluating candidates. However, many judges who view racial diversity positively still report difficulty hiring Hispanic and Black law clerks, which begs the question: how can we solve this problem?

Fortunately, the study’s additional findings provide a basis for some ascertainable solutions. First, and likely the most obvious solution, is to increase diversity amongst the judiciary. As the authors of the article keenly stated, “[i]n short, diversity among judges affects diversity among law clerks.” Current diversity numbers regarding Black judges and Black law clerks underscore the residual value representation at the judicial level can have in creating a more diverse pool of law clerks. The study estimates that Black judges, who comprised less than one-eighth of active circuit judges during the study, accounted for more than half the Black clerks hired each year in the federal courts of appeals. Over the last several years, there has been an increase in diversity amongst judicial nominees, which features over seventy women, and also includes African Americans, Asian Americans, Latinos, a Native American, and a Muslim American. As this emphasis on diversity continues to increase amongst the judiciary, law clerk diversity numbers should also improve.

Another useful solution is for judges to expand the hiring criteria. Due to the sheer volume of applicants, most judges will select from previously developed networks based on familiarity. Undoubtedly, this process makes what can be a difficult decision much less daunting. However, by leaning on familiarity, judges can miss opportunities to connect with law clerks that may bring new perspectives and ideas to chambers. Often, to find these candidates judges may need to employ a wholistic approach to the evaluation process and must be intentional about seeking diverse candidates. Unsurprisingly, the study found that judges with the most successful records of diversity hiring are those who make deliberate efforts to draw minority candidates into their applicant pool and place greater emphasis on indicators of talent besides grades and law school rank. Importantly, judges who take this approach acknowledge that intelligence and ability are not confined to grades and the name of the institution behind the candidate. These judges also recognize that supporting diversity does not mean sacrificing the work product or hiring unqualified law clerks. Instead, supporting diversity brings value to the judiciary and society as whole by ensuring that all groups are represented.
Finally, increasing diversity in clerkships requires increasing awareness about their value and demystifying the clerkship process. For over twenty years, the American Bar Association has aimed to complete those tasks through its Judicial Clerkship Program (JCP). Every year, students who might not normally consider judicial clerkships and judges, who may not normally recruit clerks from certain schools, come together to modify their views and expectations. The three-day program allows law students to explore legal issues, perform legal research, and defend their positions to colleagues and judges. Inevitably, the JCP and other similar programs create pipelines for judges to explore opportunities to hire more diverse candidates. In order to increase diversity in clerkships, more programs need to be developed that follow the blueprint of the JCP.

Conclusion

For young lawyers, serving as a judicial law clerk is a mark of distinction and honor that can help advance their career trajectory. In many instances, former law clerks have an advantage when pursuing careers in academia, as litigators in prestigious areas of both the public and private sector, and in securing appointments to the bench. On this basis, increasing opportunities at the beginning of a young lawyer’s career to serve as a federal law clerk may lead to increased opportunities for growth in the future. Accordingly, as the legal field continues to champion diversity, an emphasis should be placed on clerkships.

Harrell Watts, Esq. currently serves as a federal law clerk in the Middle District of Florida.

Published: April 2023
Written by: Cheo Reid & Schnelle Tonge

A primary goal of diversifying a workplace is to provide more inclusive and competent service to its clientele.  In the criminal justice arena, that goal is just as important as in any other field of occupation.  For many who encounter the criminal justice system, whether as a victim of a crime, a witness, or the accused, first impressions that include diversity may impact their belief in the fairness of the system.  Sometimes that diversity is more than just the color of our skin, but it includes diversity of background, thoughts, ideas, age, and culture.  Decisions on whether and how much to cooperate with the prosecution of a case are often influenced by a witness’ comfortability with and level of trust in the lawyers and other system professionals with whom he or she interacts, trust that is developed through effective and culturally competent communication.  For an individual accused of a crime, having counsel who understands how cultural norms can impact behavior may be the difference between a successful explanation of seemingly suspicious behavior and an unfavorable verdict. 

Demographic and statistical data reflect that the county is growing in its diversity

The December 2022 data published by the U.S. Census notes Florida as “the fastest-growing state in 2022, with an annual population increase of 1.9%, resulting in a total resident population of 22,244,823”.¹ Recent census data reflect 52.6% of Palm Beach County population reporting as White alone, not of Hispanic or Latino origin, 20.1% reporting as Black or African American alone, 23.9% reporting as having Hispanic or Latino origin, and 3% reporting as Asian alone.²  Palm Beach County hosts the fifth largest school district in the state and services students who speak 150 languages and dialects.³ The Florida State Courts Administrator reports a steady increase in use of language interpreter services in Palm Beach County court cases in each of the 4^th quarter reports published for the last several years.⁴  With an increasingly diverse population, the demographics of the victims, witnesses, and defendants in criminal cases continue to become more diverse which requires those representing the interests of the citizens and defendants to be diverse and operate with cultural awareness.

