Environmental Justice: Fighting for Fairness and a Safe Environment

Episode Notes

Transcript

[Music]

Dave Scriven-Young: Hello, everyone, and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a commercial and environmental litigator in the Chicago office of Peckar & Abramson which is recognized as the largest law firm serving the construction industry with 115 lawyers and 11 offices around the U.S. In this show, we talked to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and building a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app to make sure you’re getting updated with future episodes.

This podcast is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the ABA. The litigation section provides litigators of all practice areas the resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation.

In this episode, we’ll be discussing environmental justice litigation. As the global conversation surrounding environmental concerns intensifies, so too do the legal disputes that seek to address them. In this episode, we’ll explore the complex intersection of law, environment and equity examining the ways in which marginalized communities disproportionally bear the burden of environmental harm and how litigation plays a pivotal role in the pursuit of fairness and accountability.

And to discuss these issues, I’m pleased to welcome Abre’ Conner to the show.  Abre’ is director of the Center for Environmental and Climate Justice at the NAACP where she oversees the strategy and collaboration across the association to dismantle environmental racism. Among her many leadership positions, Abre’ is the Young Lawyers Division nominee to the ABA Board of Governors and previously served as the elected assembly speaker for the ABA YLD, that’s the chief policy officer for the division and she is also an appointed member of the ABA’s Commission on Youth at Risk Advisory Board and Children’s Rights Litigation working group. Under her leadership, the ABA YLD adopted a resolution which is now ABA policy declaring racism as a public health crisis.  Abre’, welcome to the show.

Abre’ Conner: Thank you so much for having me. Happy to be here.

Dave Scriven-Young: Just looking over your bio, I mean, your career has had very interesting experiences. You’ve worked at several public interest agencies. You’ve also been an associate in the White House Office of Presidential Personnel in the Obama Administration. So, tell us a little bit about your career path.

Abre’ Conner: Well, I will say that coming from a family that where I was the first one to actually go to law school, a lot of it was me just trying to figure out how to navigate this area that I had decided that I wanted to go into while I was in college. So, I grew up in the South. I grew up in Florida and I grew up experiencing a lot of issues that ended up now becoming a part of my practice and the advocacy work that I do.

When I was in the third grade, it was the first time that I was actually called inward by a student which made me realize that we still had a long way to go. Even though I was so young, I knew that it was wrong for me to be called that by a student and then for my teacher at that time to blame that situation on me. I also experienced a number of breathing issues and I learned later on in my career that it wasn’t normal to have an albuterol pump just as something that you carried around just to do everyday activities. When I got to college, that was when I started to really be able to put some of the pieces together for the things that I experienced growing up in the global South which was that, a lot of the decisions that were made about my life and the people at my community’s life were intentional. In that also, we were intentionally left out of those conversations.

So, I decided to go to law school because I wanted to change that narrative and to change that kind of decision making and power structure for people who had been left out of those conversations. I went to law school in Washington DC. As the first one in my family, I was trying to figure out, okay, what does it mean to actually do civil rights work? And so, I had the opportunity to work an intern at a number of different agencies including the US Department of Education and the civil rights, Office of Civil Rights and Equal Employment Opportunity Services and then also with Lawyers’ Committee for Civil Rights and a number of other places. I realized that I really enjoyed the intersection of law and policy in being able to be advocate or a community member. So, my career path really has been at as underpinning ensuring that that is a part of each of my positions.

(00:05:00)

Environmental justice is really the area where I feel like there is the largest intersection of those areas. I experienced environmental injustice myself growing up around phosphate plants and growing up in a community where we were experiencing a number of toxins and we were never notified or shared that there might be an environmental impact statement that is upcoming because there’s a project that’s going to be starting in our communities. So, I intentionally then sought out opportunities to make sure that I was fighting on behalf of people who were traditionally left out of those conversations. I worked at the West Harlem Environmental Action Coalition. This is around race poverty in the environment, NAACP Legal Defense Fund.

And now, as the director of the Center for Environmental and Climate Justice at the NAACP, I’ve utilized a lot of the experiences that I’ve had as a constitutional civil rights attorney but also learning movement in community lawyer and other positions to really kind of think about what does it mean to be a lawyer in a time where we’re experiencing a climate catastrophe. We had one of the hottest summers that we’ve had ever and is going to take a number of different tools that are available in order for us to try to get back on target so that we can have a planet to even come back to in the next, I’d say, even several decades.

