Her Story: Obstacles Faced By Women in the Legal Profession

Episode Notes

Transcript

Dave Scriven-Young:

Hello everyone and welcome to Litigation Radio. I’m your host, Dave Svrive-Young. I’m a commercial and environmental litigator in the Chicago office of Peckar and Abramson, which is recognized as the largest law firm serving the construction industry with 115 lawyers and 11 offices around the us. On the show, we talk 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 that 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 [email protected] slash Litigation. On today’s episode, we are proud to feature two successful litigators who have been involved in a critical project for the Women Advocate Committee of the ABA Litigation section.

In 2017, the section published a collection of stories of women lawyers entitled Her Story, lessons in Success for Lawyers Who Live It. Another book, her story book two, which tells a story of women across the country about overcoming obstacles was just released. Our first guest is Teresa Beck, who is a co-editor of both books. She’s managing shareholder of Arizona and Nevada, and Co-chair of the Diversity Equity Inclusion and Belonging Committee. At Klein pc Teresa has litigated and supervised a Litigation of hundreds of civil cases, representing a wide variety of clients in employment related Litigation, personal injury defense, lawyers, professional liability, construction matters, contracts and civil Litigation of all types. Teresa, welcome to the show.

Teresa Beck:

Thank you so much. It’s great to be here.

Dave Scriven-Young:

And our second guest is Claire Gibson, who’s the author of one of the chapters in her storybook, two entitled to recognize the Obstacles Ahead, a deeper dive into the statistics affecting women and women of color in the legal profession. She’s an intellectual property partner in the New York office of Dunlap Bennett and Ludwig, PLLC, Claire Counsel’s, production studios, cosmetics companies, food distributors, clothing designers, and musicians among others in establishing, protecting and preserving their trademark rights both in the US and abroad. Welcome to the show, Claire.

Claire Gibson:

Thank You.

Dave Scriven-Young:

So Teresa, tell us about the Hears Story project and how the books came into being.

Teresa Beck:

So going back to the first, her storybook, the Women Advocate Committee meets regularly and developed a work-life management committee. First it was called the Work-Life Balance Committee, and then we decided we didn’t really like that word balance, changed it to management, which sounds like something we can control better. And among ourselves and in the other women’s groups that we’re involved in across the country, we realized there were a lot of younger women especially who were wondering if they’re going to be able to have outside interest, have families, how are they going to do it, and getting a lot of feedback that maybe it wasn’t possible. And we knew in our group that it is possible and we know a lot of very successful happy women lawyers. Not always easy, not always perfect, certainly not, but a lot of positive stories. There were also a lot of negative stories at the time too, women attorneys who were saying, if I knew what it would be like, I would never do it again.

But we know a lot of women attorneys whose eyes light up when they talk about their careers, who love their jobs. And so we wanted to spread stories about work life management and things that women attorneys can do to manage their work life and their home life and their outside interests and as much as we can to have all the things that we want in our lives. So that was the first book. Then we decided we wanted to do another book, and this time we decided to make it about obstacles that women face in the profession. Work life management is one of the obstacles, but there are a lot, and Claire’s piece actually kind of sets the stage for, in fact, many of the essays in Chapter one set the stage for the condition of, or the status of women in the profession at this point and the fact that there are obstacles and then the subsequent chapters go through the different obstacles that women face where they tell their own stories about what they’ve experienced and what they’ve done and what they suggest and give hope and inspiration to other women attorneys who are going through the same things.

Dave Scriven-Young:

Yeah. Teresa, what I love about the books is they really do have a cross section of lawyers. So different races, different practice settings. How did y’all go about kind of selecting who would be an author and their particular stories?

Teresa Beck:

Well, what we kept track, we kept track geographically. We wanted to make sure we’re capturing a cross section, and we also reached out to people we know to our friends. And as it happens, the women who were involved, the co-editors, Alicia Menendez and Shana Steinfeld, we know a lot of different types of women all over the country. And so just tapping into the networks that we have, we came across this amazing wide range of women in all different types of practice groups and lawyers and judges, government lawyers, corporate lawyers, and like you said, different racial backgrounds, ethnic backgrounds, LGBTQ plus. We even have a story of a person who identified male who transitioned to female and talks about how different things were after her transition. So that’s how we did it. We just tapped into our networks and the people that we know.