The need for diversity amongst the lawyers in the criminal justice system extends beyond aesthetics.  Diversity in the workplace leads to benefits from both an internal and external perspective.  A diverse workforce brings people with different experiences, skills, perspectives and insights together to think creatively on how to solve problems and informs better decision making.  Across the nation, criminal justice professionals have been engaging in discussions regarding social justice, implicit bias, and ethnic disparities in the system.

As communities have become more aware of the long-term effects of systemic racism, lawyers working in the system have an increased duty to respond to the residents and defendants they represent in a culturally competent manner.  Being aware of and understanding cultural norms and recognizing the impact of historical injustices on behavior patterns and attitudes, help to establish trust in the fairness of the system for all of its participants.

Cheo Reid is an Assistant State Attorney who serves as the Chief of the Juvenile Division.  He is a member of the Palm Beach County Bar Association, F. Malcolm Cunningham, Sr. Bar Association, and the National Black Prosecutors Association. 

Schnelle Tonge is an Assistant Public Defender who serves as the Chief of Client Services and Mental Health Division.  She is a member of the Palm Beach County Bar Association.

Written by: Nalani Gordon & Marc Hernandez
Published: March 2023

In 1987, Congress first declared March to be Women’s History Month as a way to recognize and celebrate the achievements of women. This recognition would be incomplete without acknowledging the contributions of women lawyers in particular. And while celebrating the trailblazing work of women in the law, we should also acknowledge the historical and current realities of our profession, so we can work toward what the American Bar Association refers to as a “more inclusive, just, and equitable profession” in the future.

The Past

A century and three years ago, women had no constitutionally guaranteed right to vote. The eventual passage of the Nineteenth Amendment was far from preordained. It was the result of decades-long relentless work of countless individuals including suffragists like Sojourner Truth, Susan B. Anthony, Elizabeth Cady Stanton, and the many others who supported them, marched with them, and demanded change.

In 1970, women comprised only 3 percent of the legal profession. A decade later, Sandra Day O’Connor was appointed to the Supreme Court of the United States, becoming the first female associate justice on the high court. However, a decade after that, in 1990, the Florida Supreme Court’s Gender Bias Study Commission concluded that “discrimination based solely on one’s gender was a reality that permeates Florida’s legal system.”

Fortunately, in the ensuing years the number of women serving as U.S. Supreme Court justices has increased. At present, that number is four, but four is a minority. Ruth Bader Ginsburg, a pioneering Supreme Court justice and champion for women’s rights, famously once said that there would be enough women on the Supreme Court “when there are nine.” Justice Ginsburg acknowledged that some were shocked by this statement, but as she explained, “there’[s] been nine men, and nobody’s ever raised a question about that.”

The Present

Currently, the number of women in the legal profession is closer to 38 percent according to the Florida Bar. Yet, this is far from an accomplishment given that women make up 50 percent or more of first-year law students, indicating that many women are being forced out of the profession or choosing to leave. Moreover, the women who remain in the profession are not proportionately represented as partners in law firms, judges, or in other top-level positions like deans of law schools. In Florida Bar surveys, women lawyers also have reported that they continue to be adversely and uniquely affected by gender stereotypes, harassment, unequal pay, and work-life balance issues. As Justice O’Connor recognized:

Despite the encouraging and wonderful gains and the changes for women which have occurred in my lifetime, there is still room to advance and to promote correction of the remaining deficiencies and imbalances.

In other words, it is far too early to declare victory in the struggle to eliminate bias against women lawyers and unjust barriers to their entry in the legal profession. We have work to do.

The Future

As a bar and a profession, we have a number of opportunities to promote the advancement of women lawyers.

One avenue of support and empowerment is available through voluntary bar associations and civic organizations like the Florida Association for Women Lawyers (FAWL). FAWL has a long track record of working toward gender equality in the legal profession and the community as a whole. The association also plays an instrumental role in promoting the leadership of women lawyers by encouraging them to join the judiciary, committees in the Florida Bar, and executive boards for non-profit organizations. Similarly, the Sheree Davis Cunningham Black Women Lawyers Association, which was recently founded in 2021 by three stellar attorneys from our community, focuses on empowering and supporting black women in the legal profession. This organization will undoubtedly have a profound impact on the women lawyers in Palm Beach County and beyond.

