Debora Kristensen Grasham

Preface by Hon. Candy W. Dale

Published March/April 2022

Preface

As I began my third year of law school, I recall watching President Reagan’s historical nomination of Sandra Day O’Connor as the first woman associate justice to the Supreme Court of the United States.  She was confirmed by the Senate by a 99-0 vote on September 11, 1981. This “first” signified a “beginning” that lead lawyers like myself to realize that our previously unthinkable dreams of women taking seats on the bench among men could be a reality.  Ruth Bader Ginsburg followed as the second associate justice in 1993, and to date three others have served on the highest court in our country.  Idaho too has had its own “firsts” during my career, starting with Deborah Bail who was the first woman appointed as District Judge in 1983, followed by Linda Copple Trout as the second in 1990.  Cathy Silak was the first woman appointed to the Idaho Court of Appeals in 1990, followed by Karen Lansing as the second in 1993.  Linda Copple Trout was the first woman appointed to the Idaho Supreme Court in 1992, followed by Cathy Silak as the second in 1993.  And in 2008, with my appointment as United States Magistrate Judge, I became the first woman to serve on the federal bench in Idaho.  I am pleased to now say that my appointment was also just a beginning, as Debora Kristensen Grasham will join the federal bench in Idaho as a United States Magistrate Judge on or about April 1, 2022, upon my transition to recall status.

Over the past 20 plus years, as evidenced by the article that follows and several prior articles, Ms. Grasham has spent countless hours researching and writing about lawyers and jurists who have made contributions to Idaho’s legal history, notably including a focus on the “firsts” who were admitted to the practice of law or who attained a seat on our state and federal courts. Soon, Ms. Grasham will add her own chapter to the history she has preserved about so many of us.  To borrow a quote from former Justice Sandra Day O’Connor, “It’s fine to be the first, but you don’t want to be the last.” Welcome to the bench!

—Judge Candy W. Dale

Former U.S. Secretary of State Condoleezza Rice once remarked: “People who end up as ‘first’ don’t actually set out to be first.  They set out to do something they love and it just so happens that they are the first to do it.”  Such is the story of Idaho’s first African American woman lawyer and judge, Ida Leggett.  Leggett, a native of Alabama, did not set out to be a “first” in Idaho.  Nonetheless, her determination to become a lawyer led her to Idaho and her unique place in Idaho legal history.

Leggett’s Early Years

Ida Rudolph Leggett was born in 1948 in a small town in Alabama at a time when racial tensions were high.[2] Her father was a sawmill worker and her mother was a schoolteacher. Separate water fountains existed for whites and people of color, along with separate entrances to the courthouse. When Leggett was young, she was not permitted in the whites-only city library.[3] An avid reader, she read anything and everything should could get her hands on. When she was seven, one of the magazines she found was an issue of Ebony with an article about Thurgood Marshall arguing Brown v. Board of Education. When Leggett asked her mother about it, she explained Marshall’s role as chief counsel for the NAACP Legal Defense and Education Fund and said that he was “going to change the schools because he could argue in court.”[4] That is when Leggett decided to become a lawyer and help bring about change herself.

Leggett graduated from her segregated high school in 1965 and attended Tuskegee Institute, in Alabama.[5] After just a year and half, however, she got married and dropped out of school. She became a mother, and then a single mother, to three children, before she returned to college.[6] When she applied for financial aid, she was denied based on the argument that she had chosen her career as a mother over other options. Leggett persevered without the financial aid and returned to college later. She graduated from the University of South Florida in Tampa in 1979, the first integrated school she had attended.[7]

Leggett Decides to Go to Law School

After college, Leggett was not sure what to do with her life, even though she had aspirations of becoming a lawyer. Her finances were tight and she had three children and very little support. But she decided, “I can do this myself,” and she began applying to law schools throughout the nation.[8] One day she received a telegram offering a fellowship to pursue her legal education at Gonzaga Law School in Spokane, Washington. Leggett described how she had to pull out a map to see where Washington State was, but she happily accepted the offer.[9] With her three kids in tow, she moved from Florida to Washington in 1979.

Leggett recalls studying for her law school classes at night while her children slept. She attended summer terms at Gonzaga and graduated cum laude after just two and one-half years.[10] During that period, Leggett participated in two moot court teams that won regional championships and one that placed third in the nation.[11] She also worked as an Assistant U.S. Attorney in Spokane. After graduation in 1981, she accepted a clerkship with Chief Justice William Williams of the Washington Supreme Court.[12] Leggett was admitted to the bar in Washington State one year later.

Life After Law School & A Move to Idaho

After her clerkship, Leggett accepted a position with the Lane Powell law firm and worked in civil litigation, including insurance defense and construction law.[13] A few years later, Janet Jenkins, a law school classmate, invited her to move to Coeur d’Alene, Idaho, to start their own firm. She accepted and practiced civil law for several years at Jenkins & Leggett.

Leggett was admitted to practice law in Idaho on April 25, 1986, and thereby became the first African American woman admitted to the Idaho bar – an accomplishment she did not recognize until years later. Indeed, when she did learn that she was the first African American woman pass the bar in Idaho she was perplexed and asked “How can that be? It was the late 80s when I passed the bar and I thought there must have been someone else.”[14]  Nonetheless, she was thrilled to learn of her distinction and called it “pretty good, pretty neat.’”

In 1986, Leggett was interviewed by the Associated Press about the racism she had experienced in Coeur d’Alene.[15] Leggett described how her son had been taunted by high school classmates using racial epithets. Her secretary had been followed home by people who yelled the same words, and Leggett described the precautions she herself took each day to stay safe.[16] A newspaper of the day reported:

In September, when bombs rocked the rugged, mountain ringed beauty of smalltown Coeur d’Alene, Ms. Leggett got serious about precautions.

She left markers on the hood of her car each day to warn her if someone tampered with the engine. She drove different routes to and from work.

“No one should have to live this way,” she said. “Probably the only reason we’re here now is because I don’t want him [her son] thinking he has to run for his life.”[17]

Nevertheless, she persisted.

Leggett’s Good Work Gets Noticed

Within a few years, Leggett came to the attention of the Idaho Governor Cecil Andrus, and in 1988 he appointed her to the State Commission on Pardons and Parole.[18] In this position, Leggett found herself in a new role as decision maker and having to find consensus with her fellow board members. She was the only woman and only person of color on the commission.

During a 1991 interview, Leggett was asked whether she missed anything about “being in the thick of black culture.”  Her response was personal and reflected the ever-present pressure she faced just by being herself in a white-dominated community:

I do miss that just being a person.  Just being one person of a lot of people.  I’d like to walk in a room and not cause a stir just by walking in.  I miss that sameness.  I miss that – I don’t know what it is, but when my family’s all together – it’s there.  You’re just a person.  And if you do something, you’re doing it for yourself and if you fail, you fail for yourself.  You didn’t do it for every other black person in town.  That’s a product of being the only one who’s visible.[19]

Leggett Applies for Idaho Judgeship

In 1992, Governor Andrus announced his intention of appointing a woman to the open seat on the Idaho Supreme Court. Leggett decided to throw her name into the mix, becoming the first black woman to apply for an Idaho Supreme Court position.[20] During her interview with the Judicial Council, Leggett told the members that the circumstances of her life had forced her to excel—something she would continue to do as a justice. She said she had been so successful in private practice that she would be taking a pay cut if she were named to the Supreme Court. The job paid $74,701.

“I am qualified to do this job; I’m willing and I’m able,” Leggett said. “And because of what my parents have given me, I don’t have any choice but to do a good job.”[21]

Linda Copple Trout was chosen for the position, but that did not end Leggett’s ambition to join the bench. In fact, Trout’s elevation to the Idaho Supreme Court meant that her district court seat in Lewiston was now open. Leggett decided to apply for that seat; at the time, only one other woman served as a district court judge in Idaho, Deborah Bail in Ada County.

Leggett “received strong support from a number of groups” in her judicial application.[22] On November 16, 1992, Governor Andrus appointed Leggett to the district court bench in the Second Judicial District in Lewiston, noting, “I am particularly impressed that she intends to lead the effort to make the citizen more comfortable in what sometimes can feel like the insider’s realm of the courtroom.”[23] In so doing, Leggett became the first African American woman to hold a judicial position in Idaho.

Leggett’s Life in Lewiston

In Lewiston, Leggett was “highly visible as an African American woman, a woman professional, and an African American judge.”[24] The lack of privacy made her vulnerable to threats and, unfortunately, she received them. One particularly horrendous example occurred during her presiding over a high-profile murder trial. Leggett received racially motivated death threats and had a cross burned on her front lawn.[25] In 1998, Leggett decided that the “isolation and fishbowl nature of her life” was too much, resigned her position, and moved to Seattle to be closer to her family.[26]  She later remarried and worked in Washington state.

A colleague and friend of hers, Judge Richard D. Eadie of the King County Superior Court in Seattle, Washington, described Leggett as:

a quiet but determined woman who has endured poverty, racism—both overt and subtle—and the challenges of education and employment as a single parent and sole support of three children. She is an accomplished lawyer and jurist; a person with dignity and class. She has faced enormous challenges, but always found the inner strength to overcome.[27]

Conclusion

Leggett’s achievements in Idaho legal history are even more remarkable when put in context.  Idaho has never been a racially diverse state and woman have been traditionally underrepresented in the bar. According to the U. S. Census Bureau, as of July 2019, Idaho’s population was 81.6 percent white, 12 percent Hispanic or Latino, 1.7 percent Native American, 1.6 percent Asian, and 0.9 percent African American.[28] As of October 2021, there were a total of 5,429 active attorneys in the state,[29] with women making up about 27 percent of them.[30]  In the late 1980s when Leggett came to Idaho, these numbers were even less diverse.  Nonetheless, Leggett worked hard to become Idaho’s first woman African American lawyer and judge and is entitled to a special place of honor in Idaho legal history.