Dave Scriven-Young: Right. We’ll get to some of those tools in a little bit. I’m also someone whose family did not have this kind of educational experiences. I’m the first person to graduate from college and to go to law school in my immediate family. And so, the one thing that I think helped me tremendously is having the mentors and people to kind of guide me along the way. I’m sure that’s the same with you. Are there any kind of mentors that stick out that you would identify as folks who really helped you along the way?

Abre’ Conner: Yeah, absolutely. I did not know where to turn and I had some really helpful bosses at some of my previous positions. I also, while I was in law school, I would just cold call and reach out to people and kind of share. I have no idea kind of how to get to where I’m trying to get to, but it looks like this is what you’re doing. So, I’d love to just have a conversation and some of those people took me up on those conversations and helped me to navigate, helped me to understand just what it meant to actually be an environmental justice attorney and how to actually maneuver in that space. A lot of those individuals I still reach out to. I still talk to them when I’m making major career and life decisions, and I think that, particularly, like yourself Dave, if you’re the first in your family to be in that space, your family — my family has always been incredibly supportive, but there’s just certain things that I am experiencing for the first time. So, having individuals who are able to share their experiences, share what’s worked for them and sometimes what didn’t work or things that they wish they had looked at differently has been really helpful in navigating my career.

Dave Scriven-Young: Sure. I get calls and emails from law students and young lawyers asking me, “Hey, I’m really interested in environmental law but don’t know where to start” because they don’t know environmental lawyers and it’s kind of a topic that I think it’s hot right now in terms of thinking about climate change and even environmental justice, but they just don’t know where to start. So, what sort of advice would you give to a law student or young lawyer whose kind of interested in taking your career path or thinking about environmental law? What kind of advice would you give them?

Abre’ Conner: I should have mentioned this before, but I’ll mention it now which is, for me, I came to this space from a civil rights perspective and I feel like it’s important to note because, the first time I actually heard about environmental law, I was approached by a school and they said, “Hey, if you come and take this program, do this program, we’ll give you a scholarship.” For me, I did not actually understand the intersection of civil rights, racial justice and environmental issues in environmental law.

And so, I don’t think that you necessarily have to have the traditional path in order to get into that space. I did take environmental law and I also took a number of environmental justice courses and things like that to make sure that before I graduated, I understood what I was talking about.

(00:10:02)

But I did not have the traditional Science background per se in undergrad before I got to law school. So, one is to recognize that if you’re still in law school, you can still take environmental law. You can take courses that allow for you to understand the intersection, especially if you were interested in environmental justice. Often times, when I’m looking at environmental justice issues, I’m looking at the intersection of constitutional law, environmental law. I may be looking at voting issues or education issues and having a broader understanding of civil rights laws and ways that you can approach housing issues. Issues more broadly will help you to be nimble in a nimble strategist and tactician within this area. And so, don’t — I would say, you know, not to feel like there’s one particular path that you have to take to be able to be in this space is going to take all of our collective backgrounds to be able to solve these issues.

Dave Scriven-Young: Yeah, I love that and a lot of what I tell folks is if you’re looking to get into environmental, think about even the tangential practice area. One of the things that I do is construction and there’s a lot of overlap between environmental law and construction law. Digging dirt, you’re going to find bad things that need to be cleaned up. So totally agree with that intersectionality to think about what other practice areas you can rope in. So, let’s talk about environmental justice. It’s a term that I think people have heard about, but they’re not quite sure what it means exactly. So, when you talk about environmental justice, Abre’, what does that mean to you and why is it so important?

Abre’ Conner: Well, I think there’s a number of different definitions including a definition that the current administration, the EPA utilized when they talk about environmental justice. But for me, I really think about environmental justice being able to eat, live, pray and play in the community where you live without any additional barriers or issues that make it harder for you to actually live in your community, and I think that when you look at all of the issues that come up within the environmental justice space, it kind of does boil down to those kind of core areas and there are a lot of other words and kind of definitions that are important particularly around thinking about the type of people who have been excluded from being able to access environmental justice but that is my high-level definition.

Dave Scriven-Young: Got it. Can you give us some examples of — and you said growing up that you face these issues. But can you give us some examples of communities that are more likely to be impacted by pollution concerns and, therefore, we want to take a more narrow focus or focus our attention on those communities with respect to environmental justice?

