Stereotypes may blur your vision

I was recently at a daylong legal seminar on the East Coast. The panelists, mostly women, came from all over the country and I was excited to be meeting so many successful female attorneys. The focus of the seminar was to present talks on changes to existing civil federal laws, and the intent was for the committees to present diverse points of view from both sides of the bar while maintaining an academic approach. Being a member of the plaintiff bar, I quickly began to notice a trend of the conference being filled more so with representatives of the defense bar. I was definitely in the minority as the day went on. It was a very informative seminar, substantively, but it also personally illuminated some very real issues lingering out there in the profession. Specifically, I noted the widespread use of stereotypes which refuse to drift away quietly into the night.

To put this into context, the presentation was one involving changes to the removal rules of state-filed civil cases to federal court. The act, which went into effect this past January, codified the majority of the circuits’ interpretation of the 30-day rule which gives each defendant its own 30 days to remove a case to federal court. The spirit of the act was to discourage gamesmanship by the parties.

What sparked debate amongst the practitioners was the amendment, which allows removal more than one year after the filing of the complaint if the district court “finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

One example of bad faith contemplated by the new statute is a plaintiff’s deliberate failure “to disclose the actual amount in controversy to prevent removal.” The attorneys in our room, mostly corporate defense counsel, traded war stories about how plaintiff attorneys used the rules unfairly.

The most common scenarios presented were the refusal of plaintiff attorneys to confirm the amount in controversy or to join a nondiverse defendant only to let them out after a year and a day to avoid removal. Hand after hand shot out in the audience and the same basic story kept being told, only the particulars seemed to change.

As I sat there, I was certain this behavior was confined to a small minority of attorneys. However, judging from the response to the question asked by a professor in the audience as to how widespread these antics are, it seems to be a rather common occurrence. I was disappointed, not only at hearing these stories, but because of the long lasting effects just one bad experience can have in the legal community.

On the other side of the proverbial room, I have heard rumblings from the plaintiff bar of tactics being used by the defense attorneys on a variety of different types of cases. I know that these attorneys were likely speaking about one bad experience, and I refuse to believe that 99 percent of attorneys behave in any such manner or skate any ethical lines. The problem, it seems to me, is that the bad experiences tarnish the entire system and the entire practice.

One bad experience can be enough to shift a person’s entire perspective. What I found so shocking at this seminar was that it seemed like there were so many stories of this sort of gamesmanship on just one very small portion of what happens in civil litigation cases

I believe it is in human nature to equate one with all. Evolutionarily, it makes sense to generalize experiences. We apply specific, firsthand knowledge to a wide range of scenarios. It’s a primal survival tactic. Psychologists call it “cognitive generalization.” For example, it can help a person in the wild navigate common traits of poisonous plants. However, in researching this article I came across another psychology term, “overgeneralization.” That concept, in my understanding, is when a subject takes a single instance of defeat as indicative of an overly large pattern which does not exist.

I believe that we should make an effort to be steadfast in our caution to subconsciously “lump” everyone into the categories, archetypes, and stereotypes we create. I have begun to think about this problem within the framework of the snowball effect. One bad experience leads to a perception. Perception leads to classification. Classification leads to generalization. And, as always, we are constantly looking out for similar viewpoints which bolster our own beliefs and notions. Until we recognize how pervasive these stereotypes are in the community, we will continue to hear about them and therefore believe them.

Think about attorney colleagues and friends you regularly encounter and practice with. You know them and you trust them. The stereotypes begin to accumulate when real connections with members of the bar break down or fail to properly materialize. It is much easier to believe things about people we don’t know. We think to ourselves since we don’t know them personally, the things we have heard about them are true. We have no other information to go on. Nothing, however, could be further from the truth.

At one time our colleagues and friends were strangers. It takes time to break down the space between people, just as it takes time to break down stereotypes. It is something we have to be aware of as we practice day in and day out. Taking the time to build relationships with our colleagues is the only way we are going to get past these notions of how plaintiff attorneys or insurance defense attorneys supposedly always act. Most of the time, it is a single set of bad experiences along the years that collectively turn into one big bad stereotype. This profession is a noble one. We should all be conscious of how lucky we are to be lawyers and work together for the grander purpose, which should be professionalism and civility toward one another, our clients and everyone we come into contact within the legal world.

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