Month: June 2022

Christopher P. Grahm

Russell L. Johnson

Published May 2022

Introduction

In 2002, the Idaho Legislature unanimously passed the Small Lawsuit Resolution Act (“SLRA”).  The SLRA was the culmination of a multi-year effort from both the plaintiff and defense bars, the judiciary, representatives from the insurance industry, and representatives of the business community.  Now in its 20^th year, the SLRA has remained largely unchanged since that time except for amending the original $25,000 limitation to $35,000.  This article explores whether the SLRA has fulfilled its stated purpose of “reduc[ing] the cost of litigation” and expediting  “the resolution of conflicts that have resulted in a lawsuit …,” discusses whether the SLRA has a viable future, and, if so, offers some practical suggestions for improving how the SLRA operates.  

Analysis of SLRA statistics in recent years: what can they tell us?

According to statistics provided by the Idaho Administrative Office of the Courts, between 2011 and 2021, there were 717 cases where a party initiated proceedings under the SLRA – an average of approximately 65 cases per year.  The highest number of cases since 2011 was in 2019, when there were 95 proceedings initiated.  The lowest number cases occurred in 2021, when there were only 24 proceedings initiated.  A total of 264 SLRA evaluator decisions were issued in the 717 cases.  Of the 264 decisions, 38 resulted in request for trial de novo by the defendant and 16 resulted in a request for trial de novo by the plaintiff.

What can be gleaned from these numbers?  First, it is noteworthy that only approximately 37% of proceedings initiated under the SLRA resulted in an actual decision by the SLRA evaluator.  The logical conclusion is that these cases settled before they went to hearing, or possibly after hearing but before the SLRA evaluator issued a decision.  If so, the SLRA appears to be fulfilling its goal of speeding up the resolution of lawsuits, albeit in a fashion that its drafters may not have contemplated, i.e., the mere initiation of SLRA proceedings is resulting in cases settling before the SLRA process is even complete.

Second, the paucity of requests for trial de novo likewise suggests that the SLRA is fulfilling its purpose.  Parties filed for a trial de novo less on less than 25% of the evaluator’s decisions, meaning that the parties either accepted the evaluator’s decision or potentially reached a negotiated settlement after the decision but prior to the deadline for requesting a trial de novo.

Third, it appears the SLRA was gaining in popularity before the COVID-19 pandemic.  The 95 cases in which a party initiated proceedings under the SLRA in 2019 were the highest in more than a decade.  In 2020, that number dropped to 54, and in 2021 the number dropped to just 24.  The precipitous drop in the number of proceedings initiated is puzzling since jury trials have been essentially non-existent the last two years, and the SLRA allows for remote testimony.

The future of the SLRA:  Does it have one?

On their farms/ranches in Northern Wyoming and Southwestern Idaho, Jerry Johnson and Dick Graham always kept one or two crescent type adjustable wrenches on each tractor.  These were usually bought used at pawn shops, because teenage sons had a bad habit of not properly securing them, and they frequently came up missing. These adjustable wrenches were not good for a lot of things.  If the teenage farm “mechanic” wasn’t skilled and careful, a crescent wrench rounded off nuts and bolt heads and contributed to future problems. 

A crescent wrench was never good for recessed areas, or for nuts or bolts that required precision and had to be torqued to a certain level.  A real mechanic with a real shop would not be caught dead using such an imprecise tool.

Jerry and Dick also knew that sometimes a crescent wrench will dothe job, if the user understands the limitations and applications, and sometimes it willsave time, effort and headaches, if applied in the proper way, at the proper time, and with full appreciation and understanding for the tool.

Much like a crescent wrench, the SLRA is only good for what it is good for, and that is not everything.  It is not flexible enough to solve every problem, and if applied incorrectly and imprecisely, it could even cause a degree of damage, or at least not add value.  That does not mean that the tool can never be used successfully, and that its inherent limitations should eliminate it from any consideration.

“Much like a crescent wrench, the SLRA is only good for what it is good for, and that is not everything.”

How do you know if your case is a potential good fit for the SLRA?

1) Real, valid, good faith liability disputes and/or multiple defendants are almost never a good fit.  It is too difficult for the losing party to determine if they should ask for a trial de novo or not, and on the plaintiff’s side, to determine whether counsel may be subjecting a client to attorney’s fees if they do not improve their position at trial. [1]         

Further, a defense that a plaintiff was struck by multiple vehicles, and that perhaps each of them share liability for the collision will almost never be a good fit.  Multiple contractual defendants also would be a problem.  If the evaluator determines one defendant has all the liability, or that each share equally, or whatever proportion is chosen, it is almost always going to be a trial de novo.  From the plaintiff’s perspective, if you don’t improve your position at trial against alldefendants, at least one of the defendants could ask for fees against the plaintiff.  That is a dangerous position for plaintiff (and plaintiff’s counsel). [2]

2) High level expert testimony required to make or defend on causation is usually problematic.  That type of case will usually have more than $35,000 in damages, but attorneys must be realistic if causation opinions can be reasonably obtained or not.  If not, the SLRA is probably not the right tool.

3)  Multiple plaintiffs are probably OK, if their interests generally align as to causation and liability.  Each of them just needs to prove individual damages.  Potential conflicts between drivers and passengers must always be evaluated for practical as well as ethical concerns. [3]  A driver and an owner of a vehicle pursued together as adverse parties is usually fine because their interests are aligned. 

4)  SLRA utilization in cases where parties need to tell their story can be helpful to move the case forward.  This can also be accomplished at times in a mediation setting,[4] but in some cases the semi-formality of the SLRA and the semi-adversarial nature of the proceeding can help a party feel validated by relating the facts to the third-party evaluator, who has the ability to provide judgment.  It can also provide a “reality check”  by having a neutral third party provide an unbiased evaluation.

5)  Some attorneys (both plaintiff and defense) and some insurance companies have determined that the SLRA is not valuable, and they do not want to participate, or only to minimally participate and ask for a trial de novo in each case.  They are entitled to that opinion, but it is unlikely to be a positive experience if one side forces the issue over the strong and deeply held objections of the other side. 

Both sides do not have to be completely committed, but one party being completely averse to the SLRA process makes for unlikely odds for real progress.  Time and money are probably better spent elsewhere.  If you don’t know opposing counsel’s position on it, ask directly, or ask around for those who might know before you initiate.

Some things to consider

Inexperienced or lightly experienced attorneys should give the SLRA a try.  It is a less intense laboratory to refine and improve trial skills.  Even though the rules of evidence are fairly relaxed at the hearing, there is no rule that prohibits an attorney from doing a good job on the direct examination of their client or on the cross-examination of the opposing party.  The client and attorney both have the benefit of a semi-informal practice run. 

If an expert testifies, even by phone or via Zoom,[5] the attorney can practice direct and cross-examination skills there as well.  Defense counsel sometimes do not want to be super aggressive in this setting, and not all cards have to be shown, but some pointed and tight cross-examination may also be possible.

Opening statements (regularly waived, but each party has to make their own choice) and closing arguments are unlikely to rise to soaring oratory heights, but there is no reason they can’t be direct, practiced, and effective.  Elements of the tort or contract at issue can be addressed and practiced, and counsel can point out where the other side fell short in their claims or defenses in a persuasive way.

Follow deadlines and rules.  Expert reports should be timely filed.[6]  Exhibits and witness lists must be timely filed. [7] Multiple objections to opposing counsel’s presentation will probably be viewed as bad form, but the intent behind the SLRA is not everything goes either.  Think about what important objections and rules may apply.

A deposition or two is specifically allowed and may be very helpful to the case.[8]  A defendant can also obtain a medical exam.[9] Relevant records or items deliberate not disclosed will rarely be productive, even if a formal answer to discovery is not then required.  A “statement of damages” is required if requested. [10]

If a document is likely to be discoverable, why not produce it?  If a plaintiff fails to produce perceived relevant items, the odds of a trial de novo increase substantially.  The defense may have different considerations but holding back relevant and/or discoverable items is unlikely to move the case forward.  If the goal is truly good faith resolution, an evaluation can help confirm or be the means to reassess case valuation.

Other attorney fee provisions apply, and should be utilized, including I.C. §12-120(1) or (4).[11]

Criticisms and improvement?

Practitioners informally surveyed by the authors have differing views.  Some do not believe the SLRA has any value, and either will not initiate it, or will not meaningfully participate and automatically request trial de novo for any SLRA decision.

Without some sort of additional enforcement mechanism and teeth for failure to participate in good faith, the SLRA remains somewhat limited in its available scope.  If both parties engage and participate in good faith, the resolution rate as noted above is fairly high, which is consistent with the authors’ experience. 