Abre’ Conner: Yeah. Well, I give a story of a report that was done. Now, it’s been many more than 20 years ago. But back in the 80s, we usually see Church commission to study called ‘toxic waste and race’, and this study was pivotal because of, number one, the time that they were doing a study on environmental issues and they were intersecting it with race. And so, they looked at kind of, where is pollution, like where does it live, is there a correlation with where there may be toxic pollutants and the racial demographic and makeup of this country. And what they found was that black communities and communities of color were more likely and not just like 50%, like 3/4 of the pollution happened to be in communities of color and black communities. So, they did this study and they’re like, wow, this is in the 80s. It’s revolutionary at the time and you would think that because that study was done such a long time ago that things would have changed.

So, they did the same study, toxic waste and race, at 20 years later. When they did that study 20 years later, you would think, again like I said, the first report is out there. The information is there. So, where people decide to put different waste incinerators, different projects that should look differently because they have that information. It looked the same.  In some instances, even worse. And so, we continue to see a disproportionate number of toxic waste incinerators, projects that were leading to pollution —

(00:15:00)

— actually being concentrated in communities of color and in black communities at really high rates. So, people started to ask a question, well, how is it that we are 20 years later and this continues to be an issue? Well, the term environmental racism and then the counter of that, environmental justice, really comes from this access that has long been at issue. Even the White House back in the 90s, so President Clinton actually signed an Executive Order back in 1994 which stated that the White House and the Federal Government would acknowledge that environmental justice actually needed to be a part of the conversation in decision-making as it related to environmental decisions. And so, this isn’t necessarily a new topic but that Executive Order was pivotal. The problem has always been in the implementation and, even though we have certain Executive Orders, we have — and I think we may talk about this little later, this administration actually has signed an Executive Order to make sure that environmental justice is more of a through-line.

Part of the problem is that the decisions around where certain projects are located is still somewhat a nebulous concept because there’s so many different laws that regulate whether or not a project is going to get an approval and, if you don’t have everyone understanding that these decisions are actually harming people and they’re intentionally deciding that they’re not going to put this incinerator in this community because it’s “cheaper” there or it’s already a sacrifice zone because there’s already, to your point earlier, bad soil, things like that and we’ll continue to have environmental injustice in the people who cannot leave. They have to live there for one reason or another, then they continue to suffer all the impacts.

You look at black mortality rate as it relates to black mothers. The numbers are a lot higher and it’s actually because of environmental factors like heat, the actual air that they breathe. Black adults over the age of 65 are three times more likely to die from air pollution related deaths. So, this is what we’re talking about when we say environmental justice or environmental injustice. If your life is actually cut shorter or you’re not even able to produce life because of the environment that you’re in, then we have a problem and that’s where we are now.

Dave Scriven-Young: Absolutely and I think we talked a lot about environmental justice from a governmental point of view and whether government will allow, permitting for a facility in a particular area, I think it’s important also to think about from the corporate, you know, the company point of view. We’ve heard a lot of talk about ESG environmental social and governance policies. Talk a little bit about the intersection between environmental justice and ESG policies.

Abre’ Conner: Well, at a high level, I think now particularly because ESG is a topic that is in conversation as it relates to SCC and also companies quite frankly wanting to do the right thing or it being seen as a badge of approval to ensure that ESG is a part of their everyday thinking. It’s important for that space not to have greenwashing and that is where I see one of the intersections of environmental justice because, if you were looking at ESG policies just for the sake of saying, okay, we’re doing something good for the environment in this city, but then you’re still over polluting in neighborhoods where they’ve already had a lot of pollution. Then, you’re not actually looking at ESG from an environmental justice perspective. And so, you can still say like, oh, we’ve cut our emissions across the country. But if you haven’t looked at, for example, where are you cutting those emissions, then you’re not looking at your ESG practices and policies with an environmental justice lens.

Dave Scriven-Young: Got it and that makes a ton of sense. So, let’s delve into some of the litigation examples of how environmental justice comes into play. I know one of the things that you’ve talked about in the past is Clean Water Act Litigation and how specifically clean water or lack thereof affects communities of color in terms of environmental justice.

(00:20:00)

So, talk a little bit about how that litigation is coming to play.

