by Hon. Janet L. Sanders
Voice of the Judiciary
When I began sitting in the Business Litigation Session of the Superior Court in 2011, I was struck by two things. First, as many as three or four lawyers appeared in court on behalf of a single party. Second, the “speaking” part for that appearance invariably went to the oldest member of the legal team – and that person was usually a white male.
That person was often not the lawyer who wrote the brief on the legal issue before the court. That would become apparent when, in the course of the oral argument, the older partner would have to confer with the young (usually female) associate beside him in order to respond to a question from the court.
I was not alone in my observations. Federal district court judges across the country were noticing the same thing, and taking action. Many issued standing orders strongly suggesting – and sometimes requiring– that attorneys newer to the bar be given a chance to question a trial witness or argue a motion. In Massachusetts for example, six district court judges have such standing orders.
Unlike the federal judiciary, Superior Court judges (like most Massachusetts trial court judges) do not operate on individual calendars, rotating as we do from session to session. A standing order by an individual judge would promote inconsistency among sessions and even lead to different practices within the same session. Still, there was a sense among many of us that we should do something to encourage the courtroom participation of less experienced lawyers, particularly on the civil side where the problem is more acute.
In December 2017, the Superior Court adopted a Policy Statement that gave voice to our concerns. That policy strongly encourages lawyers in civil litigation to take “affirmative steps” to extend courtroom opportunities to less senior lawyers in their law firms. As the policy states, those affirmative steps “could include, but are not limited to, encouraging participation of relatively inexperienced attorneys in initial scheduling conferences, status conferences, hearings on discovery motions and dispositive motions, and examination of witnesses at trial.”
Because BLS cases are heavily staffed, opportunities to share the wealth abound. For dispositive motions, BLS judges are open to having lawyers for one side divide the argument among themselves. Discovery disputes and less substantive matters can be quite capably handled by a less seasoned lawyer.
Judges in regular civil sessions are also looking for ways to include more junior lawyers. Although litigation has become more complex, there are still plenty of cases which are relatively straightforward both legally and factually and which can be handed over to the more junior associate with confidence that the client will be well represented.
At trial, having an associate take responsibility for some witnesses is welcomed not only by us judges but by juries as well. Where an associate sits silently at counsel table, juries may wonder why – and perhaps not in a way that is helpful to your side where that associate is a woman or a person of color. Hearing from different examiners can enhance jurors’ attention spans. And because they are less experienced and consequently less polished, younger lawyers may come across as more genuine and more credible. Juries want them to succeed.
There are several good reasons for a policy that promotes courtroom participation by those newer to the bar. First, less experienced lawyers are able to hone their skills while they are still under the supervision of more seasoned litigators. Many of us cut our teeth in the civil motions sessions which predated the advent of Rule 9A. There were good reasons to eliminate those sessions. But it also means we have to find other ways for junior lawyers to get courtroom experience so that they can develop good habits early.
Second, the policy benefits clients. If a junior lawyer has researched the matter and written the brief, he or she is well positioned to argue that matter effectively before a judge or jury. Associates “hungry” for courtroom experience are often better prepared than their seniors. And their billing rates are lower than that of more senior lawyers.
Third, because senior lawyers tend to be a more homogeneous group, a policy that creates opportunities for younger lawyers will promote diversity in the profession.
That lack of diversity has been well documented. Although half of the law school graduates today are female, studies show that less than a quarter of equity partners in large firms are women. Among lawyers appearing as lead counsel in civil cases, only 24 percent in 2013 were women.
The gap between white partners and partners of color is even starker. According to one 2017 survey, more than 90 percent of equity partners in firms participating in the survey were white even though one in four law firm associates was a person of color. Attrition rates among minority lawyers have actually risen since 2008, with black lawyers leaving their firms at a higher rate than members of other minorities.
There may be many reasons for these disparities. Part of it could be unconscious bias on the part of those who make decisions critical to advancement, a subject beyond the purview of this article. But there is another possible explanation: the young lawyer who is given little responsibility and independence is usually not a happy lawyer. That attorney will look elsewhere, particularly in the public sector where opportunities for advancement are often better.
Regardless of why gaps persist among different groups of lawyers, however, diversity in the higher echelons of the legal profession should be a goal of both the bench and the bar. A policy that encourages greater courtroom participation by those still climbing the law firm ladder may help further that goal. And that is a good thing, not just for the young lawyer but for the legal profession generally.
Hon. Janet L. Sanders was appointed to the Massachusetts Superior Court in 2001, and currently serves in one of the two Business Litigation Sessions in Boston.
The decisions of grand juries in Missouri and New York not to indict police officers responsible for shooting unarmed black men has sparked intense debate in this country about racial disparities in our criminal justice system. Turning this public outcry into meaningful reform will not be easy. But if public confidence in law enforcement is going to be strengthened, one important step is to make sure that the most powerful actors in our criminal justice system mirror the racial composition of the communities they represent.
