EP 905- The Power of DEI in Advocacy

Episode Notes

Transcript

Announcer:

Welcome to Heals in the Courtroom, a podcast about successfully navigating law and life, featuring the women trial attorneys at the Simon Law Firm.

Elizabeth Lenivy:

Hello and welcome back to another episode of Heels in the Courtroom. I’m Liz Lenivy, and today I’m joined by Mary Simon and Elizabeth McNulty. Hello, ladies.

Elizabeth McNulty:

Hi.

Elizabeth Lenivy:

So we’re going to talk about something that has been in the news, it feels like every day for the entire year thus far, and that is D, E and I. And for anyone who maybe has lived under a rock and doesn’t know what those letters stand for, that is diversity, equity, and inclusion. With this podcast, I think we have tried to remain mostly apolitical. We try to talk about our experiences and try to give advice to anyone who wants to listen, although obviously we have a particular bend towards young female litigators. We want and have always strived to be mentors and examples for the women who want to join this profession and want to survive and thrive in it. And we’ve tried to do that without involving politics. And I’m not saying that we’re going to get political today, but obviously this unfortunately has become a pretty politically charged topic.

And in preparing for today’s episode, I just kind of wanted to see what is the status of DEI, diversity, equity, and inclusion and anti-bias within the Missouri legal field. Because a couple of years ago, for those of you who may not practice in Missouri or maybe are looking to join the practice in Missouri, a few years ago, the Missouri Supreme Court changed our continuing legal education requirement to include, as part of our three credit hours of ethics, at least one credit hour must be committed to some type of anti-bias or anti-implicit bias training. And I’ll just read it to make sure I’m getting the language of it correct. It’s rule 15:05, and it requires that one hour must be devoted exclusively to explicit or implicit bias, diversity, inclusion, or cultural competency. Something that often came up when this new rule was introduced in Missouri was what exactly is implicit bias, defining what is implicit bias.

And so just so we’re all working from the same definitions here, implicit bias, also known as implicit prejudice or implicit attitude is a negative attitude of which one is not consciously aware against a specific social group. And it’s important to remember too that when we talk about implicit bias, it’s something that you don’t think about. It’s not something that is so outward or so hateful. There’s obviously very explicit examples of bias or prejudice. These are examples where they kind of fly under the radar. And it’s so important for people to be able to recognize those and then not only recognize them, but take it a step further and manage your own bias, change your behavior, and be able to track your progress. I mean, it felt like we were all just trying to be better people. So rule 1505 was amended to include that CLE credit hour, but now in the current legal landscape that we are in, as of January 8th, 2025, there was a Senate bill introduced in the Missouri Senate to modify that rule regarding the one hour of CLE devoted to bias, diversity, inclusion, or cultural competency to basically do away with it.

And then on January 22nd of this year, Missouri’s Lieutenant Governor David Wasinger, along with a few other elected officials who are also attorneys, sent a letter to the Missouri Supreme Court, basically again, calling for the removal of this requirement. And within that letter, he stated, Missouri attorneys should not be forced to undergo politically charged training to maintain their licenses. This indoctrination does not enhance the ability of attorneys to serve their clients or uphold the law. So that’s a statement from our lieutenant governor to our Missouri Supreme Court. And I will say as an attorney now entering her 10th year of practice, I could not disagree more with the lieutenant governor, both in regard to our ability to serve our clients and to uphold the law. And so that’s what I wanted to talk about today was what has our experience been with anti-bias training and how has that made us better attorneys and frankly, better officers of the court?

Mary Simon:

I’m so glad that you brought up this. I don’t even want to call it a concept. It’s something we should all be doing, right? One of the things that I learned early on in practice is the importance that we have to have trust with our clients. And one of the most impactful ways that I think we find trust with our clients and maintain that trust is meeting our clients where they are. And that includes understanding their background and more importantly, taking the time on our end as individuals, as attorneys representing clients and families who have different backgrounds than we do, recognizing any time that we are unfamiliar with anything about their lives and learning about it and including that in the case and including that and embracing who our clients are. Over time, I can think of so many different examples where this has come up in practice.

As a white woman, I’m privileged, I work at a law firm that my dad started. I have all sorts of privileges in my life that I absolutely need to be doing this. It’s my responsibility to be doing this with clients and just people generally. But specifically in our profession, I remember working on a case with my dad a couple years ago and we represented a client and it was an immigrant family. And I think maybe one extended family member spoke a little bit of English and the rest were all Arabic speakers. We had to get our clients to trust that when we went to the courthouse in the middle of Missouri, that they would feel confident enough that we would have a jury that would see them for who they are and give them an equal shot against a group of physicians in St. Louis who are not immigrants and in a room of lawyers who are not immigrants.

