Trial Magazine

Differences among socioeconomic groups should be part of the overall conversation about diversity in the law. Attorneys from varied backgrounds are essential to achieving true diversity in the legal profession, and their viewpoints make us all stronger advocates.

Socioeconomic class disparity can be difficult to talk about. It makes many people uncomfortable and is often relegated to the background of a broader conversation about diversity. But the ramifications of class disparity in America can and do impact every facet of our society, including the legal system. As advocates for social justice, attorneys must educate themselves and others about socioeconomic class disparity and how it affects clients and the legal profession. Only by consciously addressing class disparity can we properly work to dismantle the resulting systemic injustice.

While there is no universally agreed-upon definition, most experts agree that “class” includes both social and economic variables.¹ “Socioeconomic class” in this article refers to a person’s combined economic and social status, typically measured by family income, education, and occupation.² “Class disparity” in this article refers to the relative differences among people with varying socioeconomic class backgrounds.³

The legal community has been criticized for its passive stance on class disparity, with calls for more engagement in addressing this somewhat taboo diversity issue.⁴ Yet the day-to-day practice of law provides many chances to address class disparity in a meaningful way.⁵

Hiring Practices and Firm Culture

It benefits the legal profession and our clients when decision-makers come from various classes and bring different viewpoints to the problem-solving that is integral to the practice of law. We must make sure our hiring practices do not unduly prejudice attorneys from often-marginalized classes. And we must be vigilant in ensuring that colleagues from all socioeconomic classes are given a chance to succeed.

Many seemingly innocuous hiring practices may result in an opportunity gap between law students or lawyers from a disadvantaged socioeconomic class and those who come from more privileged backgrounds. For example, overvaluing eye-catching resume accomplishments may lead to a pool of associates who come from primarily upper-class backgrounds.⁶ It is unlikely that a working-class student had the means to take a year off to volunteer for a charity or travel around Europe.

Likewise, hiring associates from only “elite” law schools can carry the long-recognized class disparity in legal education over to the legal profession. Prestigious law school admission standards have been found to favor affluent students who have the money to invest in LSAT preparation courses or who may benefit from grade inflation at private universities.⁷ One recent study found that only 2 percent of students attending the top 20 law schools in the country come from low-income households.⁸

Anyone committed to class equality within the legal profession should be aware of this discrepancy when making hiring decisions. That does not mean attorneys should completely ignore the above factors in hiring; rather, those factors should be viewed in context and with awareness of the -socioeconomic disparity that they may indicate. Internships and mentorships aimed at low-income law students can also help firms proactively seek out economically diverse applicants.
Finally, it is not enough to simply focus on class diversity during initial hiring. Firm culture must allow all attorneys the chance to succeed no matter their background. Begin by recognizing that the traditional “meritocracy” in law firms is often built on social norms with which “class migrants”—white-collar professionals who come from lower-income backgrounds⁹—may be unfamiliar or at least less experienced.

To prevent such norms from hampering class migrants’ success, think critically about the rationale and methods used for promotion and prime work assignments. Performance reviews should focus on work product, not vague concepts of character that allow personal bias to impact the reviewers’ lens. A class-diverse workforce is not only inherently fair—research has shown it to be immensely valuable to clients.¹⁰ For example, client representation is better when the attorney has empathy and a cultural understanding of the client’s situation.¹¹ Having voices in your firm from different backgrounds leads to better understanding of clients from those backgrounds.

Confronting Class Disparity as Advocates

Diversifying law firms is just one part of leveling class discrepancies in the justice system. Lawyers also need to think about how class disparity infiltrates other areas of the law and actively address this when advocating for clients.

Scholars have recently recognized that judges overwhelmingly come from wealthy backgrounds, making the potential for implicit socioeconomic bias an issue that must be dealt with.¹² Implicit bias does not result from any conscious or explicit beliefs, but from unconscious attitudes or stereotypes.¹³ While plenty of judges come from many types of diverse backgrounds, as Judge Alex Kozinski of the Ninth Circuit stated: “[T]here’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter.”¹⁴

Indeed, even judges with the most sincere commitment to equality and justice could make legal decisions from places of privilege that negatively impact people from lower socioeconomic classes.¹⁵ A more diverse legal profession hopefully will result in a more diverse bench that includes more class migrants. In the meantime, we must learn to tell our clients’ stories to people of privilege without allowing implicit bias to get in the way.

