Being a Black Attorney: A Look at Opportunities for Clients and Firms
BY JOSEPH WILSON
I can remember my first oral argument hearing like it was yesterday. I was opposing a motion for summary judgment in a slip and fall case in metro Atlanta. I woke up early that morning and put on my best suit – a solid navy three-piece suit – shined my shoes and put on my favorite tie. I distinctly remember packing my brown briefcase with all the documents I needed for my argument and then heading down to the courthouse. Like most young lawyers at their first argument, I was nervous, but I can remember a sense of calm come over me as I walked through security and confidently towards the courtroom.
The courtroom was packed. There were 10-15 “lay people” dressed in street clothes sitting in the gallery. I looked towards the jury box and saw my opposing counsel and thought to myself, “oh, that must be where the lawyers sit, let me head over there.” Just a few seconds later, the confidence that I previously wielded would be shattered as I was about to experience one of the most humiliating encounters in my career thus far.
As I walked through the small pivot doors towards the jury box, I was abruptly stopped by a large hand in my chest belonging to a burly white man. This gentleman was the courtroom bailiff. “Where are you going?” the balief asked in a loud enough manner that everyone in the courtroom could hear. With a puzzled look on my face I responded, “I’m headed to the jury box, excuse me sir.” Then, in a matter-of-fact manner he retorted, “The jury box is for lawyers. All defendants sit in the gallery.” Then he walked back to his post in the courtroom without a second thought.
I didn’t know what to say or do. I looked around at the gallery and then at the jury box. My opposing counsel bowed their head as if they were embarrassed for me and didn’t say a word. I can remember my heart feeling like it was beating through my chest and a wave of shame come over me. I knew what the unfortunate truth was – that even in my best suit, with my best tie, and my nice briefcase I could not get past the negative stigma of being a black man in America. Even with all of the obvious indicators of my profession staring this bailiff in the face, the only thing he could see was a well-dressed criminal defendant. This is life practicing law while black.
Despite that encounter, I am so proud to be a trial lawyer. In fact, Johnnie Cochran is the reason I became a trial lawyer in the first place. I remember reading his autobiography and learning about all of the barriers that he broke down for black lawyers. I learned about all of the ridicule and abuse he endured simply for being a black lawyer in the 1960’s. While we certainly have more black lawyers than we did in the 1960’s, we still face constant barriers and obstacles not generally experienced by our white colleagues. Those barriers need to be completely torn down and it will take the efforts of our entire Bar to do so.
BLACK LAWYERS AND THE PRESUMPTION OF INCOMPETENCE
Harvard educated lawyer, black man, and the Executive Director of the Equal Justice Initiative, Bryan Stevenson, has been quoted as saying “Black people walk the streets of America with a presumption of dangerousness and guilt before they even say a word.” He proclaimed the evidence is overwhelming – with a 400-hundred-year historical record as indisputable proof, to which America has never had any truth and reconciliation period to address her sins. Because of that lack of truth and reconciliation, we are still plagued with the remnants of slavery, Jim Crow segregation, and systemic racism today. The remnants of slavery unfortunately extend to our profession too. There is overwhelming evidence that black lawyers are met with a presumption of incompetence that hangs over our head that our white colleagues do not face, regardless of whether we graduated from Georgia State, Harvard, or Washington University in St. Louis like me. This presumption of incompetence can be manifested against us in a number of ways.
For example, when I was a defense lawyer at a large firm, I recall being one of the few black lawyers in the firm. There were no black partners in our office. While my white colleagues were able to quickly find mentorship and work experience with junior and senior partners, I struggled to find mentorship. I noticed micro-aggressions made in my presence (something black professionals in corporate America experience daily) that bothered me. I didn’t feel that I had the voice to speak up about them, so I suffered in silence. The biggest thing that I noticed was how my work was more heavily scrutinized, dissected and examined than that of my white counterparts. If I made a mistake it was almost never chalked up to being an amateur lawyer developing his skillset, but instead demonstrated my obvious lack of competency resulting in me not getting additional work from my senior leadership. In contrast, I recall learning about a white colleague making an egregious error while working under a lawyer who had previously been very critical and non-constructive of my work. The same lawyer comforted my white counterpart by affirming that “it is ok [to make a mistake]. Young lawyers make that mistake all of the time. No big deal, we will fix it.” The bias shown in these scenarios are nothing new to black lawyers. In fact, there was a recent study by Dr. Arlin Reeves that examined confirmation bias and implicit bias when it comes to evaluating the work of black lawyers compared to white lawyers. The study utilized a test memorandum that included factual, technical, and grammatical errors. Researchers then sent the memo to 60 law firm partners at 5 different firms. The partners believed the study was to evaluate the writing skills of young lawyers. Two versions of the memo were sent to the partners in the study. In both versions the name, the law school of the author, and the experience level were identical. The only factor that differed between the two memos were the race of the writer. Across the board for the exact same memo, the “white author” received higher remarks and more positive, optimistic comments. In comparison, the “black author” received lower reviews, partners found more of the planted errors, and partners made comments such as “needs a lot of work,” “can’t believe he went to NYU”, and “average at best” regarding his work product.
