Raising the Bar

What Is Your Mentee Hoping to Gain from the Mentoring Relationship?

A mentoring relationship is not a one-size fits all situation. Every mentor–mentee relationship is different because each person brings their own unique experiences to the table. As I shifted from being a mentee to a mentor, it was important for me to remember that what I was looking for in a mentor, as a young lawyer, may not necessarily be what my potential new mentee was looking for. As such, I realized it was important for me to discuss with my potential mentee what he or she was hoping to get from the relationship to ensure that the relationship was as beneficial as possible. I think this discussion is especially important if you are mentoring younger female attorneys.

I spoke with some younger female attorneys and asked what they were looking for in a mentor and what mentor–mentee relationships have been most impactful. Here is what they said:

“As a female attorney, I think it is important to find a strong female mentor who not only provides sound guidance and helps you to navigate your career but also prepares you for the realities of practicing as a woman in the field of law.”

“After graduating law school and taking the bar in the midst of a global pandemic, I’ve really come to value the mentors in my personal and professional life who are cognizant of the impact the crazy circumstances of the world have been while I’m in the midst of learning how to be a lawyer. Empathy is incredibly important to me in a mentor.”

“The mentors that have left a lasting impression on me and that I look up to even after our professional relationship ends all remember the emotional roller coaster it is being a brand-new attorney and share their own experiences while also providing practical advice.”

What Can You Offer as a Mentor?

Knowing what your mentee is looking for is important, but it is equally important to know what you can offer as a mentor—and I think this is closely tied to one’s own personal experiences while practicing law.

For me, one interesting aspect of my move from mentee to mentor was discovering how my personal experiences practicing law as a female attorney impacted the way I approached mentoring younger attorneys, especially young female attorneys. Female attorneys, at times, face unique situations. As I begun mentoring young female attorneys, it became clear that some of the obstacles and issues that I personally faced as a younger attorney, continue to be issues for other women today. I have found that an open dialogue with a mentee about what it means to practice law as a woman allows for continued discussions of the issues that woman face and how we can work together to address these going forward.

I also asked other female attorneys about their mentoring experiences and how they have approached mentoring young female attorneys:

“When I mentor a young male associate, I am educating him on the law and its practice within our field. When I mentor a young female associate, I cannot educate her on the practice of law without first helping her understand how her journey as a female in this field will be vastly different from her male peers. Confidence and character are critical to a female attorney’s success. This can be built and achieved by engaging experienced female attorneys within a firm to have open and honest dialogues with younger associates.” 

“Developing and supporting talented women means alerting them of potential landmines and creating strategies to overcome each hurdle.”

Encourage Others to Pay It Forward

While mentoring relationships may not be one size fits all, I believe that a mentor-mentee relationship, in any form, is an important asset to help young attorneys navigate the practice of law. In my transition from mentee to mentor, it has been extremely rewarding to know that I may have helped younger attorneys traverse some of the difficult aspects of being a young attorney, especially a young female attorney, practicing law. If you have not begun mentoring, I would encourage you to take the time and engage in the process. You have a lot to offer younger attorneys. With your mentoring (and 20/20 hindsight vision), another attorney may now be better equipped to handle a situation or issue, looking back, you would have handled differently.

This article was only meant to touch on some experiences that I personally have had and some other women have had with respect to mentorship relationships. It is by no means a comprehensive look at this topic or meant to cover every piece of advice, so if you have additional pointers or experiences with transitioning from mentor to mentee, please feel free to share them in the DRI Young Lawyers listserv or by emailing me directly.

Colleen E. Hayes is a partner with Wade Clark Mulcahy, LLP, in Philadelphia, Pennsylvania and serves clients in commercial coverage related matters. Colleen can be reached at chayes@wcmlaw.com.

Since no two firms are the same, we will focus on seven common practices and situations your firm should avoid when creating an inclusive environment.