Abre’ Conner: Well, I would say — so, there’s a number of — you know, I’ll talk about Clean Water Act and I’ll also just talk about clean water from the infrastructure perspective as well because both are important, and I think that the Supreme Court while a lot of folks have been looking at how is the Supreme Court going to move as it relates to voting, as it relates to education. It is also really important to look at these decisions as it relates to environmental issues. Clean water just adds a high level even before we get into litigation. It is an area where we have seen the least amount of investment for infrastructure, for fixing water issues in black communities.

So, I’ve done a lot of work in Jackson, Mississippi. They faced the water crisis last year and because the State of Mississippi had decided that they were not going to approve funding that came from the Federal Government, they only approved funding in three of the last 25 years. When Jackson, this majority black city, 83% black capital city in Mississippi, when they face the water crisis, they were not able to rebuild and it came into national kind of headlines because it’s like, how is it that the state capital is not able to get access to clean water and how is that governor is quite frankly allowing for something like this to happen in 2022 and then now in 2023?

But the issue that happened in Jackson is not novel. It’s not new. It’s been happening for a number of years. For Jackson, it’s going to take a lot of money and when I say a lot, like more than hundreds of millions of dollars in order to fix the water issues and that’s because there’s been a disinvestment, an intentional disinvestment in black communities and then being able to have pipes and infrastructure to have clean water. So, when you look at those issues and we know that this is happening in black communities all across the country because of intentional decisions, the Supreme Court earlier this year when it decided Sackett v. EPA, the Supreme Court in that case stated that they basically narrowed the protections and the authority that the EPA had to regulate wetlands.

When we look at — you know, people may say like, okay well, these wetlands, — yeah, but oftentimes, wetlands and other kinds of water sources are regularly connected. They’re interconnected and when those sources feed into communities who already had faced disinvestment or neglect from the state and from other actors to be able to have an infrastructure for clean water, then a decision like Sackett v. EPA is much more important because it’s undoing, number one, the protections that existed under the Clean Water Act. But now there’s this environmental justice component as well because the few protections that community is actually have to actually say, “Hey, we need clean water.” Now, you have the Supreme Court that is rolling back those protections in a number of different spaces. And so, the Sackett case is an example of that. And then, we also have unfortunately seen not even just in the Clean Water Act kind of aspect, we’ve seen this kind of narrowing of protections in a number of different areas as well civil rights kinds of litigation which is important for trying to fight for clean water in communities.

Dave Scriven-Young: Yeah. One of the things that I’ve seen is relating to Title VI which, I guess, prohibits recipients of federal financial assistance from discriminating on the basis of race, color, national origin, et cetera. I understand there’s been some litigation in that area as well.

Abre’ Conner: Yeah. Title VI is one of the bedrocks I’d say particularly in the environmental justice kind of space because there’s no private right of actions. The way that people are able to try to have accountability in the Title VI space is either they litigated in Court or they utilize an administrative complaint kind of context in order to say, “Hey, this person, or this company, or you know the state sometimes, the county, they are acting in a way that is harmful towards a protected category” and Title VI has been pivotal and necessary in bridging the conversation around, “Yes, you have the environment, but you have the people there as well who need to be protected.”

(00:25:26)

Recently, there were three cases, administrative complaints that were filed in Louisiana, and those cases were at a stage where the EPA was nearly ready to make a decision around the Title VI administrative complaints. The community members have worked really hard and gathered all of their information. Just for everyone’s understanding, it is really hard to gather evidence particularly in the environmental justice context because a lot of times you have people who they’ve been experiencing things — they know it’s an environmental issue. But there’s also — they’re having to do this, they’re not doing this full time. They live in the community. They know the issues, but a lot of them are not necessarily doing this full time. So, they’re taking time out of their day, time to build out something that is systemic and can hopefully help to prove that they are experiencing a life that is different than other people in other communities. So, these community members and these community groups had done that and had given all the evidence to the EPA.

Once it became clear to the State of Louisiana that they were actually going to be held accountable for how they had harmed these black communities and black residents within their state, they decided to actually file a lawsuit against the EPA saying, “Hey, you shouldn’t have involved the community as much as you did, and you shouldn’t have offered guidance about how we could be doing better during this process, and really you should just be talking with us as the state and the community participation and engagement component that — like you’re doing too much of it.”  Unfortunately, the EPA dropped those three cases in Louisiana.

