YLS August 2014

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AUGUST 2014Indiana State Bar Association Young Lawyers Section

Message from the chair: Developing confidence as a young lawyerBY ANTHONY “TONY” M. ROSE

As I approach the end of my term as chair of the Young Lawyers

Section, I also approach “graduation” from being a young lawyer. I spend a fair amount of time in court and I remember my first court hearing from many years ago as if it were yesterday. I was covering a routine hearing, with mostly scripted questions, as a child support prosecutor before the most patient judge in the county. Despite the warm looks and nods of reassurance from the judge that only my mother could replicate, my nerves had quite a hold on me.

Ten years later, I find it humorous that such anxiety caused my voice to quiver

over such a simple matter. A courtroom bearing an experienced judge, graying opposing counsel, and a row of seasoned attorneys waiting their turn to see the judge sets quite the intimidating environment for new lawyers. One of the most difficult challenges as a young lawyer is developing confidence in yourself as a lawyer.

Beyond the courtroom, confidence is an important component in negotiating with opposing counsel on behalf of your client. As young lawyers, we often do not have a gauge on how the judge might rule on a particular issue. With experience gained appearing before various judges, we gain a better feel

for what rulings to expect. Beyond using this wisdom to temper client expectations, this experience allows us to negotiate a particular position with more confidence.

Because most of us are not content with waiting for confidence to develop slowly with experience, I offer the following tips for young lawyers to help accelerate developing confidence:

1. Prepare, prepare, prepare

Successful advocacy requires thorough knowledge of the facts and law applicable to your case. Clients tend to tell you the things that are helpful to your case, but are not so candid about the

negative aspects. I spend a fair amount of time with my clients explaining the importance of knowing the bad things. I can prepare a spin on the negative facts if I am given appropriate advance notice. I cannot do that when I am blindsided in mediation or in court. As with any public speaking, you are more confident when you know your subject.

2. Practice

Organizing thoughts in your head or on paper is relatively easy. Translating those thoughts into a cogent argument is often the challenge. A fair percentage

Anthony “Tony” M. Rose practices at his firm, Anthony Rose Law Firm, in South Bend and serves as the 2013-2014 chair of the ISBA’s Young Lawyers Section. Tony can be reached at [email protected].

Avoid going “all in” on a single contract: negotiating liability limitsBY RYAN M. SCHULZ & STEVE M. THEISING, KAHN DEES DONOVAN & KAHN

In the process of negotiating contracts there exists a triage as to

exactly what provisions can survive the give and take between parties. Objectively, few contract clauses are of greater importance to all sides than the liability limits negotiated between the parties. When a party fails to negotiate a limitation of liability in their contracts it could be placing the future of their company at unreasonable risk. In a perfect world, the parties would tender a fairly drafted contract which would equitably apportion each party’s financial risk for liability in proportion to the work being performed by each party. Of course, this scenario rarely occurs, as

Contract negotiations differ from project to project, and every party has their own unique strengths and bargaining power. But, where there is good faith dealing, a party should be able to negotiate some reasonable limit or “cap” on its liability associated with a project. This has become well-established in the construction industry where limitations of liability have been embraced by numerous design and construction industry trade groups, with nearly every group of consensus documents providing for some form of limitation of liability for contractors and/or design professionals. As a result, if a contractor or subcontractor is unable to negotiate some liability

the first draft of a tendered contract often unreasonably burdens the party receiving the contract’s first draft.

For example, in the construction industry, where many subcontractors seemingly have limited bargaining power, this problem can be even more pronounced. In many cases, most liability and risk exposure is pushed down from the owner of the project to the contractor, who in turn pushes that liability exposure onto its subcontractors and suppliers. It is ironic that a subcontractor, who in most cases is performing the least amount of work and profiting the least from a project, often bears the majority of this “flow down” liability and risk exposure.

limitation, then the contractor or subcontractor should be aware they are exposing themselves to substantial risk with a comparatively minimal reward.

When faced with contract negotiations involving parties with unequal bargaining power, this triage of the most important provisions necessary to protect one’s client becomes vital, and an attorney must ask certain questions, such as: (i) “how does this clause impact our client’s potential risk beyond this project?”; (ii) “how important is this issue to our client relative to the other ‘problem areas’ of this contract?”; and (iii) “if we can only reasonably achieve negotiating successfully five clauses, which of these items

make the cut?”. A liability cap, along with other essential provisions pertaining to indemnity and insurance coverage for the project, will likely be among the key provisions a lawyer must identify and address in any given construction or design-build contract. Few clients expect to face say $5,000,000 liability risk exposure for a contract on a $50,000 job.

