Expert Diversity—It’s About Winning Cases

Episode Notes

Transcript

Dave Scriven-Young:

BRG is a premier sponsor of the A litigation section. On this Litigation Radio episode, we will hear from Deepa Sundararaman, director with BRG about diversity and experts. The selection of BRG as the subject of this interview should not be construed as an endorsement by the American Bar Association of BRG and its services. Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a litigator practicing environmental and construction law in the Chicago office of o Hagan Meyer. And I also coach young lawyers on how to accelerate their careers without burning out 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, is where I make my home in the A BA. The litigation section provides litigators of all practice areas to resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation. We’ve heard a lot of discussion concerning the challenges facing diverse lawyers in the profession and what can be done to attract, retain, and promote diverse lawyers. But what is happening in terms of diversity in other aspects of the profession, including the use of experts and consultants in litigation, and how is the current pushback against DEI programs impacting those efforts while our two guests will help us answer that question. Our first guest is Deepa Sundararaman. She’s a director in the Washington DC office of BRG. She has analyzed issues relating to intellectual property disputes for over 20 years and performs complex financial and accounting analysis for clients across numerous industries and evaluating economic and damage issues in litigation settings. She has testified in numerous depositions and at trial as an expert on those issues. Deepa is a certified public accountant and certified value analyst and holds an MBA from the University of Maryland. Deepa, welcome to the show.

Deepa Sundararaman:

Thank you Dave. Thrilled to be here.

Dave Scriven-Young:

And our second guest is Tiffany Shimada. She is a shareholder at Greenberg Tarig and is a member of the intellectual Property and Technology and trademark and brand management group in the firm’s Salt Lake City office. She focuses her practice on helping clients with trademark, copyright, advertising, social media and complex brand protection and management issues. She’s a longtime leader in the a section of litigation, currently acting as a member of counsel of the section. She’s also a proud graduate of my alma mater, DePaul University College of Law. Tiffany, thanks so much for being part of the show.

Tiffany Shimada:

Thank you, Dave. Pleased to be here.

Dave Scriven-Young:

So let’s give some context for the discussion. There’s a lot of talk about diversity, but perhaps not a lot of talk about why diversity is important. So Deepa, give us some context on to why you believe diversity is important.

Deepa Sundararaman:

Diversity has been studied for many years now, studied in academic settings by sociologists, by consulting firms. So there’s a lot of really good data and information on why diversity is important. A few examples, it leads to better thinking and therefore better decisions. Think of it as less of a group think. When you put more diverse people together, this has been studied in, for example, juries to see better decisions being made when people are less similar to each other. Better conversations happen when people are less comfortable. And really here the idea of diversity, and I’ll come back to this later as well, is to widen the group, widen the thought process, widen the innovation, not narrow it

Dave Scriven-Young:

Well. It’s interesting that you mentioned conversations are better when you’re uncomfortable. Tell us more about that because oftentimes I think we gravitate towards people that look like us and act like us. How does it help to have differences in perspective for a better conversation?

Deepa Sundararaman:

The idea here is that there’s more focus on facts when you’re less similar, when you’re less comfortable, so you’re less aware of what the other person’s going to do and that makes you more open to this new information and that makes you process the information better.

Dave Scriven-Young:

And Tiffany, from a trial lawyer’s perspective, how does diversity help a trial team?

Tiffany Shimada:

Well, Dave, I think I’m going to give an example here to really illustrate how diversity can be helpful on a trial team. Back in 2023, I interviewed Minnesota Attorney General Keith Ellison at the litigation sections fall meeting. And he discussed how when preparing for the Derek Chauvin trial and while watching video footage of the George Floyd murder, that it was one of the women on his team who first noticed that Floyd called out for his mom shortly before his death. This was one of the facts that really resonated with the jury and with the public overall because it spoke to Floyd’s humanity, even though Ellison is himself a father, it was a mom who brought that particular element to the case and it was very helpful and persuasive. And we should be mindful that in that case, and in all cases we’ve got judges, juries, clients, opposing counsel who are all people with different perspectives and lived experiences. And if we want to be persuasive in advocating effectively for our clients, then we need to make sure that we are addressing different perspectives and speaking to people’s lived experiences when we present our cases. And the best way to do that is to engage people from different walks of life throughout our advocacy process, including in considering expert witnesses to support our clients.