We need more people of color serving as police officers, judges, jurors, public defenders, and perhaps most importantly prosecutors. Their talent, background, and perspective are essential to balanced and informed decision-making. Just as importantly, their presence in the courthouse will be critical to restoring a perception that our criminal laws will be fairly applied to all. Until our prosecutors are as diverse as the public that they purport to protect, citizens will naturally question the fairness of charging and plea bargaining decisions that occur behind closed doors.
African Americans make up almost 13% of the population in this country, but only about 4.8 % of licensed attorneys. The National Black Prosecutor’s Association, a membership organization that bills itself as the premier professional network for black prosecutors across the country, counts only 800 members in their entire organization, even though there are over 25,000 lawyers working as state prosecutors in the United States. Here in Massachusetts, my colleagues among the district attorneys estimate that in some counties as little as 2% of the courtroom legal staff identify as African American.
One factor contributing to this underrepresentation is salary. Massachusetts prosecutors are among the lowest paid in the country—even below those in Arkansas and Mississippi, states with dramatically lower costs of living. Entry level prosecutors in Massachusetts earn $37,500 per year. The national median starting salary for prosecutors among the 50 states and the District of Columbia is $51,000. In most courthouses across this Commonwealth, the prosecutor is the lowest paid state employee in the building—behind the custodians, the secretaries, and the assistant clerks. And the public defender does not fare much better.
This problem is not new. The starting salaries for prosecutors in Massachusetts have not been raised since 2007. In May of 2014, a blue ribbon commission formed by the Massachusetts Bar Association issued a report entitled “Doing Right by Those who Labor for Justice” exposing this gross inequity. The report concluded that “The present salaries paid to attorneys working in our criminal justice system are so inadequate that they cannot meet the financial obligations attendant to everyday, normal living. The unvarnished truth is the compensation is so poor that it drives these lawyers away from the criminal justice system or into the ranks of the working poor.” The Boston Globe highlighted prosecutors forced to live with their parents just to make ends meet. A Commission formed by Governor Patrick to study the problem issued a report in December, 2014 highlighting the urgency of this situation, and calling on the legislature to make specific reforms.
What does this have to do with diversity? Many African American law students who are passionate about careers in criminal law simply cannot afford to work as prosecutors or public defenders due to the low salary. On average, law students borrow $125,000 to attend a private law school and $75,000 to attend a public law school. This debt can lead to average monthly loan repayments of between $650 and $1600, depending on consolidation and the term of the loan. With an entering salary of $37,500, young prosecutors in Massachusetts take home a monthly paycheck of approximately $2,200 after deductions– barely enough to pay for housing, transportation, food, clothing and utilities. This salary structure makes recruitment and retention of minority attorneys particularly difficult, as recent surveys show minorities are more likely to graduate law school with debt. Many African American students who have high loans simply cannot afford to undertake careers as prosecutors, and thus choose to work at law firms instead. Low salary and high indebtedness may not be the only reason African American lawyers forsake careers in the criminal justice system, but they are certainly a contributing factor. Governor Patrick echoed this concern in his letter to the legislature that accompanied the 2014 Special Commission Report, where he stated that the low salary structure “inhibits the recruiting and retention of public lawyers who mirror the communities they serve.”
Race is not the only demographic affected by low salaries in our state’s prosecutors’ offices. The grossly inadequate salary for ADAs has led to a situation where the only people who can afford these jobs are those who have a cushion of support from other family members; e.g., a parent or spouse. Single men and women and persons from lower socioeconomic backgrounds are increasingly becoming underrepresented in many county DA offices, making these important public positions less and less reflective of the communities they serve. Unless we are prepared to tolerate a situation where law school graduates with independent means and family support are the only ones capable of undertaking this crucial form of public service, we must improve the salary structure for prosecutors and public defenders.
It is well past time for the legislature to take action. Parity with other states, parity with other government lawyers within Massachusetts, and fundamental fairness all dictate that salaries for our state prosecutors and public defenders should be raised in the 2016 budget. Adding to the urgency of this situation is a legitimate concern for increased diversity among the ranks of our prosecutors, who are making life and death decisions that affect all of us.
R. Michael Cassidy is a Professor at Boston College Law School and Director of the Rappaport Center for Law and Public Policy. He was appointed by Governor Patrick to serve on the Special Commission to Study the Compensation of District Attorneys and Staff Attorneys for CPCS.