Practitioners who either do not believe in “arbitration” as a valid means of dispute resolution, or who have determined that the SLRA does not provide value and are determined to not meaningfully participate in the process are unlikely to change their views, unless some amended and augmented provisions are added that will provide incentives and/or meaningful penalties for failure to participate in good faith.  Exactly the reforms or amendments that may potentially be acceptable to both sides is beyond the scope of this article, but may be profitable to explore.

BIOs

Chris Graham is a partner at Brassey Crawford, PLLC.  He grew up on a family farm in New Plymouth, Idaho.  He graduated with a B.A. in history from Boise State University in 1995 and received his J.D., cum laude, from the University of Idaho College of Law in 2000, where he was Editor-in-Chief of the Idaho Law Review.  Chris is currently the Chairperson of the Idaho Legal History Section and Board Member/Secretary of the Idaho Association of Defense Counsel.  In the last ten years, he has served as an SLRA evaluator in more than two hundred cases.

Russell L. “Russ” Johnson has been a shareholder in the firm Johnson & Lundgreen, PC since 1998.  He is President-Elect of ITLA and is certified as a Civil Trial Specialist by the ITLA.  He only handles Plaintiff’s Personal Injury claims.   He has participated in more than a hundred SLRA hearings as an attorney and evaluator.  He enjoys being in wild places and being Grandpa to his four grandkids.  He grew up in Northern Wyoming but has been home in Idaho since 1993. 

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[1] I.C. § 7-1509(5)

[2] Id.

[3] See generally, I.R.P.C. 1.8.  Other rules and requirements may apply.

[4] Mediation is available inside or outside the structure of the SLRA.  I.C. § 7-1503(3)

[5] I.C. § 7-1508(5)

[6] I.C. § 7-1507(1)(c) and I.C. § 7-1508(7)

[7] I.C. § 7-1508(4)

[8] I.C. § 7-1507(b)

[9] I.C. § 7-1509(c)

[10] I.C. § 7-1507(1)(a)

[11] I.C. § 7-1509(9).  See also Lake v. Purnell, 143 Idaho 818, 153 P.3d 1164 (Idaho 2007)

Michael J. Hanby II

Published May 2022

The romantic getaway with my wife had to be perfect. Couples with young children understand what a rare gift a weekend away can be.  The Airbnb I reserved was gorgeous.  Thanks to OpenTable, our dinner reservation at a coveted Michelin star restaurant I found on Google was secured.  Fortunately, the restaurant accepted American Express because if I am paying premium prices, I might as well earn some air miles at the same time.  The Uber got us there on time, but not before we used our AT&T unlimited plan to tell the kids goodnight.  My bouillabaisse was delicious, and dessert was decadent.  Far less appetizing were the forced arbitration clauses buried in the user agreements utilized by many of these companies which forever bar the door to the courthouse for consumers.

Most people have no idea that by simply downloading an app, or by checking a box agreeing to a company’s terms of service, they are sacrificing their right to sue that company in court regardless of its misconduct.  Such agreements are couched in hard to understand legalize and are often buried in the fine print.  Because it is common for forced arbitration clauses to be required in agreeing to even the most basic and fundamental services that consumers depend on, there is often no real choice but to agree. By depriving people of their access to the court system, forced arbitration clauses result in the silencing of consumers and shield large corporations from accountability.

Not only are consumers negatively impacted by forced arbitration clauses, but employees are often forced to give up their rights as well.  Consider an employee who was laid off during the pandemic and later offered a job from a major corporation.

A common condition of employment is that the employee agrees, in advance, to give up their constitutional right to seek redress in the courts. The person needing a job is faced with a Hobson’s choice of giving up their right to go to court in order to accept a job that will provide for their family.

A recent study found that eighty-one companies in the Fortune 100 use arbitration agreements to force their customers to give up their right to go to court.¹ The consequence of this is staggering as it is estimated that up to 75% of American households are subject to arbitration agreements.² The widespread use of inserting arbitration agreements in consumer contracts has only accelerated during the COVID-19 pandemic.³

While the use of forced arbitration clauses has become commonplace, there are rising movements against the continued use of such tactics. On the legislative side, a rare glimpse of bipartisanship offers the promise of protecting consumer rights.  Employee and consumer activism is also having a tangible impact on corporations’ willingness to use forced arbitration.  Whether this consumer lead pushback will lead to meaningful change in the way companies behave is yet to be seen but there is no doubt that the rights of Idaho’s citizens hang in the balance.

Forced arbitration defined

Broadly speaking, forced arbitration clauses require legal disputes to be heard and resolved by private third-party neutrals, instead of a judge or jury.⁴ The decisions are binding and there is no path for appeal.⁵ Also, the results of the arbitration are not accessible to the public in the way court decisions are available.⁶ Forced arbitration agreements are often broad and become effective before a dispute between the parties has even arisen.

The use of forced arbitration agreements has become widespread as they are found in almost every type of consumer contract such as mortgage applications, car loans, credit card contracts, nursing home facilities, and television cable contracts, just to name a few.⁷  Employers also often require employees to submit to such terms before accepting employment.  In fact, it is estimated that 60 million American workers are subject to mandatory arbitration.⁸

Congress enacted The Federal Arbitration Act (“FAA”) in 1925.⁹  Section 2 of The FAA states: “[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”¹⁰

Courts began to recognize and acknowledge that the FAA “declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.”¹¹  The scope of the applicability of the FAA was in question until 1995 when the United States Supreme Court found that The FAA’s “control over interstate commerce reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce.”¹² Subsequently, the Supreme Court concluded that employers could subject employees to forced arbitration agreements as well.¹³

Soon after these decisions, forced arbitration provisions started to become more common, both in consumer contracts and employment agreements.  By 2018, it was estimated that there were at least 826,537,000 consumer arbitration agreements in place.¹⁴  These numbers demonstrate that the ability of consumers and employees to access the judicial system has been significantly impacted.

Soon after these decisions, forced arbitration provisions started to become more common, both in consumer contracts and employment agreements.

The Promise v. The Reality

Business groups and other advocates of forced arbitration argue that taking disputes out of the over-crowded court system, where disputes often take years, is a far more efficient way to resolve claims.¹⁵  In addition to quicker resolutions, proponents argue that arbitration is fair to both parties because the dispute is resolved by a neutral third-party.¹⁶ Arbitration fees are often paid by the company which, proponents say, results in a less expensive alternative for the claimant than going to court.¹⁷ Critics dispute the accuracy of these claims.

Consumer advocates have raised serious concerns with the fairness of the arbitration process itself.  When the Consumer Financial Protection Bureau studied the issue in 2015, it found that consumers were only successful in about 20% of the time.¹⁸  The numbers in employment related claims are even worse.  According to a recent study conducted by the American Association for Justice (“AAJ”), employees obtained monetary awards only 1.6 percent of the time in 2020.¹⁹  AAJ further found that on average, 382 consumers win a monetary award per year—less than the number of people struck by lightning each year in the United States.²⁰

While the data concerning the success rates of claimants whose claims are resolved through forced arbitration may be somewhat in dispute, many other critiques of forced arbitration must be acknowledged.

An in-depth analysis conducted by the New York Times in 2015 found that many of the largest corporations face very few arbitration claims.²¹ Verizon, for example, faced a mere 65 consumer arbitrations between 2010 and 2014, despite having a customer base exceeding 125 million subscribers.²²  The result is clear. Forced arbitration agreements dissuade almost all consumers from ever filing a claim. The corporation wins before the game even starts.

The stakes are high

The legitimacy of the American justice system is directly tied to its accessibility by the public. As Fifth Circuit Judge Don R. Willett eloquently penned: “The Constitution’s first three words make clear that ultimate sovereignty is wielded not by government but by the governed. And because “We the People” are not meant to be bystanders, the default expectation is transparency—that what happens in the halls of government happens in public view.  Americans cannot keep a watchful eye, either in capitols or in courthouses, if they are wearing blindfolds.”²³

Secrecy and opacity are intentionally built into the system of arbitration. The American Arbitration Association (“AAA”) and JAMS (formerly, “Judicial Arbitration and Mediation Services”), the two largest arbitration providers in the country, provide only limited information regarding their proceedings.²⁴  The lack of transparency is the most significant threat posed by forced arbitration to our system of justice. By choice and design, the rulings made by arbitrators are private. They cannot act as precedent nor are they capable of being compiled in way that would demonstrate pattern or practice of the company. By keeping not only the outcomes but their transgressions secret, corporations escape accountability while endangering the legitimacy of the justice system.

Forced arbitration clauses further restrict access to the courts because they often contain restrictions on class action lawsuits. As stated by the New York Times in its 2015 investigation, “Once blocked from going to court as a group, most people dropped their claims entirely.”²⁵ This works to benefit only the corporation and allows it to side-step an effective tool that keeps powerful companies in check.

