2021AM-nl ad

Employment and Labor Law

A Refresher on Conducting Workplace Investigations

By Storrs Downey and Jessica Jackler

What do you do after an employee makes a formal or informal complaint of unfair treatment, harassment, or discrimination? Conducting workplace investigations are more important than ever in the era of #MeToo, civil rights movements and a global pandemic to boot. Here, we provide an overview of the steps employers should take to conduct an effective internal workplace investigation.

Implement Policies and Procedures

The prerequisite to conducting workplace investigations is having the proper policies and procedures already in place. Employers should have established anti-discrimination, harassment, and retaliation procedures in their employee handbooks, which not only prohibit unlawful conduct, but set forth a detailed complaint procedure. The most effective complaint procedures include alternate avenues to communicate complaints. This provides employees different methods to voice complaints to avoid a conflict with a member of management with whom the employee does not feel comfortable or who may even be the alleged perpetrator. The policy should also outline the investigation procedure.

When to Conduct an Investigation?

An employer’s obligation to conduct an investigation is triggered when an employee makes a complaint alleging a discrimination, harassment and/or retaliation claim, or even something more general such as “unfair treatment.” The employer must promptly initiate an investigation to fulfill this responsibility. Promptness is imperative not only to secure the best information from witnesses while memories are fresh, but it may also boost the credibility of the investigation.

Who Should Conduct the Investigation?

Human resource managers are commonly designated as investigators because they are familiar with the company’s policies and procedures and understand the importance of impartiality and confidentiality in employee relations. No matter who within the company is selected to investigate the complaint, the person must be capable of acting objectively, have no stake in the outcome of the investigation, and have the requisite skillset to conduct the investigation. Alternatively, a company may hire outside counsel or a professional investigator.

Separate Complainant from Alleged Perpetrator

There may be instances when a company should separate the complainant from the alleged perpetrator when the allegations are particularly sensitive, and the employee may not feel safe in the work environment. In these cases, the company should physically separate the employees’ workspaces if possible, or in more extreme circumstances, it may be appropriate to temporarily implement a schedule change, transfer, or leave of absence during the investigation. However, a complainant should not be forced to involuntarily transfer or leave because it may be viewed as retaliatory.


The investigation should be confidential to the extent possible. This means that the investigation, as well as the findings, remain “need to know” while it is conducted. Explain to employees who are interviewed that the information gathered will stay confidential to the extent possible, but they should also understand that there may be circumstances that will require information from the investigation to be communicated to the alleged perpetrator and potential witnesses. Employers should not promise absolute confidentially.

Witness Interviews

All complaint investigations should include interviews of the relevant parties, including

  • the complainant
  • the alleged perpetrator
  • employee-witnesses identified during the investigation

All interviews should be conducted in private, such as in a conference room or private office. At the start of each interview, the investigator should inform the interviewee of the purpose of the investigation and review the investigation process. Confidentiality should be explained, but the investigator should exercise caution when stressing the importance of confidentiality because it could be interpreted as interference with employee rights to engage in concerted activity under the National Labor Relations Act. The investigator should focus on objective and impartial questions to effectively fact-gather during each interview. Investigators should avoid offering their personal opinions and should also maintain a balanced temperament. During each interview, the investigator should identify and secure any records that may support the claims. Detailed notes should be taken during each interview to aid in reaching a determination at the conclusion of the investigation. All such notes should be typed into memoranda.


After concluding the investigation, the company must make a determination as to whether the claims alleged by the complainant are substantiated. The investigator should prepare their findings in a written document, and the outcome should be verbally communicated to the complainant and alleged perpetrator during separate meetings. It should be emphasized to the parties that the company took the complaint seriously and took appropriate measures to reach its determination. Complainants should feel heard even if they do not agree with the outcome of the investigation. Regardless of the determination, the company should follow up with the complainant at a later time to see how the complainant is doing post-investigation and ensure that there are no other issues in the work environment.

Take Immediate and Necessary Remedial Measures

If the complaint is substantiated, the employer should take immediate and necessary remedial measures commensurate with the violation, up to and including termination.

Storrs DowneyStorrs Downey is a capital member of Bryce Downey & Lenkov LLC. He has been representing businesses and insurance carriers for over 30 years in all forms of litigation ranging from construction to employment matters in Illinois and Indiana. He has successfully tried various jury trials to verdict and in excess of 100 administrative hearings. Storrs is an active speaker before national, regional, and state organizations on a wide variety of litigation topics.

Jessica.B.JacklerJessica Jackler is an associate at Bryce Downey & Lenkov LLC. Jessica represents clients in various labor and employment matters including investigation of claims of harassment; discrimination and retaliation; and defense of employment discrimination, wrongful termination claims, and wage-and-hour disputes brought in state and federal courts. She also regularly advises clients on issues relating to the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and various other federal and state employment laws.



The Return of Contra Proferentem in ERISA Benefits Cases

By Richard F. Hawkins, III

When Arnold Schwarzenegger uttered his famous “I’ll be back” line in The Terminator, he most assuredly did not have ERISA in mind. But the quote is surprisingly apropos these days regarding the application of contra proferentem – i.e., the rule that ambiguities in an insurance contract are construed against the drafter – in ERISA denial-of-benefits cases. While its use has been relatively dormant in such cases for at least the last decade, the rule has returned with a vengeance in 2021. This will likely continue. Here’s why.

The Rule: Contra Proferentem

The rule of contra proferentem is “the most familiar expression in the reports of insurance cases.” Kunin v. Benefit Trust Co., 910 F.2d 534, 539 (9th Cir. 1990) (citation omitted). Simply stated, the rule is that “ambiguities in insurance contracts must be construed against the drafter.” Id. It means that “if after applying the normal principles of contractual construction, the insurance contract is fairly susceptible of two different interpretations, … the interpretation … most favorable to the insured will be adopted.” Id. (citation omitted). The rule, ubiquitous in the world of insurance, applies all over the country, id., and is “at its core, a rule of equity.” Clemons v. Norton Healthcare, Inc. Retirement Plan, 890 F.3d 254, 267 (6th Cir. 2018). “It compels the drafting party to be honest about its offer up front, by threatening to construe terms ‘against the offeror’ if he attempts to hoodwink the other party.” Id.

