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During the campaign, President George W. Bush often criticizes the nation’s tort system and likes to point out that his opponent, John Kerry, chose as his running mate John Edwards, a trial lawyer. Trial lawyers have long been among the president’s favorite targets. But when he refers to them, he means plaintiffs’ lawyers. Their organization, the Association of Trial Lawyers of America (ATLA), tilts toward the Democrats, and the president clearly sees them as the enemy. But another group of trial lawyers supports some tort reforms. They represent defendants and have their own organization, the Chicago-based De- fense Research Institute (DRI), the largest association for the defense bar. Unlike ATLA, however, they are rarely in the news. Some people may assume that DRI’s 22,000 members-double the number it had in 1982 but still only about a third of the size of ATLA-are virtually all Republicans. But it’s not true. Incorporated in 1960, the organization used to be white, male and probably mostly Republican. But, to paraphrase an old car commercial, this is not your father’s DRI. A majority may still be Republicans, but there are plenty of Democrats, members say. Catering mainly to smaller firms (55% of members’ firms employ 25 lawyers or fewer), DRI takes few stands on tort reform or other politically charged issues. That’s partly because other organizations (the U.S. Chamber of Commerce, the American Tort Reform Association) do that, but also because there’s rarely a consensus. In contrast to ATLA, which has both Democratic and Republican lobbyists on staff, DRI has neither. But it isn’t afraid to jump into the fray even when it means defending, of all people, those other trial lawyers. When Maurice Greenberg, the CEO of insurance giant AIG, likened the plaintiffs’ bar to “terrorists” in a speech last February, DRI issued a press release criticizing his choice of words and reminding him that the civil justice system owes its strength to “vigorous advocates for all parties.” The stand was striking because DRI was originally created by an insurance defense group and has only been fully independent for a decade. Its new face was on display this month at its ninth annual conference in New Orleans, where the organization took another surprising step. It invited ATLA’s president, Todd Smith, to participate in a debate on tort reform. Perhaps more surprising, not only was Smith a Democrat, but so was his opponent, Walter Dellinger, who was acting solicitor general in the Clinton administration. Even moderator Gene Nichol, dean of the University of North Carolina School of Law, once ran in a Democratic primary. Later, when the member who arranged the debate took the stage, he threw in a pitch for John Kerry. No, this is not the old DRI. The invitation to an ATLA leader was a first, said DRI’s new president, Richard Boyette. But it wasn’t the first time that the organization invited a speaker from the other side. In 2002, Boyette said, Erin Brockovitch was the guest. “Why are you bringing her to a defense lawyers’ meeting?” some members grumbled. “Yet,” Boyette continued, “she spoke to a packed house and was very well received.” Last year, Mary Matalin and James Carville faced off. The debate between Smith and Dellinger was mostly about the federal class action bill that would allow defendants to remove cases to federal court. The bill is the only tort reform measure DRI officially supports, and it’s just as well that medical liability caps were not part of the discussion. “It’s our feeling,” said Boyette, “that those issues are best left to the states. And our members are not of the same mind on caps and regulation of contingency fees. We would never get a consensus if we took a poll.” One issue on which there does appear to be a consensus is diversity. Evidence of the group’s commitment was everywhere. A white paper entitled “A Career in the Courtroom: A Different Model for the Success of Women Who Try Cases,” prepared by a DRI task force, was included in the course materials. At an awards luncheon, Thelen Reid & Priest received the DRI Law Firm Diversity Award, and the Alabama Defense Lawyers Association won a similar award for local organizations. An evening “diversity reception,” held at a downtown club, was well attended. Also featured was a 90-minute seminar called “The Economic Impact of Diversity on Your Law Firm.” Members say that DRI’s educational seminars are a big part of the group’s attraction. More than 20 are offered around the country. And no matter what the topic, organizers are instructed to create diverse panels, said Kimberly Baker, a member of DRI’s Law Institute who checks prospective programs in advance to ensure compliance. No one talks about DRI’s interest in diversity for long without mentioning Sheryl Willert. In 2002, she became the group’s first woman and black to serve as president. She is widely credited by members for galvanizing the organization with new energy and direction. Willert joined DRI in the 1980s, she said, attracted by the quality of its seminars. She was invited to join its board in the early 1990s. It was during one of her early board meetings when the subject of diversity came up. Her colleagues were wondering what they could do to “change the complexion of the organization,” she recalled. They seemed at a loss. “We have to do something,” she told them. “This organization is pale, male and stale.” It wasn’t by design, she said. “Those were the people corporations were hiring. Those were the people insurance companies were hiring.” And they were the lawyers with trial experience. By the early 1990s, that was changing. And now, “it is good for the bottom line of every law firm that is part of this organization to have diversity.” Large corporations have said that they will examine the composition of firms they hire, and midsize companies are also headed that way, she noted. “People of color and women are going to be the ones making the decision about who does the work,” she said. “And if you want to do the work, you’re going to have to look more like the people making the decisions.” DRI’s own demographics reveal slow progress. About 24% of its members are women, compared with 13% in 1996 (13% of ATLA’s members are women). Perhaps more important, 23% of the group’s leadership positions are occupied by women. About 2% of its members are black and another 2% Hispanic. These are double the percentages from 1996, and double the percentages of Asian- and Native-Americans, which have been stagnant the past eight years. Not everyone agrees with the push for diversity. In a letter this month to Corporate Counsel (NLJ’s sister publication), Los Angeles lawyer Matthew Schwartz argued that diversity should be “irrelevant.” Responding to an article about Shell Oil Co.’s decision to include diversity as a criterion in selecting law firms, Schwartz wrote: “If a GC gives more consideration to outside firms’ diversity statistics than to factors that objectively prove talent, then she will arguably be breaching her fiduciary duty in favor of serving a dubious social agenda.” Cracking the ceiling Asked if she encountered resistance after she was appointed to the board, Willert said: “There certainly were moments when I had the sense that not everyone thought that this was a good idea.” But it was never due to race or gender; it was because she can be “outspoken and direct.” Overall, she added, she felt strongly supported. Her ascendancy did engender hard feelings, she acknowledged, but these occurred earlier, when she was named to chair the employment law committee. “She took that committee and raised it to premier status,” said Claude Smart, the president who cleared the way (he is now semi-retired). “That wasn’t to say that the predecessors weren’t competent. But her achievement was remarkable.” For the first time, Willert said, the committee’s seminars turned a profit. And the diversity of both presenters and material was a welcome change from a lineup that had become predictable, she said. It also sent a message throughout the organization, according to Wayne Taff, a long-time member of the Law Institute, that the organization intended to be “member-driven” and open to change. But there was a price. The dozen men who had been running the show left en masse. Mark Dichter, who was the last chairman before Willert took over, said: “There are no hard feelings.” He and the others left to found the American Employment Law Council, which he called “the most diverse group of employment lawyers that exist.” Its program was chaired this year by an African-American, and its board by a woman. Willert said their actions “certainly caused me to lose respect for those individuals. It reminded me of the actions of a child who says, ‘I’m taking my toys and I’m going to play some place else.’ “ Smart professed no regrets: “We wanted a ceiling cracked and opened up. “One of our goals,” he concluded, “is to improve the civil justice system. How are you going to do it unless you have representations that reflect the citizenry?” Hechler’s e-mail address is [email protected].

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