1. Don’t deny the facts; change them. We all know that the legal profession has not historically consisted of many women or racial, ethnic, LBGTQ+, or other minority groups. While we have made strides during the past 20+ years, we cannot deny that the profession’s historical lack of diversity continues to have a lingering impact on the shape of the profession today, where there continues to be fewer diverse attorneys in seniority positions, partnership tracks and ranks, decision-making roles, and firm leadership. Those are the facts, and this persevering historical foundation is often reflected in how law firms handle the recruiting, retention, and promotion of attorneys. While acknowledging these disparities is a good start, it is not a stopping point. Don’t get fatigued. The benefits of doing the hard work to truly build a more diverse law firm and legal community are manifold, and you and your clients will reap the rewards. After all, diversity is more than a catch phrase. It is a process of growing and evolving to foster a workplace environment that offers a variety of real-life perspectives, approaches to critical thinking, the formulation of legal strategy, and the creation of unique solutions to problems.
2. Don’t treat your diverse new hire like a shiny new toy. Nothing is worse than being treated like the “token” anything. Avoid the pitfall of introducing your diverse new hire only to diverse clients or colleagues. While it is certainly appropriate and important for young, diverse lawyers to be introduced to similarly situated counterparts in the legal profession, it is equally important to meet non-diverse lawyers with whom they share other commonalities. Making meaningful introductions will have a greater, more positive impact. For example, in addition to making connections with diverse attorneys, introduce your new diverse hires to your mentors, your most trusted associates, and/or the clients for whom they will be working. Together the whole of these connections will create a more well-rounded experience for your diverse lawyers and demonstrate your commitment to their long-term success and development.
3. While it is true that diverse lawyers are encouraged by seeing other diverse lawyers at their firm, do not fall into the trap of assigning only diverse lawyers to mentor your diverse new hires. Instead, get to know your diverse new hires. What areas of the law interest them? What are their hobbies? What groups, bar associations, or community organizations are they involved in? Which partners at your firm have not only the work to fill the new hire’s plate but a genuine interest in developing new talent? Consider making mentor assignments based on these factors instead of just teaming up two diverse lawyers. And come right out and ask diverse lawyers about their mentoring preferences. Pairing diverse new hires with only diverse mentors could limit your new hire’s growth potential. Be thoughtful and, when appropriate, be ready to make more than one mentor assignment.
4. Professional appearance and attire are mandatory in the legal profession. Our clients deserve it, and our duty as officers of the court demands it—period. But professional attire, including facial hair, hairstyles, and personal style, encompasses a wide array of options all within an acceptable range. The last thing your firm should do is hire diverse candidates and then ask them to blend in with the wallpaper and/or stop being so different or diverse. Don’t be the firm that expects all women to wear skirts, forbids more than one ear piercing, and refuses to hire anyone with braids.
5. When a young, diverse lawyer presents a complaint of racist or insensitive behavior by a peer or supervisor, do not downplay the encounter or make excuses. It does not matter if the purported bad actor is your friend or has an abrasive personality. It does not matter if you or the firm believe the purported offender is a good person. It likely took a great deal of courage for the diverse lawyer to report the incident, so be sure to listen, learn more about the encounter, and address it directly and appropriately. If young, diverse lawyers cannot expect your firm to look out for their best interests, there is little to no chance that they will want to contribute to the overall long-term success of the firm.
6. A common complaint of young, diverse lawyers is that firm leadership expects them to instantly, and aggressively, leverage relationships with other diverse professionals. But young, diverse lawyers are not a monolithic group. You should not assume that your new diverse hires have ties or relationships with similarly situated diverse members of the legal community based solely on a shared skin tone, ethnic group, or status as a minority. Firms cannot solve their diversity “issues” by hiring one diverse lawyer and presenting that person to the legal community as the solution. This expectation and the resulting pressure on diverse new hires to magically cultivate access to an untapped market of clients and legal professionals is unfair and unhealthy. Nor should young, diverse lawyers in the infancy of their careers be pressured to capitalize on their existing connections with community leaders, public officials, or other members of the legal community. These valued relationships were likely built over many years and should be respected. Give your firm and the new hire a chance to build mutual respect and trust with appropriate professional boundaries and expectations. With time and effort, new hires may proactively suggest ways that they can best utilize their connections to organically achieve their and the firm’s shared goals.
7. It may come as a surprise that the first step that many diverse lawyer candidates – and potential clients—take in assessing a firm’s commitment to diversity is not checking the Diversity, Equity, and Inclusion page of your website. Rather, they often go directly to the pictures and bios of your attorneys to see what your firm values. A diversity statement is a great starting point and an identification of your commitment, but it means nothing if you cannot show that you execute on the statement. Therefore, do not become complacent in your efforts once you have a few new diverse hires. Diversity, equity, and inclusion is not a “one and done”; it is an evolving process. More hires must be made. Antiquated policies must be changed. Firm culture must evolve. Recruitment never stops. Implement procedures to check in regularly with all new hires as time progresses and they become an acclimated part of the firm’s workforce. Initiating and maintaining open lines of communication during their early tenure will help identify any problems and hopefully increase retention rates. When the year is over, assess your successes, recalibrate your plans, and set more aggressive goals—along with specific action steps to take you where you want to go.