In addition to participating in voluntary bar associations, attorneys have the responsibility on an individual, organizational, and societal level, to work toward a “more inclusive, just, and equitable profession.” As individuals, we can mentor, support, and invest in women lawyers. All of this can be done without a formalized structure and without significant effort. As members of organizations and society, we can educate others regarding the value of representation, ensure that women are heard, and give women the same opportunities that are available to others. The key is speaking up and acting because if we wait for someone else to do so then no one will.

The responsibility for creating a more equitable legal profession—a  profession that demands equality under law—lies with us. And if we faithfully discharge our responsibility, we can take pride in the fact that we have not only honored the work of past pioneers but also the work of those who still walk among us.

Nalani Gordon is an associate at Gunster. Her main areas of practice are employment law, Title IX, and business litigation. Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath, focusing on personal injury, medical malpractice, and products liability cases.

Published: January 2023
Written by: Bryan Anderson

Does diversity benefit law offices in quantifiable ways? Law offices — including private firms, corporate, government and not-for-profit law offices — are service businesses. More profitability is better for firm owners. Better results serve clients and the firms. Firms want to meet clients’ preferences to win business. What evidence is there whether law firm diversity supports these interests?

Diverse law firms make higher profits

Statistical analysis of law firm data shows that more diverse firms earn more money.

Dr. Evan Parker specializes in statistical analyses for the legal market. His work has been cited in the American Lawyer, the ABA Journal and the Canadian Lawyer. In a 2018 study controlling for a variety of factors, Dr. Parker concluded with a high degree of statistical confidence that diverse law firms make higher profits. Missing in Action: Data-Driven Approaches to Improve Diversity, Evan Parker (2018).

Dr. Parker’s analysis shows that having diverse legal teams was a significant characteristic factor for law firm profitability, ranked after law firm prestige, attorney leverage, geographic concentration and whether a firm performs hedge fund/private equity work. Having diverse legal teams ranked ahead of practice area concentration, or having corporate, energy and environment, or merger and acquisition practices.

Dr. Parker concluded that partners take home significantly more money at American Lawyer 200 firms with high diversity. The median diversity “dividend” reflected in the difference between firms’ partner distributions showed that the gap between low and high diversity firms approaches $180,000 per year per partner.

Diversity improves litigation settlement and trial results

Statistical analysis of real-world data shows that diverse female-male civil trial teams are more successful than male-male civil trial teams. Lack of diversity was associated with lower likelihood of success and worse trial outcomes.

Attorney, professor and researcher Randall Kiser of the consulting firm DecisionSet conducted a study of 40-plus years of data comparing final settlement offers versus trial verdict and damage awards in both New York and California. Professor Kiser assessed whether trial team gender composition could predict win rates, decision error rates, and settlement positions.

Professor Kiser’s approach to assessing trial team successes and errors focuses on demands, offers and awards in cases that did not settle. Cases that do not settle and are tried resulting in an award have three possible outcomes in his method of assessing results:

• Plaintiff error. The award is lower than the defendant’s offer.
• Defendant error. The award is higher than the plaintiff’s demand.
• No error. The award is somewhere between the final offer and the final demand.

Professor Kiser’s statistical analysis showed that female-male defense trial teams won 7% more of their cases than all-male teams, had error rates that were 9% lower, and underpriced their settlement offers far less frequently, amounting to an average savings of $2.6 million in defendant liability. His analysis showed similar benefits of mixed female-male trial teams for plaintiffs.

Professor Bill Henderson at Indiana University Maurer School of Law commented on Professor Kiser’s findings as showing that “[s]tated another away, lack of diversity is really expensive.”

Client demands for diversity

Diversity is a competitive advantage over other firms in obtaining significant business clients and matters.

Many companies set diversity requirements for outside counsel.  For example, Facebook’s legal department requires that women and ethnic minorities account for at least 33% of outside counsel. During 2021 the Coca-Cola Company increased its target for minority and women-owned law firm legal spending from 1% to 10% of its outside counsel spending.

Beginning in 2019 more than 200 company chief legal officers signed on to an open letter prioritizing spending on firms with strong diversity and inclusion programs, partnering with law firms to promote diverse talent at every stage of the pipeline, and hiring women and minority-owned firms.

Conclusion

Data shows that more diverse firms are more profitable and that diverse teams get better results. More diverse firms have a competitive advantage in obtaining work from clients who value and increasingly demand diverse teams.