The Rejection of the Rule in Most ERISA Benefit Cases

Contra proferentem, however, has long been rejected in ERISA denial-of-benefit cases governed by arbitrary and capricious or abuse of discretion standards of review. In such cases, a plan administrator (often an insurance company) is given discretionary authority (where permitted) to decide benefit claims under an ERISA-governed plan. When a federal court reviews a lawsuit arising from a claim denial, it operates under a “duty of deference” and “functions … as a deferential review court with respect to the ERISA fiduciary’s decision.” Evans v. Eaton Corp. LTD Plan, 514 F.3d 315, 321, 322 (4th Cir. 2008).

[C]ontra proferentem,” however,” is “inherently incompatible” with such “deference.” Clemons, 890 F.3d at 266. This incompatibility arises because:

Courts invoke [the contra proferentem] rule when they have the authority to construe the terms of a plan, but this authority arises only when the administrators of the plan lack the discretion to construe it themselves. … When the administrators of a plan have discretionary authority to construe the plan, they have the discretion to determine the intended meaning of the plan's term. … Deferential review does not involve a construction of the terms of the plan; it involves a more abstract inquiry—the construction of someone else's construction.

Morton v. Smith, 91 F.3d 867, 871 n.1 (7th Cir. 1996). As such, when a plan administrator has the discretion to interpret an ERISA plan, it (not a court) is the entity empowered to resolve ambiguities. High v. E-Systems, Inc., 459 F.3d 573, 579 (5th Cir. 2006).

This incompatibility exists even where the insurance company has a direct financial “conflict of interest” – i.e., it both administers the plan and funds the benefits. The circuit courts had been somewhat divided on this issue over the years. The Fourth Circuit in particular stood out as allowing the use of contra proferentem where a conflict of interest existed. See, Carolina Care Plan. Inc. v. McKenzie, 467 F.3d 383, 388-389 (4th Cir. 2006). However, after the decision in Metropolitan Life Ins. Co. v. Glen, 554 U.S. 105, 116 (2008) — in which the Supreme Court rejected the use of “special burden-of-proof rules or other special procedural or evidentiary rules” in situations where a plan administrator has such a conflict of interest — even the Fourth Circuit changed course. See Carden v. Aetna Life Ins. Co., 559 F.3d 256, 260-61 (4th Cir. 2009).

The Return of Contra Proferentem

Against this tide, contra proferentem has nevertheless made a noticeable return in ERISA denial-of-benefits cases. State legislatures and regulators in at least 20 states have greatly enabled this return by passing statutes and regulations in recent years that ban discretionary clauses — i.e., clauses that give insurance companies the discretion to decide benefit claims and interpret policy provisions — for certain types of insurance policies. These bans, in turn, have greatly reduced the number of ERISA denial-of-benefits cases that are governed by deferential standards of review. Without such deference, the rationale for rejecting the rule contra proferentem has vanished. And courts have taken notice, now readily applying the rule when conducting non-deferential de novo reviews of denial decisions.

In 2021, the specter of contra proferentem has already been pronounced. In the first six months alone, two federal appeals courts have issued decisions applying the rule in ERISA denial-of-benefits cases that were governed by the non-deferential de novo standard of review. Miller v. Reliance Standard Life Ins. Co., 999 F.3d 280 (5th Cir. 2021); Carlile v. Reliance Standard Life Ins. Co., 988 F.3d 1217 (10th Cir. 2021). In each case, the rule’s application resulted in judgment for the insured. Miller, 999 F.3d at 285-287; Carlile, 988 F.3d at 1227-1228. The rule also has surfaced at the federal district court level, again in a case involving de novo review. See Ministeri v. Reliance Standard Life Ins. Co., 2021 WL 495151 at*6-7 (D. Mass. Feb. 10, 2021). There too, its application favored the insured.


To be sure, not every disagreement about a policy term creates an ambiguity. But when a plan provision is ambiguous, practitioners should expect a contra proferentem argument and thus know when the rule is — and is not — applicable in ERISA benefits cases.

Richard F. Hawkins, IIIRichard F. Hawkins, III, of The Hawkins Law Firm, PC, in Richmond, Virginia, is a seasoned AV-rated attorney who regularly practices ERISA, life, health, and disability law. He was selected as a Super Lawyer Rising Star for Employee Benefits/ERISA in 2011 and is regularly included in Virginia Business Magazine’s “Legal Elite” for Labor & Employment. He has also served as a guest lecturer at the University of Richmond School of Law for life, health, disability, and AD&D insurance topics.

Law Firm Management

Tapping Performance Management Systems for Success

By Brian Kennel and Jan Sander

What is a performance management system, and how can it help your law firm? If you have concerns about cash flow, profitability, new business, client satisfaction, keeping your people happy, and effectively managing your cases, a performance management system can help. The key elements of these systems include financial and operational metrics, attorney development, practice management software, and more. These tools are geared toward optimizing and maintaining your firm’s short and long-term health.

If you know what it is like to have anxiety about how your law firm is performing and whether the focus and attention are on the right things, you are not alone. We often talk with clients about the things that keep them up at night. Here is just a sample:

  • Are we doing well financially?
  • Will we run out of cash?
  • Are our client relationships healthy?
  • Are we effective at getting new clients?
  • Are we on top of our matters?
  • Are our people happy?
  • Are we paying fairly?

The list could go on, but most concerns center around the need for better information.

Most lawyers have busy schedules and long lists of case priorities. They have little time for gathering and organizing the necessary data to create meaningful insights about firm performance. Adding to the problem is that there is often no easy way to collect and organize all the pertinent data. Many look to software to solve this problem only to find themselves disappointed when these systems fail to deliver. People end up frustrated and quit trying.

A primary reason for these shortcomings is that most law firm partners don’t have a data analytics background. They lack the knowledge to implement the necessary data capture systems, hire the right people, ensure data integrity, and create data analytics and visualization tools. Most lawyers might describe what they want from a performance management system as follows:

  • What happened?
  • Why did it happen?
  • Where is it leading us?
  • What should we do?

Once the system delivers these answers, the needs rightly evolve to what is happening, why it is happening, and what can we do to achieve a better outcome?