Conclusion

Like the practice of law, there are rules, and exceptions to rules, and exceptions to those exceptions. Here, the overarching rule is simple: If you want to hire young, diverse lawyers that stay for the long haul, you must surround them with colleagues, community, and culture that will champion them for success. These seven tips outline common situations that many firms encounter. Address them properly, and you will make great strides toward building a truly diverse work culture.

Chalankis Brown is an associate with Ball, Ball, Matthews & Novak, P.A. in Montgomery, Alabama.

Jazz Hampton is CEO and General Counsel at TurnSignl, a Minnesota-based tech company that provides real-time legal guidance from an attorney to drivers, all while their camera records the interaction.

Charissa Walker is counsel with Tucker Ellis LLP in Cleveland, Ohio, where she defends pharmaceutical and Xmedical device clients against product liability claims nationwide.

 

To that end, I want to extend my sincerest THANK YOU to each and every one of you who served on the 2020–2021 Young Lawyers Steering Committee. This year didn’t look quite like what we’d hoped, but you stayed focused and diligent from start to finish. Together we grew the YLC membership, produced excellent online programming, published numerous newsletters and articles, put on one heck of a seminar, and so much more.

We committed to Diversity & Inclusion, which included crafting one of the most diverse YL Seminar speaker line-ups in DRI history. (Of twenty-one seminar speakers, thirteen were female, eight were BIPOC, and one was transgender.) We committed to creating opportunities for motivated Young Lawyers within the YLC as well as DRI’s other substantive law committees. And most importantly, we committed to KEEP GOING.

This would have been a really easy year to throw your collective hands up and say, “I ain’t doin’ it.” And honestly, who could have blamed you? But you didn’t. And for that I am so grateful. You are all rock stars, and I am so grateful and honored to have worked with you. This has truly been the experience of a lifetime.

And while I am more than a little sad to be stepping down from my role as Chair, I am absolutely thrilled to be leaving you in the capable hands of your new YLC Chair, Catherine Leatherwood, who will take this Committee to great new heights in the 2021–2022 year. After all, despite the challenges we faced during COVID, 2021 has been a year of immense opportunity, understanding, and community. And I am confident the YLC—under Catherine’s leadership—will continue growing, serving, and improving.

I look forward to watching the DRI Young Lawyers Committee accomplish great things this coming year. And as we say in the south, I know you will “do me proud.”

Stephanie M. Wurdock is a Member with Sturgill, Turner, Barker & Moloney, PLLC, in Lexington, Kentucky. Stephanie is a healthcare litigator, working with healthcare providers, insurers, and risk managers to defend claims of medical malpractice, wrongful death, and nursing home negligence. She is the 2020-2021 Chair of the Young Lawyers Committee.

I was over the moon that we were able to host our Young Lawyers Seminar in-person, in Minneapolis this year! This seminar is, hands-down, one of my favorite DRI events each year because it gives me so many opportunities to connect with the friends, colleagues, and networking contacts that I have made throughout my years in DRI. Even better—the seminar is a great chance to get caught up on the latest trends in legal practice. This year was no different. We focused on diversity and inclusion, topics that have moved to the forefront of legal hiring and retention, best practices, and client engagement. I extend heartfelt gratitude to our Seminar Programming and Networking & Activities Committees for all the hard work they did to put on a great and educational program.

I also want to extend a sincere thank you to all attendees at this year’s seminar, whether first-time or experienced, who participated in the Ambassador Program. At each seminar, Membership matches someone who has never attended a DRI seminar before with a member of the Young Lawyers Steering Committee or someone who has attended Young Lawyer Seminars previously. The program is a great way to get new DRI members connected and to make them feel welcome, but, of course, it would not be successful if we did not have all the willing volunteers that make the program possible. We had great feedback from our first-time attendees this year, and that goes a long way to fostering the growth and development that DRI membership brings.

I hope all of you have plans to attend the DRI Annual Meeting in Boston. As always, let any one of us on Membership know if you need more help getting connected to Young Lawyers or a DRI Committee in your practice area, or if you have someone in mind that you think would benefit from joining DRI.

Thomas H. Wyatt is a member of Quattlebaum, Grooms & Tull PLLC in Little Rock, Arkansas. Tom’s practice specializes in commercial litigation, property litigation, and products liability. Tom provides a cost-effective, trial-focused approach to cases involving breach of contract, class actions, condemnation, landlord-tenant disputes, and more. Tom has practiced before the United States Court of Appeals for the Eighth Circuit, the United States District Courts for the Eastern and Western Districts of Arkansas, the Arkansas Court of Appeals, and as local counsel on behalf of national companies in numerous circuit courts in the State of Arkansas. Tom can be reached by telephone at (501) 379-1730.