Diversity in law offices is also considered desirable for qualitative reasons. These include accessing a wider and deeper attorney talent pool, growing a larger network of firm connections useful to clients and for firm business development, language capabilities, and the firm and its attorneys being more relatable to more diverse clients.

Perhaps these qualitative factors help account for the financial benefits of diversity discussed in this article. Research would be useful in assessing the quantitative dollars and cents effects of these benefits.

The bottom line is that law offices seeking improved financial performance and results should foster diversity in their offices because doing so is a good business decision as well as the right thing to do.

Bryan Anderson is a volunteer hearing officer for the School District of Palm Beach County and assists the Legal Aid Society on fair housing civil rights matters.

Published: December 2022
Written by: Nalani Gordon 

Conversations surrounding diversity and inclusion have become trending topics in recent years. Race, gender, and sexual orientation are usually at the forefront of these conversations. However, physical and mental disabilities are not generally included in the diversity conversation. The reality is that, at every level, the legal profession has significant work to do as it relates to creating an inclusive environment for people with different abilities.

The Center for Disease Control and Prevention reports that 61 million adults in the United States live with a disability. This means that 26% of the population, or 1 in 4 adults, has a disability. Despite such high numbers, the National Association for Law Placement’s 2021 Report on Diversity in U.S. Law Firms indicates that only 1.22% of the lawyers surveyed self-identified as having a disability. The Report notes the scarce numbers of attorneys reporting disabilities but offers no theory or possible explanation for the statistic. One might wonder whether the Report’s numbers are a result of the fact that lawyers are uncomfortable with disclosing their disability or are living with an undiagnosed disability. The more pressing question is: What can we do to eliminate the barriers and social stigmatization for individuals with disabilities who want to practice law?

At the law firm level, employers can intentionally promote programs that benefit attorneys with disabilities which will also, in many instances, benefit all attorneys by creating a more accessible work environment. The American Bar Association (ABA) has implemented a pledge which calls on legal employers to affirm their commitment to diversity, specifically including people with disabilities. The ABA’s guidance offers practical steps that employers can take to foster a welcoming environment, such as starting an affinity group, conducting disability awareness and bias elimination training, and offering scholarships and fellowships for law students with disabilities. By taking practical steps toward embracing individuals with disabilities, legal employers can make a tangible impact on workplaces by bringing disability inclusion to the forefront of their diversity efforts.

Recently, the Florida Bar’s Legal Fuel Podcast featured neurodiversity expert, Haley Moss for a conversation on “Understanding Neurodiversity in the Practice of Law.” Haley (who happens to be one of my favorite law school classmates) is recognized as Florida’s first openly autistic attorney. She offered profound insight regarding neurodiversity and disability inclusion in the legal profession. One of the most insightful tidbits from Haley’s interview is Haley’s comments regarding the idea that we generally think about disabilities from the perspective of offering accommodations under the Americans with Disabilities Act. But legal employers can do more to support diverse attorneys. Most importantly, law firm and law department leaders can work to create a culture of acceptance and openness so that people with disabilities can feel comfortable with sharing their unique contributions and disclosing their individual needs.  

As a profession, the legal community is making positive strides toward inclusion. In September 2020, the Florida Supreme Court amended the Rules Regulating the Florida Bar to remove the rule that treated members of the Bar who had a history of “drug, alcohol, or psychological issues” as conditionally admitted members of the Florida Bar. The rule now broadly allows the Bar to admit members under consent agreements without any reference to psychological issues. However, this rule change is recent. The vast majority of attorneys currently admitted to the Florida Bar were admitted at a time when disclosing a mental or psychological disability could have negatively impacted their admission to the Bar. As Haley Moss notes in her interview, legal professionals, including members of the judiciary, would benefit from additional education regarding working with diverse clients, witnesses, and co-workers.

At the individual level, each of us can educate ourselves on disabilities and biases. We can also do our best to listen and treat all of our colleagues with dignity and respect. Haley’s interview is an excellent resource on the appropriate language and approach for conversations with colleagues who have disabilities (Hint: listen without judgment and ask how you can support the individual). Our clients and businesses benefit from working with attorneys with disabilities because each person brings a talent and perspective that advances our clients’ interests and our profession as a whole. Inclusion for all attorneys, including attorneys who have disabilities, is the key to ensuring that the Bar is reflective of the communities that we serve.

Nalani Gordon is an associate at Gunster. Her main areas of practice are employment law, Title IX, and business litigation.