Washington Lawyer - November/December 2021 - 32

TAKING THE STAND
Extend MDL Inclusivity
Guidelines to Veterans
By Robert F. Redmond Jr.
M
ultidistrict litigation (MDL)
exerts a powerful influence
on federal courts
today. Statistical analysis
shows that MDL cases made up 52
percent of civil cases pending in
federal court (excluding prisoner
and Social Security cases) as of
June 2018. For comparison, that
figure was approximately 16
percent in 2002.1
The power of MDL courts has motivated
scholars, judges, and practitioners to formalize
MDL procedures. The Bolch Judicial Institute
(formerly the Duke Law Center for Judicial
Studies) convened a bench-bar conference in
2013, resulting in the publication of the report
" MDL Standards and Best Practices for Large
and Mass-Tort MDLs " the following year.2
The
2014 MDL guidelines extensively discussed the
criteria for selecting leadership in MDL litigation
with an emphasis on past experience and
ample financial resources. The report contained
a brief reference to encouraging diversity in the
selection of MDL leadership but little more.
In subsequent years, the institute held additional
bench-bar conferences to improve the
2014 MDL guidelines, including a more robust
discussion of diversity in the selection of MDL
leadership appointments. The 2018 version of
the guidelines adopted Best Practice 4E, which
recommended that the transferee judge " take
into account whether the leadership team
adequately reflects the diversity of legal talent
available and the requirements of the case. " 3
It
cited " Considerations in Choosing Counsel for
Multidistrict Litigation Cases and Mass Tort
Cases " by Stanwood Duval Jr., who wrote that
" Taking the Stand " appears
periodically in Washington
Lawyer as a forum for D.C. Bar
members to address issues of
importance to them and that
would be of interest to others.
The opinions expressed are the
author's own. For submissions,
email editorial@dcbar.org.
The guidelines propose
concrete steps for
judges to follow to
ensure diversity, reinforced
by best practices
providing more specific
recommendations. For
example, judges should
(1) focus their efforts on
enhancing diversity in
the appointment of
counsel on MDL panels
and class action steering
committees, (2) work to
root out unconscious
bias that may stymie
efforts to increase diversity,
and (3) oversee the
" there should be diversity in gender, racial,
and geographic terms " in the selection of
MDL counsel.4
Under the 2018 MDL guidelines,
judges are encouraged to " seek to appoint
a diverse group, with respect to not only
prior experience and skills, but also gender,
race and national origin, age, and sexual
orientation. "
Further efforts produced the 2021 inclusivity
guidelines,5
which include " disabled " and " disability "
in the list of enumerated diversity categories.
The 2021 guidelines apply to " those
lawyers who are, or historically have been,
underrepresented in the profession generally
and in the appointment process specifically,
including but not limited to women lawyers,
racial and ethnic minority lawyers, disabled
attorneys, and LGBTQ lawyers, among others. " 6
The word " veteran " does not appear in these or
earlier guidelines.
OMISSION FROM INCLUSION EFFORTS
Although these guidelines are merited efforts
to bring diversity to MDL and class action
appointments, they do not mention veterans,
who should be included as one of the enumerated
diversity categories in line with more than
a century of protections.
32 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2021
work of these panels and committees to ensure
that diverse attorneys are given significant and
meaningful roles. If they are not, the guidelines
suggest that judges consider reorganizing the
panels and committees.7
The 2021 inclusivity guidelines offer the
Mansfield Rule, which " calls for at least 30
percent diverse lawyers to be considered for
leadership and equity-partner promotions, "
as an example. However, the guidelines omit
veterans from the category of diverse lawyers
and from the advantageous treatment
provided by the Mansfield Rule.
The invisibility of veterans in the three major
programmatic efforts to improve diversity in
counsel appointments appears to illustrate the
very point made in these efforts - that unconscious
bias is the cause of underrepresentation
of diverse attorneys. Ironically, the 2021 inclusivity
guidelines extensively discuss the pervasiveness
of unconscious bias but exclude
veterans.8
POLICIES SUPPORTING VETERANS
For more than 200 years, public policy in
the United States has considered veterans a
protected class entitled to advantageous
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