Knowledge The Blog

Many businesses, including law firms, recognize the benefits in promoting diversity and inclusion (D&I) in the workforce. Successful law firms will have attorneys from diverse backgrounds that better represent the clients and communities they serve.

What Are the Challenges for Smaller Firms?

Today, nearly every large law firm in the United States has a D&I department. With their wealth of resources, the big law firms can allocate significant amounts of time and money to diversity and inclusion efforts. Many of the larger firms have diversity directors with extensive training and experience, and that experience often commands hefty salaries that are not in the budget for small, mid-sized, and growing firms. Diversity directors can devote themselves full-time to addressing issues of diversity and inclusion in recruiting and retaining diverse attorneys and staff as well as guiding community outreach. 

However, small-to-mid size law firms are sometimes challenged by the limited resources they can allocate to D&I efforts. To address these challenges, many law firms must depend on their own attorneys to take action to improve their diversity and inclusion efforts within their firm and their profession. Despite the limited resources, small and mid-sized law firms still have the capability to achieve a diverse, equitable and inclusive culture within their firms by taking a variety of steps.

Pursuing Diversity at RDM

To be dedicated to our clients we understood that we had to become advocates and make a commitment to diversity that promotes the employment and advancement of individuals with different backgrounds and experiences. While employing candidates with a variety of backgrounds is the start, we know that once an associate decides to work with us, it is our job to make sure that they receive adequate support to become a successful attorney.

To accomplish these goals, Rasmussen Dickey Moore conducted several listening sessions with our diverse associates to ask them what diversity, equity, and inclusion meant to them and how our firm could best serve them. These were not the easiest conversations to have. Having just elected our first Black equity member and having just one current female equity member, our firm still had work to do to reach our stated goals of creating equitable opportunities for younger and diverse associates. We could not be blind to the disparity at the leadership level and needed to confront it head on to consider strategies to bring about improved results for our firm.

RDM’s Diversity, Equity, and Inclusion Committee

In 2019, Rasmussen Dickey Moore established our Diversity Committee. We had recently hired several new associates who represented the most diverse part of our law firm. Soon after, RDM expanded the scope of the committee and renamed it Diversity, Equity, and Inclusion (DEI).

To improve equity efforts, there must be a buy-in at every level of the firm. RDM attorneys Nate Lindsey and Justin Ijei were chosen to co-chair our Diversity, Equity, and Inclusion Committee. Nate Lindsey was previously the youngest member to be elected at the firm. Justin Ijei is our firm’s first Black equity partner. While neither Justin, Nate, nor our associates had any professional training in establishing or promoting DEI initiatives, the committee worked to define terms, discussed how to put words into action, and built trust to accomplish difficult tasks together in a transparent way.

Words into Action

As a result of our committee’s discussions and work, RDM is implementing several new initiatives in 2021:

• Renewing efforts to recruit and retain diverse candidates
• Creating a mentorship program to help with career development, aimed specifically at advocating for personal business development
• Developing opportunities for young diverse attorneys to network
• Celebrating diverse heritages, cultures, and religious practices through firm-wide education
• Training employees on the importance of DEI
• Collecting data and tracking the success of these efforts

Our leadership knows that it is imperative that these initiatives are effectively implemented. Promoting diversity, equity, and inclusion within the firm is not just a feel-good pursuit. Our clients, our communities, and our attorneys require progress towards a more just and equitable future, and that progress starts with us in our offices. RDM is excited to put these initiatives into practice and strengthen our diversity, equity, and inclusion efforts in 2021 and beyond.

How To Promote Diversity, Equity, and Inclusion at Smaller Law Firms

All law firms, regardless of size, have the ability to foster an inclusive and diverse culture within their firm. While smaller firms may not have the deep pockets to implement the types of diversity programs that larger operations have, simple steps can be taken to build a more inclusive and diverse firm.

Identify and Listen To Diverse Voices

The first step is to identify voices within your firm that may not have been heard previously. Ensure that attorneys and staff from diverse backgrounds have a seat at the table. Take time to listen to these voices and accept difficult constructive criticism. Acknowledge the challenges that attorneys of diverse backgrounds face within the firm, in the legal industry at large, and in life in general.

Develop Measurable Actions

It is easy to pay lip service to the concepts of diversity, equity, and inclusion. Likewise, it is easy to get bogged down in the day-to-day business of your firm. But to ensure that your firm is moving in the right direction, a firm must commit to concrete and measurable actions and outcomes.