Dave Scriven-Young:

So Claire, I guess the question after all these years is why is this still a problem? You walk into a law school classroom, you’ll see a large representation of women in the classroom, and yet we still see obstacles that women face in the profession and enough stories to include a whole book about it. Claire, tell us a little bit about the statistics and why we are still seeing a problem here.

Claire Gibson:

Well, you hit the nail on the head when you are in the law school classrooms, 54% of law school graduates are women, right? Those numbers are great. When you look at incoming classes for law firm associates, 47% are women. Again, numbers look great. Unfortunately, that’s about where the equity ends. When you start looking at non-equity partners, only 31% of those are women. The numbers are even smaller when you start looking at equity partners and then we drop down into 20%. When you start looking at compensation disparities, we know in this country that there is gender disparity when it comes to compensation and income. And the same is true in the legal field, despite the fact that we’re all doing the same work. Women associates make $25,000 less than men. As you climb the ranks in the legal field, again, you’re looking at $130,000 less for women equity partners as opposed to male equity partners.

If you do a deeper dive further and start including race and ethnicity demographics for law school graduates, white law school graduates, there’s a median income boost of about $40,000. Whereas for black law school graduates, you’re looking at only an income boost of about $30,000, and that’s at the graduate level. That number, again, exponentially increases as you start climbing the ranks. The why of it, and of course I have my opinions, you’ll see sociologists talk about this. You’ll see other people who have been in the legal field for a long time have their hypotheticals about the why of it. But one of the stats that I discuss in my essay is the fact that 79% of male attorneys believe that their law firm has been successful in advancing women and women’s careers, whereas only 45% of women agree with that. So you’ve got women who are on the receiving end of this gender disparity who clearly see that this is still an ongoing problem, whereas our male counterparts think that we’re well on our way to a solution. And the fact of the matter is that what success looks like when it comes to gender equity in our profession, the definition of success needs to be set by women. It cannot be set by men. And for that to happen, there needs to be an ongoing conversation. There needs to be discussion among the genders. There needs to be a platform and space for women attorneys to speak about realities of what it is to be a woman in this profession.

Dave Scriven-Young:

And that’s interesting because you often see diversity, equity, inclusion committees within law firms. Teresa, I know that you lead that committee at your firm. Tell me, I would love to get your opinion, Claire, and then Teresa, as to how successful those committees have been. And I don’t mean just at your firm, but I mean profession wide. Have you seen an impact that those committees have had, and why do you think we just haven’t made that connection between a definition of success where women are seeing a disparity and men don’t necessarily see a disparity? So Claire, we’ll start with you and then Teresa.

Claire Gibson:

Well, if you look at the stats going back over the last 10, 20 years, those are improvements. Those bimal numbers that I just mentioned, those are actually drastically improved from where they were 10 years ago. So are we moving in the right direction incrementally? Yes. So I would say that the DEIA committees that you are seeing in law firms have been having some impact. However, we’re still obviously not at a point where we’re anywhere near equality at all. Moreover, equity. Now, in terms of where we are today, if you’ve been, you guys, everyone litigators paying attention to the current landscape in the last year alone, we’ve seen a number of very large law firms be attacked for their DEIA programs. Now, where are we going to be in two or three years with those same numbers? We might end up actually taking a step backwards from where we are now.

Teresa Beck:

It’s such a complicated problem, and I think a lot of the issues that women and women of color even more face is the systemic ingrained bias that many elements of the profession have. And I think what can even happen is in the statistics that Claire just mentioned, there were 45% of women who didn’t agree that their firm was doing well. But then I wonder about the 45% that, or whatever number that would be, 45, whatever the number is, of women who think their firms are doing okay, do they know? Are they aware or do they think that their failure to succeed to move up the ranks? Because so many women don’t.