In our experience, even the worst-run firms have some sense of what happened, if for no other reason than regularly checking their bank account balance. A fair number of firms believe they know why something happened, but conclusions are often arrived at too quickly. For example, their time and billing systems provide various statistics about billable work and financial results but little or no insight into training issues.

It might help to visualize the typical law firm performance management system as a funnel turned upside down: The data capture is narrow and used to draw a wide range of often erroneous conclusions. Instead, we recommend capturing more data and distilling it into fewer, more actionable insights.

It is challenging to build a performance management system that delivers enough return on investment (ROI) to make it worth the time, money, and effort. Many of these projects fail because they are too ambitious and managed by untrained people. Another common pitfall is to approach performance management as if it is solely a software project. All that said, the benefits of these systems are potentially immense.

Borrowing from the software industry, we steer clients toward building a minimum viable product (MVP) and maturing the system over time. For example, a performance management system for a small or midsize law firm would create:

  • Basic financial reports: financial statements (income, expenses, and cash flow) and productivity reports (including WIP, A/R and billings, and collections).
  • Advanced financial and operational key performance indicators: trends (rates, hours, collections), timekeeper and client profitability and case efficiency metrics (average cycle time, open versus closed files period, attorney and paralegal leverage) and marketing return on investment.
  • Practice management software: a tool for data capture and case, document and client management
  • Attorney training and development plans: structure, scope and schedule to develop legal, managerial, client relationship and business development skills
  • Employee experience program: a series of systems and processes to support a productive and nurturing work environment
  • Performance evaluation system: a fair and transparent process to set expectations, measure and review performance
  • Pay and progression program (compensation, incentives, progression path)
  • Firm marketing system: a platform to coordinate and support individual and firm marketing efforts and build firm and individual brand awareness

Emotional Aspects of Performance Management

One aspect of a data-driven management system is that it removes much of the bias in data collection, analysis, and interpretation. Still, firm management must commit to a fair process. From our vantage point, far too many firms let the emotional aspects of decision-making impact the performance management process far too early. We have experienced firms that limit analysis because they don’t trust the analytics process to deliver their preferred conclusions. No system can overcome this type of bias. A successful performance management system requires good data, procedures, and the commitment to act honestly on the intelligence.

Brian Kennel

Brian Kennel, CEO and Lead Consultant at PerformLaw, has 20 years of experience in law firm and professional firm management and consulting. Using a hands-on approach, Brian helps clients overcome challenges and build their internal capabilities in areas of performance improvement, partner and associate compensation, financial management, new partner admittance, lateral evaluation, business development, and others. Brian knows how to get law firms where they need to be.

Jan SanderAs a Process Analyst with PerformLaw, Jan Sander works with law firms to establish reliable systems and processes that give them a competitive edge. Using an analytical yet personalized approach, Jan helps firms to improve procedures that boost individual contributions and team collaboration. His key areas of focus with law firms include: associate and partner performance, growth management, marketing planning, practice planning, strategic, transition, and transformation planning.



Are Your IOT Devices Leaking Private Data?

By Brad A. McGoran

Brad McGoranEvery day, Internet users generate quintillions of data bytes that must be protected like other valuable assets. While significant emphasis is currently placed on protecting enterprise data, two major trends are driving even more massive privacy challenges in the future: The proliferation of connected devices and the power of artificial intelligence (AI) and machine learning for data analytics and exploitation.

To keep ahead of these trends and navigate regulatory changes for U.S. and global consumer privacy, device makers need strategies for properly designing, testing, and safeguarding the Internet of Things (IoT) and its connected components in order to ensure the Privacy of Things (PoT). 

The Rise of Connected Devices 

According to Statista, the globally installed base of digitally connected devices (IoT) is projected to reach 75 billion by 2025. While the benefits of connectivity are numerous, the challenge of protecting the valuable personal information generated or collected by those devices is paramount. Regulators are increasingly requiring businesses to protect all data, including machine generated data.

In one year since the European General Data Protection Regulation (GDPR) and associated enforcement were put into effect, regulators have extensively fined businesses for failing to protect the privacy of European citizens. Similar laws are now in effect in the United States, most notably the California Consumer Privacy Act (CCPA), which as of January 1, 2020, puts the strictest guidelines in the country on the collection and processing of personal information. In light of these regulations and the associated risks of non-compliance, it is critical for organizations to understand their role in not only protecting enterprise data but also safeguarding privacy and other personally identifiable information (PII) in their products and systems. 

Artificial Intelligence Techniques and Privacy 

Considering the enormous growth of data, sorting through this information using traditional methods is no longer feasible. In contrast, leveraging AI and machine learning techniques for big data analytics is becoming common industry practice. New industry initiatives have emerged in the AI space toward enhancing privacy and security. Notable among these initiatives are federated learning, differential privacy, and multi-party computation. Federated learning trains models on edge nodes before encrypting and transferring them to cloud-based platforms. The end effect is that data stays close to the user while trained models carry all the intelligence without jeopardizing the user’s privacy. Differential privacy on the other hand intentionally introduces noise into the data. The noise masks individual information in a manner that still maintains the integrity of the data set as a whole. Multi-party computation distributes a data set over multiple computational nodes such that no individual node has enough personal data to constitute a privacy threat. 

The ideal strategy for optimizing AI privacy may differ based on platform, organization, and regulations, but each of these methods shows the potential of AI to make devices more secure and enhance user privacy. 

Important Regulatory Changes for Consumer Privacy 

The CCPA creates new rights for California consumers relating to access, deletion, and sharing of personal information collected by businesses. According to the California government, a business will be subject to the CCPA requirements if it

  • has gross annual revenues in excess of $25 million;
  • buys, receives, or sells the personal information of 50,000 or more consumers, households, or devices; and/or
  • derives 50 percent or more of its annual revenues from selling consumers’ personal information.

Businesses subject to the CCPA must provide notice to consumers when or before collecting data. Plus, businesses must also create procedures for consumers to opt-out, know, and delete data within specific timeframes.

Human Factors Analytics 

Unfortunately, despite the strongest technical safeguards, human actions, inadvertent or otherwise, often contribute to serious data leaks and PII breaches. Applying a robust human factors testing and assessment program to devices is often the best method of evaluating and mitigating this risk. The goal of human factors assessments is to reduce human error, increase productivity, and enhance safety and comfort with a specific focus on the interaction between a user and the product. Analysis and testing of human factors therefore should be a key part of the design processes of any system that deals with private or sensitive data. 

