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District Court Judge Criticized by USSC for Diversity Practices

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Diversity on litigation teams has been a hot topic this year.  From Judge Cathy Seibel’s response to the all-male plaintiffs executive committee overseeing Mirena IUD litigation to filmmaker Florence Martin-Kessler’s op-doc, ‘Great Expectations for Female Lawyers,’ the Internet has been abuzz with critiques of the longstanding gender gap.

In recent news, Supreme Court Justice Samuel Alito wrote a lengthy statement criticizing the practices of Judge Harold Baer (US District Court for the Southern District of New York).  Baer has made it a point to urge lead law firms in class actions to consider the inclusion of women and minorities when staffing their lawsuits.  Alito argued that the practice was “court approved discrimination”—Baer responded, via a Reuters interview, that,

“[…] for him [Alito] to talk about it as if this is something we shouldn’t look at is unfortunate.”

Baer further asserted his position, citing Federal Rule of Civil Procedure 23(g)(1)(B), which states that the court “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.”

Alito has missed Baer’s point—by all accounts, Baer is not making a blanket suggestion that race and gender need to be considered in all cases—he simply recommends that when classes include women and/or minorities, it is a valuable exercise to staff the cases with reflective representation.

I applaud Judge Baer’s efforts, although I would argue that making a push for more diversity on all cases is, in fact, a necessity.  As I mentioned in an earlier post, research has shown that the most successful working groups are not homogenous in their makeup; they are diverse.  By this point in our history, it should be second nature to consider women as quickly as men when selecting representation for a case, but the statistics prove otherwise.  The larger issue here is not the fact that Judge Baer did urge law firms to do this; the issue is that he had to ask them.

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  1. C. Brooks says:
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    Judge Baer is correct. Judge Alito is incorrect.