As the data above demonstrates, the use of forced arbitration is on the rise. Because such clauses have become routine, consumers must sacrifice their access to the court system to use even the most basic and common products and services.  The consequence is that consumers and employees are left with no meaningful choice when ‘agreeing’ to forced arbitration. Due to the low participation and meager success rates, the end result is that corporations often escape responsibly and accountability.

A potential way forward

While forced arbitration clauses have largely withstood scrutiny in the courts, recent action from legislators and consumers may forecast a change.  The first major breakthrough in this arena can be traced to the progress made by the #metoo movement in recent years. 

Senator Kirsten Gillibrand (D-NY) and Senator Lindsey Graham (R-SC) cosponsored a bill that would end forced arbitration in sexual assault and sexual harassment claims.²⁶  The bill was championed by former Fox News anchor, Gretchen Carlson, who had sued her former employer Roger Ailes after she refused his sexual advances.²⁷

The historic level of vitriol between the country’s two major political parties provided little hope that bipartisanship would advance the rights of consumers in such a tangible way.  On February 7, 2022, H.R. 4445 passed the House.²⁸  The yeas were 335 and the nays were 97.²⁹  In the end, 113 republicans and 222 democrats voted to support the bill.³⁰  Idaho’s representatives split their vote with Representative Russ Fulcher voting ‘nay’ and Representative Mike Simpson voting ‘yea.’³¹

With its fate uncertain, the bill went in front of the Senate on February 10, 2022.³²  It passed without amendment by voice vote, the result of which was a unanimous vote, with no recorded dissenters.³³  After this exceedingly rare show of bi-partisan support, President Biden signed the bill into law on March 3, 2022.³⁴ At the signing ceremony, the President remarked: “Between half and three-quarters of all women report that they have faced some form of sexual harassment in the workplace, and too often they’re denied a voice and a fair chance to do anything about it. Today, we send a clear and strong message that we stand with you for safety, dignity and for justice.”³⁵

The future

While the passage of H.R. 4445 was a significant and historic step, the narrowness of the bill demonstrates that there is more that can be done to protect the rights of consumers and workers.  In February 2021, Rep. Hank Johnson (D-GA-4) introduced H.R. 963 (“the FAIR Act”) into the House.³⁶ The FAIR act would prohibit pre-dispute arbitration agreements from being enforceable in employment, consumer, antitrust, and civil rights disputes.³⁷  What remains to be seen is whether the same level of bi-partisan support can be leveraged to pass this broader and more expansive bill that would protect the rights of consumers and workers in an even more momentous way.

The future of forced arbitration in this country is at a crossroads. While corporations wield immense power in deciding whether to include forced arbitration clauses in their consumer and employment contracts, they are starting to face push back from lawmakers and activists alike.  One road leads down the familiar path of allowing large corporations to hide their misconduct in the shadows and to evade responsibility.  The other would offer greater protection to consumers and employees by reviving our justice system’s promise of openness, transparency, and accountability.  Continued activism and bipartisanship may just pave the way.

BIO: Michael Hanby graduated cum laude from Boise State University and received his J.D. from the University of Idaho College of Law. While in law school, he served as Fall Edition Editor of the Idaho Law Review and participated in the Semester in Practice program where he interned for the Honorable Larry M. Boyle, U.S. District Court. Michael’s legal practice focuses on representing plaintiffs in personal injury cases, medical malpractice claims, automobile and trucking accidents and wrongful death cases. He also handles insurance disputes, bad faith insurance claims, and insurance agent errors and omissions. Michael proudly serves on the board of the Idaho Trial Lawyers Associa­tion and is a member of American Association of Justice.

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Endnotes

1. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 UC Davis L. Rev. 233, 234 (2019).

2. Id.

3. American Association for Justice, Forced Arbitration During a Pandemic: Corporations Double Down (Oct. 2021).

4. Consumer Financial Protection Bureau (CFPB), Arbitration Study (March 2015), https://files.consumerfinance.gov/f/201503_cfpb_arbitration-study-report-to-congress-2015.pdf

5. Id.

6. Id.

7. Abha Bhattarai, As closed-door arbitration soared last year, workers won cases against employers just 1.6 percent of the time, The Washington Post (Oct. 27, 2021).

8. Alexander J.S. Colvin, The Growing Use of Mandatory Arbitration, Economic Policy Institute (April 6, 2018).

9. 9 U.S.C ⸹ 2.

10. Id.

11. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984).

12. Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 274 (1995).

13. Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001).

14. Imre Stephen Szalai, The Prevalence of Consumer Arbitration Agreements by America’s Top Companies, 52 UC Davis L. Rev. 233, 234 (2019).

15. U.S. Chamber Letter on the “Forced Arbitration Injustice Repeal (FAIR) Act,” (October 27, 2021), https://www.uschamber.com/assets/documents/211027_H.R.963_FAIR-Act_House-Judiciary.pdf.

16. U.S. Chamber Institute for Legal Reform, Fairer, Faster, Better: An Empirical Assessment of Employment Arbitration (May, 2019).

17. Id.

18. Consumer Financial Protection Bureau (CFPB), Arbitration Study (March 2015), https://files.consumerfinance.gov/f/201503_cfpb_arbitration-study-report-to-congress-2015.pdf

19. American Association for Justice, The Truth About Forced Arbitration, September 2019, https://www.justice.org/resources/research/the-truth-about-forced-arbitration.

20. Id.

21. Jessica Silver-Greenberg & Robert Begeloff, Arbitration Everywhere, Stacking the Deck of Justice, N.Y. Times, October 31, 2015.

22. Id.

23. Binh Hoa Le v. Exeter Finance Corp., 990 F.3d 410, 417 (2021) (internal citation omitted).

24. American Association for Justice, The Truth About Forced Arbitration, September 2019, https://www.justice.org/resources/research/the-truth-about-forced-arbitration.

25. Jessica Silver-Greenberg & Robert Begeloff, Arbitration Everywhere, Stacking the Deck of Justice, N.Y. Times, October 31, 2015.

26. David Dayden, Chamber of Commerce Tries to Silence Sexual Harassment Victims, The American Prospect (Nov. 15, 2021).  

27. Id.

28. https://www.congress.gov/bill/117th-congress/house-bill/4445/actions

29. Id.

30. https://clerk.house.gov/Votes/202233

31. Id.

32. https://www.congress.gov/bill/117th-congress/house-bill/4445/actions

33. Id.

34. https://www.washingtonpost.com/politics/2022/03/03/biden-signs-new-law-ending-forced-arbitration-sex-assault-harassment/

35. Id.

36. https://www.congress.gov/bill/117th-congress/house-bill/963

37. Id.

T. Guy Hallam Jr.

Published May 2022

Trial lawyers are important. The Idaho Trial Lawyers Association (“ITLA”) has been protecting the access to justice for all and working to preserve the constitutional right to a trial by jury for nearly 55 years.

A handful of Idaho attorneys founded the ITLA in 1967 to ensure that Article I, Section 7 of the Idaho Constitution, which says that “The right of trial by jury shall remain inviolate,” is consistently upheld. That handful of attorneys has become a team of hundreds of trial lawyers working to better the legal community in Idaho while championing the access to courts for all Idaho citizens. Some of the programs of the ITLA include:

The Street Law Clinic

For years, the ITLA Street Law Clinic has provided pro bono legal advice to citizens of Idaho who might otherwise be unable to afford to get their legal questions answered. At the ITLA Street Law Clinic, law students work with volunteer ITLA trial attorneys to provide this service to the community.

Because of Covid-19 restrictions, this previously in-person clinic has morphed into a telephonic and/or video undertaking which serves persons throughout Idaho. Hundreds of law student and trial attorney volunteers have provided thousands of hours of time over the course of Street Law Clinic operations. Upcoming dates and details regarding the ITLA Street Law Clinic can be found on the ITLA website, at: https://www.itla.org/?pg=StreetLawClinic.

Education

The ITLA also provides top tier education and courses for attorneys. At least three times a year, the ITLA provides a full day of continuing legal education classes. The speakers at ITLA classes are nationally recognized attorneys and experts, state and federal judges, and local trial attorneys who cover cutting edge topics and practical trial skills. The ITLA believes that the location of its courses should also highlight the beauty and activities of Idaho, so summer events and CLEs are in Sun Valley, fall events and CLEs in McCall, with additional stops in Boise, Coeur d’Alene, Jackson, Wyoming, and an occasional trip to Jackpot, Nevada.