BIO: Debora Kristensen Grasham has been a partner in the Boise law firm of Givens Pursley for more than 22 years.  On or about April 1, 2022, she will become the next U.S. Magistrate Judge for the District of Idaho, following U.S. Magistrate Judge Candy Dale’s transition to recall status.  At that time, Idaho will have reached another “first” – having two women serve on its federal bench.

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Endnotes

[1] Much of this article is taken from a longer article by the author entitled The First Women of Idaho’s Bench and Bar published in Volume 32 of Western Legal History and available at https://www.njchs.org/current-issues/.

[2] Richard D. Eadie, Judge Ida Leggett: A Pioneer Jurist in Idaho, Washington State Courts, Equal Justice Newsletter, Mar. 2000, available at https://www.courts.wa.gov/programs_orgs/pos_mjc/newsletter/032000/equaljustice.cfm?article=leggett.htm.

[3] Id.

[4] Id. See also Ida Leggett: First African-American Woman Admitted to the Idaho Bar,” Idaho Legal History Society Newsletter, Spring 2017, at 3.

[5] Pioneer Jurist, supra note 2.

[6] Pioneer Jurist, supra note 2.

[7] Pioneer Jurist, supra note 2.

[8] Leggett in Idaho, supra note 4 at 3.

[9] Pioneer Jurist, supra note 2; Leggett in Idaho, supra note 4 at 3.

[10] Pioneer Jurist, supra note 2.

[11] Pioneer Jurist, supra note 2.

[12] Pioneer Jurist, supra note 2.

[13] Pioneer Jurist, supra note 2.

[14] Aisha Monet, Interview with the Honorable Ida Leggett (March 8, 2016 and May 24, 2016), available at https://thecoloredgirls.wordpress.com/.

[15] Lawyer Is Fearful of New Idaho Life, South Idaho Press, Dec. 31, 1986, at 3.

[16] Id.

[17] Id.

[18] Pioneer Jurist, supra note 2.

[19] Randall Kenan, Walking on Water: Black American Lives at the Turn of the Twenty-First Century 240 (Vintage Books Ed., 2000).

[20] Idaho Judicial Council Begins Screening Applicants for Vacancy, The Times News, Aug. 16, 1992, at 12.

[21] Id.

[22] Andrus Mulls Lewiston Court Seat, The Times News, Nov. 13, 1992, at 10.

[23] Id.

[24] Pioneer Jurist, supra note 2.

[25] Kathy Hedberg, Standing in Judgment, The Lewiston Tribune, Oct. 26, 2018.

[26] Pioneer Jurist, supra note 2.

[27] Pioneer Jurist, supra note 2.

[28] See United States Census Bureau, Quick Facts, Idaho, available at https://www.census.gov/quickfacts/fact/table/ID/RHI825219#RHI825219.

[29] See Idaho State Bar, Membership Count as of 10/5/21, available at https://isb.idaho.gov/licensing-mcle/membership-count-statuses/.

[30] See Jessica R. Gunder, Women in Law: A Statistical Review of the Status of Women Attorneys in Idaho, 62 The Advocate, Feb. 2019, at 23.

John E. Rumel

Published May 2022

Introduction

Idaho has long recognized the right to jury trial in civil cases. Indeed, the origins of the right are as old as the Gem State itself.  But what are the purposes underlying the right?  And how has the right been interpreted and applied by the Idaho Supreme Court over the years? 

This article will explore the legal origins of the right to jury trial in Idaho and will delineate its laudatory purposes in both criminal and civil cases.  It will then discuss selected decisions by the Idaho Supreme Court evaluating the jury trial right in civil cases, including (1) decisions predictably and non-controversially limiting the scope of the right by requiring jury trial demands to exercise the right and allowing courts to grant motions for new trial or directed verdict and judgment notwithstanding the verdict (“JNOV”) without denigrating the right and (2) decisions on less stable legal terrain, alternatively, limiting the right concerning the Idaho legislature’s imposition of caps on noneconomic damages and expanding the right concerning the possible award of front pay.

The article will next evaluate the relatively scant case law on the effect of judicial Covid-related orders on the right to jury trial in civil cases, opining that delays caused by those orders will be permissible, but outright denial of or prohibition on the exercise of the right will not.  The Article will conclude by suggesting that, because the right to jury trial preserves one of our most democratic institutions, Idaho courts should vigorously further the right in future cases.         

Origins of and Purpose Underlying the Right to Jury Trial in Civil Cases

Article I, Section 7 of the Idaho Constitution was adopted by Idaho’s Framers in 1890 and provides that “[t]he right of trial by jury shall remain inviolate … .”[1]  In construing Idaho’s jury trial right provision, the Idaho Supreme Court has noted its historical origins, stating “[t]he right to trial by jury always has been salient to the American people. In no less a document than the Declaration of Independence, our nation’s founders grounded, in part, their dissolution of political ties with Great Britain on the King’s “depriving us, in many cases, of the benefits of trial by jury.”[2]  To be sure, the right to a jury trial has one of its most profound applications in criminal cases, where “the Framers of both the federal and state constitutions interposed juries of citizens between governments and those persons the governments have accused of wrong in order to avert the abuse of authority.”[3] 

However, the right to jury trial has long applied to civil cases – under both Article I, Section 7 in Idaho[4] and under the Seventh Amendment.[5] In civil cases, the right to a jury trial reflects the belief that decisions by average citizens drawn from the community will confer legitimacy on the civil litigation process.[6]   Related, the United States Supreme Court made clear long ago that decisions by those same average citizens from the community can be more informed and thoughtful than decisions by a single individual or judge.[7]

Thus, in a personal injury case in the 1870s, a six-year old boy was injured while playing on an unguarded turntable owned and operated by a railroad company.[8] The jury awarded $7,500 for the boy’s injuries and the railroad company appealed.[9]  The Supreme Court rejected the railroad company’s contention that, because the facts were undisputed, the district judge, rather than the jury, should have decided the negligence issue in the case.[10] Specifically, the Court held that, where reasonable deductions and inferences could be drawn from undisputed facts on the issue of negligence, the jury was the appropriate decisionmaker.[11]  

In so holding, the Court laid out the rationale for its decision in stirring terms:

Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit together, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge.[12]

Over the years, these vaunted purposes have not prevented predictable limitations on the right to jury trial in civil cases but have played out in mixed results in cases where plaintiffs have sought to have jurors as the final decision in the remedial aspect of civil cases.    

Three Predictable and Noncontroversial Limitations 

Given the importance of the right to jury trial in civil cases, the Idaho Supreme Court  held a number of years ago  that “[a] waiver of a jury trial will not be implied in doubtful cases”[13] and a few years later that “[w]e will not indulge in any presumption that a litigant has waived such a fundamental right.”[14]

More recently, however, the right to a jury trial in a civil case has shifted from a right not readily waived to a right that must be asserted and preserved by litigants to be enjoyed.  Thus, Idaho Rule of Civil Procedure 38 imposes the following demand and waiver requirements concerning the right to jury trial in civil cases:     

(b)On any issue triable of right by a jury, a party may demand a jury trial, stating in such demand whether the party will stipulate to a jury of less than 12 persons, but at least 6. …

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(d) A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

Related, Idaho Rule of Civil Procedure 39 provides in pertinent part as follows:

(a) When a jury trial has been demanded under Rule 38, the action must be designated on the register of actions as a jury action. The trial on all issues so demanded must be by jury, unless:

(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or

(2) the court on motion or on its own finds that on some or all of those issues there is no right to a jury trial.

(b) Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

Thus, under Rule 39(a), “once a proper and timely demand has been made, the trial is by  jury…”[15] Conversely, “[f]ailure to make a timely demand under Rule 38(b) constitutes a waiver of the right to a jury trial.”[16]  In sum, to perfect a right that the Idaho Constitution guarantees inviolate, litigants must satisfy the demand requirements of the Idaho Rules of Civil Procedure. 

“More recently, however, the right to a jury trial in a civil case has shifted from a right not readily waived to a right that must be asserted and preserved by litigants to be enjoyed.”

Motions for New Trial and the Right to a Jury Trial

Arguably, any time a trial judge grants a motion for new trial after a jury has rendered a verdict an incursion on the right to a jury trial has occurred. However, Idaho appellate courts have made clear that a trial judge’s ability to grant a new trial – and the standards under which it may do so – do not violate the state constitutional right to a jury trial under Article I, Section 7 so long as the judge adheres to certain procedural requirements.

The Idaho Court of Appeals, addressing a constitutional challenge to the abuse of discretion standard for reviewing a trial judge’s decision to grant a new trial, has held as follows:

Agro-West next argues that the “manifest abuse of discretion” standard violates Article I, section 7 of the Idaho Constitution …. . As to the alleged violation of the state constitution, we note that the power to grant new trials is not claimed to be unconstitutional; rather it is the wide discretion given to the district court under the “manifest abuse of discretion” standard of review, which Agro-West claims “disturbs” and “infringes” upon the jury’s role as factfinders, and allegedly violates the state constitution.