How Exponent Can Help

Exponent Inc., with our multi-disciplinary groups of security and privacy subject matter experts, design evaluation teams, data scientists, and human factors personnel, has been a leader in the security, privacy, and design consultancy community for well over two decades. We help manufacturers design, evaluate, test, and optimize the security and privacy of products and services to help our clients understand, detect, and mitigate risks. 

Exponent was a Premier Sponsor of DRI’s Product Liability Conference.
Brad A. McGoran, P.E., CSCIP, CSCIP/G, GIAC, ACE-M, is a Principal Engineer for Exponent Inc. 

DRI Voices

Coming to Terms With My Chameleon Privilege

By Jason L. Holliday

This summer, I attended my first DRI Diversity for Success Seminar in New Orleans. It was an awesome experience getting to meet face-to-face other lawyers from around the country, after more than a year of isolation. I really enjoyed speaking with and hearing from others for whom diversity plays a significant role in their personal and professional lives. While the entire conference gave me much food for thought, one panel discussion in particular, focusing on removing barriers for mixed-visible and non-visible diverse people, brought to my attention the “visibility” of my own diversity and how that has shaped my life experiences.

I am a native of Costa Rica with U.S. citizenship, born to a Costa Rican mother and American father. I spent most of my youth living outside of the United States, including spending time in El Salvador and graduating high school in Russia. I have always proudly declared my diversity to anyone willing to listen. I love my dual-citizenship and being multilingual and multicultural, and I never hesitate to check “Hispanic” on a form when asked to identify my ethnicity. All that being said, my last name, “Holliday,” is undeniably Anglo-Saxon, and my skin color shows my mostly European roots.

So, as I listened to the various speakers at the Diversity Seminar discuss the many challenges and obstacles they have had to overcome due to their visible traits reflecting their diversity in race, disability, and/or gender identity, it struck me—really, for the first time—that I have largely failed to acknowledge my own privilege stemming from my ability to choose how others identify me. In other words, my privilege is my discretion to reveal or hide my diversity—a choice that those who are visibly diverse do not have.

Growing up, I became familiar with the term “third-culture kid” to describe someone who, like me, spent many of their formative years living in countries and among cultures that were different than those of their parents. The idea behind the term, coined in the late 1950s by American sociologists Ruth Hill and John Useems, is that these children grow up exposed to the cultures of both their passport country and their host country or countries, resulting in a third culture that is a mix of the two. Immigrant and refugee children, as well as diplomats’ kids, “military brats,” and the children of international businesspeople are often included in this group. Third-culture kids are frequently characterized by the ease with which they adapt, at least superficially, to most environments and, as such, are often labeled “chameleons.”

Being a chameleon has some clear benefits of which I have long been aware. Aside from being able to speak other languages—Spanish and (some) Russian—I can adjust to most settings and find great joy in experiencing other cultures. I have moved more than 35 times, and lived in urban, suburban, and rural communities, so it does not take long for me to make a place my home. I know people spread over dozens of countries and nearly every state in the United States. Of course, though, with these benefits, there are also drawbacks. Because I spent much of my youth saying good-bye, it was difficult to maintain meaningful bonds; and, given the brevity of interactions, my relationships were rarely close. Another challenge was the feeling I did not belong to any culture—the idea that I was neither “fully Costa Rican” nor “fully American.” For instance, I have missed out on some of the quintessential cultural experiences of the average American my age. My wife Shannon, who grew up in the United States, will often refer to some movie, toy, song, or fashion trend, prefaced by, “Do you remember when we were kids …?” to which I have to honestly respond, “We didn’t have that where I lived.”

Overall, though, I must admit that the benefits of being a cultural chameleon outweigh any disadvantages. Today, that is clearer than ever. The strong anti-immigrant sentiments that propelled our former president into office and the growing social justice movements bringing attention to the continuing institutional racism and inequality in this country make it blatantly obvious that my specific traits (i.e., white, heterosexual, male) give me an advantage in this country. Declaring my Latino or third-culture background does not change that. In truth, my chameleon privilege is my choice to disclose my diversity while avoiding the prejudice other diverse people endure based purely on their diverse appearance.

It is past time for me to recognize my chameleon privilege. What would my experiences have been had my mother’s maiden name, Sequeira, been on my license or a job application? How would my interactions with law enforcement or traveling into the United States have been different if I was black or brown? Not once has a stranger in this country questioned my right to be here or proclaimed that I should go back to “my country.” I have not felt threatened or felt any fear, simply by getting pulled over. Nor has anyone called the police on the fear that my presence combined with my skin color alone makes me suspicious. It can be easy to take these things for granted.

I know my background is my own, and only few may relate to my specific experiences. What I hope to convey, however, is my new-found realization that the experiences of diverse people are not monolithic. In a society where people are readily judged by their outward appearances, those of us whose diversity is hidden are in many ways chameleons, and that ability to “blend in” is a privilege that we should be willing to acknowledge in an attempt to better understand the experience of those who are visibly diverse.  

Jason HollidayJason L. Holliday is an associate at Dinsmore & Shohl, LLP in Charleston, WV. He focuses his practice on commercial litigation, a field that rarely gives him the same day twice. His experience includes counseling corporate clients on insurance issues, construction, employment, and a variety of other pre-litigation issues. A former Chicago police dispatcher who spent years identifying and relaying essential information to first responders in emergency situations, he knows how to read a rapidly developing situation and deal with a variety of personalities in order to meet clients’ needs.

The Power Of ...

Championing Diversity and Inclusion

By Pamela W. Carter

I started my legal journey in 1995 with enormous optimism for the legal profession. I wanted to make a difference in the world. During my 25 years in the practice, I have experienced many circumstances that confirm that optimism and rose-colored glasses do not equate to fairness in the profession. My rose-colored glasses have quickly been fogged up, and my optimism that the obvious differences in appearance, perspective, and approach, although effective tools to be successful as a litigator, are not enough to garner the respect of contemporaries, partners, or even some corporations. Instead, it has been suggested that, in order to succeed, conformity rather than value in diversity is the order of the day. Others say that sending business to a minority lawyer is risky despite the evidentiary proof of prior successes including academic, bar leadership, and early judicial clerkship experience.