It telescopes from wide into smaller in terms of the number of women who get into the top tiers of the profession or they, it’s a problem with them that there’s some failure that they have as to why they’re not succeeding. So it’s a tough problem that has to be attacked in many ways. And I mean, I guess one of the best examples I have is my firm just got Mansfield certified, which is a program of the diversity lab, and that’s a commitment to consider at least 30% diverse candidates for every position that we have among many other requirements. So I think that’s progress. It’s progress, at least for my firm. The problem is that even back in 20, I want to say it’s 2015 or 2016, when the national Association of women lawyers put out a statistic that at the current rates, it wouldn’t be until the year 2181 that women would achieve just 40% equity partners at the current rates then. And I’m not sure that the rates have stayed the same as they were back then. I think that with covid, we lost some female talent. So there’s much work to be done. And I think one of the greatest motivators is all that talent that we’re not using, that we’re not tapping into, that we’re not celebrating and helping to succeed can dramatically change the trajectory of law firms and the legal profession and make all of us more successful by looking at what the obstacles are and taking action to try and remove them.

Dave Scriven-Young:

And what I think is so important about the books, especially the book two, and you mentioned this is women, sometimes I think anyone believes that. I think attorneys kind of blame themselves a lot. I know I do that in my own practice. And you think that something that is happening to you is just happening to you and it doesn’t happen to anyone else. And to show what obstacles other attorneys are facing in the profession, and then you realize, oh, it’s not just me, it’s the profession, or it’s my firm, or it’s men in general. I don’t know. But it certainly I think helps the reader kind of understand that it’s not a me problem, it’s an outside problem perhaps.

Teresa Beck:

Absolutely. It shines a light. It shines a light. And I agree, that’s why stories are so important. And I just think that all women attorneys should be sharing their stories, share it somewhere. Tell somebody what you’re going through and what you’re doing, consult and talk. Because when we don’t talk about it, we’re contributing to hiding the problems. So yes, I agree. The storytelling is super important.

Dave Scriven-Young:

So Claire, tell us a little bit more about the statistics and specifically what are the challenges that women of color currently face?

Claire Gibson:

So those numbers are actually even more abysmal then. And when you’re looking at the broader population of women in the profession, so only 4% of non-equity partners are women of color and by women of color, I am incorporating women of all diverse racial groups, ethnic groups. So that would be black women, Asian women, Hispanic women. Collectively only 4% of non-equity partners are women of color, and only 3% of equity partners are women of color. So you are looking at numbers that are extraordinarily small and keep in mind what the general population looks like in terms of women of color. The numbers are extraordinarily, extraordinarily small, and there’s significant underrepresentation on the flip side of that, and Teresa just spoke about us having lost a lot of women talent during Covid, even before that, the numbers showed that 70% of women of color attorneys reported leaving or considering leaving the profession.

And when you start digging into the why of that, one of the authors that I cite in my essay in the book is Dr. Tede Malu. She talks about, she has a really good book, which I think is a good companion book for her story too. The title of her book is You Don’t look like a Lawyer, black Women and Systemic Racism Within the Legal Profession. She talks about the invisible labor, the additional taxes that women of color pay for inclusion into the social professional space. That is the legal profession. And what it comes down to is we have to address a problem. You have to acknowledge that it exists, right? And when you look at the history of the legal profession, and we don’t even need to go that far back. We can look at 50 years ago. We can look at 60 years ago, the legal profession, the social aspects of the legal profession, the advancement within the legal profession when we’re talking about traditional promotion practices, training practices, just the social professional culture was established by white men for the benefit of white men.

And so when you inject women of color into that environment, when you black women especially, we’re on the opposite end of the spectrum, socially, politically, when it comes to a comparison with white men. And so we are having women trying to navigate an environment and a system that simply was never designed for them in the first place. And so you see this constant uphill battle, this difficulty when it comes to trying to conform to these rules that were not designed with them in mind. And until we start addressing and acknowledging that issue and then looking at ways to design promotion practices, design training practices, adjusting the culture of law firms in a way that they are more inclusive, in a way that they do take into consideration diversity of race, diversity of gender, we’re going to continue to see these numbers.

Dave Scriven-Young:

So Claire, can you give us an example of what you mean in terms of institutional practices or perhaps whatever practices within a law firm that are designed, or I guess I should say that were not designed with inclusion in mind. What are some or what is a possible solution to that? I’m just curious if you can give us just an example of an institutional practice that is non-inclusive. And I’m sure there’s a lot, but just give us one example.