The constitutional right of trial by jury has been interpreted to secure that right as it existed at common law when the Idaho Constitution was adopted. … Before Idaho became a state, our territorial Supreme Court had recognized the trial court’s discretionary function in ruling upon new trial motions. …. After statehood, the court later enunciated the “abuse of discretion” standard of review. …. Thus the constitutional right to trial by jury in civil cases, under the state constitution, is subject to the trial court’s discretionary power to grant a new trial. The limits of this power are defined by the “abuse of discretion” standard of review. Because the discretionary power to grant a new trial does not contravene the state constitution, the abuse of discretion appellate standard is also free from constitutional infirmity.[17]

The Idaho Supreme Court has likewise held that, where  the trial judge discloses his or her reasoning for granting or denying a motion for a new trial and/or remittitur or additur (unless those reasons are obvious from the record itself), that statement of reasons allows for “adequate review of the decision of the trial court [and thereby] … insure[s] the right to trial by jury guaranteed by art. 1, § 7 of the Idaho Constitution.”[18]

Thus, given trial courts’ pre-Statehood ability to grant a new trial after a jury had rendered its verdict, it is not surprising that trial courts have continued to be able to exercise such discretion as long as both appellate courts and trial courts adhere to certain safeguards designed to protect the right to jury trial guaranteed by the Idaho Constitution.      

Motions for Directed Verdict or Judgment Notwithstanding the Verdict (JNOV) and the Right to a Jury Trial

A trial judge’s unwillingness to allow a case to be resolved by a jury or to reverse a jury’s verdict once it has been rendered and direct a verdict or enter judgment for one party over the other raises similar issues regarding possible incursion on jury trial rights as granting a motion for a new trial.  Indeed, the effect on the parties’ right to a jury trial is even more pronounced in the directed verdict or JNOV contexts, since a trial court’s granting a motion for new trial merely sets aside a verdict and leaves open the possibility that either party may obtain a jury verdict in a subsequent trial, while granting a motion for directed verdict or JNOV enters judgment in favor of one party by either bypassing or overriding a jury’s verdict.

These considerations notwithstanding, the Idaho Supreme Court has made clear that, so long as the trial judge applies a standard of review deferential to the non-moving party on a motion for directed verdict (or JNOV), the court will not offend the non-moving parties’ jury trial rights if it grants the motion.[19]   Thus, the Idaho high court, quoting federal case law, has stated as follows:

If the court grants it (a motion for directed verdict) no findings of fact are necessary and upon review the evidence must be viewed in the light most favorable to the party against whom the motion is made. . . .

We will therefore . . . disregard the findings of fact of the trial court, reviewing the entire evidence in the light most favorable to the plaintiff and giving him the benefit of all reasonable inferences which may be deduced from the evidence in his favor . . . . To adopt any other view in a jury case is to risk the deprivation of a plaintiff’s right to trial by jury under the Seventh Amendment.[20]

As with the Idaho Supreme Court’s decision on motions for new trials, its decision recognizing the power of trial court – guided and constrained by standards favorable to the nonmoving party (typically, the plaintiff) – to either grant a directed verdict or reverse a jury’s verdict by granting JNOV is consistent with the jury’s and judge’s rightful roles in our civil litigation system.  As such, the decision is not surprising.  

Caps on Non-Economic Damages and the Right to a Jury Trial

In Kirkland v.  Blaine County Medical Center,[21] the Idaho Supreme Court was faced with several Idaho state constitutional challenges, including a right to jury trial challenge, to the Idaho legislature’s enactment of monetary caps on the ability of personal injury plaintiffs to recover non-economic damages from defendant tortfeasors.[22] Specifically, the legislature limited the amount of noneconomic damages a plaintiff prevailing under a negligence theory could receive from defendants to a sum certain even though a jury might have awarded the plaintiff economic damages in an amount vastly exceeding the capped amount.[23]

In resolving the right to jury trial challenge, the Idaho Supreme Court recognized that, although Art. I, Section 7 provides that the right to trial by jury was to remain “inviolate” and plaintiffs’ right to recover noneconomic damages from tortfeasors existed at the time of adoption of the Idaho Constitution, the legislature had “the power to …modify common law rights and remedies” at that time as well.[24]  As such, the Idaho legislature’s subsequent imposition of caps on noneconomic damage awards did not violate Art. I, Section 7 generally.[25]   

In addition, given the effect of caps on a plaintiffs’ right to fully recover noneconomic damages, the Court made  the dubious statement that the legislature’s imposition of caps “does not violate the right to a jury trial because the statute does not infringe upon the jury’s right to decide cases.”[26] In this regard, the Court stated that “[t]he jury is still allowed to act as the fact finder in personal injury cases” and “[t]he statute simply limits the legal consequences of the jury’s finding.”[27]  Disagreeing with the statement made by other courts that the procedure for administering caps “plays lip service to the form of the jury but robs the institution of its function,” the Court held that the legislature’s adoption of caps limiting plaintiffs’ recovery of noneconomic damages “does not violate the right to jury trial as guaranteed by Article I, § 7 of the Idaho Constitution.”[28]

Certainly, the Idaho Supreme Court’s decision rejecting a constitutional jury trial right challenge to caps on noneconomic damages can be supported by decisions on similar issues in other jurisdictions.[29]  However, a near equal number of decisions outside of Idaho have concluded that such caps violate jury trial right guarantees.[30]  Moreover, although the Idaho high court attempts to suggest otherwise, imposition of caps on noneconomic damages reducing the amount of damages a plaintiff may recover from a higher amount of damages awarded by a jury fails to respect the jury’s decision on the matter, alters the outcome of the case when a jury has fairly performed the duties assigned to it and, as such, does infringe on the jury’s right to decide cases.  For these reasons, the Idaho Supreme Court’s decision on the jury trial right issue in Kirkland was regrettable.           

Front Pay in Employment Cases and the Right to a Jury Trial

Approximately two years ago, in Smith v. Glenns Ferry Highway Dist.,[31] the Idaho Supreme Court addressed and resolved the issue of whether a plaintiff had a right to a jury trial concerning her request for an award of front pay in lieu of reinstatement in a Whistleblower Act case.[32]  In concluding that plaintiff Joanie Smith did have such right, the Court first “recognized that the constitutional right to a jury trial applies only to legal claims and not equitable claims.”[33] The Court went on to categorize front pay as a legal remedy, distinguishing statutory schemes (such as Title VII) treating front pay as equitable relief and holding as follows:

Much has been made by the District and the trial court of “front pay” being a remedy in lieu of reinstatement. Clearly reinstatement is an equitable remedy over which the court alone holds control. However, allowing an award of front pay as an alternative to reinstatement does not somehow transform front pay into an equitable remedy. Front pay is an alternative to reinstatement “where reinstatement is made unreasonable by hostility between the parties[.] … The impracticality of forcing parties back into a fractured employment relationship does not somehow transform front pay—money damages—into an equitable remedy rather than a legal remedy. Front pay is offered as a legal alternative, not as an equitable replacement.

Accordingly, the trial court erred as a matter of law in holding that Smith was not entitled to have the jury decide the issue of front pay. The issues of front and back pay should have been left in the hands of the jury as a matter of state constitutional law and statutory interpretation.[34]

Unlike the Idaho Supreme Court’s decision in Kirkland, the Idaho high court’s decision in Smith gives full vitality to Idaho’s constitutional jury trial right guarantee and, indeed, did so in the face of contrary authority under other statutory schemes taking the issue of front pay away from the jury. For this, the Court should be lauded.

Delays in Civil Jury Trials Caused by the Covid Pandemic

The Idaho judicial system, like so many of its counterparts in other states, has been greatly affected by the Covid pandemic, which began in March 2020.[35]  Although Idaho appellate decisions recount the various pandemic-related health and safety orders prohibiting in the near term or delaying jury trials issued by the Idaho Supreme Court[36] and Idaho trial courts,[37] Idaho courts have had no occasion to address the issue of whether delays in civil jury trials caused by those orders violated a litigant’s constitutional right to a jury trial.[38] This author has not been able to locate any decisions by courts in other jurisdiction that have addressed the issue either, although one court held that a 13-month delay in civil commitment due to a pause on jury trials to protect public health during the Covid pandemic did not shock the conscience and, therefore, did not violate plaintiff’s substantive due process rights.[39] 

Appellate courts outside of Idaho have made clear, however, that complete denial of or prohibition on (as opposed to a delay concerning) the right to jury trial in civil cases is a bridge too far, holding that “emergency orders issued by the … [state] Supreme Court in response to natural disasters such as the pandemic that result in jury trial delays and juror shortages [in civil cases] may not support denial of a party’s constitutional right to a jury trial.”[40]  Applying this standard, those same appellate court have granted petitions for writs of mandamus requiring jury trials when trial courts have relied on pandemic-related orders delaying trials issued by the state Supreme Court to justify denying a litigant’s jury trial right altogether.[41]  

Although several of the Idaho Supreme Court’s pandemic-related orders speak of “prohibiting” jury trials, most (but not all) of the prohibitions specify end dates concerning the duration of the orders.[42]  Thus, the Supreme Court’s orders should be properly understood as delaying, rather than prohibiting, civil and criminal trials.[43]  Certainly, delaying civil jury trials can be injurious to litigants — for reasons beyond delaying resolution of the case by a jury.  As just one example, the parties – particularly, a defendant (or its insurer) – will be reluctant to part with dollars to settle a case without the prospect of a jury trial immediately hanging over the parties’ heads.[44] However, given the strong and countervailing judicial interest in protecting the health and safety of all stakeholders involved in the jury trial process during the pandemic, pandemic-related orders delaying the parties’ exercise of the right to a jury trial in a civil case almost certainly does not rise to the level of violating that inviolable right.  Only complete prohibition concerning enjoyment of the right itself would cross the state constitutional line under Article I, Section 7.        

Conclusion

The right to jury trial guaranteed by the Idaho Constitution preserves one of our most democratic institutions.  Although several Idaho Supreme Court decisions making incursions on the right to jury trial in civil cases have been predictable and justified, other decisions have led to mixed results concerning enforcement of the right and were not preordained. And, of course, the Covid pandemic has led to new challenges impacting the preservation of the jury trial right, delaying (but not denying) the exercise of the right based on legitimate health and safety concerns. Hopefully, going forward, the Idaho high court will give a robust interpretation to the constitutional guarantee and err on the side of furthering the right in close cases.   