Do Lawyers Have a Duty to Protect Third Parties?

As lawyers, we are trained to place the interests of our clients above anything else. We are conditioned to protect our clients and their information; but what about third parties who may have been employed by the same employer as your client, for example? You may ask yourself, “why should I protect anyone other than my client” and most importantly, whether you have a duty to protect third parties. According to the American Bar Association Model Rules of Professional Conduct, lawyers do have a duty to protect third parties and should exert every effort to do so. Rule 4.4, Respect for Rights of Third Persons, details a lawyer’s responsibility in transactions with persons other than clients. Comment 1 of the Model Rule states: “Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons. It is impractical to catalogue all such rights, but they include legal restrictions on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship.” American Bar Association, Comment on Rule 4.4.

Protecting Third-Party Information When Responding to Discovery Requests

Protecting third party information is essential in representing your client, protecting yourself, and your firm. When you receive discovery requests requesting sensitive third-party information, such as personnel files, you should always appropriately object. Your first two questions should be whether the information sought is relevant to the instant suit and whether the request is reasonably calculated to lead to admissible evidence. If the answer to those questions is no, you should immediately object based on relevancy and thoroughly state why the request is not relevant. In responding, be sure to explain the discovery request would require the production of sensitive information and why that specific information should not be disclosed or why it must be protected. A thorough objection positions you to reply to opposing counsel’s sure to come motion to compel and will give the court important background as to why you should not be compelled to produce the requested information. If you have appropriately objected to the discovery request, you have essentially begun drafting your opposition to the motion to compel, which is why it is essential to thoroughly object when responding.

If, however, the third-party information requested is relevant, will lead to the discovery of relevant information, or if you are eventually compelled by a court to produce, you must prudently ensure that information is protected once it leaves your custody and care.

Protecting Third-Party Information After It Leaves Your Custody and Care

Next, you should determine how you are going to ensure the sensitive third-party information is protected once it leaves your care. Before producing any information, you should always demand all parties who are to receive copies of the information agree to the execution of a confidentiality agreement and/or petition the court and request a protective order be entered into the record.

Confidentiality agreements are usually executed between the parties and should later be entered into the record, although not required, whereas protective orders are official orders of the court. The major difference between confidentiality agreements and protective orders is that the latter is usually outlined with significant input from the court and at the court’s direction without the need to petition. Because protective orders are usually drafted with the court’s input, you should always carefully consider the elements of your confidentiality agreements. Nevertheless, there are five elements that should be included in all confidentiality agreements.

First, all confidentiality agreements should clearly and broadly state what information is considered confidential. The goal is to avoid ambiguous and indefinite information as unclear boundaries could cause the agreement to be useless. Next, you should name those individuals who have permission to review the confidential information. Usually, that list of individuals is limited to counsel and the named parties. Third, the obligations of those individuals privy to the confidential information should be outlined and defined. The information to be protected and how that information should be protected should be described in this section. Fourth, the consequences of a breach must be stated along with the length of the agreement. This section should detail costs, damages, and attorney’s fees. Finally, and mostly importantly, how, and when the information is to be destroyed once the case has ended, should be defined. When drafting this section, carefully consider how the confidential information will be shared. If the information is shared on paper, you should require that those documents be shredded. By contrast, if the information is shared electronically, you may require that all emails that contain shared files links be deleted.

Conclusion

As a lawyer, you have a duty and responsibility to not only protect your client, but in doing so, you must also respect and protect the rights of third persons, including ensuring their sensitive information in protected during the course of discovery and after case has ended.

Kristian B. Dobard is an attorney with the Louisiana Department of Justice in New Orleans, Louisiana. As a litigator, Kristian focuses her practice in the areas of civil rights and labor and employment defense. Kristian earned her J.D. from Southern University Law Center and her B.A. in Economics from Tougaloo College.

It has long been established that employees have a diminished right to privacy while in the workplace but an increased expectation of privacy at home. However, with the recent rise in working remotely, the line between work and home was blurred. At the beginning of the pandemic, many employers supplied the equipment needed for employees to easily transition to working from home—internet routers, cell phones, laptops, and tablets, among other electronics.