It is with this backdrop that I took on the challenge to further broach the subject of diversity by serving in a leadership role with DRI. As a leader on the Diversity Committee, the research and my experiences confirm that:

  • we are losing talented, gifted lawyers who find that invisible barriers still exist, and the presumption of incompetence still exist both internally and corporately
  • traditional methods of marketing and securing business are far more elusive to the minority lawyer than the non-minority lawyer
  • law firm diversity committees are tools for marketing a perspective to prospective clients when internally minority lawyers are isolated

From the outside, the legal profession seems to be growing ever more diverse. Three women are now on the U.S. Supreme Court. Loretta Lynch served as the second African American to hold the position of attorney general. We have many women serving in the U.S. Presidential cabinet. Yet, according to Bureau of Labor statistics, law is one of the least racially diverse professions in the nation. Eighty-eight percent of lawyers are white. Other careers do better — 81 percent of architects and engineers are white; 78 percent of accountants are white; and 72 percent of physicians and surgeons are white. The legal profession supplies presidents; governors; lawmakers; judges; prosecutors; general counsels; and heads of corporate, government, nonprofit, and legal organizations. Its membership needs to be as inclusive as the populations it serves. 

Still, the profession needs diversity champions, who are people dedicated to supporting an inclusive profession, company, firm community to turn talk into action. As many like to say, diversity champions are folks who want to “walk the talk.”

Arguably, the challenge is that there is a lack of consensus that there is a significant problem in the legal profession. Many believe that barriers no longer exist; LGBTIQ, women, and minorities have moved up; and any lingering inequality is a function of different capabilities, commitment, and choices. However, the evidence seems to suggest otherwise. 

It is important to recognize that being a good person and being averse to diversity and inclusion are deemed mutually exclusive, though this interpretation does little to provide the nuanced perspectives that develop multicultural literary.  Consider this: We spend approximately one-third of our lives at work. This means we spend about the same amount of time with our colleagues talking, sharing, collaborating, and producing results. But do we take the time to get to know the people around us who seem vastly different than we are?  

I offer these texts that provide the opportunity to broaden your understanding of diversity and inclusion, and how to tackle the “taboo” of talking about race, privilege, and otherness. “Lies My Teacher Told Me,” by James Loewen; “How to be an Antiracist,” by Ibram X. Kendi; “Why Are All the Black Kids Sitting Together in the Cafeteria?” By Beverly Daniel Tatum; Debby Irving’s “Waking Up White”; and “White Fragility: Why It’s So Hard for White People to Talk About Racism,” by Robin DiAngelo.

Studies show that while women constitute more than one-third of the profession, however, women comprise only about one-fifth of law firm partners, general counsels of Fortune 500 corporations, and law school deans. The situation is bleakest at the highest levels. Women account for only 17 percent of equity partners, and only seven of the nation’s 100 largest firms have a woman as chairman or managing partner. Women are less likely to make partner even controlling other factors, including law school grades and time spent out of the workforce or on part-time schedules. Studies find that men are two to five times more likely to make partner than women.

Further, although minorities now constitute about a third of the population and a fifth of law school graduates, they make up fewer than 7 percent of law firm partners and 9 percent of general counsels of large corporations. In major law firms, only 3 percent of associates and less than 2 percent of partners are African Americans. The questions to ask yourself is why is this still the case and what will we do to change the course?

Importantly, despite these circumstances, and through leadership roles, I have had the opportunity to meet corporate counsel, some minority and non-minority counsel, who understand the dangerous impact of lip service to diversity and the inappropriate presumption of incompetence with no objective proof. These corporate counsels are the trailblazers of the day, as they understand that the power of their purse can effect change, even for a small law firm owner, who happens to be a person of color and a woman.

Recently, I had the unique opportunity to join a DRI Social Justice panel with Charles L. Norton, Jr, the General Counsel and Corporate Secretary of The Coca Cola Bottlers Association.  In true Champion fashion, Norton whole­heartedly believes the legal profession is on the brink of change for the better. Norton candidly shared his hopes for the future and addressed diversity and inclusion inquiries head-on during the DRI Town Hall panel on the state of social justice in America and the role of lawyers and corporations. In fact, Coca-Cola now requires diversity accountability among its U.S. law firms who bill its work. Going forward, Coca Cola will change the trajectory by measuring diversity and inclusion efforts within its law firm panel counsel. 

Companies big and small decided to recognize Juneteenth, a holiday that commemorates the end of slavery, after the killing of George Floyd set off an urgent national conversation about race. Companies and law firms are usually quiet at moments of public upheaval and hesitant to take a political stand for fear of alienating customers. But since Mr. Floyd’s killing, businesses of all kinds have expressed their solidarity with protesters, donated millions of dollars to organizations dedicated to racial justice, or vowed to change their office cultures to be more inclusive. Many have also announced intentions to make concrete changes inside their own institutions or in how they do business.

“When the dust settles and the pages of history are written, it will not be the angry defenders of intolerance who have made the difference. The reward will go to those who dared to step outside the safety of their privacy in order to expose and rout the prevailing prejudices.”  - Bishop John Shelby Spong

With a renewed focus following George Floyd’s death, I sincerely hope that other corporations and law firm managers will model Coca Cola’s measures going forward. This is an opportunity to take real action so that that minority lawyers’ value would be appreciated wholly rather than on the surface and that the need for diversity initiatives, committees, studies, and summits would be eliminated. While trailblazers in the DRI, NBA, and ABA have been educating the legal community about the value of diversity in a diverse multicultural world, law firms and Corporate America do not always reflect an acceptance of that value in its selection of counsel. There are many national law firms, panel counsel for corporations, and corporate boards that still do not have minority lawyers serving at the highest levels of their businesses.

As the world moves to a more global economy, the importance of diversity in thought, color, communication, style, and performance will have greater value. I am hopeful that we will reach a profession that accepts people for their unique value. I challenge you to trust that minority lawyer who has proven she is capable. I believe that one of the reasons people fear diversity is because they are accustomed to the way things used to be and change makes them uncomfortable. Still, others feel threatened because they perceive increased participation by traditionally underrepresented groups as a challenge to their own power.