This issue is exemplified in the recent U.S. Court of Appeals 7th Circuit case, SAMS Hotel Group, LLC v. Environs, Inc., 716 F.3d 432 (7th Cir. 2013), which illustrates why it is crucial to negotiate a sensible liability cap into a contract. In SAMS, the Court upheld enforcement of a contractual limitation of liability clause, which resulted

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willingness to uphold such clauses when properly drafted, attorneys should carefully weigh a project’s potential risk and reward to their respective clients before they counsel clients entering contracts without a reasonable limitation of liability. The old adage holds true in business contracting, an ounce of prevention is worth a pound of cure.

in the design professional’s liability being capped at $70,000, despite the owner’s claim that its damages were in excess of $4.2 million.

SAMS Hotel Group (“the Owner”) contracted with Environs, Inc. (“the Designer”) for architectural services for the construction of a multi-story hotel development. The contract between the parties provided that the Owner would pay the Designer a fixed fee of $70,000. The contract also contained the following limitation of liability clause:

“[The Owner] agrees that to the fullest extent permitted by law, [the Designer’s] total liability to [the Owner] shall not exceed the amount of the total lump sum fee due to negligence, errors, omissions, strict liability, breach of contract or breach of warranty.”

Not long after construction was completed, the Owner discovered significant structural defects with the project. The building was ultimately condemned by local building officials and demolished without ever opening. The Owner estimated its loss at more

than $4.2 million. At the trial, the District Court found the Designer breached the contract with the Owner, but held that the Owner’s recovery was limited to $70,000.

On appeal, the Owner argued that the limitation of liability clause was not enforceable because the clause did not specifically state that it applied to the Designer’s own negligence. Ultimately, the Court, focusing on the sophistication of the parties and apparently concerned that ignoring the contractual limitation of liability clause would be problematic, concluded that the limitation of liability clause was enforceable. Clearly, the owner in this SAMS case had not paid adequate attention in the contract negotiation process to this liability cap provision.

One takeaway from the SAMS case is that professional services contracts that define or limit professional’s liability are broadly enforceable if drafted correctly. To be effective and enforceable, however, such provisions must be carefully drafted and cannot likely be adequately addressed in one or two short sentences. As a result, contractors, design professionals, and their

attorneys should take due care to review their contract documents to identify these types of clauses, and also to confirm that the clauses accurately reflect the parties’ agreement. Specifically, some important questions to ask are: (i) “do we need a limit of liability on this project?”; (ii) “how will that limit of liability, or lack thereof, affect the price of the project?”; and (iii) “if we have a limit of liability, what is an appropriate dollar figure for that limit?”. Ideally, the limit of liability in a contract should be tied to some tangible basis, such as fees paid on the project, limits of available insurance, or some figure or percent that represents a reasonable cap on a contractor or design professional’s liability relative to the scope of the overall project.

Whether representing an owner, contractor or design professional, an attorney should pause to consider the specifics of each project, the work to be performed by his or her client, and how much risk is associated with that work. The answers to those questions will directly impact whether and to what extent a liability limitation is appropriate. Similarly, design professionals and contractors should think long

and hard before entering into a contract with another party that steadfastly refuses to include any sort of limitation of liability. In those cases, some questions to ask your client are: (i) “what is the potential risk exposure for the work on this project?”; (ii) “how much are we being paid to perform the work?”; and (iii) “is this project worth betting the future of your company on?”

Given the prevalence of limitation of liability clauses within industry consensus documents, and the courts’

Not only will you have an advantage with your peers with similar experience, you will have the tools to compete with the more seasoned attorneys.

of motions before a court involve a fact and law scenario whereby the judge has the discretion to rule in favor of either party. Although pitches to the court are often only a few minutes in length, the judge’s decision often hinges on your words. Practicing an argument aloud helps you identify weak points and tweak organization. Eliminating the stumbles in your words prior to going to court helps you hold your head higher and maintain eye contact with judge. If the judge sees that you are

confident in your argument, you are more likely to get the advantage when the court is faced with a close call.

3. Consult with other lawyers

Do not be afraid to seek the advice of other attorneys with experience on the issues relevant to your particular case. Other attorneys can give you a gauge on what a particular judge might do with a particular set of facts. Your fellow attorneys generally are eager to share their wisdom, and they often view your inquiry as a compliment. The challenge is developing relationships with other attorneys so that

you know who to call for the various types of cases that you handle. Local and state bar association involvement helps develop the contacts so that you are comfortable making the call to another attorney for advice. By being a regular at bar functions, you will quickly assemble a list of attorneys in your area and throughout the state that will be happy to help you.

4. Gain face time with judges

For those that do not start their careers as deputy prosecutors, gaining valuable court experience can be quite challenging. Many judges attend bar association

functions and that is your chance to get to know judges on a more personal level. Understanding that judges are people too reduces the intimidation factor when going to court. For direct court experience, local volunteer lawyer programs are always looking for lawyers to handle various matters that often involve some court time. This is a great opportunity to develop skill and confidence, and do some good for the community.

