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Large law firms are hiring more minority associate attorneys, according to a recent national survey conducted by The American Bar Association (“ABA”). Specifically, large law firms hired more Asian, Black, and Hispanic associates in 2020 than they did the year prior. The ABA’s study further showed that, despite the number of equity partners that are minorities slowly increasing, the vast majority of law firm leaders are still white male attorneys.

ABA’s Model Diversity Survey
The study was the ABA’s second annual survey on diversity, referred to as the ABA Model Diversity Survey. The ABA’s Commission on Racial and Ethnic Diversity in the Profession (“CREDP”) conducted the nationwide study. The CREDP surveyed more than 285 law firms across the nation, comprising more than 100,000 lawyers. CREDP’s survey measured several aspects of the law firms including hiring, promotion, attrition, demographics, initiatives on diversity, and highest paid firm partners.
The reason behind the survey originated from an ABA resolution from 2016 urging the legal industry to expand opportunities for minority attorneys. The resolution further urged companies that use legal services to retain diverse lawyers for their needs. The report provides companies a way to assess a law firm’s diversity, equity, and inclusion efforts–so that these companies can determine whom to hire for their legal needs. The ABA issued a public report that includes country-wide results and also private reports that compare law firms to one another on the issues surveyed.

ABA’s Diversity Survey Findings
While the ABA’s surrey does not make specific recommendations on how to approach diversity on the issues surveyed, some of its findings include:
● Large law firms hired 4% fewer white associate attorneys and instead hired 1.5% more Hispanics, nearly 1% more Blacks and 0.6% more Asian associate attorneys in 2020 when compared to 2019;
● According to the survey, in 2020 about 60% to 70% of law firm leaders were white male lawyers, with the number of leaders varying depending on the size of the law firm;
● When it came to minority law firm leaders, 20% to 50% were white females, 5% to 8% were ethnically and racially underrepresented males, and 2% to 5% were ethnically and racially underrepresented females;
● The large majority of equity partners were white attorneys–between 81% and 93%,
depending on firm size–in 2019, with the number decreasing by nearly 2% in 2020;
● While the number of HIspanic, Black, and multi-racial equity partners increased slightly
in 2020, the greatest rate of attrition was experienced by Black (23%) and Asian (19%)
lawyers and irrespective of firm size female lawyers experienced a higher attrition rate
(16%) than their male counter parts (11%).
● In 2020, most law firms did not hire any attorneys who self-identify as LGBTQ+, Native
American, Pacific Islander, or having a disability.
The ABA’s full diversity report can be accessed here.

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A Houston U.S. District Court Judge has now been reversed three different times by the 5th Circuit and admonished for his handling of those employment discrimination cases, according to a news article published by Reuters.
The Reversals
The 5th Circuit vacated a decision by U.S. District Judge Lynn Hughes to grant summary judgment in favor of ambulatory care center operator KS Management Services, LLC. The appeals court found that Judge Hughes abused his discretion when he refused to permit the plaintiff to conduct depositions in support of her age discrimination claim against the defendant.
According to the first paragraph in the 5th Circuit’s opinion, the most recent reversal is the third opinion in which the appellate court overturned Judge Hughes’ decision to deny discovery to a plaintiff in an employment discrimination lawsuit. The first was in McCoy v. Energy XXI GOM, LLC in 2017 and then in 2021 in Miller v. Sam Houston State University.
In addition to its appeal of the denial of discovery, plaintiff-Bailey’s attorneys also asked the 5th Circuit to reassign the matter to a new judge. While judge reassignments are extremely rare, the 5th Circuit has transferred at least five cases originally assigned to Judge Hughes to a different judge for remanded proceedings. Bailey’s attorneys argued that Judge Hughes’ constant and seemingly unreasonable denials of their client’s requests for adequate discovery were sufficient reasons to transfer the case to a different judge, even if overtly prejudicial statements about the case–as in other matters that were reassigned–had not occurred. The appeals court, however, disagreed, ruling that plaintiff did not meet her burden for a judge reassignment.
Defendant’s View
Counsel for KS Management Services, LLC noted to news media that Judge Hughes has broad discretion when it comes to making rules in his courtroom. The defendant’s attorney further noted that has appeared before Judge Hughes hundreds of times and he almost always calls for similar limited-discovery protocols as he did in the Bailey case. During litigation, however, KS Management’s attorneys took a less strict approach than even Judge Hughes.
Judge Hughes required both sides initially to produce certain documents related to the lawsuit as well as jointly produce an objective and factual chronology of plaintiff’s employment history with defendant. Once the limited discovery is provided, employers are able to move for summary judgment before the court. KS Management did so, arguing that Bailey was not fired because of her age but because she was mistake-prone at work–specifically in administering medication to
patients. Bailey, on the other hand, claimed these reasons were untrue and needed depositions to
prove her case. Judge Hughes, however, determined that Bailey was not entitled to any
additional discovery beyond the initial disclosures until after she was deposed–which never
occurred. Bailey’s attorneys filed motions to depose KS Management’s witnesses, which they
did not oppose. KS Management’s position was that Bailey would still lose on summary
judgment even if her lawyers were allowed to conduct depositions.

If you need assistance with a deposition, contact EGCR today. 

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Although we are two years out from when the COVID-19 outbreak shut down the world, it is not yet clear what our “new” normal will actually look like on the other side of the pandemic. That being said, the likelihood that the transition to virtual litigation that has occurred over the past two years is here to stay is pretty high. This includes some aspects of remote depositions, mediations, court hearings, and even trials being an option that will remain for the foreseeable future.

Virtual Litigation Pointers
Below are some practical tips for lawyers to effectively and persuasively advocate on behalf of clients in a virtual litigation setting, according to Law.com.
● Preparation is key: Attorneys and their staff are no longer expected to struggle when dealing with video conference technology–even if it is unfamiliar to them. While lack of familiarity can be a forgivable issue in a less formal setting, it is distracting and takes away from even the best case in the context of a virtual hearing or deposition. For this reason, you should always confirm the type of service that will be used, have emergency IT contact information on hand, consider downloading the program on a second device in the event of sudden wifi loss, and even schedule a trial run if needed.
● Be Open to New Procedures: Many courts have specific rules regarding introducing witnesses and evidence, using exhibits and other details during an in-person court appearance. Some rules may not transfer over easily (or the same) to remote hearings and depositions. Because courts do not always provide amended guidelines pertaining to virtual proceedings, working together with opposing counsel to agree on ground rules prior and, if necessary, jointly submitting this to the court.
● Appearance Still Matters: Most lawyers adopt the same dress code for virtual court appearances and depositions as what they would use when conducting these proceedings in person. In the early stages of the pandemic, some judges made news headlines for reprimanding counsel for dressing too casually. Before appearing, review your video set up including microphone, lighting, and camera angling. Also, keep a straight face at all times as you are on video and any facial reactions will likely be seen by all.

Final Thoughts
It is important to understand that presenting a case virtually is more than just merely looking into your computer’s camera. For this reason, all lawyers will benefit from taking a prep course for virtual proceedings and applying what is learned to develop skills that can be used throughout their legal careers. And, hopefully, the above tips can help you smoothly navigate virtual litigation.

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