To the extent you think promoting a diverse or LGBT lawyer to law firm leadership or hiring a minority is a risk or threat, I challenge you to examine the root of your beliefs. If you do not understand another’s values, lifestyle, or beliefs, it is much easier to belittle and devalue them. And so, the seeds of prejudice and intolerance are sown. Building a diverse organization does not mean having a few ethnic or other minorities in the office. It also does not mean a group comprised only of minorities. It means having people of diverse culture, experience, and background in all levels of a law firm. True diversity and inclusion champions require more than just checking off the requisite boxes on a checklist or survey. They require more than talk. They require action from the leadership to its workforce. My recommendation to corporations and law firm managers is to take steps today to change the trajectory of the country, community, and your organization by doing the following:

  • Communicate diversity, equity, and inclusion strategies and policies to employees and spell out what actions the organization is taking.
  • Give leaders and employees the skills and tools to help create a more inclusive workplace and address discrimination.
  • Give managers guidance and training on how to move forward in supporting diversity and inclusion within your organization.
  • Create dedicated spaces for people to talk about social injustice and inequality at work.
  • Respond to the call to explicitly state your company or firm’s stance on inequality and give regular updates on how you are following through on your commitments beyond “lip service.”
  • Schedule a firm leadership meeting with a diversity consultation and an agenda structured to tackle the “Taboo” of talking about diversity and inclusion issues within your organization and the plan of action with consistent measuring and accountability measures going forward.
  • Become an ally. Allies play the important role of magnifying the voices of marginalized groups. Because of the inherent privileges that come with being in the majority (more access to leadership, less fear of discrimination or retribution, sheer volume of voices), allies have the unique ability to make the needs of the marginalized more visible to the eyes (and ears) of important decision-makers. Be visible and open about your allyship. Support cannot live in the dark or in comfort zones.
  • Have an honest conversation with your leadership about the state of your organization on issues of equality, advancement, opportunity, and inclusion.
  • Educate yourself and learn about your implicit biases and acknowledge them. Whether due to nature or nurture, we all have implicit and subconscious biases that we carry around daily. However, awareness of our own biases allows us to check ourselves and make sure that we are not acting on these biases and carrying out behaviors solely because they align with a certain bias.
  • Do more than stress diversity and inclusion on your website. Expand your firm’s management culture, build a support structure and revamp recruiting efforts and opportunities to diverse law schools and communities.
  • Provide opportunities for diverse attorneys to become a part of key legal teams and provide diverse lawyers with leadership training and case assignments on primary firm matters.

Champions of inclusion are fundamental to change mindsets. They are people who ensure that everyone has an opportunity to engage, and they exemplify first and foremost that they can connect, communicate, challenge, and collaborate appropriately. Indeed, what makes champions of inclusion extraordinary is that they demonstrate on a regular basis how ordinary it can be to support and promote an inclusive culture at all levels. Finally, diversity and inclusion will continue to be a cultural touchstone worthy of true allies and champions. The path to positive transformation for the profession doesn’t begin with nice gestures, but begins with foundational work, commitment, and a plan to execute the visions of true champions of inclusion – something that the legal profession and the world so desperately need.

Pamela CarterPamela W. Carter is the founder of Carter Law Group LLC in New Orleans, where she concentrates her practice on a wide variety of civil litigation ranging from insurance coverage, personal injury, and transportation law, to toxic tort, defective product, and general litigation matters. She is nationally recognized for her publications and presentations on issues of diversity in the legal profession.

Sponsored Content

Photogrammetry and Video Analysis: Cell Phones, Surveillance, and Body-Worn Cameras

By Toby Terpstra

Toby TerpstraPhotogrammetry is the art and science of taking reliable measurements from photographs and video. There are many differences between photographs and video and the types of analysis that can be performed with each media. For this reason, while photogrammetric principles can be applied to video, this analysis is commonly referred to as videogrammetry. 

Videos are more prevalent today than ever before. Access to mobile phones, tablets, and other personal media devices has increased dramatically in the last decade. Similarly, the lower price point for surveillance cameras has increased accessibility, making doorbell cameras and other household surveillance systems the norm. This is paralleled by public demand for transparency and the need for police agencies to incorporate body-worn cameras (BWCs). 

Homes and businesses are constantly recording video, bystanders have immediate access to a camera through their mobile phones, and police officers now use BWCs in accordance with agency policies. As a result, previously undocumented events are now being recorded, and often on multiple cameras simultaneously. These videos are an incredible resource for understanding controversial events including demonstrations, riots, fights, struggles, shootings, and other incidents. 

Video analysis and videogrammetry can be used to bring clarity to complex interactions where positions, orientations, distances, speeds, and timing of events are important to a case. Unfortunately, video can be misleading. Situational factors such as motion blur, lighting, obstructions, and mounting locations can lead a video observer to the wrong conclusions as to what exactly transpired in a video and how. Hardware-related factors such as the field of view, distortion, pixilation, blurriness, and the single vantage of a camera can also lead to a misunderstanding of events. Simply put, a body-worn camera does not necessarily represent what the wearer saw or perceived as an event unfolded. 

Forensics experts are also often called to perform photogrammetric work following events wherein body cameras and handheld devices record controversial and politically charged events. Video footage is critical for determining how events unfolded. This evidence is not only key in determining matters of liability, but it also has the power to shape public opinion of the events. As such, it is important to understand the nuances of video that can mislead the viewer or misrepresent certain aspects of the data that was captured. 

Toby Terpstra is a Principal Forensic Animator with J.S. Held’s Forensic Architecture & Engineering Practice and specializes in photogrammetry, video analysis, and 3D site reconstruction. J.S. Held was a Premier Sponsor of DRI’s Civil Rights and Governmental Tort Liability Seminar

The admissibility of expert testimony under FRE 702 is one of critical importance. The need to amend Rule 702 is highlighted by the fact that a significant number of courts misapply the current rule by confusing weight with admissibility. Those courts have incorrectly and liberally admitted expert testimony, the basis of which was not established by the preponderance of the evidence, by rationalizing that the admissibility of expert testimony is a question of weight for the jury. Correctly applied, Rule 702 states that the admissibility of expert testimony is a judicial function. It is not a question for the jury to determine.