Claire Gibson:

I’m going to give you two, but we talked about the numbers, right? So we’re looking at equity partners and we’re looking at 4% of those being women of color. One of the most valuable things that as an attorney that you can have in terms of advancing your career is having mentorship and sponsorship. Very often, those types of relationships are organic relationships, right? They’re based on similarities and interests, similarities and background. And having someone who can advocate for you in spaces where you are not makes a huge difference professionally. Now, when you have women of color who are coming from a different social background, largely possibly coming from a different economic background, different cultural background, they’re going to have more difficulty building organic mentorship relationships with people who have nothing in common with them, and they’re the only person in the room. I am an IP attorney.

I have been practicing an IP since 2005. I have never worked with another black woman attorney in my entire career. And those are just the numbers. Only 5% of lawyers are black. And with an ip, those numbers are even smaller. The likelihood is very possibly, I will never work with another black woman attorney. And so it becomes an additional hurdle as explained in the doctor’s book where now you have to find a way to conform, to build an organic relationship with someone who doesn’t necessarily share your gender culture, ethnic background. And that’s just one example. And I think in terms of solution, what Teresa was just mentioning with her firm where they have acknowledged the problem and then made an intentional commitment to hire and advance and do what they can to advance women and people of color, we’ll make a difference. We can’t pretend as if this is not a problem and that this is not happening and that it’s supposed to just organically solve itself. That’s just not going to happen.

Teresa Beck:

I think this is really important, right? To talk about real life examples, which is what the book is all about. This is going back many years, but in a firm that I worked for a really long time, all the guys would gather and go to lunch at noon regularly like clockwork. They would go out, they would get their lunch, they’d all come back, sometimes they’d stay out, sometimes they’d sit in the lunchroom, but all at their own table all together. And it just wasn’t an environment that I ever, I never tried to join them. I felt excluded. I was excluded. And imagine every day, the male lawyers, the young associates, and I wasn’t the only female associate, but all those male associates, young, mid-career older, they’re getting this informal mentoring when they’re walking over to lunch, eating lunch together, walking back, sitting in the lunchroom together.

That’s one level of mentorship that I never got, and I never got to feel like I belonged in their group. And obviously they didn’t think I did either. That’s part of it. There’s also the experience that other people in the firm had because legal secretaries, paralegals, the other lawyers, the other women attorneys, they could see that they weren’t included either, that we weren’t being included. And I think that leads to an understanding about where the women in the office stood in the firm. We just weren’t as important. Another example I have, and this is something that drives me crazy. I think that every time I’m at some kind of a lunch or dinner with a woman of color, whether she’s Asian American, Pacific Islander, whether she’s black, indigenous, somehow the conversation is going to be about their country, their ethnic origin, and whether people have traveled there or there might be discussion about hair.

It just drives me crazy. And I think that it’s typically the male lawyers in the group that are driving the discussion. I think it’s a way of trying to make the person feel like they belong because they’re talking to them, they’re inquiring and finding out about them, but nobody talks to me about coming from Ireland or Britain or my ethnic background. Nobody ever talks about my hair, at least not male attorneys in this context. So I think that there’s these little things that people do that make women in general, women of color in particular, feel like they’re other than, right? And so we want to be in a group where we belong, not for people to make us feel like we’re different from everybody else. So let’s just talk about the same things that you talk about with everybody else. And of course there always seems to be discussion about family and children.

I love talking about my family and my children, but if that’s not something that you would generally talk about in these groups, then let’s talk about something else. Let’s talk about the next big client we can all go after, how we can improve our processes, what we like to do, who we are as human beings, which is more about our gender or more about things other than our gender. And of course, our backgrounds are hugely important. We want to be seen. We want to be seen. But that doesn’t mean that that’s what the topic of the conversations should be when we get together. And Claire, you might have more ideas about that. You’ve probably experienced it more than I have, but it’s something that I see that really others people and men and women of color, I think that’s something that we can all work on.