Having that situation happen was really unfortunate because, number one, we’re at a time where community voice, number one, should be prioritized and it is squarely within Title VI in the manual for how these kinds of cases should move forward. But also, you should not be at a place where bad actors should be prioritized. Louisiana was a bad actor and that was a bully move for the state to instead of actually using that opportunity to talk to residents, to talk to community groups, to talk to individuals who should be a part of wanting to make their state better, they said, “Actually not only do we not want our state to be an environmentally sustainable place for all of our residents, but we don’t want this to be the case moving forward at all. Don’t ask for their opinion because we feel like our opinion is only one that matters.” That’s a dangerous kind of place to be in where you have individuals who are in elected state positions who are saying that they do not want to contribute to us having a more sustainable future in the midst of a climate catastrophe.

So, the Title Vi litigation is important and the decision in how this administration moves forward is important. Because we are, we’re in the midst of a climate disaster and really a climate emergency and it’s going to take all of our legal tools in order to make sure that we can have a planet that we can be proud of.

Dave Scriven-Young: Well, it’s interesting that you talk about public participation and that it’s actually very difficult to gather evidence as a private citizen that there’s an environmental issue going on in your community.

So, one of the things that I think is extremely important is having lawyers on — I don’t know the plaintiff side, I guess is the way that I call it. I’m more of a defense lawyer, but certainly having environmental plaintiff’s lawyers, but certainly lawyers at non-profit agencies that are doing the work out on behalf of citizens that they frankly just don’t have the expertise to do on their own.

(00:30:01)

I know that your organization does a lot of work in the space, so just wanted to give you the opportunity to talk about a few things that the NAACP is doing in the environmental justice space currently.

Abre’ Conner: Absolutely, and to your point, making sure that you’re including lawyers and community groups and lawyers who have understanding of community lawyering and movement lawyering is so important because oftentimes in these battles, is really what they kind of boil down to. You need individuals who are going to be able to be nimble, to be able to help to gather that information. As a lawyer, you can help individuals to understand and hopefully you’ll have the framing in your mind of, “Okay, this is what we’re going to need if we need to prove this in a number of different spaces.” It’s so important to have people in this fight who really want to be there, who want to work with communities, who want to make sure that the community voice is elevated and prioritized.

That’s exactly what we do in NAACP, and so I’ll talk a little bit more about Jackson, actually. So, we were involved after we found out about how bad it was as it related to the intentional disinvestment of resources by the governor. We were down there in Jackson, Mississippi. I was down there oftentimes meeting with community members, meeting with our branch leaders and our state conference to understand what it was that people were experiencing. So some of the things that I heard was that, there were people who were elderly and yeah, there was water distribution, but they couldn’t get to the water distribution, and so they were facing a number of issues because you have this black community and you have these black elders who weren’t able to actually get to water locations.

Then you had people who were caring for individuals for health reasons and they needed additional kinds of water needs, clean water needs at that time, and it was hard for them to have access to them. I talked to folks in the healthcare space who were running community healthcare centers and they were making hard decisions about whether or not they were going to be able to continue to run their community healthcare system during the midst of a water crisis. So imagine people who need to access that kind of healthcare because they’re not able to go to other places. Now, they’re not able to get critical healthcare and the care they need during the midst of a water crisis that lasted four months.

And then on top of that, you had students. Students were immediately rushed into remote learning. One of the things that people don’t think about, it takes water to run air conditioning. It takes water to flush toilets. It takes water for them to have cooked meals during the day. Even in talking to some of the folks in the school system, teachers were saying that they were spending a majority of their day just flushing toilets because there was no water, clean water that was running and so they would have to themselves have to try to flush toilets when they went back into the school system. So it was impacting students’ ability to learn, and businesses weren’t able to operate, of course, and a lot of restaurants had to shut down because of the water crisis. So the economy was actually suffering because the governor intentionally decided not to answer the requests of the mayor for assistance during the midst of the water crisis.

So I testified in front of Congress, and I shared with them, the Committee on Homeland Security, that this was an issue that was systemic, but that there needed to be creative solutions that were brought to Jackson. That was helpful, because I think that Congress recognized that the laws that we currently had in place — these laws of every kind of larger amount of money for infrastructure has to go to the state, and then the state gets to distribute it to wherever it would like was harming black communities. So Congress did, they did actually approve an initial amount to go to Jackson, and then eventually a $600 million spending through the omnibus spending bill to help Jackson. But that also helped me to realize — helped us to realize that we needed the congressional kind of strategy, but we also needed to make sure that there was a legal accountability structure.