The Judicial Conference Advisory Committee on Evidence Rules (Committee) approved the DRI/Defense Bar proposed amendment to FRE 702. The unanimous Committee decision to propose an amendment without discussion is not common, and such action could signify that the Committee believes there is a problem with the current version of the rule. On August 6, the Committee published the proposed rule for public comment both written and in person. The comment period is open until February 16, 2022. The Committee will hold a public hearing on Rule 702 on January 21, 2022. This hearing will likely be held remotely, and more details about it and other hearings were not available at the time of publication.

A related matter of significance is the “Don’t Say Daubert” campaign launched by Lawyers for Civil Justice, of which DRI is a member.

DRI members can submit written comments citing specific examples of the inefficiencies of the current rule. DRI and the Center for Law and Public Policy will submit a written statement and present testimony at the public hearing(s). Details concerning the comments and hearings will be provided once available.

DRI Cares

Helping Others

Dunking Friends to End Hunger

During its annual meeting in Sunriver this past June, Oregon Association of Defense Counsel (OADC) held four hours of virtual programming per day and four hours of in-person, social events, which included an old-fashioned barbeque complete with a dunk tank. The dunk tank was a fundraiser for Farmers Ending Hunger. The dunk tank “victims” included current OADC President Grant Stockton and chiropractor Jim Bowman, the husband of OADC Board Member Heather Bowman. The fundraiser was a huge success! Find out more information about Farmers Ending Hunger

For example, levels of contribution to the organization’s Adopt an Acre program include:

  • $500: Two acres, which feeds 1,000 families of four fresh vegetables for one day.
  • $250: One acre, which feeds one serving of pancakes to 2,300 families of four.
  • $100: One-half acre, which feeds one family of four the daily recommended allowance of vegetables for 250 days.
  • $50: One-quarter acre, which feeds one serving of corn, peas, or green beans to 625 families of four.
  • $25: One row, which feeds 190 families of four whole grains for one day.

DRI Cares

Tools for Success
During the FDCC annual meeting, held at the Greenbriar in West Virginia, the group took a few minutes to help local students. They packed 77 backpacks full of school supplies including notebooks, pencils, markers, and other tools every successful student needs. The full backpacks were donated to benefit Communities in Schools of Greenbrier County. Thank you to the #FDCC and the FedSERVES committee for doing their part. 

DRI Cares

Sponsored Content

Housing ... The American Dream

By Dan Thompson

Dan ThompsonThe American dream of owning a home is as entrenched in the American psyche as apple pie, cheerleading, and football! One only has to watch the movie, “Far and Away” with Nicole Kidman and Tom Cruise. There is that famous scene where all of the Pilgrim immigrants are lined up at a starting line on the plains of Oklahoma for a “land rush,” and they eventually drive their stake into the ground to claim their prized land.

I find it interesting that housing is not as well-defined in the annals of life care planning (LCP) as other areas such as vehicle modifications. For example, we as LCPers are taught that we only cover the cost of modifications to a vehicle as it is assumed that the individual will own a vehicle regardless of the injury; and therefore, the only “extraordinary” cost to accommodate their disability would be the renovation. In other words, it would not be reasonable or necessary to cover the cost of the vehicle and the modification.

That philosophy makes sense; however, there is no clear-cut policy for housing. I am sure we would all agree it would be imperative that someone with a spinal cord injury (SCI) affecting their ability to walk and to regulate their body temperature should have wider doorways; low thresholds; and, perhaps, a backup generator or air conditioning to ensure vital equipment such as ventilators keep running. These modifications not only ensure accessibility, but also improve quality of life.

Unfortunately, there are no clearly defined rules on what should be included in housing. For example, I worked on a case where a gentleman was a “hoarder” who had become septic. He lost his stomach and digestive track, including his intestine; and therefore, he was eventually left with an ileostomy, a feeding tube and spit fistula. Due to the deplorable and unsanitary conditions from his pre-existing lifestyle, the plaintiff’s Physician LCPer purported that he should have a brand-new home. Does that mean that we should purchase a new home every time he finds himself surrounded by trash with no running water due to his preferred lifestyle? I do not think any jury would feel that was reasonable or necessary.

Similarly, on average, people in North America move 11 times over their life. Does that mean that we need to renovate each and every place every time a plaintiff moves? Consider, the price of housing or renovations can greatly vary depending on the jurisdiction. For example, a home in Arizona would pale in comparison to a home in San Francisco! In Ontario, Canada, for instance, No-Fault insurance gives rise to a whole cottage industry, which artificially inflates the cost of renovation above the home value. A new home can artificially force other costs, such as lawn care, home maintenance, and snow removal.

Consider also the possibility that an individual could end up living in long-term care facility, despite home renovations, because they are elderly and require extensive care. Meanwhile, the home sits vacant on a parcel of land in close proximity to the long-term care facility.

Therefore, what is reasonable and necessary, and what is a viable alternative?

The Veterans Administration (VA) has a grant for injured veterans that will subsidize up to $100,000 for renovations based on average renovation costs and America. In my practice, historically, I have recommended $20,000 to renovate a kitchen, an additional $20,000 to renovate the bathroom, and $20,000 to ensure a safe means of ingress and egress. Typically, I recommend that any home modifications be a one-time purchase. My philosophy is the homeowner can use that equity to purchase future homes already equipped with the necessary accommodations if they move. Similarly, they may not need $20,000 to renovate a kitchen if their disability prevents them from preparing meals.

It may not be a perfect solution; however, it is better than purchasing a brand-new home every time a plaintiff moves or for someone who won’t end up living there.

Dan Thompson is the owner of DeeGee Rehabilitation Technologies, which was a Premier Sponsor of DRI’s Product Liability Conference.

Member News

Congratulations to DRI Members for Their Achievements

Daniel J. Ferhat of White and Williams LLP was recently recognized by The Philadelphia Association of Defense Counsel (PADC) with the President’s Award at PADC’s Annual Meeting. The award is given in recognition of his leadership as President of PADC over the past year. Mr. Ferhat is a trial lawyer defending hospitals, physicians, nurses, and other health care practitioners against professional liability claims at the trial-court and appellate-court levels. He also defends corporations and other commercial enterprises against premises liability lawsuits. He has been a member of DRI since 2020.