BIO: John Rumel grew up in Southern California, studied, practiced and taught law in Northern California, and, for over twenty-five years, has practiced or taught law in Idaho.John received his bachelor’s degree, with honors, from the University of California Santa Cruz and received his J.D. from Hastings College of Law in San Francisco. He then served as a law clerk to two federal judges in the Northern District of California.

John moved to Idaho in 1993, where he initially practiced law with a firm emphasizing products liability, professional malpractice, education and employment law. John joined the College of Law as a full-time faculty member in 2011. John received tenure at the College of Law in 2016 and was promoted to full Professor in 2018.  He has received the University of Idaho Alumni Award for Excellence three times. In 2015, he received the Distinguished Lawyer Award.

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Endnotes

[1] Official Website of the Idaho Legislature, Idaho Constitution, https://legislature.idaho.gov/statutesrules/idconst/  Similarly, Idaho Rule of Civil Procedure 38(a) provides that “[t]he right of trial by jury as declared by the Constitution … of the state of Idaho is preserved to the parties inviolate.”   

[2] State v. Bennion, 112 Idaho 32, 36, 730 P.2d 952, 956 (1986).

[3] Id.

[4] See, e.g., Neal v. Drainage Dist. No. 2, 42 Idaho 624, 248 P. 22, 23-24 (1926).  Article I, Section 7 references jury trials in civil matters, when it states, “in civil actions, three-fourths of the jury may render a verdict … .” See Gary Porter, Constituting America, https://constitutingamerica.org/july-3-1890-we-the-people-of-the-state-of-idaho-guest-essayist-gary-porter/#:~:text=Congress%20approved%20the%20ratified%20constitution,time%2C%20a%20population%20of%2088%2C548 (describing Article I, Section 7’s less than unanimous verdict requirement in civil cases as “unique and interesting”).    

[5] Slocum v. New York Life Ins. Co., 228 U.S. 364, 376-382 (1913).

   [6] Victoria A. Farrar-Myers & Jason B. Myers, Echoes of the Founding: The Jury in Civil Cases as Conferrers of Legitimacy, 54 SMU L. Rev. 1857 (2001).  Of course, juries, in their zeal to protect those in their communities from perceived or actual abuses of power, occasionally have done so by disregarding the court’s instructions and the evidence.  See, e.g., McDonald v. Great Northern Ry. Co., 5 Idaho 8, 46 P. 766, 767 (1896) (Idaho Supreme Court, in a late-Nineteenth Century decision, reversed jury’s verdict in favor of personal injury plaintiffs, concluding that plaintiffs were barred from recovery due to their contributory negligence where jury ignored instructions and evidence in case against defendant railroad corporation which jury likely viewed as having “vast and multitudinous rights, powers, and privileges” concerning which it had “no rights … to respect”).  

[7] Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. 657, 664-665 (1873).

[8] Id. at 657-659.

[9] Id. at 659.

[10] Id. at 659 and 664.

[11] Id. at 663-664.

[12] Id. at 664.  The gender bias of the above-quoted language is palpable.  From the Supreme Court’s decision in Sioux City & Pacific Railroad, it took the Court slightly over one hundred years to hold that prohibiting women from serving on juries constituted a violation of the right to an impartial jury drawn from a cross-section of the community under the Sixth and Fourteenth Amendments.  Taylor v. Louisiana, 419 U.S. 522 (1975).       

[13] Neal, 42 Idaho 624, 248 P. at 24. 

[14] Farmer v. Loofbourrow, 75 Idaho 88, 94, 267 P.2d 113 (1954).

[15]  Savage Lateral Ditch Water Users Ass’n v. Pulley, 125 Idaho 237, 247, 869 P.2d 554, 564 (1993) (emphasis in original).

[16]  Parrott v. Wallace, 127 Idaho 306, 310, 900 P.2d 214, 218 (1995); see also City of Pocatello v. Anderton, 106 Idaho 370, 372, 679 P.2d 647, 649 (1984).  As quoted above, Rule 39(b) allows the trial court, in its discretion, to order a jury trial on issues that could have been tried by jury even though a party has not made a timely demand.  Idaho appellate courts have characterized this provision as a “limited ‘safety valve’ against unduly harsh application of the waiver rule,” Viehweg v. Thompson, 103 Idaho 265, 269, 647 P.2d 311, 316 (Ct. App. 982), quoted in Hayden Lake Protection Dist. v. Alcorn, 141 Idaho 388, 398, 111 P.3d 73, 83 (2005), overruled on other grounds, Farber v. Idaho State Ins. Fund, 152 Idaho 495, 272 P.3d 457 (2012), and have uniformly held that trial courts did not abuse their discretion in refusing to grant motions under Rule 39(b) when the party seeking relief has failed to explain why it failed to demand a jury trial in the first instance. KDN Management, Inc. v. Winco Foods, LLC, 164 Idaho 1, 6, 423 P.3d 422, 427 (2018) (collecting cases).         

[17] Sheets v. Agro-West, Inc., 104 Idaho 880, 884, 664 P.2d 787, 791 (Ct. App. 1983) (citations omitted).  The Seventh Amendment to the United States Constitution also provides that, in certain civil cases, “the right to trial by jury shall be preserved … .” “However, it is well settled that the Seventh Amendment does not apply to the states in so far as the right to a jury trial in civil cases is concerned.”  Sheets, 104 Idaho at 884, 664 P.2d at 791, citing Pearson v. Yewdall, 95 U.S. 294; Walker v. Sauvinet, 92 U.S. 90, (1875); see cases cited in 47 Am.Jur.2d Jury § 9 (1969).

[18] Smallwood v. Dick, 114 Idaho 860, 867, 761 P.2d 1212, 1219 (1988).

[19] Gmeiner v. Yacte, 100 Idaho 1, 4, 592 P.2d 57, 60 (1979).  The legal standard applicable to a court’s decision to grant a directed verdict or grant JNOV is the same. Polk v. Larrabee, 135 Idaho 303, 311, 17 P.3d 247, 255 (2000).

[20] Id., quoting O’Brien v. Westinghouse Elec. Corp., 293 F.2d 1, 9-10 (3d Cir. 1961).

[21] 134 Idaho 464, 4 P.3d 1115 (2000).

[22] Id. at 465-466, 4 P.3d at 1116-1117.

[23] See generally, Id. at 466, 4 P.3d at 1117.

[24] Id. at 467-469, 4 P.3d at 1118-1120.

[25] Id.

[26] Id. at 469, 4 P.3d at 1120.

[27] Id.

[28] Id.

[29] See, e.g., McClay v. Airport Management Services, LLC, 596 S.W.3d 686, 693 (S. Ct. Tenn. 2020); Gourley ex rel. Gourley v. Nebraska Methodist Health Systems, Inc., 663 N.W.2d 43, 75 (S. Ct. Neb. 2003).    

[30] See, e.g., Hilburn v. Enerpipe Ltd., 449 P.3d 509, 524 (S. Ct. Kan. 2019); Atlanta Oculoplastic Surgery, PC v. Nestlehutt, 691 S.E.2d 218, 224 (S. Ct. Ga. 2010).

[31] 166 Idaho 683, 462 P.3d 1147 (2020).

[32] Id. at 695, 462 P.3d at 1159.

[33] Id. at 694, 462 P.3d at 1158.

[34] Id.  at 695, 462 P.3d at 1159.  Relying on the Idaho Supreme Court’s decision in Smith, United States Magistrate Judge Candy Dale has twice held that the issue of front pay under the Idaho Human Rights Act must be determined by a jury. White v. Oxarc, Inc., Case No. 1:19-cv-00485-CWD, 2021 WL 4233883, *5 (D. Idaho Sept. 16, 2021); Hilliard v. Twin Falls County Sheriff’s Office, Case No. 1:18-cv- 00550-CWD, 2021 WL 1950015, *4 (D. Idaho May 14, 2021).

[35] Hon. G. Richard Bevan, The Pandemic and the Courts, 64-APR Advocate (Idaho) 38 (2021).

[36] State v. Prano, 2021 WL 5977238, *1 (Idaho Ct. App. 2021); see Bevan, supra note 35 at 39.

[37] Frost v. Gilbert, 169 Idaho 250, 494 P.3d 798, 816 (2021).

[38] The Idaho Court of Appeal held that a pandemic-induced delay, among other reasons, in a criminal trial did not violate a defendant’s constitutional and statutory rights to a speedy trial. Prano, 2021 WL 5977238 at **3-4.  In so holding, the Idaho Court of Appeal joined a legion of courts in other jurisdictions holding that, because the government could not be held responsible for delaying criminal trials due to the pandemic, trial delays attributable to that reason did not violate a criminal defendant’s speedy trial rights.  See Labbee v. State, A22A0246, 2022 WL 412829, *7 n.5 (Ga. Ct. App. 2022) (collecting cases); Commonwealth v. Murphy, No. 0197-21-2, 2021 WL 3501732, *5 n.5 (Va. Ct. App. 2021) (same).    

[39] LeSage, 171 N.E.3d 1158, 1170 (Mass. S. J. C. 2021).

[40] In re Willis, 2021 WL 2006317, * 5 (Tex. Ct. App. 2021), citing In re Jetall Companies, Inc., No. 14-20-00690-CV, 2021 WL 1420950, *5 (Tex. App. Ct. App. 2021).

[41] Id.

[42] Prano, 2021 WL 5977238 at *1.

[43] See Bevan, supra note 35 at 39 (“the largest negative effect of COVID-19 precautions on the courts has been delayed jury trials”) (emphasis added).  The author is not aware of any circumstance in Idaho where a trial court entirely prohibited, rather than delayed, a litigant from exercising her or his jury trial right based on an Idaho Supreme Court order delaying civil jury trials because of pandemic-related health and safety concerns.       