Under federal law, employers generally have the right to monitor employees’ use of employer-provided equipment and computer networks including keystrokes, web pages, and work emails. See generally, The Electronic Communications Privacy Act of 1986. A 2018 Gartner report indicated that of 239 large corporations, 50 percent were monitoring the content of employee emails, social media accounts, who employees met with, and how they utilized their workspace. Brian Kropp, “The Future of Employee Monitoring,” Smarter with Gartner (May 3, 2019). Gartner further found that this number was up from only 30 percent in 2015 and was expected to grow to 80 percent in 2020. Id. Notably, that estimate was prior to the work-from-home surge due to the coronavirus pandemic.

The following considerations can be used by employers as they ponder working from home in a time where an individual’s right to increased privacy in the confines of their own home conflicts with the reduced expectation of privacy that individual has while at work.

1. Review Existing Privacy and Security Policies

Employers should first consider their existing company privacy and security policies – policies relating to secured network access, VPNs, cell phone and computer usage if provided by the company should all be reviewed.

If there is an existing privacy policy, the focus should be on whether any current work-from-home policies comply. Many organizations, in a rush to coordinate a safe workplace during the pandemic, may have implemented new policies, or perhaps failed to draft a policy at all. According to a study conducted in May of 2020 by Ernst & Young (EY) and the International Association of Privacy Professionals (IAPP), nearly 60 percent of organizations accelerated or bypassed their privacy and security review when adopting new technology to work from home during the pandemic. Müge Fazlıoğlu, “Privacy in the Wake of COVID-19: Remote Work, Employee Health Monitoring and Data Sharing,” EY and IAPP Report (May 2020). Now, it is crucial that organizations conduct a privacy and security review to ensure compliance with existing policies, focusing especially on remote working and device use.

2. Know the Legal Limits of Employee Monitoring

Before drafting or revising the policy, it is critical that organizations understand the legal limits of employee monitoring, especially now that employees might be using a mix of company-provided devices and personal devices. If employers will be monitoring employees working from home, it is important to identify the type of data to be monitored, the way it will be monitored, and the reason for monitoring as these answers may implicate different laws and exceptions. Employers should carefully review the laws and regulations that may apply based on those factors.

For instance, monitoring data in transit would be governed by the Electronic Communications Privacy Act of 1986 (ECPA). Despite prohibiting an employer from intentionally intercepting the oral, wire, and electronic communication of employees, ECPA provides several caveats such as the business use exception (which requires an employer to have a legitimate business reason for monitoring employees) and the consent exception (which allows monitoring with consent). See The Electronic Communications Privacy Act of 1986; see also Hannah George, “How Much Employee Monitoring Is Too Much?” American Bar Association (Jan. 2018).

Alternatively, monitoring stored emails on a server would be governed by the Stored Communications Act (SCA), enacted as Title II of ECPA. SCA likely allows employers to review work emails sent and received through its own server, but not personal email accounts as a private email server is not provided by the employer. See The Stored Communications Act, 18 U.S.C. §§2701-2712; see also Brenda R. Sharton & Karen L. Neuman, “The Legal Risks of Monitoring Employees Online,” Harvard Business Review (Dec. 14, 2017), https://hbr.org/2017/12/the-legal-risks-of-monitoring-employees-online; Lisa Nagele-Piazza, “Privacy in the E-Workplace: What Employers Need to Know,” The Society for Human Resource Management, (Nov. 23, 2016).

Organizations should also be mindful of other potentially applicable regulations which can intersect with ECPA and SCA. There are several possible interactions, but to name a few, the Civil Rights Act of 1964 and the Age Discrimination in Employment Act might prohibit certain selective monitoring, even if ECPA or SCA allows monitoring of employees in general. Selective monitoring of employees in certain protected classes such as race, religion, national origin, age, gender, disability, and genetic information might violate these laws. Additionally, the National Labor Relations Act might prohibit monitoring communications of employees while they are engaging in collective-bargaining activity.

One final note on potentially applicable laws is that state laws may also apply, and in some cases, state laws may be even more restrictive. Organizations should evaluate whether their state law restricts or otherwise alters the ability to monitor employees. And, to the extent that employees are working remotely from another state, employers must be aware that these state laws may also require consideration.

3. Draft or Revise a Privacy Policy as Necessary

Assuming that an employer has determined that monitoring employees’ use of company-provided devices is acceptable under relevant laws, the next step is to draft or revise the company policy. Insofar as the existing policies are outdated, organizations should revise their policies to include provisions relating to remote working, any new technology, and use of company-provided devices, as well as provisions addressing expectations, investigatory procedures, appeal procedures, and any penalties or steps to remedy violations.