With your diverse attorneys taking the lead, determine what actions the firm can take to break down barriers to success. RDM’s Diversity, Equity, and Inclusion Committee identified business development as an area where diverse attorneys could benefit from one-on-one mentoring and tracking results over time.  RDM has implemented a quarterly mentoring program to supplement annual reviews where mentors will discuss with associates their current workload, client contacts, and plans for unique business development opportunities specific to their own career desires and skills.

Continue the Process

We realize the importance of building an inclusive culture at our firm and understand the time and commitment required to make sure the firm continues to progress. We highly recommend other small and mid-sized firms doing this work to continue to listen, measure the successes and failures of their efforts, and make the necessary adjustments to improve. Pursuing these efforts will be both challenging and rewarding. There is always room for improvement, and it is essential that we collectively continue to listen to diverse voices both within and without the office. Every firm, no matter the size, has a role to play in making the practice of law more equitable.

Allegations of fraudulent asbestos claims have been an issue in asbestos litigation due to bankruptcy trusts running low on cash, and plaintiffs suing non-bankrupt companies with limited to no asbestos exposure to that company’s product.

In 2018, an affiliate of Georgia Pacific filed for U.S. Chapter 11 bankruptcy due to an asbestos litigation case, In Re Bestwall LLC. Recently the United States Department of Justice filed a Statement of Interest in In Re Bestwall LLC that there “should be transparency in the estimation of asbestos claims in bankruptcy proceedings in order to prevent fraud and abuse.”

“It has become increasingly common for claimants’ counsel to seek duplicative recoveries from multiple sources by misrepresenting the asbestos products to which claimants were exposed. Such duplicative claiming depletes resources that would otherwise be available to compensate deserving claimants filing claims in the future.”

Deputy Assistant Attorney General Douglas Smith

How do these asbestos claims work? And what oversight exists to minimize the possibility of misrepresented or fraudulent claims? RDM associate attorney Travis Pour takes a look at the system as it stands, and how transparency could lead to better outcomes for both claimants and businesses.

What Is an Asbestos Personal Injury Trust?

Over 100 companies have filed for bankruptcy due to current and potential future asbestos related claims. These companies establish asbestos personal injury trusts responsible for both the defense and payment of claims. The formation of these trusts under bankruptcy proceedings ostensibly protects successor companies from facing complicated, costly litigation.

Dozens of such asbestos personal injury trusts have paid out over $20 billion. Claims number in the hundreds of thousands and continue to be filed. Trusts are arranged with the intention of paying both current and future claimants.

Trust advisory committees oversee these claims. The committees are often made up of plaintiffs’ attorneys who represented claimants during the bankruptcy proceedings, and it is not unusual for the same plaintiffs’ attorneys to sit on multiple trust advisory committees. Claims are filed directly with the trust, outside of the court system. The arrangement is rife with opportunity for conflicts of interest.

Contradictions, Conflicts, and Standards in Asbestos Claims

A study of claims made against the trust of Garlock Sealing Technology found a pattern of claims which directly contradicted other claims filed against other trusts by the same claimants and law firms. “In essence, this system permits the same firms that stand to benefit when the bankruptcy trusts pay claims to write the requirements for payments by those trusts,” states the study by the U.S. Chamber Institute for Legal Reform. “The standards for claims that result from this process are predictably lax.”

With oversight and transparency lacking in this web of claims, there is an opportunity to “double dip” with claims against multiple trusts, as the claims against one trust are not compared to those against another. Claimants are not required to disclose evidence indicating their exposure may have come from another source, nor that they have filed claims against other trusts. Oversight of the trusts is not coordinated, leaving the door open to file multiple claims without checks to verify that one claim does not contradict another.

Additionally, claims presented to the trust advisory committees are held to much lower standards than those that would be required at a jury trial. Claimants can make a claim based on “any exposure,” a standard which has been rejected by courts across the country. Former plaintiffs’ attorney Thomas M. Wilson states the trusts are “factories for processing claims that wouldn’t pass muster in court.”

Trusts have limited resources based on current and potential future claims. Misrepresented claims dilute the pool of available compensation for those with malignant injuries who file legitimate claims. Another study by the RAND Institute for Civil Justice indicated that persons with non-malignant conditions accounted for 86 percent of all claims made to the trusts. These claimants usually would not have been eligible or likely to prevail in the judicial tort system.