[44] Hon. Ed Spillane, The End of Jury Trials: Covid-19 and the Courts: The Implications and Challenges of Holding Hearings Virtually and In Person During a Pandemic from a Judge’s Perspective, 18 Ohio St. J. Crim L. 537, 549 (2021) (“When both or either side realizes that the jury trial is not going to take place, the settlement of the case also may not occur. This same stalling of other dockets due to the shutdown of jury trials would in theory affect civil courts as well in terms of settlements slowing down.”).

Taylor L. Mossman-Fletcher

Published May 2022

On January 20, 2016, Francisca Gomez was working at a seed sorter machine at the Crookham Company’s plant in Nampa. She was sucked into the machine after her hair became caught in an unguarded drive shaft.[1]  She suffered a particularly gruesome death. Ms. Gomez’s co-workers witnessed the tragedy unfold and first responders absorbed a horrific scene upon arrival. [2]  

The means by which Ms. Gomez’s family, her co-workers and the first responders sought remedy for the accident were established nearly a century earlier when our nation’s system for compensating injured workers took shape. This system, known as the “Grand Bargain,” became codified as Idaho’s worker’s compensation law in 1917. [3]

Among the questions still debated about the Grand Bargain in the century between its birth and Gomez’s injury are (i) what should it look like, (ii) who should it primarily benefit; and (iii) does anyone still believe it is grand?  For the parties in Ms. Gomez’s case—Ms. Gomez’s family, her co-workers, the first responders, and her employer—the answers differ greatly and are still evolving.

To help further explore these questions, a brief history of the Grand Bargain is in order.

The Grand Bargain Begins in Idaho

In March of 1917, Idaho created the Idaho Industrial Accident Board (now the Idaho Industrial Commission) as part of the State’s workers’ compensation law. This law was part of a movement sweeping the nation to standardize compensation to injured employees and limit an employer’s common law defenses to work-place injury claims.[4] In short, the Grand Bargain reflects a compromise between labor and industry where workers gave up the right to “sue” their employers in the traditional sense, in exchange for guaranteed, but far less expansive damages under common law tort claims. In what is commonly referred to as the exclusive remedy rule, injured employees can pursue workers’ compensation claims against an employer without regard to fault. However, workers can only bring these claims before a state industrial commission rather than in state court.

What is the Grand Bargain?

Idaho’s Workers’ Compensation laws emerged during a highly industrial and labor-intensive period in history. Working conditions were often dangerous and employers had little regard for safety measures. This, not surprisingly, led to a shocking number of workplace injuries and deaths by today’s standards. The Grand Bargain followed enactment of the Sherman Antitrust Act (1890) and the Clayton Act of 1914, both of which aimed to reform a highly business-friendly regulatory environment. These laws were designed to limit the power of corporations and deter anti-competitive practices, while also protecting workers. After decades of the laissez faire economic principles and unchecked corporate power that had defined the Gilded Age (approximately 1870 through 1900), the country’s temperament was shifting towards a more pro-labor and public welfare direction. This shift not only shaped modern employment practices, but also set the stage for many of the civil and human rights advances in the second half of the 20th Century.

As structured, workers’ compensation laws, including Idaho’s, sought to balance an employer’s interests with employees’ needs by guaranteeing benefits to an injured worker, but at the same time capping an employer’s liability for these injuries. From this attempted balance, the Grand Bargain was born.

The exclusive remedy rule

The Idaho Supreme Court has described Idaho’s Worker’s Compensation Act as a compromise between injured workers and their employers that provides a limit on liability for employers in return for providing sure and certain relief for the injured worker.[5]  This sure and certain relief is provided to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in the statutory framework.[6]  

Workers’ compensation laws combine tort law and social insurance.  Arthur Larson, one of the most published authors in workers’ compensation legal analysis has summarized this blending as follows: [7]

Like tort, but unlike social insurance, its operation mechanism is unilateral employer liability, with no contribution by the employee or the state; like social insurance, but unlike tort, the right to benefits and amount of benefits are based largely on a social theory of providing support and preventing destitution.[8]

Workers compensation insurance enables employers to confidently label each year’s costs associated with workplace injuries

The costs were no longer dependent on the number or severity workplace injuries. The amount of compensation for each injury was also no longer left to the often-unpredictable hands of a judge or jury.

For employees, the Grand Bargain’s benefit was also one of certainty

Under workers’ compensation laws, employees would no longer have to endure the costs and delays of the civil courts to obtain compensation. Once injured at work, an employee reports the injury and is promptly sent for medical attention that is paid for by the employer or its surety. If an injury causes the worker to miss work, then she is immediately paid time-loss wages.  Not surprisingly, receiving prompt monetary and medical benefits without having to prove fault for the injury has been one of the more appealing aspects of the Grand Bargain.

The Grand Bargain applied to Gomez’s Case

In Gomez’s case, the Grand Bargain meant that the Crookham Company accepted certain responsibility to Gomez (through her surviving family) to pay statutory death benefits under Idaho Code §72-413. In that respect, the Grand Bargain meant Crookham had knowledge that these benefits would not exceed a certain amount. This came in exchange for Gomez’s family not having to prove that Gomez or another party was not negligent in causing the accident. 

Was it a Bargain—And If So, Did Labor or Industry Reap the Bigger Benefit?

Some argue workers were the clear beneficiary of the Grand Bargain, at least at the time. The nation’s policy to protect injured workers came at a time when labor unions’ voices were much stronger. The collective transformation in employment laws that the Grand Bargain represented would be unimaginable in today’s political landscape. Labor’s triumph was that in most states, employees never directly pay for their own worker’s compensation benefits. Rather, the employer is mandated to purchase workers’ compensation insurance, either through a private carrier or a fund managed by the state, such as the Idaho State Insurance Fund.[9]

However, it is important to also recognize that employment practices have evolved since the Grand Bargain began, and with them, employees’ rights and employers’ responsibilities. The early 20^th century saw workplaces in the U.S. begin to transform from primarily physical work as part of an industrial economy into more sedentary work to support a service-based economy.

The Grand Bargain’s Quid Pro Quo

As Adam Scales for the Rutgers Law Review wrote, “once struck, the Grand Bargain created entitlements that became virtually immovable.” [10]  Indeed, tort remedies and awards availed to injured plaintiffs outside the workplace (such as damages for pain and suffering), have been limited through state tort reform legislation.  Yet similar efforts to limit remedies have been virtually non-existent in the workers’ compensation arena. The system of damages available to injured workers from a century ago remains in place today—in fact, by some measures, the availability of damages to injured workers has improved since the Grand Bargain’s inception.

An example of this is seen in Vawter v. United Parcel Service, Inc., which also serves as a classic paradigm of the “no fault” advantage employees enjoy under Idaho’s worker’s compensation law.[11]  In that case, Mr. Vawter injured his back on the job while bending over to tie his bootlaces.  Because the Idaho Supreme Court found that he did so within the course and scope of his employment, the claim was not only compensable, but Mr. Vawter was awarded total and permanent disability benefits as a result of the injury. This means that he will be paid medical and time loss benefits not just until retirement age, but until he dies. The result in Vawter is a kind of success for injured workers that the labor movement behind workers’ compensation laws could not have imagined.

In contrast to the result in Vawter, injured workers also face multiple hurdles.  Injured workers must navigate more red-tape and employer and surety influence than was likely contemplated by the early 20^th century labor movement. For instance, once injured, the employee must go to only physicians chosen by their employer. Then, only treatment through the “chain of referral” by the employer-chosen physician is authorized. Additionally, only medication prescribed by a “chain of referral” provider will be covered. In other words, the employee cannot seek outside care and have it covered by their workers’ compensation insurance.

Further, waiting for employer-surety authorization for treatment and medication can delay their return to the job and in some cases, results in their condition worsening. Moreover, nurse case mangers hired by the employer-surety can interfere in the physician-patient relationship by attending appointments and pushing conservative care or rushed treatment timelines. In some cases, the employer-surety will “cut-off” treatment before the employee finds symptom relief. Delayed treatment makes the injury worse. The list of obstacles that can prevent a worker from receiving prompt and cohesive medical care is near infinite.

First Responders and Psychological Injuries

The Gomez case highlights another shortfall in the Grand bargain: compensating for psychological injuries received on the job, and how that shortfall is changing.  Upon witnessing the scene of Gomez’s industrial death, first responders were subject to unimaginable sights that may be forever seared in their minds. Such an experience can often to lead to sleep loss, appetite changes, nightmares, depression and other symptoms of PTSD.  Yet, in 2016, there was no remedy for the psychological injuries that first responders routinely face as result of their employment. This was because workers’ compensation was limited to physical injuries suffered through employment; strictly mental suffering was not considered to be a compensable workplace injury under the Idaho’s and many other states’ workers’ compensation laws.

However, in 2019, Idaho amended its workers’ compensation law to provide that post-traumatic stress injuries suffered by a first responder is a compensable injury if there is clear and convincing evidence that the post-traumatic injury was caused by an event arising out of an in the course of employment. [12] Interestingly, while various measures for tort reform in recent decades would seek to limit the damages of the first responders in this situation, this is another area where workers compensation benefits have expanded. To date, though, compensation for strictly psychological injuries suffered through employment is limited to first responders, which means that employees who may witness an accident like Gomez’s still face often insurmountable obstacles to being compensated for workplace trauma. Despite witnessing one of the most horrific scenes imaginable, Gomez’s coworkers do not have a compensable workers’ compensation claim  unless their psychological injuries are accompanied by bodily injury.[13]

Does Is the Grand Bargain Remain Grand?