Legislative advocacy

The ITLA is committed to ensuring that changes to Idaho law do not erode a citizen’s access to our courts. ITLA has a governmental relations committee which reviews legislation, suggests amendments to bills, and assures the ability of Idahoans to hold others accountable for their actions under the civil justice system. The associated ITLA PAC was organized to support and elect candidates who will uphold and strengthen the civil justice system and defend the constitutional right to trial by jury.

Building a community of Idaho Trial Lawyers

Most importantly, the ITLA is about building a community of trial lawyers who serve the citizens of Idaho. ITLA members are able to access the expertise of fellow trial lawyers, whether it be through networking at meetings and CLEs, during practice specific working groups, or through a trial lawyer only listserve. The ITLA also recognizes greatness and service amongst its members, whether it be excellence in trial advocacy (the James J. May Trial Lawyer of the Year Award), outstanding professionalism in the practice of law (the Walter H. Bithell Professionalism Award), service to the ITLA (the Darrel Aherin ITLA Service Award), or years of supporting efforts to improve civil justice (the ITLA Civil Justice Partner Award).

                Despite all of these ongoing accomplishments and activities, this is the first time that the ITLA has sponsored an issue of the Advocate. We hope that you will enjoy this issue, which contains articles on a variety of topics important to trial attorneys and litigants in Idaho.

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Erin E. Tomlin

Published March/ April 2022

Leadership, lawyering, and livelihood. These three categories are not always related and what is good for one is not always good for the other. However, in private practice they must work in tandem for successful professional, ethical, and business outcomes. All three categories become more robust by supporting, empowering, and retaining female attorneys in law firms.

While good lawyering may affect positive livelihood outcomes, the real challenge for many private practitioners is managing the business side of a law office or firm.  The legal profession should be responsive to business industry metrics and regional economic growth patterns. With this kind of pulse on business dynamics, lawyers owning or managing a law firm are primed to demonstrate transformational leadership and respond to industry dynamics in a way that sets the bar higher with each leadership decision.

Walking through the halls at the University of Idaho College of Law in Moscow reminds us how certain demographics change over time. Once featuring predominantly male graduating classes through a black and white lens, more current class photo montages are a vivid reminder of the progress to date as more diverse students and faculty reflect changing demographics.  National figures indicate that female attendance at accredited law schools is consistently increasing. ¹ More females are attending law school than ever before – in some states, female students now outnumber male students.²

Law firms prioritizing retention of female attorneys and partners³ makes business sense and promotes growth.  Why are female attorneys, in general, paid less and promoted less if there are more of them coming into the profession than ever before?⁴ Even more alarming, why are female attorneys leaving their jobs (or the legal profession altogether) disproportionate to male attorneys? ⁵ The legal profession, as an industry, must evaluate why more than half of incoming attorneys, i.e., those who identify as female, experience disproportionate pay and are retained less. The disconnect between increasing incoming attorneys and the decreasing retention and promotion of those attorneys is an industry problem indicative of potential challenges beyond inefficient business models.

How can private practice business owners improve attrition rates for female attorneys, both associates and partners alike? Doing so helps firms stand out as leaders at a time of unprecedented growth in Idaho. ⁶ Work life balance is often touted as a primary way to increase career satisfaction and retention, but the suggestions below may prompt firms to implement changes specific to the legal profession industry retention metrics available to us.  

By taking some or all the following action steps, law firms become more competitive and valuable in a dynamic economic climate.⁷

Hiring and promotion practices

In 2015, the National Association of Women Lawyers announced its One-Third by 2020 Challenge, “calling for an increase in the representation of women across five different areas of the law.”  ⁸ Obstacles for female attorneys in the legal profession won’t stop here but we can’t change attrition rates if female attorneys aren’t hired in the first place. Legal industry leaders and decision-makers must promote female attorneys, hire female law student interns/externs, and create pathways to promotion for female attorneys where one may have not existed before or improve upon existing pathways, and be intentional and follow-through.  Firms with diverse attorneys are better able to meet dynamic clients’ needs in a changing socio-economic landscape.

Obstacles for female attorneys in the legal profession won’t stop here but we can’t change attrition rates if female attorneys aren’t hired in the first place.

Listen to female colleagues

Create environments and resources that facilitate comfortable communication about uncomfortable topics.

Listen to your colleague when she shares an experience that you, as the listener, may not have a frame of reference for because you have not experienced what it’s like to be a female attorney in the legal profession. Acknowledge the foundational power-dynamic of the discussion in and of itself while listening to the substantive conversation at hand. These are opportunities to move beyond dutiful HR -isms to a place of self-awareness, change, and advocacy.  Are we glossing over someone’s experience because we can’t hear or see them outside of our worldview or experiences?

Finally, listen to respond, not react. Attorneys like to offer solutions and tend to think they have them. Good listening requires a pause or reflection before a reaction. Such pause could be vital when having a conversation about someone else’s experience and how it could be better. Knee-jerk reactions or explanations can come across as disingenuous, defensive, or placating to someone looking for earnest leadership. Good communication starts with the humility to listen differently.  

Internal fine print: Create intentional and inclusive firm policies

By creating firm infrastructure that supports an employee’s holistic health, firms are taking a critical look at how people multi-task and handle stress, both at work and outside of work. Employers who understand the impact of external stresses on business outcomes are employers demonstrating leadership as well. Part of creating impactive policies is a willingness to notice change in trends or work/life dynamics and help transform lives because it does make for happier and more productive employees and partners.

Other helpful policies include formal succession plans and firm mission statements. Formal succession plans can ensure that female associates and partners are included in the transfer of valuable clients and important client relationships.

Yes, virtue-signaling can live comfortably in touted firm infrastructure but handbooks and policy manuals make it a lot harder to signal without action and follow-through. They provide a framework for accountability. When written policy and processes reflect good intentions, those intentions are more likely to become actions. 

Support sponsorship and mentorship programs

Firms that support attorneys, associates, partners, and staff create a sought-after workplace for those entering the profession. When firms pay for membership to professional organizations that offer professional camaraderie and support, they are building a community for a valued employee or partner. If you have employees or partners who would benefit from mentorship and community resources specific to their experiences, facilitate that and make sure it’s an intentional practice and procedure for the firm.  

Transformational leadership: Making individuals part of a true team

The articulated concept of ‘transformational leadership’ was introduced to the world in a Pulitzer Prize-winning and seminal study on leadership by its author and researcher James Burns approximately fifty years ago. ⁹ Transformational, rather than transactional leadership, focuses on relationships and working together for the common benefit of a collective goal or group. Use of transformational leadership creates situations in which “leaders and followers raise one another to higher levels of motivation and morality”.¹⁰

Transformational leadership is, arguably, good for business yet lawyering often focuses on individual performance, i.e., billing. Transformational leadership requires business owners to think beyond basic lawyering billing metrics and assess how they want to build a team for success. It is often best implemented or explained in an office environment by encouraging leaders to set an example of aspirational values or behaviors. This requires owners and partners to speak up and be intentional in setting examples and taking initiatives.

If firm owners and partners are merely focused on individual transactions when reviewing broader firm productivity, the value of an individual will always be emphasized over the value of the group. While this might not be problematic in terms of churning out billable hours, it is short sighted in an industry poised to grow in unprecedented ways. Leadership understands that individuals perform better when their value is measured in more than one way and transformational leadership creates reciprocity between colleagues and empowers firm growth and retention.

Look your metrics in the mirror

Equal pay conversations should have more depth than who is getting paid less or more than someone else.  Some helpful ways to identify the equality of the pay versus the output of the attorney is to ask the following: Is there an expectation the attorney will bill the same as other attorneys but has different, i.e., less, resources to do it? Is an attorney with a part-time support staff expected to bill the same as an attorney with full-time staff support? Does the attorney have access to the same kind of billing opportunities that other attorneys do, i.e., similarly paying clients and kinds of cases? Did all attorneys benefit from a succession plan or transfer of pre-existing clients and are equally able to bill more? Or was it more selective? Are attorneys limited in what kinds of cases they can take?

If the metrics don’t add up because attorneys aren’t equipped with similar or equal resources to succeed, then the metrics perpetuate inequality. If ill-equipped attorneys or partners also happen to be females outnumbered by males who do have more resources or access to more lucrative case opportunities, well, that’s not only not a good look but it’s likely indicative of a problem that runs deeper than optics.

In addition to creating equal opportunities for attorneys to bill equal amounts, firms must include female attorneys in leadership. From firm administration to managerial tasks, these duties should be shared.   

Implicit bias training

Whether it’s formal training to identify implicit biases or other trainings, being willing to learn and critically assess individual biases and limitations is a hallmark of effective leadership. Many industries already require implicit bias training. The legal profession, as an industry, relies on good credibility for livelihood. If attorneys lose their credibility because they cannot identify implicit biases, they shortchange their ability to improve in an industry that is characterized by its requirement for ‘life-long learning’.