(00:35:02)

So, we filed a Title VI complaint with the EPA. Right before we filed the Title VI complaint, the EPA had announced that they had just opened their Office of External Civil Rights and External Environmental Justice and Civil Rights, and so that was an opportunity for us to file a Title VI complaint under an office that was supposed to be centering the voices of community members that should be looking at environmental issues intersectionally. The EPA opened up the investigation and so now we have an active Title VI complaint with the EPA right now. They’re in the midst of doing their investigation. They’ve come. They’ve talked to community members, but that in particularly in talking to community members, because I’ve done a number of town halls and drafted public education materials since then.

For a lot of community members, them knowing that there was some kind of accountability where their voices, we intentionally made sure that we had different people from the community if they weren’t going to actually be complainants, that they were witnesses and we use their testimony for exhibits and things like that, but that it was actually reaching another party that was not just the governor who had been ignoring them for so long, and it helped the community members themselves to feel empowered and feel like they can continue to have the conversations that they had been having for forever, that clean water is a civil and human right.

Dave Scriven-Young: Well, we are coming to the end of our time together. It’s clear that you and the organization are doing great work in this area. Any last thoughts that you wanted to share with our listeners?

Abre’ Conner: I would say right now we are in the midst of looking at these revisions within the National Environmental Policy Act, and right now we’re at a time where the Council on Environmental Quality wants to ensure that we actually, for the first time, have environmental justice really kind of front and center in NEPA and in these revisions. So I think that the Biden Administration and CEQ recognizes that environmental justice cannot just be a talking point anymore, but we really have to be looking at it from a legal aspect as well. The Council on Environmental Quality recognizing that there needs to be a definition of the environmental justice in the revisions as it relates to the implementation of NEPA is a really important step, and I think that there is a lot of opportunity, particularly for folks within the legal space to really ensure that environmental justice is a part of your thinking, because it is definitely going to be a part of all of our work in some way, shape or form. It’s just a matter of making sure that we are all understanding what it actually means to actually reach environmental justice.

Dave Scriven-Young: Got it, and if folks wanted to talk to you about kind of the future of environmental justice, wanted to learn more about what you do, what’s the best way for folks to reach out to you?

Abre’ Conner: I check my social media pretty often, so people can reach out to me on Instagram. It’s just my name Abre_Conner or on Twitter, but then I also am available if people want to reach out to me by LinkedIn, and I definitely appreciate having conversations with law students and young lawyers because I’ve been there and understand how hard it can be to try to navigate a space that you may be navigating for the first time.

[Music]

Dave Scriven-Young: Great. Well, Abre’ Conner, thank you so much for being on the show. Thanks for all of your great work in the space.

Abre’ Conner: Thank you.

[Music]

Dave Scriven-Young: Thank you to DISCO for sponsoring Litigation Radio. DISCO makes the law work better for everyone with cutting edge solutions that leverage AI, cloud computing, and data analytics to help legal professionals accelerate e-discovery and document review. Learn more @csdisco.com. And now it’s time for a quick tip from the ABA Litigation Section. I’m pleased to welcome back Latasha Ellis to the show. Latasha is a litigator in the Washington, DC Office of Hunton Andrews Kurth focusing on insurance coverage cases. Welcome back to the show, Latasha.

Latasha Ellis: Hi, Dave. Thanks for having me.

Dave Scriven-Young: I understand you’re going to be giving us tips about settlement negotiations today. What’s your quick tip?

Latasha Ellis: Yes, I am. So I know that we’ve had some tips in the past about settlements, negotiations but because we’re nearing the end of the year, there are a number of companies who are trying to get certain litigation off of their plates, so I thought that we would just remind everyone about some best practices from negotiated settlements.

(00:40:00)

So, as litigators, we are taught that our objective is to win, win in the courtroom and in some cases can be a matter of pride. But throughout law school and certainly once we’re in private practice or even when we are in-house, we’re trained to zealously advocate for our clients, and in short, many of us are taught to fight. So sometimes when clients retain us, again, if you’re in-house and you’re representing a corporation, they often expect and demand that we win. But I think it’s important to think about what does winning mean for clients. Sometimes it certainly means a total victory, vindication at trial or maybe even winning a dispositive motion at summary judgment. But for others, winning may mean just negotiating a settlement.