The workers compensation system has hints of the dreaded “forced arbitration” form of resolving disputes. In detaching the right to a jury trial, access to pain and suffering damages and imposing caps on wage-loss damages, it is not surprising that the injured worker may feel shorted in today’s justice system.[14]  Contrarily, employers and their sureties encounter their own frustrations, as exemplified in the Vawter case.

Both labor and industry are coming to age and recognizing these and other flaws in the Grand Bargain’s design. It’s an antiquated arrangement that, while trying to evolve, is struggling to evolve to either labor’s or employees’ liking.  Professor Morantz has observed, the injured worker sees limitations and constraints on obtaining benefits while the employers’ insurance costs, legal fees and adjudicatory scrutiny increase.[15]  Morantz recently articulated “[t]he U.S. workers’ compensation system is at a historic crossroads,” with the “grand bargain” unraveling, providing satisfaction to few, if any, of its stakeholders.[16]

Conclusion

So, is it Grand? As a counterweight to Professor Morantz, Ellen Relkin, a noted Plaintiffs’ trial lawyer and frequent lecturer on complex litigation matters, summarized in the Rutgers Law Review that:

As beleaguered as it is, the premise of the Grand Bargain remains sound: we still need a system that fairly compensates workers for workplace injuries and does so faster and more efficiently than common-law litigation through the courts usually does. The critical need is to stabilize compensation systems and make them more equitable.[17]

Although many contend that both labor and industry have outgrown the exigencies of the industrial revolution, one basic premise of the Worker’s Compensation Act holds steady: The welfare of the state depends upon its industries and even more upon the welfare of its wageworkers.[18] If the goals of workers’ compensation laws continue to recognize this aim, then there is at the very least, grand intent.  

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Endnotes

[1] Gomez v. Crookham Co., 166 Idaho 249, 457 P.3d 901 (Idaho 2020).

[2] Following Gomez’s death, OHSA issued Crookham “serious” violations because the company had exposed its employees to the unguarded drive shaft without proper safety precautions.

[3] Title 72 of the Idaho Code. 

 

[5] Marek v. Hecla, Ltd., 161 Idaho 211, 215 384 P.3d 975, 979 (Idaho 2016). Blake v. Starr, 146 Idaho 847, 851, 203 P.3d 1246, 1250 (2009); Yount v. Boundary Cty., 118 Idaho 307, 307, 796 P.2d 516, 516 (1990)(“Such being the quid pro quo for eliminating the previous remedy of seeking a tort recovery from employers.”).

[6] I.C. §§ 72-201, 72-209, and 72-211; Robinson v. Bateman-Hall, Inc., 139 Idaho 207, 209, 76 P.3d 951, 953 (2003).

[7] Larson’s Workers’ Compensation Law- Cornell Law Review, Vol. 37, Issue 2 Winter 1952-Nature and Origins of Workers’ Compensation by Author Larson.

[8] Id.at sec.52.02. 

[9] The SIF is an independent body corporate politic which the Idaho Supreme Court has ruled to be an agency of the state serving a public purpose and carrying on and effecting a proprietary function (§72-901(1); State v. Musgrave, 84 Idaho 77, 370 P. 2d 778 (1962)).

[10] Adam F. Scales, Toward a Less-Grand Bargain for Injured Workers, 69 Rutgers Law Rev. 4 (2017).

[11] Vawter v. United Parcel Service, Inc., 318 P.3d 893, 895 (2014).

[12] I.C. 72-451

[13] Id.

[14] Robert L. Rabin, Accommodating Tort Law: Alternating Remedies for Workplace Injuries, 69 RUTGERS U.L. REV. 1119 (2017). 

[15] Id.

[16] Alison Morantz, Economic Incentives in Workers’ Compensation: A Holistic International Perspective, 69 RUTGERS U. L. REV. 1015 at 1078 (2017). 

[17] Ellen Relkin, The Demise of the Grand Bargain: Compensation for Injured Workers in the 21^st Century, Rutger Univ. Law. Rev. Vol 69; 883, Iss. 3., p.  (2017)

[18] I.C. 72-201

Matthew G. Gunn

Erica S. Phillips

Published May 2022

When lay persons, and even attorneys, discuss questions of constitutional law, they are usually discussing issues implicating the United States Constitution or, less frequently, provisions of a state constitution that substantially mirror an oft-cited clause or amendment of the United States Constitution. Only very rarely are such conversations centered on unique provisions of a state constitution not derived from the federal constitution.  One such provision, found in the state constitutions of forty states, including Idaho, is commonly known as an “open courts” provision.[1]  This article will discuss the open courts provision including its sources, application in other states, use in Idaho, and  conclude by questioning the scope and purpose of the provision. 

Idaho’s open courts provision

Idaho’s version of an open courts provision is enshrined in Article I, Section 18 of the Constitution of the State of Idaho:

JUSTICE TO BE FREELY AND SPEEDILY ADMINISTERED. Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.

Although no closely analogous provision exists in the United States Constitution, legal scholars have concluded that these provisions “derive[ ] ultimately from Magna Carta, where it took the form of a promise extracted from King John to reform his courts.[2]

By its plain language, Article I, § 18 guarantees to “every person” in Idaho a “speedy remedy . . . for every injury of person, property or character . . .”   Unlike other rights enshrined in state constitutions, there is no guidance from the United States Supreme Court as to the meaning of the open courts provision. Thus, the question of what rights are provided by the open courts provision is left solely to the state supreme courts and, unsurprisingly, there is no single consensus among those states.

“Open courts” provisions interpreted by other states

Although all states have recognized that the open courts provision provides some procedural due process protections, some courts have held that this provision goes further and provides protection for substantive rights as well. This distinction was helpfully explained by Chief Justice Thomas Phillips of the Texas Supreme Court:

While it is universally agreed that the open courts provision guarantees a right of access to the courts, there is great divergence among the various states regarding the extent, if any, to which it accords constitutional protection to existing substantive remedies.

In many states, for example, the provision is nothing more than a procedural guarantee of judicial availability.[3]

A greater number of states, however, appear to place some substantive restrictions on the legislature’s authority to abolish or restrict well-established remedies and defenses, particularly common law causes of action. This restriction appears to be absolute only in those few states which also constitutionally forbid any legislative restriction on damages.[4] Other states require, in one form or another, a judicial balancing of the individual right to assert a recognized remedy with the public necessity for abrogating or restricting that right.[5]

Unlike many issues in our politics and society such as firearms or marijuana laws, the interpretation of the open courts provision does not fall on readily identifiable ideological lines. In fact, states that have recognized a substantive right in their open courts provision include Texas, Ohio, Arizona, Missouri, and Alaska, none of which are commonly understood to be more “liberal” states. Thus, the distinction in the interpretation of the open courts provision does not appear to be a neatly ideological distinction, but rather a purely legal distinction in how to give meaning to the rights set forth in the open courts provision.

In states where the open courts provision has been found to convey a substantive right, the provision has been used to strike down attempts to limit access to the courts through immunity provisions or statutes of limitation.  For example, the Texas Supreme Court first recognized the protections provided by Article I, § 13, the open courts provision, of the Texas Constitution in Hanks v. City of Port Arthur, 48 S.W.2d 944, 948 (Texas 1932), holding that the open courts provision of the Texas Constitution did not allow ordinances or statutes that “unreasonably abridge[] a justiciable right to obtain redress for injuries caused by the wrongful acts of another.”[6] On this basis, the Texas Supreme Court struck down an ordinance that eliminated liability against the City for any injury or damage arising from a defect in a public street or public grounds, unless the Commissioners had actual notice of the defect by personal inspection or written notice at least twenty-four hours before an injury or damage occurred.[7] 

Open Courts Provisions and Minor Limitations Periods

One of the most common applications of open courts provisions to protect substantive rights has been in the area of statutes of limitation applicable to minors.  In 1983, the Texas Supreme Court used Article I, § 13 to strike down a two-year statute of limitations for medical malpractice cases which applied regardless of the age of the plaintiff except for minors under the age of six who had until their eighth birthday to bring a suit.[8] In so holding, the Texas Supreme Court stated:

A child has no right to bring a cause of action on his own unless the disability has been removed. If the parents, guardians, or next friends of the child negligently fail to take action in the child’s behalf within the time provided by article 5.82, the child is precluded from suing his parents on account of their negligence, due to the doctrine of parent-child immunity. The child, therefore, is effectively barred from any remedy if his parents fail to timely file suit.

. . . . Therefore, we declare the limitations provision of article 5.82, section 4, to be in violation of article I, Section 13 of the Texas Constitution.[9]

The Alaska Supreme Court reached the same conclusion in addressing a statute of limitations that would expire prior to a minor reaching the age of majority, holding “[w]e therefore conclude that when subsection AS 09.10.140(c) forecloses a minor’s personal injury claim because his or her parents or guardians have failed to timely file suit it violates the minor’s procedural due process right of access to the courts. … We stand with [other courts] today in declaring that the State cannot lightly close the courthouse doors to minors.”[10] 

The Missouri Supreme Court also struck down a minor’s statute of limitations, stating:         

Our society takes great pride in the fact that the law remains forever at the ready to jealously guard the fights of minors. [Section 516.105] arbitrarily and unreasonably denies them a set of rights without providing any adequate substitute course of action for them to follow.[11]

The Arizona Supreme Court similarly found that “[t]he statute abolishes the action before it reasonably could be brought, in violation of the fundamental constitutional right guaranteed by article 18, § 6.”[12] The Ohio Supreme Court agreed, stating “we hold that R.C. 2305.11(B) is unconstitutional as applied to minors under the due course of law provisions of the Ohio Constitution.”[13]

In each of these cases, the conclusion of the respective state supreme court was that a statute of limitations which would expire before a minor reached the age of majority and was able to bring a lawsuit on their own behalf was a violation of the open courts provision because it effectively shut the door of the courthouse to a minor who had no other recourse to vindicate their rights.  Thus, the substantive right granted was, literally, the right to access the courts to seek a remedy for an injury – a right entirely consistent with the express language of the open courts provision.