Don’t treat a partner like an employee

A recent effort by The Pay Equity Taskforce of the National Association of Women Lawyers (NAWL) has examined an alarming phenomenon; partners who are that in name only. ¹¹ In addition to tax liabilities inherent in treating partners like employees, other concerns arise when analyzing gender disparities in the legal profession. In this study, NAWL highlights case law throughout the nation that analyzes and interprets the Equal Pay Act, Title VII, and other related employment discrimination statutes. As mentioned elsewhere in this article, compensation metrics should be increasingly scrutinized as that might be the best hiding place for gender discrimination.  However, it’s not that great of a hiding spot as:

Courts are also being asked to examine the law firm compensation model itself to detect if there is any inherent gender bias in profit allocations. For example, in Knepper v. Ogletree, Deakins, Nash, Smoak & Stewart, P.C., No. 3:18-cv-00303 (N.D. Cal. filed Jan. 12, 2018), a woman partner alleges that the firm’s lack of female representation in leadership has led to pervasive gender discrimination. In particular, she has drawn attention to the firm’s practice of allocating compensation credit based on “originating credits, managing credits, responsible credits, working credits, and billable hours.” Id. The plaintiff is asserting that while originating and managing credits are the primary metrics used to determine compensation, women partners are not given proportionate opportunities to develop the business that would generate such credits. Furthermore, the plaintiff contends that women partners are assigned tasks that are not highly valued and that do not lead to business origination and matter managing credit. ¹²

Bring in a professional.

Many firms pay accountants, web site designers, tech support, or public relations/marketing professionals to provide necessary and helpful services for law firm business operations. Why not recognize the benefit of improving attrition rates and reducing the likelihood an office or firm is running afoul of equal employment claims by bringing in a consultant? A consultant is meant to collaborate with businesses and identify processes and inefficiencies for improvement. If gender bias pitfalls and discrepancies are affecting a firm’s culture and climate, an external professional may be able to offer helpful suggestions and, in the same turn, help improve a firm’s marketability and accessibility amid a changing socio-economic environment.

If firms and lawyer business owners are willing to implement or take heed of these practical suggestions, they can raise the bar higher and meet industry demands in a competitive way.  Changes such as the ones suggested here are good for business and meet progress at the next cornerstone of dynamic commerce and professional morality.

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Endnotes

1. “Enjuris.” ABA for Law Students, February 28, 2019. https://abaforlawstudents.com/author/enjuris/.

2. Id.

3. Reference to the word ‘partner’ is broadly used and meant to include all other business entity ownership interests, i.e., member, shareholder, for the sake of simplicity but in no way means to equate various business interests or confuse the reader.  

4. Sterling, Joyce, and Linda Chanow. “In Their Own Words: Experienced Women Explain Why They Are Leaving Their Firms and the Profession.” Americanbar.org, May 3, 2021.

5. Id.

6. Bureau, U.S. Census. “Idaho Was the Second-Fastest Growing State Last Decade.” Census.gov, October 8, 2021. https://www.census.gov/library/stories/state-by-state/idaho-population-change-between-census-decade.html.

7. Id.

8. “NAWL One-Third By 2020: The NAWL Challenge.” NAWL. National Association of Women Lawyers, March 15, 2016. https://www.nawl.org/page/the-nawl-challenge.  

9. Burns, James Macgregor. Leadership. New York: Harper Perennial, 2010.

10. Id at 20.

11. “NAWL Pay Equity Taskforce Series: In Name Only, Are Some Law Firm Partners Actually Employees?” Women Lawyers Journal 103, no. 2 (2018): 13–15.

12. Id at 15.  

Mo Haws

Published March/ April 2022

In his commencement address to Kenyon College’s class of 2005, writer David Foster Wallace began by sharing the following story:

There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and asks, “What the hell is water?”

Wallace goes on to explain that the point of the fish story is to illustrate that “the most obvious, important realities are often the ones that are hardest to see and talk about.”

As the child of a single mother who raised me while simultaneously advancing her career in the medical field, the disparate regard toward women in professional settings has been visible to me from a young age. I’ve known other women who have struggled in their professional endeavors to gain an equal footing with their male counterparts and avail themselves of equal pay and opportunities. Despite this firsthand experience, I must admit, I still find it challenging to talk about the particular burdens faced by women in the workplace because, try as I may, I’m incapable of fully understanding the challenges professional women face, given the appanage of my race and gender. However, I do understand that merely sympathizing with women is neither sufficient nor helpful. What is helpful, indeed required, is to recognize the difficulties faced by women in the workplace, to hear how women ask to be supported professionally, and to actively sponsor women for promotion within the workplace and the judiciary.

Two caveats at the outset: first, although this article speaks in terms of men and women, the dichotomy should be considered more broadly to include all historically marginalized persons. Second, although this article speaks of women lawyers, the same principles should apply equally to women who are part of a firm’s broader team.

The water

The mission of Idaho Women Lawyers (“IWL”) is to advance “diversity through the promotion of equal rights and opportunities for women in the legal profession.” This mission, as discussed herein, is best accomplished through bundling the efforts of men and women alike.

As of January 7, 2022, there were 5,420 active members of the Idaho Bar.¹ In 2018, women accounted for just 28% of active lawyers in Idaho.² The American Bar Association estimates that nationwide, the gender gap between men and women lawyers in practice is 63% to 37%, putting Idaho well below the nation’s average.³ Additionally, a study by the American Constitution Society found that in 2014, women made up only 30% of all state court judges nationwide.⁴ Again, in Idaho, the disparity is starker—in 2018, across the Idaho judiciary, women held only 32 of the 147 total judgeships.⁵ When broken down further to account for representation of other historically marginalized groups, the gap across the nation is even more severe.⁶

Diving deeper: for women lawyers, economic disadvantages based on gender ensue. A 2020 survey from the National Association of Women Lawyers found that despite making up on average 47% of law firm associates nationwide, women represent only 31% of non-equity partners and 21% of equity partners in those same firms.⁷ The gap in Idaho tracks the national average according to University of Idaho Professor Jessica Gunder, who showed that despite holding 35.2% of associate positions in large Idaho law firms in 2004, only 18.8% of women held partnership positions at the same firms in 2019.⁸

When these statistics are considered with the fact that women make up slightly more than 50% of the population in the United States,⁹ the disparity in representation of women as counselors at law and judges on the bench is especially discouraging. While a host of factors shed light on the facts behind this reality, men cannot ignore the fact that women as a whole are actively seeking greater representation within these bodies. In 2019, women made up 53.3% of all law students nationwide.¹⁰ Nevertheless, the proportion of representation of women in the upper echelons of law firms and on the bench fails to correlate. This is the water.

Turning the tide

In her November, 2018 TEDWomen talk, “How to Find the Person Who Can Help You Get Ahead at Work,” Carla Harris, a woman of color and Wall Street veteran, described the “aha moment” she experienced at her first corporate roundtable in 1988, where names of candidates for promotion were being rapidly categorized into “buckets” based on their value to the firm according to its decision makers.¹¹ Sitting at that roundtable, Carla observed how as each candidate’s name was announced, somebody in the room spoke on the candidate’s behalf and explained their merits (or lack thereof), and that the candidate was quickly placed in a corresponding “bucket” based on the speaker’s recommendation; all with no discussion, and no input from the candidate themselves. Carla explained, “It was in that moment that I clutched my pearls and asked—who’s going to speak for me?”

Carla went on to say, “I knew at that moment that somebody would have to be behind closed doors arguing on my behalf, presenting content in such a way that other decision makers around that table would answer in my best favor,” because, Carla posited, “you cannot have a 100 percent meritocratic environment when there is a human element involved in the evaluative equation, because by definition, that makes it subjective.”

Vexed by the predicament of not having “that somebody,” not knowing what to call them or where to find them, Carla endeavored on a thought journey, which lasted a few years. Then one day, while speaking on the topic to MBA students at the University of Michigan, Carla realized, “Oh, this person that is carrying your interest, or as I like to say, carrying your paper into the room, this person who is spending their valuable political and social capital on you, this person who is going to pound the table on your behalf, this is a sponsor. This is a sponsor.”

Research suggests the key is to sponsor women, because a concerted effort by men and women alike to sponsor women within the Idaho Bar can garner the equality of opportunity necessary to effect proportional representation, at least.

In light of the forgoing, and recognition of the powerful and influential positions largely and historically held by men within the Idaho Bar, as well as the fact that promotions within law firms and the Bar generally occur behind closed doors by certain decision makers, there’s something men can do today to buoy representation and equality for women within the workplace and the judiciary, as the percentage of women to men grows in our field. Research suggests the key is to Sponsor women, because a concerted effort by men and women alike to sponsor women within the Idaho Bar can garner the equality of opportunity necessary to effect proportional representation, at least. 