Developing confidence early in your career will help you better represent your clients and more quickly develop a successful practice.

MESSAGE FROM THE CHAIR(continued from page 1)

LIABILITY LIMITS(continued from page 1)

Keep up with what’s going on withthe Indiana State Bar Association.

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and grievances, complaining that the world will not devote itself to making you happy. I am of the opinion that my life belongs to the whole community and as long as I live, it is my privilege to do for it what I can. I want to be thoroughly used up when I die, for the harder I work, the more I live. I rejoice in life for its own sake. Life is no brief candle to me; it is a sort of splendid torch which I have got hold of for the moment, and I want to make it burn as brightly as possible before handing it on to future generations.

George Bernard Shaw, Man and Superman

criminal history information system maintained by a local, regional, or statewide law enforcement agency.” (There are exceptions to the retention of information.)

HEA 1155 also modifies Ind. Code §§ 35-38-9, with possibly the most significant of the modifications being the lowering of the standard of proof from clear and convincing evidence to a preponderance of the evidence. The legislature, furthermore, seems to have answered the Indiana Court of Appeals’ interpretation of “successful completion” from Alvey v. State, 20A04-1310-MI-533, removing the language and, requiring the filer to have paid all fines, fees, and court costs and satisfied any restitution obligations. The modifications, additionally, appear to allow courts to waive fees and require filing of the petition in a circuit or superior court in the county of conviction.

HEA 1155 modifies Ind. Code § 35-38-9-6, allowing for a defense attorney or a probation department

As another year for the Young Lawyers Section (YLS) and The Network

comes to a close, we naturally begin to reflect on what this group has accomplished. Yes, many of our achievements are related to the practice of law. For example, we offered young attorneys the opportunity to socialize with members of the judiciary at the Judicial Reception and provided necessary CLE opportunities for young attorneys. We afforded young attorneys a statewide platform to share their skills and expertise via publication in The Network.

The State Bar’s Legal Ethics Committee, in coordination with

the Young Lawyers Section and the Written Publications Committee, is sponsoring the 2014 Legal Ethics Essay Contest, aimed at promoting the study of legal ethics within the legal community. The winning essay will receive a cash prize of $500 and be eligible for publication in Res Gestae, the ISBA’s bar journal.

The contest is open to Indiana law students, new lawyers (within first three years of practice) and paralegals (with less than three years of experience).

The winning essay will be eligible for publication in Res Gestae, the State Bar’s monthly bar journal. If published, the essay would then be eligible for a Harrison Legal Writing Award (to include cash prize) to be awarded at its Annual Meeting in October 2015. The second and third place essays will also be announced in Res Gestae, as well as published on the State Bar’s website.

We recognized our members for their achievements through awards such as the Donald R. Lundberg Writing Award for the best substantive law article published in The Network and the Outstanding Young Lawyer Award. But, just as importantly, we took notice of and served the communities in which we live and practice.

Know that as a member of YLS, we are part of so much more than a professional organization. We are part of a group that actively participates in Talk To a Lawyer Today, giving free

Nuts & bolts for participants:

• Essay length: Between 2,500 - 3,750 words (not including endnotes)

• Choose one of six topics listed in the Contest Guidelines

• Submission deadline: Sept. 1, 2014

• Submissions judged by ISBA Legal Ethics Committee

• Top 3-5 participants will present their essays to ISBA Legal Ethics Committee

For the Contest Guidelines, visit www.inbar.org. For questions, please contact Matthew D. Neumann at [email protected].

legal assistance to those who cannot otherwise afford it. We are part of a group that ensures each year that a few deserving Indiana families experience a special and fulfilling Christmas. We are part of a group whose leaders travel the length of the state to volunteer for local charitable organizations, such as facilities for adults with disabilities in Evansville and South Bend. For these reasons, we are often referred to as the “service arm” of the ISBA. In other words, we are part of a group that cares not only about its own, but about the community around us.

On July 1, 2014, pertinent changes to the recently adopted

expungement statute took effect. The original expungement statute went into effect on July 1, 2013, replacing provisions of the Indiana Code that restricted access and disclosure of criminal records; and after a year of activity in the Indiana courts, the statute has received a reboot to improve the efficacy of the law.

As the expungement statute is still in its infancy, young lawyers can swiftly become knowledgeable about the law. Very little case law exists regarding the expungement statutes (two important cases are Taylor v. State, 45A03-1310-CR-406 and Alvey v. State, 20A04-1310-MI-533) and the Indiana Division of State Court Administration has posted a number of sample forms online. Young lawyers should be able to quickly master the ins-and-outs of the statute, making expungements a part of their everyday practice.