“One of the most common applications of open courts provisions to protect substantive rights has been in the area of statutes of limitation applicable to minors.”

The Idaho Supreme Court’s interpretation of the open courts provision

Unlike the states discussed above, the Idaho Supreme Court’s interpretation of Article I, § 18 is that it provides no substantive rights. The Idaho Supreme Court’s analysis of the open courts provision begins with Moon v. Bullock.[14]  In Moon the Idaho Supreme Court “refused to interpret art. 1, § 18, as guaranteeing a remedy to every person for every injury. . . . We thus approved in Moon the holding that art. 1, § 18, merely admonishes the Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law, and that art. 1, § 18, did not create any substantive rights.”[15]

Based on this interpretation, the Idaho Supreme Court has clearly established the right of the legislature to set limitations on actions and even to abolish common law rights of action without violating Article I, § 18. In Olsen v. J.A. Freeman Co., the Court held that “[a] statute placing limitations on remedies does not contradict the provision of the Idaho Constitution that courts of justice shall be open to every person and a speedy remedy afforded for every injury of person.”[16] Similarly, in Jones v. State Bd. of Medicine, the Idaho Supreme Court held that the legislature clearly has the power to abolish or modify common law rights and remedies.[17]  

Most recently, in Gomersall v. St. Luke’s Regional Medical Center, the Idaho Supreme Court was asked to determine whether the open courts provision could protect minors from being barred from the courthouse by a running of the statute of limitations prior to the minor reaching the age of majority.[18]  In response, the Idaho Supreme Court rejected the analysis adopted by the Texas, Alaska, Missouri, Arizona, and Ohio courts and reaffirmed its holdings that Article I, §18 conveys no substantive rights to the citizens of the State of Idaho: “this Court has consistently held, however, that Article I, §18 of the Idaho Constitution does not create any substantive rights . . . Rather, Idaho’s open courts provision merely admonishes Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law . . . .”[19]

What is an admonishment to dispense justice?

 The Idaho Supreme Court’s line of decisions interpreting Article I, §18 as providing no substantive right, but only an admonishment to the Idaho courts to dispense justice, raises obvious questions as to what, if anything, the open courts provision protects.  It is axiomatic that a provision in the state constitution must have meaning, but the Idaho Supreme Court has repeatedly declined to ascribe firm meaning to the open courts provision.

What does an “admonishment. . . to dispense justice” mean if an entire class of persons, such as minors, can be barred from pursuing a remedy for an injury on their own? Can the legislature, without violating the open courts provision of the Idaho Constitution, eliminate all tort causes of action? Can the legislature, without violating the open courts provision, literally bar the door to the courthouse to all but criminal cases?  How can courts of the State of Idaho dispense justice if citizens can be barred from the courthouse? The answers to these questions are difficult to divine based on the Idaho Supreme Court’s current open courts jurisprudence.

In search of such answers, attorneys will continue to argue that the plain language of Article I, § 18 of the Idaho Constitution provides some minimum threshold of access to justice for those who have suffered an injury to person, property or character in order to give meaning to this provision of the Idaho Constitution.  One perpetual question created by Idaho’s failure to recognize a more substantive right is what limits, if any, are placed on the legislature’s ability to dictate jurisdictional elements to the Court?  Inherently, we all understand that our system imposes limits upon each branch, but in regard to Article I, § 18, those boundaries remain undefined.

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Endnotes

[1] Patrick John McGinley, Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions, 82.4 Alb. L. Rev. 1449, 1445 (2019).

[2] David Schuman, The right to a Remedy, 65 Temp. L. Rev. 1197, 1199 (1992)

[3] See, O’Quinn v. Walt Disney Productions, Inc., 177 Col. 190, 195, 493 P.2d 344, 346 (1972); Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 24, 644 P.2d 341, 346 (1982); Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374, 404 N.E.2d at 594 (Ind. 1980); Prendergast v. Nelson, 199 Neb. 97, 103-06, 256 N.W.2d 657, 663-65 (1977); Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 279-81, 382 A.2d 715, 720-21 (1978).

[4] See, e.g., ARIZ. CONST. art. 18, § 6; KY. CONST. § 54. WYO. CONST. art. 10, § 4.

[5]Lucas v.United States, 757 S.W.2d 687, 715 (Tex. 1988) (Phillips, Chief J., dissenting) (some internal citations omitted).

[6] Hanks v. City of Port Arthur, 48 S.W.2d 944, 948 (Tex. 1932).

[7] Id.

[8] Sax v. Votteler, 648 S.W.2d 661, 663 (Tex. 1983).

[9] Id at 666-667; see also Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995) (affirming Sax and noting that “[w]e fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor’s best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse”).

[10] Sands v. Green, 156 P.3d 1130, 1134-1136 (Alaska 2007).

[11] Strahler v. St. Luke’s Hosp., 706 S.W.2d 7, 10 (Mo. 1986).

[12] Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280, 285-286 (Ariz. 1984). 

[13] Mominee v. Scherbarth, 503 N.E.2d 717, 721-722 (Ohio 1986). 

[14] 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Engineering & Supply Co., Inc., 93 Idaho 888, 477 P.2d 511 (1970):

[15] Hawley v. Green, 117 Idaho 498, 500-501, 788 P.2d 1321, 1323-1324 (1990).

[16] 117 Idaho 706, 717 (1990).

[17] 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977); see also Twin Falls Clinic & Hosp. Bldg. Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982)(It is well established that the “open courts” provision governing access to courts of justice does not prohibit the legislature from abolishing or modifying a common-law right of action).

[18] 483 P.3d 365 (Idaho 2021).

[19] Id. at 373 (internal quotations and citations omitted).

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 [BK1]The Board recommends that the conclusion be strengthened–I took a stab to help brainstorm–please feel free conclude the way you want.

Regina M. McCrea

Published May 2022

For years trial judges and attorneys have grappled with unconscious or implicit bias in the jury pool.  Research shows that people tend to view themselves as more objective, even-handed, and insightful than they actually are.  Although individuals willingly recognize attribution bias in others, they lack such awareness in themselves.[1]

Given that inherent prejudice influences impressions drawn from evidence and witness testimony, it will also permeate jurors’ deliberations and final decision-making.  Despite a general acknowledgment of this problem and direct attempts to address it (through admonishments against jumping to conclusions premised on nothing more than gut feelings, generalities, stereotypes, etc.), the public continues to view the legal system with distrust and increasingly questions the fundamental fairness of jury trials.

Against this backdrop, several states have taken steps to combat eroding confidence in the courts and to restore belief in American jurisprudence.  Such developments range in scope from creating special task forces for further research to transforming traditional concepts of jury selection.  This article explores the unprecedented change one state has made, beginning with a review of the history, and ending with a brief discussion of practical implications.

Traditional approach to jury trials

The common law jury system has been universally revered.  In 1765, the First Congress of the American Colonies resolved and declared, “That trial by jury is the inherent and invaluable right of every British subject in these colonies.”[2]

Less than 10 years later, the First Continental Congress again affirmed, “That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.”[3]  The right is ensconced in the 6th and 7th Amendments of the U.S. Constitution and can be found in Art. 1, § 7 of Idaho’s Constitution wherein the number of jurors is specifically defined―juries in civil cases will consist of 12 members unless the parties agree to a lesser number.

In 1971, the Idaho Legislature adopted the Uniform Jury Selection and Service Act, which the National Conference of Commissioners on Uniform State Laws approved.[4]  This Act vests the Idaho Supreme Court with the power to promulgate rules pertaining to jury service.[5]

Consequently, the procedural rules encompass most aspects of jury administration, such as using written questionnaires, permitting voir dire examinations, and establishing a method and manner for striking prospective jurors.[6]  Attorneys have two tools to remove individuals harboring preconceived beliefs about the case or their clients: “for cause” and “peremptory” challenges.

With peremptory challenges, no reason need be given; however, “for cause” strikes must fit one of the following grounds: (1) not meeting the qualifications specified by Idaho Code,[7] (2) having a special relationship with a party, such as familial, business, or debtor/creditor, (3) possessing a financial interest in the litigation, (4) holding a pre-formed opinion about the case, or (5) adhering to a belief that is hostile to or biased against a party.[8]

As one would expect, most challenges relate to perceived hostility and/or bias, and whether removal is justified depends entirely on the information elicited.  The Idaho Supreme Court has interpreted Rule 47 to mean the trial court bears primary responsibility for selecting competent and impartial jurors.  For this reason, judges may freely question panel members to gain further insight into their views and obtain clarification on their ability to keep an open mind.[9]  Unfortunately, in practice, after a judge rehabilitates a prospective juror and evokes a commitment that an identified bias can be set aside through the course of trial for purposes of fair play and equality, a litigant generally will exercise a peremptory challenge to have the individual discharged.[10]

“As one would expect, most challenges relate to perceived hostility and/or bias, and whether removal is justified depends entirely on the information elicited.”

For civil trials in state court, each party has the opportunity to use four peremptory challenges; for criminal proceedings, the number depends on the severity of the charges― misdemeanors (4), felonies (6), and felonies involving death or life sentences (10).

Over the course of the COVID-19 pandemic, the Idaho Supreme Court modified these provisions and, in addition to requiring that courts employ the struck jury system, reduced the number of peremptory strikes as follows: civil cases (2), misdemeanors (2), felonies (3).  The applicable number permitted in criminal cases entailing an offense punishable by death (10) did not change.[11]  The Idaho Supreme Court subsequently removed these limits as of August 2, 2021.[12]

Beyond the numerical limit, attorneys also cannot engage in discriminatory practices during jury selection and exclude a juror peremptorily based on race or gender.