Although the words “sponsor” and “mentor” are often used interchangeably in common parlance, to sponsor means to take responsibility for someone or something;¹² no such onus is denoted by the latter. A sponsor uses his or her position of power or influence to help further their protégé’s career. “A sponsor needs to know the skills and capabilities of their protégé, see their potential, and be able to orchestrate their advancement—but they don’t have to show them how to play the instrument or encourage them to practice.”¹³ Unlike a mentor, the sponsor and the protégé need not have the same economic goals—their glue is the goal of bolstering the position of the protégé.

The reputation of the Idaho Bar is that it is uniquely collegial, and that sponsorship abounds. This has been my experience as a relatively new attorney—I have had many willing sponsors “carry my paper” into the rooms where decisions are made. While not all of my sponsors have been men of my race, most of them have. The fact is: sponsors tend to select proteges who are like themselves. One explanation as to why this occurs is the unconscious bias of “like supporting like.”

Herminia Ibarra, Professor of Organization Behavior at the London Business School, asserts, “[p]eople’s tendency to gravitate to those who are like them on salient dimensions such as gender increases the likelihood that powerful men will sponsor and advocate for other men when leadership opportunities arise.”¹⁴ Ibarra’s theory is confirmed by a recent study by the Center for Talent and Innovation, which identified that 71% of executives in their study had proteges whose race and gender matched their own.¹⁵ As such,  in order to effectuate equality of opportunity, and bridge the gap in gender disparities in representation and equality within law firms and courts in Idaho, more men in the majority must actively seek to break the unconscious bias chain by sponsoring women.

Ending her TED talk, Carla encouraged would-be sponsors; “If you have been invited into the room, know that you have a seat at that table, and if you have a seat at the table, you have a responsibility to speak . . . If somebody is worthy of your currency—spend it. One thing I have learned after several decades on Wall Street is the way to grow your power is to give it away, and your voice is at the heart.”¹⁶

Unsure how to be a sponsor? Ibarra explains that sponsorship is a spectrum, it’s not an either/or role.¹⁷ What begins as a mentorship may morph into a sponsorship, but the distinguishing mark of a sponsor is their election to put their name and reputation on the line for their protégé. Here are five things you can do to sponsor women in the legal profession, borrowed from Karen Catlin, founder of Better Allies.¹⁸

Speak your protégé’s name when they aren’t around

A true sponsor will not hesitate to spend some of their social capital advocating for their protégé to decision makers. Often, this is the most effective way for a decision maker to truly hear the sponsor’s accolades and advocacy of their protégé. In the confidence of a meeting where the protégé isn’t present, an inherent trust in the genuineness of the sponsor’s endorsement of her is cultivated.

Endorse your protégé publicly

Where the rubber truly hits the road for sponsorship is when the sponsor publicly endorses their protégé. This sort of public endorsement can take many forms. A sponsor may publicly endorse their protégé in front of important clients, partners in their firm, and members of the Bar. This, like the following tip, will help garner trust and reliance on the part of decision maker in the protégé.

Invite your protégé to high profile meetings

Inviting your protégé to participate in high profile meetings, whether with clients or other partners, demonstrates your vote of confidence in her. This sort of overt action also bolsters her visibility before decision makers and cultivates their confidence in her. Direct relationships between your protégé and the decision maker are more likely to follow when the decision maker’s confidence in your protégé is borrowed from their confidence in you. 

Share your protégé’s career goals with decision-makers

For a sponsor to be able to share their protégé’s career goals, they must first understand where she is trying to go. Take time to understand your protégé’s career goals and then share them with the decision makers who can facilitate bringing those goals to fruition. Again, direct relationships between your protégé and the decision maker are more likely to follow when you help the decision maker recognize the role they can play in helping your protégé reach her goals.

Recommend your protégé for stretch-assignments and speaking opportunities

A sponsor who truly knows their protégé and her capabilities will not hesitate to recommend her for tasks which will allow her to develop credibility with others by demonstrating her skills. If you have true confidence in your protégé to succeed in an assignment, recommend her and continue to encourage her to success—the reward of her succeeding will be felt by you both.

The importance of sponsorship can’t be understated. If Carla Harris is correct in her assessment that there is no such thing as a true meritocracy, then those who reach new heights within an organization have almost certainly benefitted from a sponsor—someone “carrying their paper into the room.” Of course, this sponsorship paradigm necessitates cooperation between would-be sponsors and would-be protégés.

True sponsorship compels the sponsor to know their protégé’s goals, meaning that sponsorship should not be approached unilaterally in most cases; as such, would-be protégés have as much responsibility to seek or accept sponsorship as sponsors have to offer it. Nevertheless, as Ibarra explained, there is no strict formality required in sponsorship. This is important to bear in mind because some of your female colleagues may not be struggling to have a voice before decision makers, but rather to simply have your vote.

In short, what I advocate for here, is for those who have been, are, or will be in the position to be a sponsor, to recognize the unique opportunity you may have to turn the tide for the benefit of all in our profession, as well as those who we serve.

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Endnotes

1. Idaho State Bar Association Membership, https://isb.idaho.gov/licensing-mcle/membership-count-statuses/.

2.Jessica Gunder, “Women in Law: A Statistical Review of the Status of Women Attorneys in Idaho” (2019) (referencing Idaho Supreme Court Data found in 2018), available at https://digitalcommons.law.uidaho.edu/cgi/viewcontent.cgi?article=1189&context=faculty_scholarship.

3. Id. at 34; see also American Constitution Society “The Gavel Gap—Who Sits in Judgment on State Courts,”  available at https://www.acslaw.org/wp-content/uploads/2018/02/gavel-gap-report.pdf.

4. American Constitution Society, “The Gavel Gap—Who Sits in Judgment on State Courts,” available at https://www.acslaw.org/wp-content/uploads/2018/02/gavel-gap-report.pdf.

5. Supra note 2.

6. In 2020, 86% of all attorneys in the United States identified as white. ABA National Lawyer Population Survey, available at https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020.pdf.

7. NAWL 2020 “Survey on Promotion and Retention of Women in Law Firms,” available at https://www.nawl.org/p/cm/ld/fid=2019,

8. Supra note 2.

9. U.S. Census Bureau, Census Quick Facts, https://www.census.gov/quick-facts/fact/table/US/PST045217.

10. Id.

11. Carla Harris, “How to Find to Find the Person Who Can Help You Get Ahead at Work” TEDWomen (2018), available at https://www.ted.com/talks/carla_harris_how_to_find_the_person_who_can_help_you_get_ahead_at_work.

12. Sponsor Definition, Merriam-Webster.com, https://www.merriam webster.com/dictionary/sponsor (last visited Jan. 13, 2022).

13. https://hbr.org/2019/08/what-men-can-do-to-be-better-mentors-and-sponsors-to-women.

14. https://hbr.org/2019/08/a-lack-of-sponsorship-is-keeping-women-from-advancing-into-leadership.

15. https://www.talentinnovation.org/_private/assets/TheSponsorDividend_KeyFindingsCombined-CTI.pdf?eminfo=%7b%22EMAIL%22%3a%22Hc8ZphJgxOZCTbtnlHI4qpefYRZ2I%2bKJ3ocalZtETZo%3d%22%2c%22BRAND%22%3a%22FO%22%2c%22CONTENT%22%3a%22Newsletter%22%2c%22UID%22%25 cited by https://hbr.org/2019/08/what-men-can-do-to-be-better-mentors-and-sponsors-to-women.

16. Supra note 6.

17. Supra note 14.

18. https://betterallies.medium.com/5-things-allies-can-do-to-sponsor-coworkers-from-underrepresented-groups-266cd512e289.

19. William Stafford, A Ritual to Read to Each Other, The Way It Is: New and Selected Poems (1998).

Ashley Jennings

Published March/April 2022

The Importance of Mentors for Female Attorneys in Idaho

By Ashley Jennings

“There is a special place in hell for women who don’t help other women.” – Former Secretary of State Madeleine Albright

In 2009, my last year of law school, Carole Wells, my Victim’s Rights Professor, approached me with the idea of starting a women’s lawyer group at her house on Thursday nights. Carole is what Malcolm Gladwell in his book The Tipping Point calls a “connector,” a person who has a knack for making friends and acquaintances with very different and disparate people and then using those relationships to grow and connect those people to each other. Thankfully, my introverted inclinations were put aside, and I agreed to meet Carole’s other “lady” lawyer friends. This group of women have met regularly for the past 13 years. I was not cognizant of the gift that Carole was giving me at the time, but now solidly into my career, I am fully aware. This group of women mentors have become my closest friends and my sounding board for career advice.