The following provides a brief glimpse of the changes to the expungement statute,

At some point, we will “graduate” from YLS, but I hope that this practice of giving back to the communities in which we live and work continues throughout our careers and lives. A talented colleague, who I am fortunate to call a mentor and proud to call my friend, recently shared some words that struck a chord with me. Despite the risk of sounding corny, I will leave you with those words.

This is the true joy in life, the being used for a purpose recognized by yourself as a mighty one; the being a force of nature instead of a feverish, selfish little clod of ailments

in hopes that young lawyers may better understand and navigate the statute. Given the limited review by the courts, however, there remains considerable room for interpretation.

Gov. Pence signed House Enrolled Act 1155 on or about March 26, 2014. The act repeals Indiana Code § 35-38-5, which provided that a person arrested but not charged, or a person who had charges dismissed because of mistaken identity, because no crime was in fact committed, or because no probable cause existed, could have all arrest records, photographs and fingerprint records of law enforcement destroyed or delivered to the arrestee.

HEA 1155 modifies Ind. Code § 35-38-9-1, providing a list of what should be included in the petition, requiring the Court to serve the prosecutor, and establishing that when the petition is granted “no information concerning the arrest may be placed or retained in any state central repository for criminal history information or in any other alphabetically arranged

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Editor’s perspective: More than a professionBY ALLYSON E. CLAYBOURN, ASSOCIATE GENERAL COUNSEL, BERRY PLASTICS CORPORATION

Update: Indiana’s Expungement StatuteBY JHEREMY K. PERKINS, SPANGLER JENNINGS & DOUGHERTY

2014 Legal Ethics Essay Contest: Sept. 1 deadline, $500 cash prize


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These biases, which embody both favorable and unfavorable assessments, are activated involuntarily, and without a person’s awareness or intentional control. Residing deep in the subconscious, these biases are different from known biases that individuals may choose to conceal for the purposes of social and/or political correctness.5

All lawyers should be interested in implicit bias, because the “fact is everyone has unconscious bias. It influences common, everyday decisions. It is how we are wired as human beings—we favor people like ourselves, who have similar interests, life experiences, etc. The downside to this reality is very simple—by favoring others, we are giving advantage to some and unintentionally disfavoring others.”6

In short, implicit bias can negatively affect a lawyer’s rational decision making, thereby harming the judicial process. Indeed, it is a well-known principal in law that a decision should always have a rational connection between facts and judgment.7 If not, it is unlikely to survive judicial review.8

Some key features of Implicit Biases9

• Implicit biases are pervasive.

• Everyone has implicit biases, even people with avowed commitments to impartiality such as judges.

• Implicit bias does not necessarily align with our declared beliefs or even reflect stances we would explicitly endorse.

• Implicit bias can be unlearned through a variety of techniques.

(in addition to prosecutors) to access the sealed records of the central repository for criminal history information, if they possess a court order. In the case of defense attorneys, access must be necessary to carry out the attorney’s professional duties. In the case of probation departments, access must be necessary to prepare a presentence report. A probation department, furthermore, may provide an unredacted version of a presentence report to any person authorized by law to receive a presentence report.

The modified Ind. Code § 35-38-9-9 allows a petitioner who omitted a conviction from his initial petition for expungement to file a subsequent petition if the court finds 1) the failure to list the conviction in the initial petition was in good faith; 2) that the omission was due to excusable neglect or factors beyond petitioner’s control; and 3) that the new filing is in the best interests

of justice. The modified Ind. Code § 35-38-9-10 makes petitions for expungement confidential and removes the restoration of the right to own or possess a firearm. The new Ind. Code § 35-38-9-11 prohibits the waiver of the right to expungement in plea agreements as against public policy.

HEA 1155 includes additional modifications to Ind. Code § 35-38-9, as well as a change to Ind. Code § 35-47-4-7 not referenced in this article. If you have any desire to practice in this area of law, I suggest a review of the modified statute. Please be advised that this article is a broad update regarding the expungement statute, and one should not use this as a guide for the current law. The article attempts to generally inform lawyers of the recent changes to the law that they may possess a general understanding of the continuing developments in the legal field.

I could not have written this article without the assistance of in.gov, theindianalawyer.com, and indianalawblog.com.

We [review] our [Batson procedures to

see if they] are robust enough to effectively combat race discrimination in the selection of juries. We conclude that they are not. Twenty-six years after Batson,1 a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only ‘purposefully discrimination,’ whereas racism is often unintentional, institutional, or unconscious. We conclude that the Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination. State of Washington v. Kirk Ricardo Saintcalle, Supreme Court of Washington. No. 8257-5.

