Trial Magazine

It seems both uncontroversial and unnecessary to state that all plaintiff attorneys should be completely committed to increasing diversity in court-appointed leadership positions in multidistrict litigation (MDL) and class actions. For the young lawyers among us, this commitment is about professional development—increasing visibility and influence, which in turn allows us to better serve our clients. For those of us who have put some years on and have held such leadership positions, it is about encouraging and assisting colleagues to do the same. When diversity increases, we all benefit. But how do we ensure more leadership positions for female lawyers, attorneys of color, and members of the LGBT community? Here are five ways to do just that.

1. When the judge speaks, listen.

Federal judges presiding over MDLs and class actions are well aware of the need for and benefits of diversity when appointing attorneys to leadership positions in large-scale, complex litigation. When considering leadership appointments, judges generally follow the class counsel appointment factors of Federal Rule of Civil Procedure 23(g)(1) (experience, resources, and commitment to the case). They usually add the ability to work cooperatively with others as another factor. Many judges consider diversity to speak to this skill: They recognize that female and minority lawyers have developed teamwork and collegiality as essential survival skills.

An increasing number of judges are rejecting “slates”—a previously­ popular practice where attorneys proposed prepackaged leadership ­structures—in favor of an open, merit-based application process that gives attorneys equal opportunity for consideration. This trend results from the judicial concern that slates can be the product of “private ordering,” or ­backroom negotiations, which can exclude women or other groups.

When you receive a court order describing the procedure the judge will follow and the factors he or she evaluates in appointing counsel to leadership roles, design your application accordingly. If your selection as a member of the ­leadership committee would increase its diversity, you have a chance—take it. If you have a partner, associate, or colleague who could serve ably while increasing the committee’s diversity, encourage him or her to apply.

2. Build experience for that first court appointment.

Courts value experience when making appointments. Previous experience, even in an “unofficial” or assistant role, demonstrates that you have been trusted to do the work and that you have succeeded. Now is the time to accumulate “sweat equity”—seek out those in your firm who are serving under court appointment and work with them. Learn the ropes, do the work, and accompany them to court when possible. Earn a reputation as a “doer.” This also helps you understand the dynamics and politics of working in a leadership structure with other firms—a process that often resembles working in an ad hoc law firm.

Moreover, this “can do” work ethic gives you the opportunity to develop your communication, collaborative, and people skills. And remember that organizational or administrative skills are especially valuable in leadership structures. Tasks such as scheduling conference calls or organizing briefing and discovery assignments may not be glamorous, but they are essential to successful, timely work. Be the trusted go-to person in this process.

3. Give someone else a chance.

If you are an experienced lawyer with many leadership appointments to your credit, now is the time to foster development for other lawyers. This is a tough thing to do—I know—because it is all too easy to say, “I’ve done this before, the judges know me, and I can do it again.” This may be the path of least resistance within your firm, and others outside your firm may also urge you to seek a court appointment. It’s hard to say no, but those of us who have been around long enough to become “the usual suspects” should consider whether it is time—or past time—to make way for younger colleagues with the necessary energy, desire, and skills.

If you have been careful to cultivate diversity in your firm, then you will have younger lawyers who fit the bill. If not, reconsider your hiring and promotion practices, change them, and in the meantime, look beyond your firm to see who you can encourage and mentor. Here, again, judges are proactive: Some district judges’ orders encourage firms to designate the most junior lawyer on the pleadings to make the pretrial motion oral arguments. It is a not-so-subtle hint to let young lawyers show what they can do.

4. Encourage younger colleagues’ professional development.

This is a corollary to number three. If opportunities for court-appointed leadership positions or other positions within a leadership structure are not available, look for other opportunities to get young lawyers the experience they need for a court appointment. These can include writing articles for legal journals or practitioner’s magazines (including Trial), speaking at CLE courses, visible participation in a local or specialized bar association, applying for AAJ’s Leadership Academy, and becoming more active in AAJ by joining committees and taking on leadership roles in the Caucuses, Sections, and Litigation Groups. Help younger colleagues get their names and faces out there.

Your firm policy should be clear: Young lawyers are encouraged to undertake professional development projects, and you should back that up. Female plaintiff attorneys of all ages and experience levels should become active in AAJ’s Women Trial Lawyers Caucus. The Women En Mass list server also has been a tremendous support and promotion network for female lawyers. The group has grown exponentially as it continues to break barriers and empower female advocates daily.

5. Show respect.

This one should go without saying, but it can’t: To encourage diversity in our profession and in court-appointed leadership positions, we must show the courts, our cocounsel, our opposing counsel, and everyone in the courtroom that we respect all of our colleagues as professional equals. Sometimes, young lawyers, female lawyers, and lawyers of color are treated with obvious, or not so obvious, condescension. The double standard hasn’t gone away. For example, calling a female lawyer or a young lawyer by her or his first name while addressing everyone else as “counsel” or “Mr.” is a dead giveaway, and it still happens. Respect works both ways: We get respect when we give respect. Practice this rule, and don’t forget it.

Elizabeth J. Cabraser is a partner at Lieff Cabraser Heimann & Bernstein in San Francisco. She can be reached at ecabraser@lchb.com.