I have also benefitted from the mentorship of males, namely my boss Bill Thompson, Latah County Prosecutor. Bill has been the elected prosecutor for 29 years. The education he provides regarding county policy, criminal law, civil law, and leadership is irreplaceable and uniquely different than that of my “lady” lawyer mentors. Of course, it is important for both men and women to have mentors. However historically in the legal profession, especially in Idaho, men have been able to do that for each other. Networking and obtaining leadership roles have not been a problem for men. For a woman building a law career there is an inclination to rely on other experienced women who have walked a similar path. However, my experience is that there is value in learning from those with different experiences and perspectives, including men. Seeking varied mentorships will allow women to become more well-rounded attorneys who will hopefully earn more seats at the leadership tables.

What is a mentor?

According to Maryann Bruce, former Fortune 100 Division President and CEO, a mentor is an individual “who takes an active interest in your career, serves as a sounding board, shares their experiences and wisdom, encourages new ways of thinking, challenges your assumptions, and helps you learn new skills.” A mentor should be someone with a similar professional goal or mindset. A mentor can be any age, at any level, and in any field. Women are also not limited to one mentor.¹ It is beneficial to have multiple mentors with different skill sets and life experiences.

Female mentors who have walked a similar path are invaluable in helping women find their own way through their experiences. However, male mentors, free from patriarchal constraints, can help women think expansively about career matters. Casey Foss in her article “Why Women Shouldn’t Rely Exclusively on Female Mentors” states, “My male mentors apply that expansive thinking to me, helping me see beyond the expectations the world places on me, and I subconsciously place on myself, as a woman.”²

Finding a mentor

Many women want a mentor but do not know how to ask. According to Bruce, “The best way to choose a mentor is to find someone you admire, someone who has a professional style you want to emulate, or a skill set you want to develop—then ask that individual.” It can be as simple as approaching this person and saying, “I admire the way you work and the values you display. Would you be willing to meet with me regularly? I believe there is much I could learn from you.”³

Find a connector such as Carole Wells and ask for introductions. If you are a connector, start a group and make it a point to meet and discuss successes and challenges. A mentor can also be found by identifying activities in common. Having something in common is the most comfortable place to start a mentorship. A co-worker can also serve as a mentor. Peers can help to motivate and encourage each another, while holding each other accountable for reaching goals. Lastly, many organizations have a formal mentorship program in place that employees only need to sign up to participate.

The role of a mentor

According to James E. Meadows, co-founder of the largest woman-owned law firm in the country, there are three “Cs” to being a good mentor: Consultant, Counselor, and Cheerleader. ⁴ As a consultant, the mentor is someone the mentee can trust, confide in, can seek advice from, as well as provide a safe space to discuss concerns that might be uncomfortable discussing with his or her boss. Counseling involves understanding and listening to the mentee and then tailoring advice to fit an individual’s situation. A good mentor should brainstorm ideas and potential outcomes around specific issues, but the final decision should be the mentee’s. It is not about a mentor feeding the answers; it is about the mentee being empowered to learn and grow in a positive direction. Mentors are also cheerleaders who provide support and champion mentees within their profession by providing encouragement, reassurance, and positive suggestions.

A good mentor should brainstorm ideas and potential outcomes around specific issues, but the final decision should be the mentee’s.

According to Andie Kramer, a workplace consultant, the best mentors “are good listeners, good questioners, and good strategic thinkers.” A bad mentor will pretend to know all the answers and will provide specific advice about how the mentee should behave. A good mentor, on the other hand, will not know all the answers and will be honest about those limitations. The best mentors know how to seek out others who are better suited to deal with specific issues.⁵

Women attorneys need mentors – Especially in Idaho

Currently according to the Federal Judicial Center only 28% of all federal judges are women. Approximately, 37% of all justices on state supreme courts are women, according to the Brennan Center for Justice at New York University. This is the same percentage of women in the legal profession in 2020 – 37%.⁹

Idaho does not fare better. Idaho ranks nearly last in the nation when it comes to the percentage of women judges on the state’s courts. Women make up just 30 percent of the members of the Idaho State Bar. Only 27 percent of Idaho’s 95 magistrate positions are women.¹⁰ The Idaho Court of Appeals has some parity with two women judges: Molly Huskey and Jessica Lorello, and the Idaho Supreme Court has two women out of five justices: Robyn Brody and Colleen Zahn. However, studies have found that women have been graduating from law schools at rates near those of men for approximately two decades but are not advancing at the same rates. ¹¹

Women mentoring women is critical for women to gain access to opportunities in what is still a male-dominated legal environment at the leadership level. With mentorships more women will rise to senior positions of leadership, creating diversified leadership teams. A growing body of research shows the benefits of having women leaders.¹² Studies show women often have a broader perspective, increase innovation, consider the of the rights of others, ask questions, and take a more cooperative approach to decision-making. This approach has led to increased positive outcomes for businesses with women at the decision-making table.¹³

To create parity, it is imperative that members of the bar, both men and women, help pave a smoother road for the women coming up the bar to guide them through their career and help them obtain leadership positions which will ultimately benefit the entire Idaho State Bar.

BIO: Ashley Jennings graduated from the University of Idaho College of Law in 2010. She is currently the Senior Deputy Prosecutor for Latah County. She also an adjunct professor for the University of Idaho College of Law teaching Domestic Violence and the Law.

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Endnotes

1. Maryann Bruce, Mentoring Matters: The Importance of Female Mentorship, October, 26, 2021, forbes.com.

2. Casey Foss, Why Women Shouldn’t Rely Exclusively On Female Mentors, February 21, 2019, forbes.com.

3. Maryann Bruce, Mentoring Matters: The Importance of Female Mentorship, October, 26, 2021, forbes.com.

4. James E. Meadows, Mentorship Is Essential to Fixing the ‘Women’s Recession’, October 27, 2020, Bloomberg law.com.

5. Andie Kramer, Women Need Mentors Now More Than Ever, July 14, 2021, forbes.com.

6. [6] Chahira Solh, How I Made It: Advice on Mentoring the Next Generation of Law Firm Leaders, January 7, 2022, law.com.

7. Andie Kramer, Women Need Mentors Now More Than Ever, July 14, 2021, forbes.com.

8. Chahira Solh, How I Made It: Advice on Mentoring the Next Generation of Law Firm Leaders, January 7, 2022, law.com.

9. Aspiring Judges Need Female Mentors, March 29, 2021, www.americanbar.org.

10. Hon. Michael J. Oths, Who Are We?, Digital Advocate, January 25, 2021, isb.idaho.gov.

11. Cynthia Fuchs Epstein et al., Glass Ceilings and Open Doors: Women’s Advancement in the Legal Profession, 64 Fordham L. Rev. 291, 356 (1995).

12. Dr. Margie Warrell, Gender Diversity At Leadership Tables: It Takes More Than Good Optics, August 23, 2021, forbes.com.

13. McMaster University, Women make better decisions than men, study suggests. ScienceDaily. ScienceDaily, March 26, 2013. www.sciencedaily.com/releases/2013/03/130326101616.htm.

David S. Jensen

Published January 2022

The current Idaho Nonprofit Corporation Act (Idaho Act) is one of the “spokes” of the Idaho Uniform Business Organizations Code (UBOC). Idaho adopted the UBOC in 2015. At that time, the Idaho Act was modified only to the extent necessary to fit it into the “hub and spoke” structure of the UBOC. The core of the Idaho Act, however, remains the same as it was when enacted in 1993, closely following the 2^nd edition of the Model Nonprofit Corporation Act (Model Act) published by the American Bar Association’s Business Law Section. After almost 30 years with little substantive change, it is time to update Idaho’s nonprofit corporation statutes to reflect recent developments in nonprofit and corporate law and to improve and modernize Idaho law for nonprofits.

For the past year, a committee of the Business and Corporate Law Section (Committee) has been reviewing the Idaho Act and the 4^th edition of the Model Act in order to propose to the Idaho Legislature revisions to the Idaho Act.¹

The Model Act

In order to get the full benefit from using a model act, the Committee decided that the language in the 4^th edition of the Model Act² should be adopted in Idaho unless a specific reason was identified for alternate language. This approach is useful in Idaho since we generally do not have a lot of judicial decisions interpreting the Idaho Act. By following a model act, the judicial decisions from the other states that have adopted the Model Act can be researched for potential guidance in Idaho.

The general approach of the 4^th edition of the Model Act is to follow the language of the Model Business Corporation Act except where a substantive difference between the two laws is intended. Where the language is the same, it should be interpreted in the same way.