Privacy policies relating to employee monitoring should be clear and concise, outlining the specific data and devices that will be monitored. A well-written privacy policy can also help to educate employees and provide them with an understanding of the information to be monitored. Often, employees may not realize the legal limits and may feel that the monitoring is limitless. With working from home on the rise, employees will certainly have concerns regarding how far surveillance might extend into their own home. The importance of transparency was highlighted in Gartner’s 2018 survey, which found that 30 percent of employees were comfortable with an employer monitoring their email. Brian Kropp, “The Future of Employee Monitoring,” Smarter with Gartner (May 3, 2019). However, when an employer explained the reason for the monitoring, the number of employees comfortable with the surveillance rose to more than 50 percent. Id.

4. Consider the Effect that Monitoring Has on Employee Morale

Finally, knowledge is not always power. In some instances, implementing surveillance of employees might increase stress levels and can make even the most loyal employees question whether they are being trusted and valued. Employers should weigh the need for monitoring devices and information against the risk of reduced morale and determine whether there are any less intrusive methods that can be implemented to achieve the same goals.

Kayla A. Day Estes is an attorney with Tucker Law Group in Bangor, Maine, a firm dedicated to representing a variety of employers and insurers in employment litigation, insurance defense, and workers’ compensation defense. She also is a Certified Information Privacy Professional through the International Association of Privacy Professionals (IAPP). As an attorney with Tucker Law Group, Kayla helps employers and insurers navigate Maine’s workers’ compensation laws, employee rights regulations, and other related matters.

While information is getting more and more condensed and instantly digestible, technology has led to the opposite effect in litigation. Discovery has become much more complex and voluminous, with each party having access to more data due to electronically stored information like emails, text messages, electronic records, audit trails, and copious amounts of metadata documenting every keystroke. For example, a dispute with Intel led to a document production equivalent to a stack of paper “somewhere in the neighborhood of a pile 137 miles high.” In re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280, 283 (D. Del. 2008). Unfortunately, more is not always better.

This presents a digital Catch-22 for the savvy trial lawyer: how do you capture and keep a modern juror’s attention when they are expected to wade through mountains of tedious data to reach a verdict?

Enter the “summary exhibit” rule: Federal Rule of Evidence 1006. FRE 1006 states in pertinent part that “[t]he proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” Fed. R. Evid. 1006. This rule allows the litigator to create a much more digestible version of voluminous documents and monotonous data to allow a trial attorney to present key, non-argumentative facts, that the jury can easily examine.

Most importantly, if admitted, the summary exhibit is itself substantive evidence introduced in place of the underlying documents, even over a “best evidence” rule objection. See United States v. White, 737 F.3d 1121, 1135 (7th Cir. 2013); United States v. Lemire, 720 F.2d 1327, 1347 (D.C. Cir. 1983) (“we note that Rule 1006 was designed primarily as an exception to the best evidence rule…”).

For the summary to be admissible, the proponent must lay a foundation that “(1) the underlying documents must be so voluminous that they cannot be conveniently examined in court, (2) the proponent of the summary must have made the [original] documents available for examination or copying at a reasonable time and place, (3) the underlying documents must be admissible in evidence, (4) the summary must be accurate and nonprejudicial, and (5) the summary must be properly introduced through the testimony of a witness who supervised its preparation.” United States v. Modena, 302 F.3d 626, 633 (6th Cir. 2002) (citing United States v. Bray, 139 F.3d 1104, 1109-10 (6th Cir. 1998)).

What makes evidence “voluminous”? The Seventh Circuit has held that documents that filled four bankers’ boxes were “undoubtedly voluminous.” United States v. White, 737 F.3d 1121, 1136 (7th Cir. 2013). But even significantly less data can meet the standard under certain circumstances. For example, the Eastern District of Virginia admitted a summary of less than 100 pages of settlement statements and loan applications because the complexity of the documents met the “voluminous” standard. United States v. Tsoa, No. 1:13CR137, 2013 WL 6145664, at *5 (E.D. Va. Nov. 20, 2013). Essentially, the court must make a case-by-case determination of the complexity of the documents at issue. “The complexity and length of the case as well as the numbers of witnesses and exhibits are considered in making that determination,” not just the number of pages. United States v. Loayza, 107 F.3d 257, 264 (4th Cir. 1997). Be careful to be accurate in your summary, not making argument or listing inferences the jury should draw instead of summarizing the actual evidence, lest your summary be excluded. See White, 737 F.3d at 1136.

The modern trial lawyer should welcome this oft-forgotten rule of evidence as the perfect solution to the “Impulse Generation’s” need for instant, headline-type information. A well-crafted summary or chart can capture the attention of the jury and create a lasting impact at trial and during deliberation.