I actually settled a case last week that I thought had zero chance of winning, and what it really hinged on is the fact that winning to my client had progressed to something different last week than what it was a year before when we had filed the litigation. So regardless of which version of the win that the client wants, of course getting there requires some strategic thinking and preparation and effective execution of the plan. So to that end, when preparing for battle in the negotiation arena, I wanted to share just a few thoughts. The first thought being or the first tip being to understand that compromise means giving something up. You cannot always approach settlement negotiations the same way that you would as if you were arguing a case to the jury. So you can’t go in expecting the other side to finally see the light and admit total defeat. That certainly has never happened for me. Because the opposite side, the opposition they think that their perspective is valid as well. So you and your client have to be willing to give an inch or two or three, and having that thought mentality helps increase your chances of settling.

The second is being prepared. Know your facts. Know your claims. Know your governing law. In the settlement that I had last week, the other side was really not prepared. They had referenced a number of facts that were not accurate and the mediator picked up on that right away, and I think that in some respects it certainly gave me a ton of credibility with my client. But it also gave the mediator an understanding of the fact that the other side was not completely prepared and so he kind of governed himself accordingly. Lawyers love to be the smartest ones in the room and so we should certainly prove that and demonstrate that to our clients by being prepared and knowing the facts of our case.

The third tip is to be honest. No case is without weakness. In fact, most cases have some significant factual, legal, and sometimes jurisdictional weaknesses. So it’s important to acknowledge those weaknesses by admitting the obvious which is the fact that litigation does carry risk and just go from there. That again will also increase or enhance your credibility with your client. It makes you appear reasonable to the mediator and sometimes to the other side and those can be some great traits when trying to negotiate a settlement.

The final tip that I’ll share is that when negotiating, there is not a one size fits all approach. People negotiate in different ways. I’ve had negotiations where the other side was very adamant about going back and forth with numbers and just not even wanting to have any sort of lengthy discussion about the rationale in those numbers.

I’ve also had negotiations where the other side wanted to use a bracket, a high, low or ceiling, or the floor, or making a move based on percentages and wanting to have some lengthy narrative explanation about why their percentage was appropriate. Either way, the point is that there really is no perfect way to negotiate a settlement, and so it can be helpful to be flexible. None of those different techniques are my favorite, but it helps sometimes to be open to using that other person’s method and can help you in some instances get to a settlement. So just to reiterate the tips that I have, compromise means giving up something, be prepared, be honest about your case, and remember that one size does not fit all. So hopefully you can employ these tips when attempting to resolve disputes and get some wins for your client.

Dave Scriven-Young: Excellent, Latasha. Thanks so much for being on the show today and sharing those practical tips.

Latasha Ellis: No problem. Thanks for having me.

Dave Scriven-Young: Well, that’s all we have for our episode today and I’d love to hear your thoughts about today’s show. If you have comments or a question you’d like for me to answer on an upcoming show, you can contact me at [email protected] and connect with me on social.

(00:45:19)

I’m @attorneydsy on LinkedIn, Instagram, Twitter and Facebook.  You can also connect with the ABA Litigation Section on those platforms as well, but as much as I’d like to connect with you online, nothing beats meeting you in-person at one of our next Litigation Section events. So please make plans to join us at the Women in Litigation Joint CLE Conference in San Diego taking place November 1 through the third. Join us as we highlight women leading for success in the courtroom, in the judiciary and in the profession. Programming will focus on trial skills, insurance litigation, products liability litigation, and securities litigation. Connect with leading litigators, judges and in-house counsel from around the country. To find out more and for registration information, please go to ambar.org/litigateHER, that’s litigateHER.

If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple podcasts, it’s incredibly helpful. Even a quick rating at Spotify podcasts is super helpful as well. Finally, I want to quickly thank some folks who make the show possible. Thanks to Michelle Obertz, who’s on staff with the Litigation Section. Thanks also goes out to the co-chairs of the Litigation Section’s audio content committee Haley Maple and Tyler Trew. Thank you to the audio professionals from Legal Talk Network and last but not least, thank you so much for listening. I’ll see you next time.

[Music]