Dave Scriven-Young:

That’s so smart. And also from a trial lawyer’s perspective, having a broadened network by going outside of your own comfort zone and people that look like you can help as well, I assume.

Tiffany Shimada:

Absolutely. As Deepa mentioned, when you’d broaden your network, you’re meeting people outside of your community, outside of your bubble, if you will. In today’s political climate, which is quite polarized, you tend to find that like minds, you tend to find like minds who agree with your points, but that does not lend itself to good advocacy. In law school, they teach you how to analyze the issues in a case, and the goal is not always to get to a definitive answer, but to identify all of the sticky points and issues that are going to eventually be helpful in reaching the right conclusion. So if you get to know people from different walks of life, different viewpoints and ideologies, then you’re expanding your points of reference and your field of information to ensure that you can identify all of the relevant issues and diverse teams are proven to do this kind of great work. And we would be remiss as attorneys to not take advantage of a diverse range of perspectives in our advocacy work.

Dave Scriven-Young:

Well, and I would be remiss to bring this up because I’m speaking with two diverse folks. Tiffany, I know it sounds at least from your bio that you lived for a while in Chicago, moved to Salt Lake City as a person of color. How was that transition into the profession? And you’ve done well. So tell us a little bit about your progress in your career.

Tiffany Shimada:

Right, so Chicago is in Illinois and the Midwest in general is very different culturally from Utah and Salt Lake City for many reasons. But ultimately what led me to Utah was family. My husband is from Utah, his family is from Utah and he is also diverse. My husband is of Asian American and Caucasian ancestry. And so the two of us in Chicago, having this really broad network and having gone to DePaul, the transition itself, although I was a little nervous to make the transition culturally, it was one of the best things for my career and for me personally, one, to have the support of family, and two, there’s a different type of diversity in Utah and in Salt Lake and in the practice of law, wherever you go, it is not going to be the same here there is in Salt Lake City, a great emphasis on family life and balancing that with firm life.

And I think that you could potentially find that in anywhere. But here it has just been such an asset to my family and to my career and there is a different diversity here that I did not appreciate moving here that I did not know about before moving here. And it’s become even more diverse over the last decade. I will say, getting to know people who are of a different faith, different ethnicities, different upbringing, has only enhanced my perspective, enhanced my view of the world. I have been able to make connections with people through many different, not reasons, but just through many different perspectives. As a mom, as a lawyer, as an IP attorney, a branding attorney, you find that the more you talk to people, the more you have in common and you bring certainly your lived experiences to the table. But I have never seen it as a roadblock.

I have seen it more as an entree to start a conversation and really get to know people for who they are and what they value. And at the end of the day, most lawyers, everyone I know at least has gotten or decided to go into this profession because they wanted to help people. And that is really at the core of my values. And I think that making that connection with other people and wanting to help people is at the end of the day the goal. And that’s what I let drive my decisions and my connections.

Dave Scriven-Young:

And Deepa, tell us a little bit about your story as well as how you have faced progression in your career as a consultant and expert.