Although the Supreme Court of Washington determined in this 2013 case that a new standard must be created to combat implicit bias, it ultimately affirmed the lower court, pursuant to Batson, because no one raised the issue of creating a “new standard” in that case. That case begs the question, however: how do we deal with implicit biases inside and outside the court, and why should young lawyers, and law firms, and lawyers in general, be interested in “unintentional, institutional, or unconscious” biases?

It should be noted that in a concurring opinion in Batson v. Kentucky, Justice Thurgood Marshall agreed with the outcome of the case, but asserted that the Court should eliminate the use of peremptory challenges in all criminal proceedings so that they could not be used as a front for impermissible racial considerations. Justice

Marshall further asserted that under the current system, prosecutors are still free to discriminate so long as it is not blatant, and trial courts face a difficult burden of assessing a prosecutor’s motive. Justice Marshall’s concerns were very progressive indeed, especially considering Justice Marshall made such assertions, prior to the use of the coined term “implicit bias,” and before this concept was ever embraced by social scientists. And herein lies the problem with the current Batson standard—most modern discrimination is not overt nor blatant, as discussed in this article; however, such discrimination can and does affect the outcome of jury deliberations.

The problems of overt discrimination have received much attention from lawyers, judges, academics, and policymakers.2 While explicit sexism, racism, and other forms of bias persist, they have become less prominent over the past century.3 But explicit bias and overt discrimination are only part of the problem. Also important, and likely more pervasive, are issues surrounding implicit bias which manifest as attitudes or stereotypes that affect our understanding, decision-making, and behavior, without our realizing it.4

Implicit Bias

An implicit bias is a positive or negative mental attitude towards a person, thing, or group that a person holds at an unconscious level. In contrast, an explicit bias is an attitude that somebody is consciously aware of having. In law, implicit bias refers to the attitudes or stereotypes that affect a person’s understanding, actions, and decisions in an unconscious manner.

EXPUNGEMENT STATUTE(continued from page 3)

Implicit Bias: What is it and why shouldlawyers consider it?BY ANDREA CIOBANU, CIOBANU LAW

Every Thursday evening at 5:30 pm.Email Sara M. McClammer:

[email protected]

Every Thursday evening at 5:30 pm.Email Sara M. McClammer:

[email protected]

All experience levels welcome!All experience levels welcome!


APPLIED SEMI

NAR

Registration deadline is Monday, Sept. 8

Sept. 12, 20148:30 am – Registration and Breakfast8:50 am 8:50 am – Welcome & Introductions9:00 am 9:00 am – The Future of Legal Ethics10:00 am Prof. Bill Henderson, I.U. Maurer School of Law

10:00 am – Break10:10 am

10:10 am – Ethical Relationships: Communications with Clients &10:55 am Third Parties Steven M. Badger, Badger Law 10:55 am – Situational Ethics: How Ethical Concerns Vary in Different 11:55 am Employment Settings Moderator: Jeff R. Hawkins, Hawkins Law PC Panel: Candace D. Armstrong, Armstrong Law Offices Tonya J. Bond, Plews Shadley Racher & Braun Kip S. Drew, I.U. Office of Legal Counsel Terry W. Tolliver, Office of the Indiana Attorney General

11:55 am – Lunch1:00 pm Sponsored by LexisNexis Welcome from Jim Dimos, ISBA president

1:00 pm – Trust Accounts & IOLTA2:00 pm Seth T. Pruden, Indiana Supreme Court Disciplinary Commission

2:00 pm – Fit to Practice2:30 pm Terry L. Harrell, Indiana Judges & Lawyers Assistance Program Jamie Andree, Indiana Legal Services

2:30 pm – Break2:45 pm

2:45 pm – Malpractice 101: Avoid the Top 10 Malpractice Traps 3:30 pm Ritman & Associates

3:30 pm – SoFi: Student Loan Consolidation & Refinancing 4:00 pm Dan Fell, SoFi

4:00 pm – Attorney Advertising & Social Media 5:00 pm James J. Bell, Bingham Greenebaum Doll

5:00 pm – Reception (I.U. Maurer School of Law – Faculty Lounge)6:30 pm Sponsored by the ISBA Young Lawyers Section

❑ $65 - ISBA Member with less than 3 years of practice ❑ $180 - ISBA member, more than 3 years

❑ $75 - Non-member with less than 3 years of practice ❑ $360 - Non-member, more than 3 years

CLE Pricing Information

Young Lawyers Section: Applied Professionalism CLE - 9/12/2014

Indiana State Bar Association • www.inbar.orgOne Indiana Square, Suite 530 • Indianapolis, IN 46204317-639-5465 • 800-266-2581 Toll Free • 317-266-2588 Fax

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For more information, please call the ISBA at 317-639-5465.

A $25 service fee will be applied to cancellations received on or before 9/5/14.No refunds on cancellations received after 9/5/14. If you send someone else

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This course fulfills the requirement for new attorneys. Registration includes: Electronic program materials, breakfast, lunch and reception at the I.U. Maurer School of Law.