And fortunately, we were able to work through these ideas during jury selection and think about questions that could help build that trust between the jurors and us and our clients. But the way not to do that is through ignorance. I don’t know whether it’s the right thing or wrong thing to do, but anytime that I’m talking to someone who has any sort of different background than I do, I am more than happy to ask questions of them and them me to find middle ground of meeting each other where we’re at to build that trust. I try to put myself in the shoes of the client and I mean, just think about that for a second. Really take a second and think about if you are a parent of a child that you got uprooted from your home country, plopped down in the middle of St. Louis County, not knowing any English and the worst possible thing happens to your child and someone who you had a friend of a friend of a friend tell you to call a lawyer about it and that our civil justice system is the thing that you should be a part of.

I mean, that would be so foreign. And if I put myself in my client’s shoes, I wouldn’t trust anybody. So to be able to have a knowledge base and an understanding of actually not only recognizing differences, but actually embracing them wholeheartedly and getting on that same page as your client as much as you possibly can, it is absolutely invaluable. And I’ll never forget those clients. And I can’t tell you how many times it even … I don’t know if other firms build the types of relationships that we do with our clients at our office, but it would get to the point where when we’re preparing for trial or we’d have client meetings or depositions or whatever it was, we would have food reflecting their cultural interests at depositions for lunches. Or during trial, we would make sure that it was set up around the times that if they had certain prayer times that they respected, that we would also be mindful of that.

So it’s asking the questions that sometimes you might feel awkward or afraid to ask. I think over time you just get more confident and comfortable engaging in those discussions because you know how to say it in a way that’s so genuine and authentic to want to embrace that. It’s like we’re taking five steps back with the letter that five years back, 20 years back with the letter that you were talking about, Liz, because I can’t think of anything that would be a worst detriment to the general public if the folks who are supposed to implement and uphold justice and equality for all people in the legal profession are not considering diversity, equity, and inclusion. It’s backwards to me.

Elizabeth Lenivy:

Mary, the thing that I think really underpins your statement is when we work with clients, I mean, we’re working with the general public and that is everyone. Obviously, different racial backgrounds, different immigrant status, socioeconomic status, religious differences. I’ve had this happen a couple of times where there is a particular religious group that outside of my practice, I’ve never actually met someone who practices this particular faith. I’ve only met them as clients here, and that just may be because the particular neighborhood I live in or the city that I live in, I just don’t run into these people very often, but I’ve had a handful of clients who are of this faith, and that sometimes can make it a little bit tricky because they have very particular religious views when it comes to medicine. Sure. And so if I’ve got a medical malpractice case, or frankly, anything that is involving an injury, and they may even just go see a doctor, understanding their very deeply held religious beliefs is so important, not only for me to be able to litigate their case, but just to build the trust, just so that they feel comfortable talking to me about it.

And in one of those most recent conversations, I brought it up because I said, “Look, I would not be doing my job as a lawyer if I didn’t say that this could present a potential issue with your case.” And they immediately got very defensive. And I could tell … And the thing that they said to me, one of them said to me was, “We’re not crazy.” And I go, “Hey, hey, hey, no one ever said you were crazy. I never said you were crazy. What I’m telling you though is that this is a potential weak point in your case. And so I want to talk to you about it. I want to be able to strategize with you about it. And frankly, I want you to be able to educate me on it so that I can understand it and I can represent you to the best of my ability.” And they immediately, it changed the tone of the conversation.

I could see that they had relaxed more once I said, “The reason I’m bringing this up is because I want you to know, but also because I want to listen and I want you to teach me and I want to understand.” And I could feel that they were now more trusting of me. And it has been so helpful in the relationship going forward because I can just sense that they want to talk to me now and it feels better. And I can’t think of anything more important than having your clients trust.

Elizabeth McNulty:

Yeah.

Elizabeth Lenivy:

I mean, imagine if they couldn’t trust me with that information and then we’re a week out from trial and I’m suddenly bringing this up for the first time, they’re going to be thinking, “What is she doing?” I’m going to be thinking, “What are they doing?” Right. And so I know so oftentimes DEI gets focused in on race and gender, but it really does extend to the full gamut of different lived experiences, religious backgrounds, veteran status, different socioeconomic or different health backgrounds. If someone has a mental illness, that may change how we have conversations with them. I mean, I had a client a couple years ago who I know had been diagnosed with some different mental health illnesses, which were not her fault, but what I tried to do was, again, educate myself on how do I best talk to someone who has this particular illness and what is the best way to present information to them so that they don’t feel attacked, that they don’t feel threatened, and that they know that ultimately I’m still on their side, especially because they’ve lived a life where people in power have not been on their side.

So bias training, I think the biggest thing about bias training that I’ve learned is that it is important to frankly shut up and listen,

Just hear people and being reminded of that lesson has again, made me a better lawyer. Elizabeth, what’s your experience?