Claire Gibson:

I had the hair conversation. I literally uninvited wasn’t interested as a junior associate. I had a managing partner and very well intended, like you said, was the goal for him. I could tell, was to try to make me feel included. But the effect is being othered because I’m the only associate who is going to have a conversation apparently that needs to have a conversation apparently about my hair to let it be known that it is okay that I have an Afro. Those types of things are ongoing. I don’t even know where to start with those. For me, it is just as problematic, if not more problematic to pretend that there aren’t different experiences for women of color in the profession. I like to think that having a direct approach to acknowledging and addressing an issue is the most effective approach. However, I think that law firms have not managed to do that in a way that allows and creates a space for women of color attorneys to just be attorneys and practice law. I’m hopeful that as we have stories like the stories in this book and as we have an ongoing conversation that things will continue to improve. However, I think that for law firms that pretend that this is not an issue, they’re doing a disservice to the profession,

Teresa Beck:

There’s a lot of learning that needs to take place, right? There’s still a lot of learning that people need to do, and we’ve got a long way to go,

Dave Scriven-Young:

A ton of learning. But I think the book is a step in that direction because not only is it good for women to read the book, but also for men to understand. That seems to be an important revelation as well. Teresa,

Teresa Beck:

I love the idea that the book is for guys too. We kind of primarily think it’s for women, so we can give this advice and share these stories, but I do think for men who really want to understand the way that women experience the legal profession, and really I think the world in general, this is a great book to read to get all kinds of stories about how it’s really quite different for women than it is for men. And there’s a lot of learning that could be gotten from reading the book.

Dave Scriven-Young:

I just want to quickly get to some of the tips that are in the book. As I mentioned her story too is Chuck full of tips to help lawyers overcome barriers in the profession as well as those personal stories of lawyers thriving in spite of those barriers. And really, in my opinion, one of the most inspiring stories in the book is Judge Anne Martin’s chapter called Drains on Personal Time. It details her journey as a litigator judge, mother of a special needs child. And we all have lives with these competing demands, right? Some we choose those demands. Some demands are with thrust upon us because of family situations, et cetera. So just what are some of your tips to navigate those situations?

Claire Gibson:

I’m still learning how to navigate those situations. I definitely took a lot from the book as well, from the other authors and just navigating life. Teresa talked about the title of the committee being Work Life Management. I do think that sometimes we are under some degree of delusion about how much control that we have in this season of my attempt to balance, balance, manage these things. I’m learning to say no. I’m learning to say no. Like a 2-year-old. No. And it is simply that you cannot do all things at once. You can do all the things you want to do, but you can’t do them all at once. And I think for women, especially, we as attorneys, we aren’t just women attorneys. We’re women in a society that statistics show that we do the majority of domestic labor. We do the majority of emotional labor.

We are the caretakers, primary caretakers for children. We are the primary caretakers for elderly parents. And when as a mid-career attorney, I’m now at the point where my parents are in their seventies, and I am also the spouse of an active duty marine who has been in his career for 20 years. And so it’s how do you deal with being an attorney, practicing law, your dedication to your clients performing well, growing your book of business, while also balancing all of these other things. And the fact of the matter is you cannot do it all. Outsource as much as you can, whether that’s meal prep, whether that is a nanny, whether that is whatever that looks like. But also just say no. Sometimes you just have to say no. And as someone who kind of came up on the lean in and say, yes, generation, I am learning that that’s just not always in my best interest.

Dave Scriven-Young:

Well, that, and Teresa, what are some of your tips?

Teresa Beck:

Well, I just want to refer back to some of the authors, Lee Tart Wallace wrote about how to negotiate your compensation. It’s huge, huge topic for women attorneys because we don’t have kind of a culture of knowing how to negotiate for ourselves. Jennifer Amido Rodriguez wrote about building a book of business and how to do that, which is very important for many of us. Jessica Meyer, she wrote about becoming a sober female lawyer. She wrote about alcoholism in the profession, which is a huge problem. Brooke Welch wrote about mental health problems. All of these things are things that women, that we know, men and women that we know are struggling with. And so knowing that there are other people in the profession who have overcome these challenges is such a wonderful thing and a blessing. Mikel Robson wrote about multiple identities, so LGBTQ plus female and all of the challenges that that can create.