Catney Hanger LLP recently announced the addition of Daena Goldsmith Ramsey. Ms. Ramsey’s areas of practice focus include commercial/business litigation, transportation, products liability, premises liability, maritime/admiralty and first- and third-party insurance litigation. She is Board Certified, Civil Trial Law by the Texas Board of Legal Specialization. Ms. Ramsey is admitted to practice in Texas and Oklahoma; before the U. S. Court of Appeals, Fifth Circuit; and the U. S. District Courts for the Northern, Southern, Eastern and Western Districts of Texas. A member of DRI since 2004, her other memberships include the Dallas County Bar Association; Texas Association of Defense Counsel; and Sporting Goods Manufacturers Association, Legal Task Force.

Segal McCambridge announced that Shareholder Douglas M. McIntosh was elected to his second term as Chair of the Nova Southeastern University Shepard Broad College of Law Board of Governors. Each term lasts for two years. The Board consists of 35 members and is an advisory board charged with providing assistance and counsel to the Dean and designated administrators for the development and enhancement of the College of Law. Mr. McIntosh is a 1981 graduate of the NSU Law program and has served on its Board of Governors for more than 18 years. He has been a member of DRI since 1986.

If you have a recent achievement or recognition, you would like featured, email your news to membership@dri.org. Please note that DRI reserves the right to review all accomplishments to ensure they are adequate for publishing. All submissions will be reviewed for relevance and compliance with DRI’s mission.  Submissions may be edited to conform with our standards, and space limitations.

And the Defense Wins

Celebrating DRI Member Wins

Lisa M. Rolle

Lisa RolleTraub Lieberman Partner Lisa M. Rolle obtained a motion to dismiss in favor of an international hotel chain. In the case brought before the U.S. District Court, Southern District of New York, the Plaintiff sustained a slip and fall injury in a Portuguese hotel (“Hotel”), which was allegedly caused by violations of building codes and New York and Portuguese negligence laws. The Plaintiff notes that the Hotel utilized the branding affiliated with the international hotel chain, and the named corporate entities are subsidiaries of the parent company of the international hotel chain. Further, Plaintiff alleged that the named corporate entities “owned, operated, maintained, and controlled” the Hotel where the accident occurred, as the international hotel had previously acquired the entity, which owned the spa branding utilized.

In moving for pre-answer dismissal, Traub Lieberman acknowledged purchase of the managing agent of the Hotel, which became a subsidiary of their operations. However, Traub Lieberman asserted that the international hotel chain had not owned, operated, maintained, or managed the Hotel. Under New York law, parent corporations cannot be held liable for the actions of their subsidiaries, except in cases that support piercing the corporate veil. Traub Lieberman argued that the motion should be granted as a parent company cannot be held liable for acts committed by its subsidiary and further claimed that the parent company has never owned or operated the Hotel.  

The claims against the international hotel chain were dismissed, as there was not sufficient cause to support a veil-piercing claim. The Plaintiffs allegations were insufficient to establish that the international hotel chain bears any liability with respect to negligence at the Hotel.  As a result of these findings, the case was dismissed.  

Greg Schuck and Elizabeth Davis McCoy

Greg Schuckelizabeth davisHuie trial lawyers Greg Schuck and Elizabeth Davis McCoy tried a case for Ford Motor Company to a unanimous defense verdict on August 3, 2021, in the United States District Court for the Northern District of Alabama. The case arose out of a single vehicle rollover crash in Lawrence County, Alabama, in which the Plaintiff’s decedent was partially ejected and killed. Plaintiff brought suit against Ford Motor Company alleging that there was additional webbing in the seat belt which proximately caused the partial ejection and fatal injuries. Plaintiff asked the jury for $15 million in damages.

The Ford trial team proved that the seat belt system functioned properly at the time of the rollover crash, continues to function properly today, and was not the cause of the additional webbing in the system. The team further proved that the partial ejection was due to the unique nature of the crash as well as the occupant’s size, and that the proffered alternative designs would not have prevented the fatal injuries. At the close of trial, the jury returned its verdict in favor of Ford.

Keep the Defense Wins Coming!

Please send 250- to 500-word summaries of your “wins,” including the case name, your firm name, your firm position, city of practice, and email address, in Word format, along with a recent color photo as an attachment (.jpg or .tiff), highest resolution file possible (minimum 300 dpi), to DefenseWins@dri.org. Please note that DRI membership is a prerequisite to be listed in “And the Defense Wins,” and it may take several weeks for The Voice to publish your win.

DRI Education

Upcoming Seminars

2021 Fire Science and Litigation Seminar
Click here to view the program.

2021 Strictly Automotive Seminar
Click here to view the program.

2021 Senior Living and Long-Term Care Litigation Seminar
Click here to view the program.

2021 Annual Meeting
Click here to view the program.

2021 Asbestos Medicine Seminar
Click here to view the program.

2021 Complex Coverage Forum
Click here to view the program.

2021 Workers’ Compensation Seminar
Click here to view the program.

2021 Professional Liability Seminar
Click here to view the program.

2021 Insurance Coverage and Practice Symposium
Click here to view the program.

DRI Education

Upcoming Webinars

The Data Debacle: Data Breach Class Actions in the Healthcare Industry
Click here to register.

Emerging Asbestos Trends: Where Filings Meet Epidemiology
Sponsored by KCIC
Click here to register

How Proper Video Analysis Can Impact Case Evidence
Sponsored by J.S. Held
Click here to register.

Alternative Fee Playbook: The How, When, & Why of Alternative Fees
Click here to register.

Safety Policies and CDL Manuals: How to Ensure They Are Not Used Against Your Clients to Establish Liability
Click here to register.

Medicare and Medicaid Compliance in Workers' Compensation and Liability Claims
Click here to register.

Building Your Book of Business: Strategies for Establishing Your Personal Brand and Growing Your Law Practice
Click here to register.

How to Effectively Prepare for and Depose an Opposing Parties' Expert Witness
Click here to register.

Distracted Driving: What Causes it, How to Avoid it and How to Defend Against a Claim of Driver Distraction
Click here to register.

Quote of the Month

Peace and justice are two sides of the same coin.

— Dwight D. Eisenhower