Elizabeth McNulty:

Well, I think that for those people who maybe they don’t have any buy-in to the CLE requirements or DEI yet, but if you’re a trial attorney, you know that our juries are made up of anyone from any walk of life. And it’s really important to try to get a better understanding of those people where they come from so that you can give your client their best shot and explain your case in a way that they might understand also so you don’t stick your foot in your mouth because I think that that is one of the biggest things is becoming self-aware and that’s kind of what you learn in these kinds of CLE requirements. Another thing that I think I deal with maybe the most in conversations with clients is that socioeconomic factor. I feel like all other kinds of diversity, you could usually see it, but that one is a little bit more discreet, I find.

And then some of the most important conversations we’re having with clients is about maybe settling their case, maybe there’s been an offer. And we all know that the first offer is a real low ball, but depending on where they come from, that might be a huge payday for them and you need to gain their trust in a way like, “Hey, there’s probably more money on the table and I don’t want you to leave it out there.” So I think getting that understanding and being able to have an intelligent conversation about that is so important. I also think the idea that this requirement is indoctrinating us is absurd just because we’re all lawyers. We all think with our own brains and it’s nearly impossible to really persuade someone in a one hour requirement per year. I just think that’s obviously meant to just incite people into not agreeing with it.

But I think it’s also really incumbent on your local bar associations, affinity bars to speak up for how important these requirements are and hope that the Supreme Court listens.

Mary Simon:

Yeah. And it’s just the concept of indoctrinating. It’s like, why don’t we all just think what is the right thing to do? What is the right thing to do and then do that thing? It’s bonkers to me. This discussion reminded me of a particular moment that I had with a client. It was during a lot of client prep sessions, whether it’s in a video recorded deposition or for trial. And I had my concerns about how she may be perceived as other by the jury, because you have to keep in mind that our jury, not only do they include all minority groups, but also include folks who want to do away with DEI. So we’re trying to balance all these things to do what’s in our client’s best interest. And at a certain point during our conversation, the client asked me, “So do you not want me to be myself?” And it was like a punch to the gut and I really had to check myself and think, no, I want you to be yourself.

I need to do better at explaining to you why the things that I’m telling you have nothing to do with you and have to do with folks who may be on your jury panel. And it was a really interesting conversation and it ended up fine, but it really made me have to go back to my office and be like, “Do your damn homework.” If you’re going to have that conversation, think about 10 different ways that you need to explain that conversation because it’s not going to be the same for every client and trying to explain how someone, you want them to be perfectly themselves and then you’re kind of explaining to them how other folks might interpret things about who they are in a way that negatively impacts their case monetarily is so … It sounds so cold and rigid when you’re trying to talk to someone on such a personal level.

So I’ve had to kind of evolve on how I have those conversations with clients so they don’t feel like they’re being told not to be themselves because it’s not a matter of them not being themselves. It’s a matter of us advocating in a way that makes their stories relatable to the jurors. And it also reminds me of a moment that I had with an opposing attorney once, and I did say this in the deposition, it’s just me advocating. It was just blatant advocacy, but my client was a young African American single mom, and the other attorney was asking her some questions that quite frankly, a lot of my white clients don’t get asked. And during the deposition, he asked a certain question and I just said, “How dare you ask her that? We’re going to take a break.” And I ended, we took a break, went out in the hallway and she said to me, she’s like, “I feel like he thinks I’m stupid and he thinks…” And I was like, “You are right to think that because that’s how I felt when he’s asking those questions and we’ll get through it, but I’m not going to let him do that.

And if it continues, I’ll know how to handle it in a way that always protects you while I’m advocating for you. ” But it gets to a certain point with this, even putting it in the framework of an hour requirement and these educational frameworks that we put DEI in, it’s so much more than that, right? It’s being able to hear what someone’s going through and then hear when they’re getting othered and just be able to call it out. And it wasn’t a legal objection. It was a human objection Just say, “How dare you talk to her like that. ” It’s not political. It shouldn’t be political. It’s just advocacy and humanity and understanding and embracing differences. And I hope that the folks, Elizabeth, to your point, all the folks who are in opposition of doing away with it, it’s kind of confusing as a double negative, but to keep encouraging DEI that regardless of whether or not there’s a one hour requirement, which I hope there is, it should be more than an hour, that we continue to just do that in our practice on a day-to-day basis.

Elizabeth Lenivy:

The thing that also has struck me, and Elizabeth, I’m really glad you brought up the use of this word indoctrination because again, as someone who has sat through a couple hours of this DEI training as part of my ongoing CLEs, every single training, there is some type of disclaimer of, “Hey, having implicit bias doesn’t make you a bad person, it makes you a human being. We all have it. It is naturally ingrained in us.” And look, I know I’m guilty of it. I know personally when I walk into a doctor’s office, if I see a female doctor, I feel a little bit more reassured because in my past experiences have told me a female doctor’s probably going to listen to me better. Now, that is completely unfair when I’m meeting a stranger. The female doctor could completely blow me off. A male doctor could listen to every problem I have under the sun and diagnose them all and fix me.