And I can just go on and on. There’s so many amazing stories. And then each chapter, the book is broken down into chapters with the different obstacles, ends with discussion questions. So it’s a great book to have as well as first story one for book club or kind of reading events so you can trigger a dialogue with discussion questions about these topics. And I don’t mean to say any one of these that I didn’t mention isn’t fabulous. They’re all great. Every single one of them is an important story to be told by each of these authors, including a couple of guys. Steven Valki wrote about what men can do to make a difference for gender parity. So each one is a treasure, each one is a treasure. And there’s just tons of inspiration and advice, and I hope a sense that women get when they read it, that they belong whoever they are, whatever their differences are, whatever their similarities, that they belong in our profession and we really need them and we want them to stay.

And I think overall, that’s kind of one of the biggest purposes of the book, is to make sure that as much as we can spread the message that women attorneys are needed in the profession and that we belong in the profession and we’re making it better and we’re going to continue to make it better, but we need to stay in the profession. I hope. The numbers that Claire mentioned about 70% of diverse women attorneys leaving, I think that was after 10 years, I saw one study where a hundred percent of them left after a particular time period. And that’s just a condemnation of what is happening in the legal profession that so many don’t stay after investing the time and the money and the education, and then joining a law firm. Imagine if we heard a statistic that 70% of male attorneys were leaving the profession, that would be a crisis that we’d be calling for help and creating commissions to resolve.

But we’re not doing the same thing for women of color. And these are things that need to be addressed because it’s just such a huge loss at the profession. And then to the individual stories of these people who’ve experienced the heartache that would have to happen for you to abandon your profession. It’s a call to action. We’ve had it before. We’ll keep chipping away at it, but these are all stories that signify there’s a lot of work to do, but a lot of positive women attorneys who are here to spread the message and make other women feel like they belong so that they’ll stay.

Dave Scriven-Young:

Absolutely. And Claire, I wanted to give you the last word. Any final thoughts that you have regarding the book or perhaps a favorite tip or story from her story too?

Claire Gibson:

I think I just want to piggyback on something that Teresa mentioned in terms of who this book is geared towards. I think that for a lot of attorneys, they see her story too, and the book Wonderful Stories by women attorneys, and it does create a feeling of comradery as you’re reading this story. And it resonates. It’s not just you. You’re hearing these stories and relating to these experiences because you’ve gone through many of these same things. However, I really want to encourage male attorneys to read this book. If you consider yourself to be a person who believes in gender equality, if you are among the, what was it, 78% of male attorneys who believes that the legal profession is doing what is necessary to advance women, if you are of that opinion, you are exactly the type of person that needs to read this book. And so for me, what I would like to see is the discussion sections and the book clubs that are being formed around this book. I want a lot of that to be coming from male attorneys because that is when we’re really going to see these numbers start to change.

Dave Scriven-Young:

Love that. Well, Claire Gibson and Teresa Beck, thank you so much for being on the show today. Thank you

Claire Gibson:

For having us. Thank you.

Dave Scriven-Young:

And if you’re interested in purchasing her story book two, go to american bar.org/groups/ Litigation slash resources slash books where you can see all of the books published by the Litigation section, including her story book two. And remember, Litigation section members always receive section books at a discounted price. Thank you both for that powerful discussion. 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 [email protected]. Now it’s time for our 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 Hunt, Andrews Kirth focusing on insurance coverage cases. Welcome back to the show, Latasha.

Speaker 4:

Hi, Dave. Thanks for having me.

Dave Scriven-Young:

Of course. And I understand you’re going to be giving tips about preparing settlement agreements today. So what’s your quick tip?

Speaker 4:

Yes. So I think when most attorneys prepare to negotiate a case or try to settle a case, most attorneys get ready to write an effective settlement agreement that optimally addresses all of the issues between the parties. But sometimes in preparing to negotiate, they may not think about some of the small nuances that will help effectuate a successful settlement agreement. And I know that we’ve had a number of tips in the past related to effective settlement conferences, effective mediation conferences, but I wanted to share a couple of tips about successful settlement agreements. So without further ado, I’ll start with my first tip, which to draft settlement terms for the agreement. I think that when a party settle a dispute, it is so important to record any terms of the agreement in writing so that the rights and obligations of both sides are clear and enforceable. And whether parties have reached a legally binding and enforceable agreement can sometimes be unclear, depending of course on how the negotiations have ensued.