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7. Christine Jolls and Cass R. Sunstein. The Law of Implicit Bias 94 California Law Review, 969, 970 (2006).

8. See, e.g., Chlorine Chemistry Council v. EPA, 206 F.3d 1286, 1290-91 (D.C. Cir. 2000).

9. See, e.g., Laurie A. Rudman, Richard D. Ashmore and Gary L. Melvin. Unlearning Automatic Biases: The Malleability of Implicit Prejudice and Stereotypes, 81 Journal of Personality and Social Psychology 856 (2001).

10. You can test your own unconscious bias, free and anonymously online by a consortium of researchers led by Harvard University available at implicit.harvard.edu/implicit/.

11. See, e.g. Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. Personality & Soc. Psychol. 1464. 1467 (1998); Mahzarin R. Banaji, Implicit Attitudes Can Be Measured, in The Nature of Remembering: Essays in Honor of Robert G. Crowder 123 (Henry L. Roediger III et al. eds., 2001).

12. See, e.g. Anthony G. Greenwald, et al., Understanding and Using the Implicit Association Tests: III. Meta-Analysis of Predictive Validity, 97 J. Personality & Soc. Psychol. 17 (2009).

13. See, Kathleen Nalty, Esq. Executive Director for the Center for Legal Inclusiveness, What Lawyers Can Learn from Baseball (2012).

14. See, id.

15. See, id.

16. The Indiana State Bar Association has a Diversity Committee that presents various presentations and can also offer further assistance to individuals, local bar associations, and law firms looking to increase diversity, and/or to address issues of implicit biases. See also, www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-toolbox.html. The ABA Section of Litigation has developed a Toolbox (which many of these suggestions are derived from, and explained in more detail on its website) for use in exploring implicit bias and approaches to “debiasing.” Some of the materials are the Section’s own; others are taken from additional sources. The Toolbox is designed to be used for group presentation. It offers introductory materials for the presenter, a quick reading list for possible use pre-session, a PowerPoint presentation with a set of PowerPoint instructions and the Facilitator Instruction Manual for the facilitator, and post-session evaluation materials. For some parts of the program, video materials are offered. The self-guided presentation and the Toolbox as a whole are works in progress, and the committee readily welcomes comments, suggestions, and contributions.

other attributes, we must not only challenge such biases, but also, argue for a new and expanded standard, like the Washington Supreme Court case opinion was begging for, but no one raised in State of Washington v. Kirk Ricardo Saintcalle, Supreme Court of Washington. No. 8257-5.

These studies and concerns should not depress us or make us feel that we have no control over the situation. There are strategies that we can implement as a firm, and as individual lawyers, and with the assistance of our national, state, and local bar associations.

What Can Organizations Do?

1. Develop guidelines that offer concrete strategies on how to correct for implicit bias.

2. Institute formal protocols or develop decision-support tools for guidance.

3. Conduct an organizational overview.

4. Implement peer-review.

5. Follow equal-opportunity and affirmative action (EOAA) hiring practices.

6. Bar associations can raise awareness through presentations and CLEs and other initiatives.16

What Can Individuals Do?

1. Allow for more time on cases in which implicit bias may be a concern.

2. Clear your mind and focus on the task at hand.

3. Seek greater contact with counter-stereotypic role models.

4. Practice making counter-stereotypic associations.

5. Educate yourself and others.

6. Use the ABA’s toolbox.

While it is true, this will require much for effort and time on our part. However, the rewards will be worth it.

For the disbelievers, consider this: In 1995, social psychologists Anthony Greenwald and Mahzarin Banaji proposed the hidden idea that social behavior may not always be under a person’s conscious control. They argued that much of our behavior is driven by stereotypes that operate automatically, and therefore, unconsciously. In 1997, they developed the Implicit Association Test (IAT), a computer based test that measures people’s unconscious attitudes. Since then, over 200 studies have been published using the IAT. Overall, the IAT has been shown to be both reliable and valid in detecting an individual’s level of implicit bias. Unconscious beliefs and attitudes have been found to be associated with language and certain behaviors, such as eye contact, blinking rates, and smiles.10 These IATs also examine people’s implicit associations by measuring response speed in a computerized test, which is known as “response latency.”11

Advanced IATs developed to determine the correlation between race and an association of criminal guilt and whether they predict meaningful behaviors.12

Forward thinking leaders of law firms and legal departments will glean insight from the following baseball study and statistics and become aware of their own unconscious preferences.13

An economist at Southern Methodist University and other researchers analyzed 3.5 million pitches from 2004 to 2008 and found MLB umpires called slightly more strikes favoring pitchers of their same racial/ethnic group. This affinity bias was apparent not just when the umpire and pitcher were non-white and he of the same racial/ethnic group, i.e.