Deepa Sundararaman:

Sure, Dave. So I grew up in India and a lot of what Tiffany said resonates with me despite a very different upbringing. I grew up in a large city, but in one city, actually in one house. My parents moved there just before I was born, until I came to the US about 25 years ago to go to grad school. So really been in one place and then it was a big move. I think a lot of it is what you are mentally prepared for. I was prepared for a big cultural change. It helped me accept it more easily and I was definitely helped in where I moved to the DC area and really blessed by being accepted, seeing and encountering people with so much diversity in so many different ways and I’ll get to that. So it has been a great experience. Interestingly, I feel living here has also made me appreciate and understand the diversity in India more because I meet more people from different parts of India here than I did living there where it was really more of a bubble. And at BRG I’ve been here with the same firms now close to 15 years. It’s a great group of people. Again, there’s so much diversity. Like one of my mentors was a PhD economist, so our coming together on a lot of cases with his economist hat and my accounting hat, that diversity helped us look at issues, analyze issues, come to opinions in a better way than if our backgrounds had been very similar to each other.

Dave Scriven-Young:

Well, thank you both for sharing your perspectives. I think it’s important for our listeners to understand where we both of you are coming from and the challenges that both of you have faced over the years. Speaking of challenges, wanted to get a little bit into the statistics, Tiffany, I know that you wanted to share some statistics relating to the value of having a diverse team.

Tiffany Shimada:

Yes. So McKinsey and Company has studied this for a long time and there is a great summary of this data in its November, 2023 report entitled Diversity Matters Even More. The data shows that there is a 39% increased likelihood of outperformance for those companies that are in the top quartile of ethnic representation versus the bottom quartile. And this is also true of companies that have more gender diversity. And I want to speak briefly also to the parallels in the legal community. The National Association of Women Lawyers keeps great statistics on gender diversity in our profession and their research demonstrates steady and significant attrition of women from law firms over time relative to the number of entering those entering as associates despite slight increases in the percentage of women in law firms at the associate and partnership levels. So there are many reasons for this attrition including business development issues, childcare, mentoring opportunities for young women.

And I think that these statistics, this influx of women into the profession early in the career and kind of skewing towards a vast decrease towards the latter part of the career, it just really mirrors that you see in consulting firms. I think that it’s problematic. We obviously don’t, the law is an apprenticeship really at its core. It is still that type of service industry. And so we train women, we want them to stay in the profession and we’re just seeing these levels of attrition still 40 years into these types of studies and it just really does mirror what we see in consulting firms as well, which is interesting.

Dave Scriven-Young:

Yeah. And speaking of which Deepa turning to you, what are some of the statistics relating to consulting firms and female experts specifically?

Deepa Sundararaman:

So I found a survey that was actually, that covers two years, 2022 and 2023. It’s put together by this equal representation of experts association by ALIX Partners. And according to that survey, the percentage of female experts observed was between nine and 10% across those two years. Obviously these are some low numbers and this is really, it’s something that I notice even when I look at the microcosm of my own firm and my practice where as Tiffany alluded to, the percentage of women at lower ranks is 50% and then there’s a sharp decline as you come into the expert ranks where I am. And does that mean the positive spin of course of that is, oh, so in a few years when those people reach expert ranks, the problem is solved. I don’t think the answer is so simple unless we’re mindful about it, but that’s definitely my observation.

Dave Scriven-Young:

Well, and it’s interesting, you noted female experts were at nine to 10%, so presumably women of color who serve as experts is probably much lower than that. And so that begs the question, why are there fewer diverse experts and experts being used on Litigation Depot? We’ll start with you.

Deepa Sundararaman:

I think the biggest reason for this, and the survey also speaks to this, is all of us wanting to go with options that we’re comfortable with. We spoke about this comfort earlier on as well, so the preference of the lawyers to use experts that they worked with before. So that is the number one reason. And then the second is fewer women actually reaching these levels. Interestingly, the survey found that you have a much higher percentage of women in this case of diversity, one level below involved in authoring the expert reports, but Theier level was sharply lower than that previous level. So those are definitely kind of the two biggest reasons.

Dave Scriven-Young:

And Tiffany, I’m a litigator as well and definitely have seen anecdotally less diverse experts being used in cases that I’m involved in. I assume that’s pretty much your been your experience?