Bias can be malleable once a personal connection is made.¹⁶ One way to offset class-based implicit bias may be to draft your statement of facts to foster that connection. Descriptive language and selective use of detail can introduce your client as an individual rather than a nondescript plaintiff. Further, you should prevent any hint of class-based bias from permeating the language the defendant uses to describe your client. For example, unnecessary but repeated quotations of your client’s deposition testimony where your client spoke in a colloquial manner could be an attempt to play into the stereotype that working-class individuals are somehow inarticulate or unintelligent.¹⁷ To protect your client’s interests, you should point out your opponent’s tactic for what it is: a sneaky reference to a degrading stereotype.

Relating to Clients

As attorneys, we are often asked to assist those in a different socioeconomic class from ourselves. How do we relate to those who have totally different experiences from us? Having socioeconomically diverse colleagues is one way: They can relate to clients with similar backgrounds and also help their colleagues do the same by exposing them to other viewpoints that inform their own client interactions.

Opening the lines of communication is another way to better relate to clients from other socioeconomic backgrounds. Listen to and engage your clients—empower them. Ask questions, but don’t do all the talking. Focus on your client’s experiences—shared and foreign. Shared experiences are relatable. Foreign experiences are instructive. By doing these things, you can tease out your client’s life story. More important, you will identify the chapters of that story; within those chapters are the crucial details relevant to your client’s case.

And do not forget to recognize any biases you may hold. For example, you may not understand what it is like to live paycheck to paycheck. You may be biased against clients who smoke, have tattoos, or frequently change jobs.

Do you look unfavorably on clients who have had multiple marriages or whose living conditions are different from yours? Or do you have a bias against clients who did not migrate to a higher socioeconomic class level the way you were able to? Also ask yourself whether you ever engage clients who are in a higher socioeconomic class: Do you fear them because you have a preconceived notion that they may have more questions or higher expectations?

We need to recognize our own biases to overcome them and in turn empathize and work well with others. Building this level of trust does not happen in one meeting, but through honest, judgment-free discussion, you can start to break down barriers. Socioeconomic class disparity may be difficult to talk about, but it is a conversation we must have.

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Margaret Samadi and Steven Rineberg are associates at Maune, Raichle, Hartley, French & Mudd in St. Louis, Mo. They can be reached at msamadi@mrhfmlaw.com and srineberg@mrhfmlaw.com.

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Notes

1. Richard H. Sander, Class in American Legal Education, 88 Denv. U. L. Rev. 631, 633 (2011); see also Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 Tex. L. Rev. 1847, 1855 (1996). Some of the social factors that may be relevant to a person’s socioeconomic class include diversity factors written about by others in this issue of Trial, such as race, gender, and sexual orientation. The authors recognize the importance of an intersectional approach to diversity and focus on class in this article as merely a single social structure among many that are interrelated.

2. See Sander, supra note 1, at 633.

3. Scholars differ on the theoretical framework to describe existing classes in U.S. society. For this article, we use Ascanio Piomelli’s taxonomy of a descriptive (not prescriptive) four-class hierarchy, consisting of the low-income working poor, the working class, the professional middle class, and the owning class. Ascanio Piomelli, Cross-Cultural Lawyering by the Book: The Latest Clinical Texts and a Sketch of a Future Agenda, 4 Hastings Race & Poverty L.J. 131, 167–68 (2006).

4. See, e.g., Eli Wald, Serfdom Without Overlords: Lawyers and the Fight Against Class Inequality, 54 U. Louisville L. Rev. 269 (2016).

5. This article focuses on three major areas where class disparity is likely to be an issue that can—and must—be addressed. The authors recognize there are far more areas within litigation where class disparity must be addressed, including class disparity in depositions and navigating the issue during trial and before the jury.

6. Sander, supra note 1, at 659–60.

7. Id. at 659.

8. Id. at 637.

9. See Lisa R. Pruitt, Who’s Afraid of White Class Migrants? On Denial, Discrediting, and Disdain (And Toward a Richer Conception of Diversity), 31 Colum. J. Gender & L. 196 (2015).

10. Wald, supra note 4, at 282.

11. Id.

12. See, e.g., Michelle Benedetto Neitz, Socioeconomic Bias in the Judiciary, 61 Clev. L. Rev. 137, 140 (2013).

13. Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias, Scientific Foundations, 94 Cal. L. Rev. 945, 951 (2006).

14. United States v. Pineda-Moreno, 617 F.3d 1120, 1123 (9th Cir. 2010) (Kozinski, CJ., dissenting).

15. See Neitz, supra note 12, at 155.

16. See Andreas Olsson et al., The Role of Social Groups in the Persistence of Learned Fear, 309 Sci. 785 (2005).

17. See, e.g., Piomelli, supra note 3, at 174–75.(listing “unintelligent” and “inarticulate” as U.S. stereotypes plaguing working-class people).