But certainly understanding what the parties actually agreed to is key to drafting a successful settlement agreement. So identifying the terms that the parties have agreed will help resolve the particular case if there are any insured claims that are going to be resolved by the settlement agreement, I mean just the scope of the release generally, and it’s just so important to memorialize those terms even if you don’t actually draft the actual settlement agreement until weeks later. So the very first tip that I have is drafting settlement terms for the agreement. Of course, an effective settlement agreement converts risk delays and even the expenses of a lawsuit into solutions that the parties choose for themself. So the second tip that I have is actually understanding or ascertaining the exact legal claims and parties that should be part of those chosen resolutions, the chosen resolutions for those parties.

I think that when you’re engaged in protracted Litigation, maybe it’s been a long time since anyone has actually read the operative legal complaints or cataloged, which claims actually remain pending with surprising regularity. Even the attorneys of record sometimes have a mistaken understanding of the exact scope of the pending causes of action. I’m actually engaged in protracted negotiations of a settlement agreement now for this exact reason. And I think that rather than guessing, the attorneys should review the operative complaints to determine the existing causes of action and the exact identity, including the proper names of the parties to the lawsuits, and make sure to incorporate the exact legal claims and parties who are going to be part of the settlement in the settlement terms from tip number one. I think that that is so key to a successful settlement agreement, but also key into drafting a successful settlement agreement quickly and not having to draw it out for a number of weeks.

So the second tip is ascertaining the exact legal claims and parties. The third tip that I’ll share is determining the type of release that is needed. I mean, this seems very elementary, but it is also very important to consider the procedural posture of the legal dispute. And this is somewhat related to the last tip about ascertaining the exact legal claims and parties. Obviously, if a lawsuit has not been filed, that could be a bit of an easier, easier settlement. But if the settlement is intended to address ongoing Litigation, a release of liability and a plan for dismissal of the case is key. And releases come in so many different forms, whether it’s releases of only the claims that are made, releases of claims made, and those that could have been made but not yet known releases based on known facts, only releases of known and unknown claims.

I mean, there’s so many different permutations to what a release can look like. And again, going back to that tip number one about having settlement terms, it’s important to memorialize the type of release that the parties have agreed upon so that that can be incorporated into a successful settlement agreement. So the three tips that I had were drafting settlement terms for the agreement, ascertaining the exact legal claims and parties, and determining the type of release that is needed. Effective settlement agreements. They help parties move, I think, beyond the so called wrongs of the past and into the future in which their expectations and obligations are knowns and where the parties hope to absolve the Litigation resolved based on an agreement. So it’s so important to make sure that that agreement is a proper indication of what the parties agreed to.

Dave Scriven-Young:

Great tips. Latasha, thanks so much for being on the show today.

Speaker 4:

Sure. Thanks for having me.

Dave Scriven-Young:

Well, that’s all we have for our show today, and I’d love to hear your thoughts about today’s episode. If you have comments or a question you’d like for me to answer on an upcoming show, you can contact me at d scr [email protected] and connect with me on social. I’m a attorney Dsy on LinkedIn, Instagram X 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 2024 Section annual conference in Washington DC taking place May 1st through the third. The annual conference is the premier event for litigators. It brings together top Litigation professionals from across the US to discuss timely legal issues and the latest in trial advocacy, Litigation strategy, and case management.

The conference will include over 20 dynamic programs highlighting all aspects of Litigation, and of course there will be multiple opportunities to network during the programming breaks and breakfasts, as well as the welcome Reception, networking Luncheon, international Spy Museum Reception, and the John Miner Wisdom and Diversity Leadership Luncheon. To find out more and for registration information, go to ambar.org/sac 2024. 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 Podcast, it’s incredibly helpful, and even a quick rating at Spotify is super helpful as well. And finally, I want to quickly thank some folks who make the show possible. Thanks, Tom. Mighell Obert, who’s on staff for the Litigation section. Thanks. Also goes out to the co-chairs of the section’s audio contact committee, Haley Maple and Tyler, true 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.

Continue Reading