Moving Forward

Sixteen states have already passed legislation requiring disclosure of basic information regarding other sources of asbestos compensation as well as the asbestos products to which claimants were exposed. Legislation is pending in Missouri that would also address the issues of transparency and conflicting claims.

With the Department of Justice’s filing of this Statement of Interest, there is hope for more transparency in asbestos bankruptcy trusts to find inconsistent claims in other asbestos proceedings. Indeed, the Department of Justice has filed previous statements in other proceedings. According to the DOJ, the statement issued in late 2020 is “part of broader efforts by the department to look for opportunities to increase the transparency of asbestos bankruptcy proceedings and asbestos trusts in order to protect the interests of legitimate claimants.”

Rasmussen Dickey Moore is known across the nation for our work in the field of asbestos litigation. Our toxic torts, products liability, and environmental law teams have decades of experience defending businesses and insurers against all types of asbestos claims, including those that are misrepresented or fraudulent. Contact RDM today to discuss your asbestos case.

On November 3rd, 2020, the Missouri Supreme Court refused to hear an appeal from Johnson & Johnson and Johnson & Johnson Consumer, Inc. (“J&J”) in Robert Ingham et al. v. Johnson & Johnson, et al., letting stand a state appellate decision which affirmed a $2.2 billion jury verdict against the consumer giant and for women who claimed their ovarian cancer was caused by use of J&J’s talcum powder products.  The original jury verdict of $4.69 billion had been reduced by the appellate court upon finding that the Missouri trial court lacked personal jurisdiction over some of the non-resident plaintiffs’ claims in the suit.

J&J called the trial verdict “fundamentally flawed” and “at odds with decades of independent scientific evaluations confirming [their products were] safe…” They plan to appeal to the U.S. Supreme Court.

The original trial in Ingham, held in St. Louis, MO in 2018, was unique both because of its size and scope, and the plaintiff’s theory of the case. The claim, brought by 22 women, was based upon the plaintiffs’ use of J&J “Baby Powder” and other personal hygiene products containing the mineral talc.  In previous cases, plaintiffs had claimed that talcum powder was naturally carcinogenic, though in this landmark trial, the plaintiffs contended that J&J’s talcum powder products were actually contaminated with “asbestos fibers and other dangerous carcinogens,” and that J&J knew of their products’ contamination and failed to warn consumers of the dangers.

This argument has major implications for traditional defendants in asbestos litigation. At trial, Dr. William Longo, plaintiffs’ proffered expert, presented results of a simulation he conducted showing that as a result of the application of talcum powder, “dust” could be observed in the “breathing zone” of the product’s user. Another of plaintiffs’ experts, Dr. Jacqueline Moline, testified that asbestos could “travel throughout the bloodstream and the body, and can be found in every organ in the body…” Consequently, plaintiffs’ attorneys argued that their clients were exposed, and their ovarian cancers caused, by respiratory inhalation of asbestos fibers in the “dust,” in addition to internal absorption of the powder during application.

If the inhalation of asbestos fibers is a scientifically viable cause of ovarian cancer, as suggested by the plaintiffs’ attorneys in Ingham, then any manufacturer or distributor of asbestos or asbestos-containing products could theoretically see itself defending similar claims in the future. Of course, the latency period of ovarian cancer, which is unknown but estimated to be around 20 years, could limit the application of this theory to long-discontinued asbestos products.

J&J vehemently denied that its products were contaminated with asbestos fibers and they disagreed with the conclusions of plaintiffs’ experts. On appeal, J&J argued that Dr. Longo’s opinion “rested on insufficient facts and data, was not the product of reliable principles and methods, and did not reliably apply principles and methods to the facts,” and should have been inadmissible at trial. Although the Missouri appellate court held that the trial court did not abuse its discretion by admitting Longo’s testimony, this type of evidence is far from being universally accepted.

In early 2020, a federal court judge in New Jersey, presiding over the federal multidistrict litigation involving J&J’s talcum products’ link to ovarian cancer, limited the testimony of multiple expert witnesses, including Dr. Longo. Specifically, the court held that could not testify that women who used talcum powder were exposed to asbestos, as such an opinion was “unreliable.” Most importantly for other defendants, the court also held that Plaintiffs could not put before a jury their theory that inhalation of J&J talcum products can cause ovarian cancer, due to the insufficient evidence supporting the theory.

Rulings on these issues should continue to be monitored by any company alleged to have used asbestos or talcum powder in their products, services, or equipment.