Tiffany Shimada:

Correct. And we have to really be intentional and strategic about broadening our networks. We need to get to know those outside of the normal social bubble and work with firms, consulting firms that are reflective of the world that we are in and the world that we see and our clients and their businesses. It’s as simple as, I used to work as a financial consultant. That was my first career, and there were women who I looked up to as an analyst who are still in the industry and I reach out to them, I share their contact information when those PTIs come across the firm, I send contact information to very capable women and men who I used to work with. And it just helps to broaden the scope, even for my colleagues to know that there are people out there doing the work. In that way, I’m spreading a knowledge about experts that they might not normally have been connected with.

I’m giving them a more qualified pool of experts who will now have the opportunity to work on cases with them and with their clients. So it really is just being mindful and making sure that both in my cases and in other cases, I am promoting people who are not on the normal shortlist who, again, none of this is about qualifications. Everyone is where they are because they are bright and have passed the exams and have the qualifications. It’s about getting to know a broader pool of people and making sure that we are promoting and making those connections in our own networks, and that’s something that everyone can and should do.

Dave Scriven-Young:

Yeah, and I’m curious, Deepa, one way, as Tiffany stated, was to broaden your network and for litigators, that’s an interesting tightrope to walk on because you’re busy working on cases, you’re trying to develop business, and now we want to expand our network even further to include a broader range of experts, which is important for our clients. Where would you recommend starting out to broaden that network? Are there specific, maybe conferences we should be going to or organizations we should be joining? How would you recommend that attorneys consider broadening their network to find qualified diverse experts?

Deepa Sundararaman:

Experts? I think Tiffany mentioned this in a conversation earlier, building a roster. So I think one of the ways that lawyers could expand their network is developing that Rolodex, if I may, of candidates that are broader in terms of associations, the A BA has Asian American and other groups within that I belong to other kind of women lawyer advocacy groups. So I think there are a few different ways, but fundamentally it requires an awareness because even in organizations which are trying to, which have policies in place to be more diverse, be more inclusive, ultimately it comes down to what they’re actually doing, what folks on the ground are implementing, the policies can be there, but how much of it is implemented? And again, here, there are studies that show that that happens to a much lesser extent even for the companies that have such policies. So I think maybe it’s training, its awareness, building it among attorneys to say, okay, when you’re interviewing, broaden your search and build a bigger network.

Dave Scriven-Young:

Being intentional is the key there. And we’re obviously going through the beginnings of a new pushback against diversity, equity and inclusion programs. Tiffany, how do you see this pushback affecting the professional lives of diverse attorneys and experts? At this point?

Tiffany Shimada:

This demonization of diversity and inclusion is leading to less opportunities for people overall to engage with each other and to share their lived experiences. It has a chilling effect in a way on people who wish to reach out to others who are different because they fear retribution and they fear being isolated in some way or even penalized. But the people who are brave in this moment and recognize that this trend is destructive, they will see that continuing to network broadly and to widen your circle of influence and perspectives is never a bad thing. The lawyers who recognize this and continue to pursue inclusion in their practices will continue to serve as strong advocates for their clients and in their communities, and in the end, they’re going to reap the benefits for having done the work, for having included more people in the circle and having more solutions to problems for their clients at the end of the day.

Dave Scriven-Young:

And Deepa, what else can we be doing given this pushback affecting attorneys and experts on these issues?