Discriminatory use of peremptories

In Batson v. Kentucky, 476 U.S. 79, 99 (1986) and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 145—46 (1994), the United States Supreme Court confronted the reality of peremptory challenges having been used for discriminatory purposes.  Over the years the Court has repeatedly affirmed its commitment to jury selection procedures that do not offend equal protection principles and are “free from state sponsored group stereotypes rooted in, and reflective of, historical prejudice.”[13]  Where prejudice motivates discriminatory use of peremptory challenges, it affects the entire proceedings, puts the fairness of the outcome and the jury’s neutrality at risk, and inevitably leads to a “perpetuation of invidious group stereotypes” as well as a “loss of confidence in [the] judicial system that state-sanctioned discrimination in the courtroom engenders.”[14]  When an inference of discrimination is shown, the opposing party must identify a neutral reason for the challenge―intuitive judgment will not suffice.[15]

In writing a separate concurring opinion in Batson, Justice Thurgood Marshall expressed his view that discrimination would continue to infect the jury selection process and could only be stopped “by eliminating peremptory challenges entirely.”[16]  He espoused such an approach for two main reasons.  First, a discriminatory inference will be difficult to establish except in the most flagrant of cases.[17]  Second, trial courts face an unenviable task of assessing motives and evaluating “easily generated explanations” from attorneys who may not even recognize their own “conscious or unconscious racism.”[18]  Historic importance of the practice aside, Justice Marshall argued the best course forward would be to remove the inherent potential for discrimination to distort the jury process completely and no longer permit discretionary strikes in criminal cases.

Ending peremptory challenges in jury selection

Now, one state has chosen to pursue the path suggested by Justice Marshall.  On January 1, 2022, Arizona entirely abolished peremptory exclusions.[19]  Two sitting judges of the state’s court of appeals initiated the change, advocating it would definitively stop intentional and unintentional bias in jury selection and eliminate court involvement with reviewing Batson claims.[20]  The authors emphasized that the United Kingdom stopped the usage in 1988 and that Canada made the same modification to its trial procedures in 2019.  Byproducts of disallowing peremptory challenges include streamlining proceedings and reducing the overall number of individuals summoned for jury duty, who “make the effort to appear [and] are merely fodder for arbitrary hunch-based strikes.”[21]

 The authors argued that constitutional mandates lose their integrity when the initial panel represents a fair cross-section of the community, but the final panel reflects “favorable imbalance.”  Moreover, “anyone who has competently tried a case in the last century knows that the practical use of peremptories is to achieve some (perhaps illusory) partiality in the final jury.”[22]

The petition cited multiple studies identifying discriminatory trends in the use of peremptory challenges and data exhibiting “an empirical imbalance between the demographics of the overall population and jurors seated under our current system.”[23]  These statistics generate distrust and foster a legitimate perception that court rules authorize attorneys to engage in de facto discrimination.[24]  For these reasons and in an effort to restore public confidence and respect in the justice system, the authors concluded by strenuously recommending a “death blow” to all peremptory strikes.[25]

During the comment period, opponents raised many of the same concerns.  To start, practitioners believed the time needed for voir dire would be significantly impacted and that, in general, trial judges are not receptive to permitting lengthy examinations (perhaps attributable to managing the trial schedule, undervaluing the importance of jury selection, or wanting to protect the venire from perceived improper questioning or having to reveal private, embarrassing, traumatic and impactful experiences).  Attorneys emphasized the time needed to discover and explore quality information on which they can intelligently exercise a for cause challenge.  Jurors often feel reluctance when asked to divulge personal facts about themselves in a public setting.  It takes time for them to become comfortable expressing their views. 

Further, many comments highlighted increased difficulty with finding open-minded people.  The public has heard about tort reform and frivolous lawsuits for years, and such attitudes become deeply ingrained.  Few people recognize their implicit biases, and practitioners face a daunting task revealing their existence.  General inquiries simply cannot sufficiently detect “jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath.”[26]

Moreover, when a prospective juror verbally acknowledges bias (a rarity in itself), judges typically inquire whether the juror will pledge to be “fair and impartial.”  Thirty years ago, the US Supreme Court recognized jurors will “in all truth and candor respond affirmatively, personally confident that [their] dogmatic views are fair and impartial, while leaving the specific concern unprobed.”[27]

Thus, the strongest point of contention for keeping peremptories is that parties cannot cure an erroneous denial of a challenge for cause.  The ability to use peremptory strikes has long been heralded as a procedural safeguard for ensuring an impartial jury.  When that right is unavailable, parties will likely appeal, arguing reversible error premised on a failed attempt to remove a juror for cause.  Consequently, judicial resources may not be saved at all; instead of reviewing Batson arguments, courts of appeals would be tasked with analyzing juror biases.[28]

Key takeaways for practitioners

Striving for juries that mirror a community’s demographics and varying ethnicities increases the legitimacy of trial verdicts.  Such “cross-sections” epitomize the principal purpose behind one’s right to a jury of one’s peers.  Having made this unprecedented change, Arizona has become a case study for the rest of the country.[29]

If shown to be successful, more jurisdictions may follow Arizona’s lead.  Regardless, trial judges should refrain from securing hollow commitments from prospective jurors, and practitioners should work more vigorously to establish valid for cause challenges.  Observations concerning prospective jury members’ demeanor should be clearly articulated on the record so that information can be considered along with their verbal responses to voir dire questioning.  Facial expressions, body language, tone of voice, and even attire may be relevant indicators as to whether an individual disfavors a particular litigant or criminal defendant.  The record will not reflect these elements without attention being drawn to them, and they may make the difference in whether a valid challenge for cause is sustained.

Having cases decided by a jury of one’s peers continues to be a fundamental component of the court system, but that does not mean the related procedural processes should remain static.  The legal industry can and should continue to explore reform and implement creative solutions as needed while retaining the many positive virtues jury service brings to civic engagement and democracy.

“Striving for juries that mirror a communities demographics and varying ethnicities increases the legitimacy of trial verdicts.”

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Endnotes

[1] See, e.g., Armor, D.A, The Illusion of Objectivity: A Bias in the Perception of Freedom from Bias, 59(9-B) Dissertation Abstracts International: Section B: The Sciences and Engineering 5163 (1999).

[2] Department of Alfa-Informatica of the University of Groningen, “The Resolutions of the Stamp Act Congress October 19, 1765” American History from Revolution to Reconstruction (1994—2012), http://www.let.rug.nl/usa/

documents/1751-1775/the-resolutions-of-the-stamp-act-congress-october-19-1765.php.

[3] Id. See also “Declaration and Resolves of the First Continental Congress October 1774,” http://www.let.rug.nl/usa/

documents/1751-1775/declaration-and-resolves-of-the-first-continental-congress-october-1774.php.

[4] See I.C. § 2-201 et seq.

[5] I.C. § 2-220.

[6] I.R.C.P. 47; I.C.R. 23.1, 24.

[7] These qualifications include being a resident citizen who is at least 18 years of age and who understands English.  See I.C. § 2-209.

[8] I.R.C.P. 47(h)(2).

[9] Quincy v. Joint Sch. Dist. No. 41, Benewah Co., 102 Idaho 764, 768, 640 P.2d 304, 308 (1981).

[10] See, e.g., Stoddard v. Nelson, 99 Idaho 293, 296, 581 P.2d 339, 342 (1978).

[11] Idaho Supreme Court Order Re: Jury Trials, dated 7/24/20.

[12] Idaho Supreme Court Order Re: Emergency Order regarding Court Services, dated June 24, 2021.

[13] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).

[14] Id. at 140–41.

[15] Batson v. Kentucky, 476 U.S. 79, 97 (1986).

[16] Id. at 103.

[17] Justice Marshall believed discrimination would still occur, but with restraint “to an acceptable level.”  Id. at 105.

[18] Id. at 106.

[19] See generally https://www.azcourts.gov/Rules-Forum/aft/1208. Two states have gone a different route.  In 2018, the Washington Supreme Court added a new rule concerning jury selection, which expands the Batson prohibition and has been termed Batson plus.  See GR 37.  In 2020, the California legislature passed a bill which disallows particular reasons for striking jurors and outlines an objective test for measuring discriminatory motives.  The law applies to criminal cases beginning in 2022, but will not affect civil jury trials until 2026.  See, e.g., Cal. Code of Civ. Proc. § 231.7.  See also State v. Andujar, 254 A.3d 606, 631 (N.J. 2021) (calling for the Director of the Administrative Office of the Courts to arrange a conference to explore discrimination in jury selection, examine authoritative sources and practices, and make recommendations for improvement, including, but not limited to, changes to the procedural rules and, further, inviting “the legal community as a whole to take part in a probing conversation about additional steps needed to root out discrimination in the selection of juries”).

[20] Peter B. Swann and Paul J. McMurdie, “R-21-0020 Petition to Amend Rules 18.4 and 18.5 of Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure” Arizona Judicial Branch (Jan. 11, 2021), https://

www.azcourts.gov/Rules-Forum/aft/1208.

[21] Id. at 4.

[22] Id. at 8.

[23] Id. at 12.

[24] Id. at 13—14.

[25] Id. at 15.

[26] Morgan v. Illinois, 504 U.S. 719, 734-35 (1992).

[27] Id. at 735.

[28] For additional ideas to modernize the sometimes “inefficient, unreliable, unpredictable, and impractical” jury trial, see Christopher Robertson & Michael Shammas, The Jury Trial Reinvented, No. 21-05 Boston University School of Law Public Law & Legal Theory Paper (2021), https://scholarship.law.bu.edu/faculty_scholarship/

1086.

[29] But see Arizona House Bill 2413, https://apps.azleg.gov/BillStatus/BillOverview/76919 (proposal to reinstate peremptory challenges).

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).