Idaho differences from the Model Act

The hub chapter and the entity transactions chapter of the UBOC, Chapters 21 and 22, Title 30, Idaho Code, govern many aspects of business organizations that are the same for the different entities included within the UBOC. As a result, the revised act (defined below) does not incorporate the full Model Act. The provisions from the Model Act with respect to corporate name, registered office and agent, and foreign corporations are covered in the hub chapter of the UBOC. Many of the definitions and filing provisions in chapter 1 of the Model Act are likewise covered in the UBOC hub.

Similarly, most of the provisions covering mergers, interest exchanges, domestications, and conversions are principally covered in the entity transactions chapter of the UBOC. No changes are proposed to the hub or entity transactions chapters of the UBOC as part of the revised act. References in this article to the “revised act” means the Idaho Act as will be proposed to the Idaho Legislature by the Committee.

The revised act continues several differences from the Model Act that were incorporated into the Idaho Act when the current act was enacted in 1993. For example, the Idaho Act includes many provisions that are applicable to cooperative corporations. While many states have a separate act governing cooperative corporations, Idaho includes such corporations within the scope of nonprofit corporations.

A cooperative corporation is defined in the Idaho Act as “any nonprofit corporation, operating on a cooperative basis, owned, operated, organized and maintained by its members, for the purpose of providing goods or services to its members.” Under the revised act, cooperative corporations will continue to be subject to the same rules as any nonprofit corporation, unless an exception is specified, and all existing substantive exceptions will remain.

The 4^th edition of the Model Act includes several special rules for religious nonprofit corporations. Most of these are a continuation of rules for religious nonprofit corporations in the current Idaho Act. In several instances, though, the 4^th edition of the Model Act chose to drop the special rule for religious corporations. While the drafters of the 4^th edition may not have intended a substantive change as a result of reducing the instances of special rules for religious corporations, the Committee has chosen to retain all previous substantive special rules for religious corporations.

Another example of the revised act continuing a previous difference from the Model Act involves action by the members of a nonprofit corporation without a meeting. Under the Model Act, the default rule is that all the members entitled to vote on a matter must sign a written consent to take action. The articles of incorporation or bylaws may provide for consent by less than all the members or prohibit any action without a meeting. The current Idaho Act requires that a written consent be signed by at least 80% of the members for a nonprofit corporation to act without a meeting. The revised act will continue the 80% threshold as the default rule but will also follow the Model Act and allow the articles or bylaws to set a lesser percentage.

The bulk of the proposed changes to the Idaho Act are not substantive, but merely use different language in order to follow the language of the Model Act. Of the limited number of substantive changes to the Idaho Act, the majority are additions to the act. The following are descriptions of several of the more substantive changes in the revised act.

Charitable corporation

The revised act adds the concept of a “charitable corporation.” A charitable corporation is defined as “a domestic nonprofit corporation that is operated primarily or exclusively for one or more charitable purposes.” “Charitable purpose” is defined to mean a purpose: “(i) that would make a corporation operated exclusively for that purpose eligible to be exempt from taxation under Section 501(c)(3) or (4) of the Internal Revenue Code; or (ii) considered charitable under law other than this [act] or the Internal Revenue Code.”

The comments to the model act explain that “there are certain areas in which public policy concerns are more sensitive with respect to some nonprofit corporations than others. The act accordingly provides different rules for charitable corporations with respect to certain subjects.” For example, the new section on standards of liability for directors provides an automatic liability shield for directors of a charitable corporation. To limit the liability of a director of a non-charitable corporation, the limitation must be included in the corporation’s articles of incorporation. Another example is the restriction that a person who is a member of a charitable corporation may not receive a financial benefit in connection with a disposition of assets by the corporation unless the person is a charitable corporation or an unincorporated entity that has a charitable purpose.

Designated body

Under the current Idaho Act, the articles of incorporation may “authorize a person or persons to exercise some or all of the powers which would otherwise be exercised by a board.³” The Model Act expands this concept and makes it more transparent. The revised act follows the Model Act and adds the concept of a “designated body.” A “designated body” is defined as: “A person or group, other than a committee of the board of directors, that has been vested by the articles of incorporation or bylaws with powers that, if not vested by the articles or bylaws in that person or group, would be required by this chapter to be exercised by the board or the members.⁴”

A new section of the revised act provides that some, but less than all, of the powers, authority, or functions of the board of directors may be vested in a designated body. If that is done, provisions of law relating to the board of directors will apply to the designated body (§812(a)(1)), directors will be relieved from their duties and liabilities with respect to the powers, authority, and functions to the extent they have been vested in a designated body (§812(a)(2)), and members of the designated body are entitled to indemnification and exoneration from liability the same as the directors (§812(a)(3)).

Director duties and liabilities

The provisions of the revised act with respect to the duties and liabilities of directors of nonprofit corporations closely follow the provisions of the Idaho Business Corporation Act, which is based on the Model Business Corporation Act, on the same subjects. This is consistent with the view that the relationship of directors to a nonprofit corporation is more like that of directors of business corporations than to that of trustees to their beneficiaries. As explained above, a liability shield automatically applies to directors of charitable corporations with an optional liability shield available for directors of other corporations. The director indemnification provisions in the revised act also follow the business corporation statutes.

What it means to be a member

The revised act adopts a new definition of “member,” which means “a person in whose name a membership is registered on the records of the corporation and who has the right, not solely as a delegate, to select or vote for the election of directors or delegates or to vote on any type of fundamental transaction.”⁵ With this new definition, voting becomes central to what it means to be a member, as explained in an official comment to the definition: “A nonprofit corporation will sometimes refer to contributors or other persons interested in the activities of the corporation as ‘members’ even though those persons do not fit within the definition of ‘member.’” However, “[i]f a person does not have the right to vote for the election of directors or delegates or to vote on fundamental transactions, the person will not be a ‘member’ for purposes of the Act even though the person may be referred to by the corporation as a member.”⁶ Therefore, just because a person is referred to as a member, if they do not have voting rights, they are not a member within the meaning of the Idaho Act.

Elimination of cumulative voting

The current Idaho Act permits the articles of incorporation or bylaws of a nonprofit corporation to authorize cumulative voting. The revised act prohibits cumulative voting, but existing cumulative voting rights are grandfathered in so that a provision in a corporation’s articles or bylaws that authorizes cumulative voting and is adopted before the enactment of the revised act will continue to apply until the articles or bylaws are amended.

Electronic technology

The revised act broadly validates the use of electronic technology and uses terminology developed in the Uniform Electronic Transmissions Act (UETA) and the federal Electronic Signatures in Global and National Commerce Act (E-Sign).

In the past few years, the manner in which corporations hold meetings has changed significantly. The revised act authorizes the board of directors to permit members to participate in meetings by means of remote communication, such as over the internet or through telephone conference calls, subject to certain conditions set forth in the revised act and any other guidelines and procedures that the board of directors may adopt.

This would include the use of electronic ballots to the extent authorized by the board of directors. The revised act also authorizes the board of directors to provide for a meeting of members to be held solely by means of remote communication and to dispense with having a geographic location for the meeting. This authority may be eliminated in the corporation’s articles of incorporation or bylaws.

In addition to the authorization for remote participation in member meetings, the revised act provides that “directors may participate in a meeting of the board through the use of any means of communication by which all directors participating may simultaneously hear each other during the meeting.” This authorization for remote participation in board of director meetings may be restricted by the articles of incorporation or bylaws.

Ratification of defective corporate actions

The revised act provides a statutory ratification procedure for corporate actions that may not have been properly authorized. Examples of defective corporate actions subject to ratification include corporate action taken without board resolutions or other action of the board or members that authorizes the action and corporate action taken without obtaining member approval when member approval of the corporate action is required. This statutory ratification procedure is designed to supplement common law ratification.

At the time this article was written, the Committee had not completed its proposed revisions to the Idaho Act, so the final proposal to the Legislature could be different in some respects from what is reflected in this article. For more information about the revised act, contact one of the members of the Committee.

The revised act should prove to be very helpful to Idaho nonprofit corporation by providing an up-to-date statute that provides the structure and flexibility necessary for the various types of nonprofit corporations that exist today.

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Endnotes

1. The members of the Committee are Crystal Berry, Thomas Everson, Eric Taylor, Nicholas Gourley, James Hovren, David Jensen, Jason Mau, Matthew Purcell, Sarah Reed, Michael Short, and Paul Street, with research assistance from law student Charlotte Cunnington.

2. The 4^th edition of the Model Act with comments can be found at the following link:  www.americanbar.org/content/dam/aba/administrative/business_law/nonprofit/mnca.pdf.

3. I.C. § 30-30-601(3).

4. Model Act (4th ed.), § 102.

5. Id.

6. Model Act (4th ed.) § 102, cmt. 10.