Our experiences have shown us that we [black professionals] are not always afforded the benefit of the doubt. This is why there is an old saying in our community that we have to be “twice as good to get half as far.” Ultimately, it comes down to our own implicit bias about people who don’t look like us and whatever stereotypes we subconsciously believe to be true about other people. The presumption of incompetence extends to every aspect of our practice as lawyers. As fair-minded trial lawyers and humans we have to ask ourselves, does this implicit bias and presumption of incompetence extend to our own daily practices? To hiring? To whether we decide to associate a black attorney on a case when our client is black, or not? Only self-reflection will reveal that answer and only by taking action can we destroy the negative presumption.
BARRIERS TO JUSTICE IN COURT AND IN LAW FIRMS
Three years ago, I tried a case in DeKalb County State Court. It was a disputed premises liability case. When my co-counsel and I arrived in court for trial we noticed a new lawyer for the defense – a young black female. I was happy to see it until I realized that this may just be for show – perhaps a way to get points with what would likely be a majority black jury. Unfortunately, I had seen this movie before. I remember leaning over to my co-counsel and saying, “if they don’t give that lawyer a substantive role in this trial, it is going to backfire.” Low and behold, that young black lawyer didn’t say a single word the entire trial.
After we received a substantial verdict, multiple jurors came up to me and voiced their displeasure and disappointment in not hearing from the young lady. They saw right through it. Tokenism. It doesn’t work and we [black professionals] resent it. Black lawyers do not need token opportunities. They need substantive opportunities so that they can develop their skills. Far too often my black colleagues tell stories of tokenism coming from both sides of the bar. Token opportunism is just yet another example of a barrier to justice for black lawyers. It is a disservice to the client, and it is a disservice to the professional development and the integrity of the black lawyers subjected to it.
There are countless more examples I can give. If this case were in court it would be a slam dunk. However, I want to end this article with solutions to address the issues at hand. To put it frankly, most black lawyers navigate law firms (particularly larger firms) by trying to lay below the radar, fit in, and most of all try to make white men comfortable. We understand that if we are “too different” we will be characterized as not fitting in or being a team player, which has to stop. If you are an ally to the black community, make an effort to get to know other black lawyers better – on a professional and a personal level. Invite your black colleagues over for dinner and have a genuine conversation with them. Don’t hesitate to have candid conversations about race. What you will learn is that most black lawyers aren’t much different than you and if they are different, then that is okay. Perhaps we can offer a different perspective that can be helpful to your case, your practice, or the way you see the world.
If your firm is serious about being inclusive, then actively seek to hire more black and brown lawyers. Give them substantive work to develop their skills. Associate black lawyers on cases if you think it will benefit the client or if you are having an issue developing rapport with the client. Examine your own biases to see if you are viewing the world through unfair assumptions and stereotypes.
Finally, as advocates for the voiceless and proponents of the 7th Amendment, it is not enough to only advocate in the courtroom when an insurance company is treating our clients unfairly. For most lawyers in the metro-Atlanta area, the vast majority of our clients are black or people of color. How can we claim to be true advocates for them when we will only fight for them when there is a monetary stake on the line? It is our responsibility as trial lawyers to be advocates for the voiceless in our communities, at the Capital, and anywhere else that their voices are going unheard.
ABOUT THE AUTHOR
Joseph Wilson is the Owner of JL Wilson Trial Law and specializes in handling and trying serious injury and wrongful death cases throughout the State of Georgia. In the past six years alone, Joseph has tried over 30 jury trials as lead counsel.