Rule 1006 can be useful in a variety of cases. For example, modern medical malpractice cases often have thousands and thousands of pages of electronic medical records that contain just a handful of entries that tell the story the jury needs to grasp to come to a verdict. Often at trial, both parties spend a great deal at time trying to help the jury wade through this information, but the thousands of pages of records are what the jury must refer to during deliberation. A chart or timeline properly introduced under Rule 1006 could introduce the same important information in a single, clear, concise exhibit. The same would be even more impactful for nursing home cases that require juries to analyze and process details captured in daily care logs that sometimes span years and reams of paper. A simple Excel chart could make the evidence digestible to the lay jury, allowing the arguments of both parties to be more easily tested against the facts.

The benefits extend far beyond healthcare law. Commercial litigators trying contract cases may benefit from creating a summary of the important terms of an overly complicated agreement. Construction cases may benefit from summaries or charts of invoices, change orders, agreements, daily logs, and other important but overwhelming documents. Employment attorneys can utilize summaries for voluminous personnel records and employee handbooks. Two hundred pages of cell records could be summarized to highlight only the calls, dates, times, and call durations that actually matter. Metadata could be reorganized and presented in a clear and digestible format. No matter the type of case, most trial attorneys can benefit from a Rule 1006 summary when facing voluminous documents or complicated data as it provides the attorney with an opportunity to increase the efficiency of their advocacy by focusing the jury’s attention on the important details.

Rule 1006 is an important, but often forgotten rule of evidence that allows the modern litigator to introduce a summary of voluminous records or data as substantive evidence in a trial in place of or in addition to the source documents. When facing the decreasing attention spans of jurors and the complexity of modern litigation and increasing volume of electronically stored evidence, this rule can be an extremely beneficial and useful tool in many types of trials.

Jake MacKay is an attorney at Starnes Davis Florie LLP in Birmingham, Alabama, a full-service, client-centered litigation firm. Jake focuses his practice on commercial litigation, professional liability, and construction litigation. He is also a member of the DRI Young Lawyers Steering Committee and serves as the Vice Chair to the Ethics and Professionalism Subcommittee.

Tyler J. McIntyre is also an attorney at Starnes Davis Florie LLP. Tyler’s practice focuses on medical malpractice defense for physicians and healthcare providers practicing in facilities large and small across Alabama. A retired Army Armor officer, JAG prosecutor, and veteran of two wars, Tyler uses his leadership and legal experiences to aggressively pursue his clients’ interests.

It is no secret that lawyers continue to struggle with depression, anxiety, suicide, and substance abuse at alarming levels. These issues in the profession are serious and endemic, and we encourage anyone struggling with one or more of these issues to seek medical or professional assistance as indicated. That said, cognitive science provides us with several tools that can also help us combat these issues on our own.

As a starting point, cognitive science identifies that people often have misconceptions about wellbeing. For instance, people tend to think that money will make them happier, but research shows there is surprisingly little correlation between income and wellbeing above an income of approximately $75,000 per year. Similarly, many believe that finding a partner will make them happier, but research shows that, on average, people are no happier after 15 years of marriage than they were prior to marriage.

Why are we so bad at predicting what will make us happy? It turns out that we have several cognitive biases that cut against our ability to predict what will improve our wellbeing. First, although many of us rely heavily on our intuition, research demonstrates that our minds’ strongest intuitions are often simply incorrect. Second, in evaluating our own wellbeing, we often compare ourselves to others. In so doing, however, we frequently choose poor reference points, for instance by comparing ourselves to those who have more than we do rather than recognizing our position relative to those who are less fortunate. Third, while adaptation—the ability to adapt to changing surroundings—is evolutionarily hard-wired and allows us to accept and cope with a wide range of changes to the environment, it also means that the impact of positive changes in our environment is often transitory.

Importantly, by identifying these biases, cognitive science also offers suggestions about what we can do to counteract them. Evidence shows incorporating one or more of these practices into your daily or weekly routine can have a measurable—and, in many cases, lasting—impact on happiness.

Savor positive experiences. One way to counteract some of these cognitive biases is to savor positive experiences. By refusing to take the good things in your life for granted, we can extend the impact of positive changes in our environment rather than just adapting and moving on.

Take an “awe” walk. Go outside for fifteen minutes and really focus on what you see, feel, hear, and smell. Research shows this is a quick and easy way to increase joy.