Deepa Sundararaman:

I feel that pendulum swings happen. There’s politics everywhere. Ultimately, going back to the why, right? What’s in it for me when you are aware that this does help bring innovation, make better decisions, right? In this case, hiring a more diverse expert makes them, makes your case stronger, makes your client happier. So first is understanding the benefits because ultimately most of us are working in private organizations which are profit seeking. So trying to do something that’s not in towards the goal of the enterprise is always something that is not successful or somewhere there’s a mismatch. But when you look at the data and you see that this is going to be better for my client and therefore for me the profit performance. And so those are, when you understand the rationale, I think you understand how to go about it and what would benefit it versus companies thinking or attorneys are thinking, oh, I should just do this because it’s good. So I think that’s where the real difference is. And this pushback may be in not thinking through why we’re doing certain things, but I think specifically on this issue, some of the building, the awareness I think helps to target the efforts more accurately

Dave Scriven-Young:

And something that we’ll be following very closely on this podcast as well as something that the section of litigation is looking at as well. So Deepa and Tiffany, we’re at the end of our time together. I think we’ve just reached the tip of the iceberg at this point. Would love to talk more, but wanted to leave room for any last thoughts you might have on this topic depot. We’ll start with you.

Deepa Sundararaman:

Thanks Dave. I think my final thought is, again, circling back to something I said at the start, the goal here of retaining a more diverse expert is to expand the network and ultimately have lawyers have a Rolodex with more contacts, not fewer, find the expert that’s more correct for that particular engagement and ultimately to benefit the client. So the goal is more, not less, not narrowing.

Dave Scriven-Young:

Absolutely. And Tiffany, you get the last word here.

Tiffany Shimada:

I agree with Deepa, the legal industry, the consulting industry. We’re both in service industries and we’re servicing businesses that represent our local communities and the world. And if the data shows us that those companies that embrace diverse teams are more successful and have greater returns on their investments, then we should strive to replicate that and providing them with excellent client service, including selecting capable, diverse experts who are going to speak to problems in distinct and different creative ways. We are problem solvers. We can work together to strengthen these ties and solve problems together for our clients in a more creative way.

Dave Scriven-Young:

Well, I’ve really enjoyed this conversation, Deepa Sama and Tiffany Shida. Thank you so much for being on the show today.

Deepa Sundararaman:

Thank you, Dave. Thank you Dave.

Dave Scriven-Young:

And now it’s time for a quick tip from the A BA litigation section’s mental health and wellness task force. And I’m pleased to welcome back Marty Trust to the show. Marty is an experienced trial lawyer working principally in the energy industry at Stepto and Johnson and their San Antonio, Texas office. Welcome back to the show, Marty. What’s your quick tip?

Marty Trust:

Thanks, Dave. Today I’d like to talk about effective delegation and specifically as a tool for stress relief. When I was a young partner in a large regional law firm in San Antonio had a modest amount of prior trial experience and all of a sudden I found myself leading a complex trade secret case that ultimately ended up in trial for 41 days, involved, 1500 exhibits, 33 live witnesses, and dozens, dozens of briefs and motions. I had no prior experience with any sort of case of that size. And to say that I was entirely overwhelmed is a gross understatement. If it is even possible to prepare a case of that size for trial by yourself, I certainly didn’t know how to do it. So I had no choice but to assemble a team and quickly learn how to delegate and manage the endless list of discrete tasks that needed to get done.

Of course, I relied heavily. I was lucky to be able to rely heavily on the wisdom and experience of other trial lawyers in my firm who’d been through similar trials, although very few of them trials of that length. And with their tutoring and encouragement, we successfully tried the case, won a significant victory for the client, and I came out the other side of the case as a completely different lawyer with a enhanced skillset. Specifically when it comes to delegating tasks and managing large files, confronting a large or complex project is stressful regardless of the skill or experience level of the attorney. Delegation of all or part of such of a project can either significantly reduce stress or if it’s done poorly, can significantly increase it and create new stress for others. Thoughtful and effective delegation can help break a project down into bite-size pieces that are easier to assign to others, which in turn can free up your time for strategic thinking, planning and synthesizing the work of others.