We may be able to better advocate for our clients, inside and outside the courtroom, and we may be able to truly seek justice for all. Ultimately, we just might be the state to expand the now outdated Batson challenge, because we have made a lot of progress in the last twenty-seven (27) years, but not quite enough.

____________

1. Batson procedures are derived from Batson v. Kentucky, 476 U.S. 79 (1986), a U.S. Supreme Court case that establishes what evidence is required for a trial judge to be able to draw an inference that discrimination has occurred in jury selection procedures, and further requires a finding of “purposeful discrimination.” Batson ruled that a prosecutor’s use of peremptory challenge in a criminal case may not be used to exclude jurors based solely on their race. The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment, giving rise to the term Batson challenge. This principle had been established previously by several state courts, including the California Supreme Court in 1978, the Massachusetts Supreme Judicial Court in 1979, and the Florida Supreme Court in 1984. Subsequent jurisprudence has resulted in the extension of Batson to civil cases (Edmonson v. Leesville Concrete Company, 500 U614, 111 S. Ct. 2077, 114 L.Ed 2d 660, 1991 U.S.) and cases where jurors are excluded on the basis of sex (J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

2. Jerry Kang, et al. Implicit Bias in the Court Room, 59 UCLA L. Rev. 1124, 1126 (2012).

3. See, id.

4. See, id.

5. For a review of the scientific research on implicit bias, see generally B. Keith Payne & Bertram Gawronski, A History of Implicit Social Cognition: Where Is It Coming From? Where Is It Now? Where Is It Going?, in HANDBOOK OF IMPLICIT SOCIAL COGNITION: MEASUREMENT, THEORY, AND APPLICATIONS 1 (Bertram Gawronski & B. Keith Payne eds., 2010) For examples of law review articles discussing the implicit bias research, see generally Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005); Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 CALIF. L. REV. 1063, 1071‐78 (2006); Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CALIF. L. REV. 997 (2006).

6. Kathleen Nalty, Esq. Executive Director for the Center for Legal Inclusiveness, What Lawyers Can Learn from Baseball (2012).

Hispanic umpire and Hispanic pitcher. The study also found minority pitchers were further disadvantaged because they adjusted their pitches when facing an umpire of a different race. They threw safer p`itches, which were easier for batters to hit and reduced the pitcher’s performance.14

Notably, this baseball research determined this umpire racial bias is mostly unconscious; however, the affinity bias was eliminated when umpires were working in ballparks where their calls were monitored by QuesTec, a computer/camera pitch monitoring system (now used in all ballparks, but during these four years, it was used in only one third of the ball parks).15 As such, we cannot be blind to the fact that most people, including our clients, jurors, or other parties in a lawsuit, will not explicitly state that they are biased against a specific race, sex, color, creed, sexual orientation, religion, disability, or the like, because they may not even realize that they have this unconscious bias. On the other hand, as in the situation of the umpire study has revealed, when the umpires were more highly scrutinized, they were able to adjust their behavior, which at the very least, suggests that some “unconscious bias” is not so unconscious, but at least not so overt that will force a person to admit he or she is actively engaging in discrimination, and thus, does not rise to the level of a Batson Violation. If we scrutinize our standards in the legal profession for determining biases, and also raise awareness by discussing this issue, we are also likely to lessen such biases, and break down such barriers.

Why is this remotely important in the legal context? If we are to effectively advocate for our clients, we must acknowledge that unconscious and/or implicit bias exists. If we feel that our clients are being discriminated against, due to their protected class, or

IMPLICIT BIAS(continued from page 4)

looking inside the group of people I already knew. I began asking around and it was not long before I found individuals with the requisite skills to come aboard. When discussing the potential partnership with each person I tried to stress that although the firm was doing well I couldn’t promise riches right away. I could promise an opportunity to grow and create a successful business. Apparently, others saw the possibility and with a few formalities, a partnership was born.

Agreeing to be partners in law firm is the easy part. Once you have courted your prospective partners and all of you have agreed to be bound, next comes the paperwork. So how do you go about defining the terms of your newfound relationship? I will discuss this topic in my next article.

So this is it. It finally happened. You are a success! You have

managed to survive your first few years as a bona fide lawyer. People are paying you good money to represent them. As a testament to your abilities, you are receiving referrals from other lawyers. But now growing pains begin! You are a full-blown business and there are many new decisions, issues, problems and expectations.

How do you handle this newfound success? How do you grow a legal business? Recently, I faced these questions. I had never worked in a law firm before and I learned that what came after the business took off was more than I could handle on my own. I attempted to prepare myself, but to be perfectly honest, I was a bit like the dog that caught the bus. I was quickly becoming overwhelmed and had no idea what to do next.