But I am basing it because of my past experiences. And I think about it too in terms of how we treat our clients. And Mary, with your example, imagine if that client had had a different attorney who didn’t recognize the undertones of that question and who didn’t step up and say something and call that other attorney on his bullshit. In that moment, again, you not only built trust with your client, you affirmed to her that you’ve got her back, but that probably also gave her so much more confidence to go in there and do her job, which was to give her testimony, do it well and do it with strength, especially under really, really terrible pathetic conditions. And we’re talking about how we serve clients and makes us better attorneys, talking about how we appeal to juries and how that makes us better trial lawyers.

But I think about it too in terms of how do we be good coworkers, right? Clients are absolutely number one, but we also have to recognize the people that we’re working around every day. Imagine you’ve got a really great employee. They show up to work on time, they do a good job, they are reliable, they’re communicative, but you’re not treating them well, that person’s going to get up and leave.

Or imagine you do have a good employee, but because they don’t feel respected at work or appreciated at work, they’re not going to do their best job there. Or again, they’re going to leave. So I think about it in terms of how do we create the most cohesive, enjoyable work experience, because frankly, let’s be real, we spend most of our lives here. We spend more time with our coworkers than we do with our own families sometimes. One of the first times I had to do this CLE requirement, I was in a big conference room and there was a man presenting. He was the CLE presenter for this particular topic, and he gets up there and he starts talking about implicit bias and how it goes unrecognized. And he gave an example and he used statistics and studies to back it up of how women are often not given credit for our ideas and how often it is that a woman will say something, no one will acknowledge it or affirm her, and then a male colleague may repeat it and he gets the credit for it.

What a brilliant guy. Man, he’s smart. And you’ve got a woman sitting there just like banging her head on the desk and this man, God love him, did raise his hand and say, “I guess I never thought about it like that. ” You could see the light bulb going off over his head. And I was sitting next to a group of other women and we all just looked at each other of like, he had no idea. And I don’t think that guy is a bad person. In fact, I know, I know him. He’s a nice man, but it’s just something that it was so deeply ingrained in him probably to not recognize women when he started practicing a long, long time ago. There probably weren’t many female attorneys. And I just thought about, “Man, I wonder what it’s like to be a female associate working with him.” That had to be really tough.

Even though he’s a nice guy and I bet he means well and none of it was intentional, I bet that was really hard. And I hope he walked away from that experience thinking, “I’ve learned something about myself today and I’m going to be better going forward. I’m going to check myself and I’m going to be better.” And that’s the entire point of it. It is not to say that you’re a bad person, it is to say that you are a human being and that as human beings, we’re all capable of being better. It is a disappointing and silly time that we’re living in, but I do think it is really important for people like us who have not only benefited from DEI, because frankly, as women, I think we can all recognize we’re here because of the women who came before us and helped to break that glass ceiling, but that we have a duty ongoing and going forward to help continue paving that way for other women and frankly, for any group who has been marginalized or othered or not included in the past.

I came to this country 31 years ago and something that I have always been taught since I was a young child was that the thing that makes America such a wonderful place is our diversity, is because you can come from any background and be successful and people will celebrate you. And I have always believed that and it is just really troubling and disheartening to see something that I have a deeply held belief of mine and something that has made me proud to be an American is now under attack. So with that being said, I would, if you can and are able, reach out to, whether it’s the Missouri Supreme Court, your bosses, elected officials, whoever it is in your life that may have some type of impact or influence on the current state of affairs and encourage them to keep not only stop this attack on DEI, but within the legal context.

Again, I think it’s important that we keep this grueling one hour a year of anti-bias training. So thank you all for joining us on what I think is a really important discussion. And heels in the courtroom, we’re going to keep talking about the important things happening in our careers, in the law. But on that note, the discussions will look a little bit different going forward. We are both extremely excited, but also very sad to announce that our co-hosts, co-founding members, Amy Gunn and Ericha Slater will no longer be on the podcast because they have made the incredible career jump of starting their own firm. We could not be more elated for these incredibly smart, talented, tenacious women who we have all gotten to learn so much from, and we have all gotten the benefits of being better attorneys and people because we have known them.

So we wish Erika and Amy the best of luck in all of their future endeavors, but please be assured that we will continue with our discussions here at Heels in the courtroom because we do still have so much to talk about. So with that, thank you again for joining us. New episodes drop every other Wednesday, and if you would like to join the conversation, you can reach out to us at heelsinthcourtroom.Law. Thanks so much. Bye.

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