Being able to effectively pull others into a project also has the benefit of adding fresh perspectives and additional skillsets which can improve the quality of the team’s overall work. If you look around as a young lawyer at the most successful, more experienced lawyers, that it’s likely that a common trait among them is the ability to effectively manage teams as individual lawyers. Each of us has a limited amount of work we can do on our own, but once you learn to delegate and manage teams effectively, you’re able to accomplish many times what you could ever have done alone. Delegation is a skill and like any skill improvement takes purposeful practice. Through the course of my first large trial, I learned a lot about how to delegate effectively, but much of that knowledge was gained by first failing at it. And since then and through many other projects, I’ve found that there are a few key takeaways to effective delegation that I think are essential to keep front of mind with each new opportunity.

First, you’ve got to understand your project from an overarching perspective to identify what can be delegated and what cannot or what should not. If you don’t have the end goal in mind and a clear idea of what steps it will take to get there, you’ve got no chance of describing what you need from others. Take the time to reflect strategically on your project, break it down into sections and to discrete tasks that you can explain clearly. This also involves forming reasonable estimates of how long each task should take. Second, clearly communicate your expectations to each member of your team, whether that’s one younger lawyer you’re working with or a team of younger and more experienced lawyers. Like I had in my first large trial, in my case, I had lawyers that were decades more experienced than me that were working under me or at my direction along with a host of younger attorneys.

It was sort of an all hands on deck situation. Try to match tasks with strengths, tailor your communication to the team member. Your more experienced colleagues may not need to be reminded to ask you questions if something you explained is not clear, but the less experienced may be afraid to ask. Many of us are familiar with being scared to ask questions for fear of looking like you’re not capable or not smart enough or something like that. You’ve got to create the safe space with your team to know that they can ask you questions, ask for clarification, and be sure to build in expectations for check-ins and establish what communication channels you want to use. Do you want to be communicated with an email? Can they drop by and knock on the door? Do you prefer the phone calls? Just make sure all of that is very clear on the front end.

Third, it’s helpful to explain to each team member how their work fits into the overall project and the goals you’re trying to attain. Especially the younger lawyers will appreciate the opportunity to see both the forest and the individual trees and the project and how things fit together. Next, give concrete and realistic deadlines and try to build in extra time for unexpected contingencies. Most of us know what it’s like to have a project take longer to complete than we or our assigning lawyer expected. If possible, set reasonable deadlines with potential flexibility built in for unforeseen complications. Fifth, stay out of the way but remain available. Make sure your team knows that you’re counting on them for their piece of the project and you’re trusting them to come to you when they get stuck. Need help or have questions, don’t hover and micromanage. Sixth, give feedback on the work that comes to you.

Every project is a learning experience for your team members and also for you as the manager of the project. Don’t hesitate to ask for feedback from your team members on how your management and delegation of the project could have been more effective. To the extent possible, include your team members in the execution of the project. If you’re preparing for trial, how can you include your team in the presentation or at least allow an opportunity to watch their work being incorporated into the final result? Finally, this may be a little controversial, but it’s what I try to do every time. Celebrate the effort before you know the outcome. When I finish a trial, I try to celebrate the team’s contribution to the project before the result is known. We don’t have total control over the result a judge or a jury or arbitrators do, but we can always celebrate our team’s effort in the process and we should.

Dave Scriven-Young:

Great tips. Marty. Thank you so much for being on the show today.

Marty Trust:

Thanks Dave,

Dave Scriven-Young:

And 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 question you’d like for me to answer on an upcoming show, you can contact me at dscr Young at O’Hagan meyer.com and connect with me on social. I’m at 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 2025 Section annual Conference, April 30th through May 2nd in Chicago. This annual conference provides unique opportunities to learn and interact with in-house counsel, outside counsel, academics, government, employees, and judges from across the country. The conference will include over 20 dynamic programs highlighting all aspects of litigation, and of course, there will be opportunities to network during our special events and programming breaks.

To find out more and to register, go to ambar.org/sac 2025. You won’t want to miss it. 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 this show possible. Thanks, to Michelle Oberts, 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 Charlotte Stevens. 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.

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