Practice negative visualization. While it may sound counterintuitive, research shows that happiness can be boosted by writing about how a positive event in your life might not have come to pass. For example, how easy might it have been for you to never have met your partner, adopted your favorite pet, or found a job or a hobby you love?

Invest in experiences instead of material things. Although people tend to think that a material purchase will make them happier than an experience, research shows the opposite. Experiences are central to our identity and foster social relationships. So, instead of making a new purchase, choose instead to go on vacation or just try something new.

Be kind. Studies have found that engaging in kindness towards others increases your own happiness. Kindness compounds, and the more you do it and more variety the better.

Seek out social connection. Although lawyers are not always the most sociable bunch, research shows that connection—even with total strangers—makes us happier than solitude.

Exercise, sleep, and mediate. The benefits of exercise, sleep, and meditation are well documented, but they are nonetheless worth mentioning as they are some of the most powerful tools for increasing happiness. Cognitive research shows that exercise leads to improved learning, memory, and cognitive function, and can combat the effects of depression and anxiety. Furthermore, regular sleep increases insight and performance. Finally, meditation cultivates focus, and we are happier when our minds are not wandering.

As young lawyers, there are many things outside of our control—billable hours requirements, partner expectations, client demands, and constant deadlines, among others. Nonetheless, we should all be encouraged that, by being mindful about the things that are in our control, interrupting our rote thinking, and making different decisions, we can increase our wellbeing in a meaningful way.

For those seeking more information about the cognitive science and research underlying this article, please see Emma Ross and Shayna Cook, Lessons for Litigators from the Science of Well Being, DRI Young Lawyers Seminar (June 25, 2021).

Darin M. Williams is an attorney with Laner Muchin, Ltd., in Chicago, Illinois, a firm concentrated exclusively on the representation of employers in labor relations, employment litigation, employee benefits, and business immigration matters nationwide. As a litigator, he provides creative and cost-effective defense of employment litigation for public and private sector clients. Just as importantly, he seeks to reduce the risk of employment litigation by advising clients on non-adversarial solutions that promote positive employee relations and make good business sense.

Emma C. Ross is a partner at Goldman Ismail Tomaselli Brennan & Baum LLP in Chicago. She represents leading corporations in nationwide high-stakes litigation. With degrees in both law and medicine, Emma plays a key role in national science teams and trial teams.

How and why did you first get involved with DRI?

I first got involved with DRI in 2016; however, I was admittedly not an “active member.” I was more of a cardholder. I did not get really involved until I began working with Shelley Napolitano and after I spoke with Atoyia Harris. Both encouraged me to get more involved, to join more committees, and take advantage of the benefits associated with DRI membership. Initially, I was hesitant, but after some convincing, I listened. So far, I am happy that I listened. As a DRI member, I have made some great connections, and I have been able to give back in an awesome way.

What DRI Committees (other than Young Lawyer) are you most interested in, and why?

In addition to Young Lawyers, I am an active member of the Diversity and Inclusion Committee. As a member of the Diversity and Inclusion Committee, I assist with planning the annual Diversity for Success Seminar, which is a dynamic and much needed seminar. Diversity and inclusion are incredibly important in the legal profession, and during the seminar, I get the chance to network with other like-minded defense attorneys and in-house counsel. It is truly an invaluable seminar, and this past seminar, I had the pleasure of meeting Paulette Brown (who is also my Sorority sister), the first African American woman to lead to the American Bar Association and Vivene Salmon, the first person of color to lead to the Canadian Bar Association in 125 years. Being able to work with both is an experience I will hold closely to my heart and will never forget.

What is your favorite part about being a lawyer?

Believe it or not, I always wanted to become an attorney. Growing up, I aspired to be the woman version of Johnnie Cochran. Admittedly, that is not a good reason to attend law school, but, after becoming a law student, I realized that I actually enjoyed learning about the law. I became involved in my law school’s clinical program and had the opportunity to interact with clients of the clinic. As a law clerk and extern, I had the opportunity to monitor court hearings and trials and fell in love with the profession. My favorite part about being a lawyer is having the opportunity to use the law as a weapon to solve problems and defend my clients against meritless claims.

When you are not practicing law, what do you enjoy doing?

When I am not practicing law, you can either find me in an Orange Theory Fitness class or a boxing class (which is my new safe space)! I also enjoy reading, writing, and spending time with family, friends, and my Pitbull, Athena.

What is your favorite book?

My favorite book of all time is The Invisible Man by Ralph Ellison.

If someone is visiting your city, where is it essential that they go to eat?

There are way too many to choose from in New Orleans, but my favorite is GW Fins. GW Fins has the best fish I have ever tasted.