By J.D. Smeallie, President, Boston Bar Association
When Tarae Howell, then a public high school student in Newark, New Jersey, signed up for the Jersey Urban Debate League, becoming a lawyer was the furthest thing from his mind. Despite winning fourteen debate titles over a two-year span, he had no idea he would one day be a third-year litigation associate at Nixon Peabody, much less a debate judge for a very similar program for Boston high school students. This fall, Tarae judged two Saturday morning debate competitions for the Boston Debate League (BDL). Afterwards, students plied him with questions about what it’s like to be a lawyer and his path to success.
Earlier this year, the BDL approached the Boston Bar Association to see if we would partner with them by providing judges and mentors. We liked what we saw. Not only did such a partnership provide a wonderful opportunity for public service within the Boston Public Schools, but it held the promise of advancing diversity efforts at the BBA. Too few students of color are entering law school. As a result, too few lawyers of color enter the practice each year. By mixing BBA lawyers with students from Boston’s high schools with large minority student populations, we hoped that the interest in law exhibited by Tarae’s debaters would be sparked as well many times over in other students. Perhaps the germ of a legal career would be planted, and the pipeline of students of color could be expanded. The hope is that some of the students we encounter in the course of volunteering as debate judges or mentors will one day return as lawyers in our community.
The metrics suggest this could very well happen. According to the BDL, debaters are three times less likely to drop out of school than non-debaters, and African-American males who debate, in particular, are seventy percent more likely to graduate from high school than those who don’t. Debate assists students in gaining entrance to college but, more importantly, it gives them the necessary skills to succeed and thrive once they get there.
In this regard, the BDL reports that urban debaters improved both their Reading and English ACT scores by fifteen percent and are thirty-four percent more likely to achieve the English college readiness benchmark, and seventy-four percent more likely to achieve the Reading benchmark, after just two years in debate.
The BDL does not require its volunteers to be lawyers. Yet BBA members participating in the program firmly believe that in addition to being extremely worthwhile, this particular volunteer opportunity is a great fit for members of the legal profession. As Tarae puts it, “[a]s lawyers, we have to be zealous advocates for our clients. Therefore, as a judge and a lawyer, I’m able to determine whether a debater has been an effective advocate for her position. It helps me give the student better feedback.”
Stories such as Tarae’s make all of us feel good about helping Boston’s young people develop the reading, critical thinking and advocacy skills associated with debating. Vickie Henry, a Senior Staff Attorney at GLAD, who as a high school student won a state debate championship in her home state of Michigan, says: “[y]ou look right in the faces of the youth getting your feedback and you can see it’s making a difference.”
Bill Fitzpatrick, Associate General Counsel for Litigation at the MBTA, says that what he found appealing about this particular volunteer opportunity is that debating offers Boston youth an opportunity for competition involving academics. “Life is not all about whether you can hit the free throw or hit the ball out of the park,” he said. “Debating gives the students a great outlet for skills that will serve them better in the long run.”
More than a few volunteers have marveled at the support students who are native English speakers gave to students for whom English is a second language, especially during those portions of the debate tournament requiring that they read aloud. They also commented on how heartwarming it is to see students improve dramatically from one tournament to the next.
Both Jessica Bloch of Bloch & Roos and Stephanie Hoeplinger, a solo practitioner, serve as mentors, which means that they’ve committed to spending between sixty and ninety minutes in the classroom every week between October and March, helping teachers and BDL staff prep the students for the tournaments.
“Good for these students for going to this afterschool program and pushing through,” says Jessica. “This experience is challenging but very rewarding.”
Though not required to attend the debates, Stephanie was deeply moved to see the looks on two of her students’ faces when she stopped by on a Saturday morning to see them perform: “Their faces just lit up; they looked so happy that someone not paid to be there really cares. They look up to you as a lawyer.”
“We are just so thrilled to have so many members of the BBA come out, judge at our tournaments, and work with our kids,” Steve Stein, Executive Director of the Boston Debate League, told us. “It is great to have such wonderful role models be there for our students, many of whom are aspiring attorneys. Our students love that for ninety minutes, they speak and adults listen. When the debate is over, the adults talk for maybe five minutes to provide feedback. That kind of power dynamic doesn’t exist anywhere else in their lives. BBA members are participating in an activity that is changing the lives of youth throughout Boston.”
Recently, I had the opportunity to spend a morning at Boston’s Josiah Quincy Upper School. What struck me was how genuinely enthusiastic the co-headmasters were in the face of poor facilities, budget constraints and a talent drain to the exam schools. One of the bright spots they described was their students’ participation in the Boston Debate League, and the very impressive fact that each and every one of the debaters on the Josiah Quincy team have gone on to college.
The BBA’s partnership with the BDL is a public service opportunity that truly hits the trifecta for the BBA — meaningful service to the Boston community, where our lawyering skills provide a special benefit, and with the prospect of expanding the diversity pipeline. I hope more BBA members will consider volunteering for this incredibly rewarding experience.