It seemed like the moment came over night. I went from a guy merely searching for my next client, to someone who had so much work to do that I was quickly overwhelmed. Business was booming and I knew that I could no longer do it on my own. There were not enough hours in the day to recruit new clients, manage existing ones, and run the day-to-day operations of a law firm. I either needed to clone myself or figure out how to make more hours in the day. I was at a crossroad in my career. I could be a solo practitioner, content with going it alone or I could grow the business. Upon deciding that I wanted the growth, I went in search of legal partners.

Adding partners to my firm was a tough decision to make. I needed to come to terms with the fact that I could not continue on my own, but I also needed to realize that adding partners

is a big deal. The process is much like that of getting married. First, you need to find individuals who compliment you. Second, you need to accept that you will no longer be the only person making decisions. Third, you will be responsible for the success (or failure) of others. Finally, once you agree to be legally bound, breakups hurt.

With these things in mind, I set off to find individuals that could truly compliment my abilities and skills. I make no qualms about the fact that I am an extroverted people person. I truly enjoy meeting people and signing up new business, but put me in a room and make me write a brief I just might pull my hair out. That is not to say I cannot write, but I put it on the level of pulling out my fingernails with a pair of pliers. Send me to court, let me manage the clients, give me a legal issue and I will figure out what to do,

but please do not make me write. So, first on my list was to find someone who enjoyed writing.

Next, I needed someone who could handle the day-to-day operations of a firm. I will be the first to admit I do not excel at organization. I have systems that work for me (and perhaps only me), but when working with a group of people, an organizational structure that works for everyone is needed. I find keeping up my calendar a daunting task, thus I knew keeping the business organized and on track through additional growth would be a difficult undertaking for my organizational skills. So, I needed someone who could keep everyone on task and organized. I needed a business manager.

When I went out looking for the individuals I could partner with, I started

7

Know Thy SelfBY MICHAEL A. CLEMENTS, CLEMENTS LEGAL GROUP

118th ISBAAnnual MeetingSheraton Indianapolis Hotel

at Keystone Crossing

118th ISBAAnnual MeetingSheraton Indianapolis Hotel

at Keystone Crossing

Oct. 8-10, 2014 • #isbaannual

Register at annualmeeting.inbar.org

Young Lawyers Section Council 2013 - 2014

AUGUST 2014Indiana State Bar Association Young Lawyers Section

Applied Professionalism Seminar | Bloomington

YLS Council Meeting | Bloomington

ISBA Annual Meeting | Indianapolis

Dinner with the Judiciary | Indianapolis

Sept. 12

Sept. 13

Oct. 8-10

Oct. 21

ISBA - YLS Calendar of EventsFor questions about a calendar item, please contact Carissa Long at [email protected].

OFFICERS

ChairAnthony M. Rose, South [email protected]

Chair-ElectMatthew J. Light, [email protected]

Secretary/TreasurerBenjamin D. Fryman, [email protected]

Immediate Past ChairReynold T. Berry, [email protected]

Ex-OfficioJason A. Cichowicz, South Bend [email protected]

DISTRICT REPRESENTATIVES

District 1Adam J. Sedia, Dyer [email protected]

District 2Chip Owens, [email protected]

District 3Victoria R. Wolf, South [email protected]

District 4Alisa J. Pearson, Fort [email protected]

District 5Jacob Taulman, [email protected]

District 6Charles B. Daugherty, [email protected]

District 7Thomas S. Clary II, Terre Haute [email protected]

District 8Clay W. Havill, [email protected]

District 9Aaron M. Johnson, New [email protected]

District 10Samuel J. Beasley, [email protected]

District 11Michael A. Clements, [email protected]

AT LARGE REPRESENTATIVES

Andrea Ciobanu, Indianapolis [email protected]

Ashley G. Eade, New [email protected]

Lumi Nodit, [email protected]

Jheremy Perkins, [email protected]

Adrienne E. Rines, [email protected]

Allyson E. Claybourn, [email protected]

Hon. Andrew J. Wells, Beech [email protected]

Beau F. Zoeller, [email protected]

COUNSEL TO THE CHAIRDavid Lynch, [email protected]

MARION COUNTY BAR LIAISONAmber Nicole Ying, [email protected]

INDIANAPOLIS BAR LIAISONMatthew D. Neumann, [email protected]

LAW SCHOOL LIAISONSI.U. Robert H. McKinney School of LawAlyssa Taylor, [email protected]

I.U. Maurer School of LawAdam R. Doerr, [email protected]

Notre Dame Law SchoolKerri-Ann [email protected]

Valparaiso University School of LawTroy [email protected]

ISBA STAFF LIAISONCarissa Long, Indianapolis [email protected]

YLS August 2014

Documents

Transcript of YLS August 2014