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Young Lawyers’ Division of the Hawai`i State Bar Association

Posted on Oct 24, 2008 in Speeches

Remarks by the


at the

HSBA Young Lawyers’ Division Meeting

Friday, October 24, 2008
7:30 a.m.
Hilton Hawaiian Village



It is always a pleasure to address the members of the HSBA’s Young Lawyers Division, and I extend my sincere appreciation to YLD President Jill Hasegawa, Bar President Jeff Sia, HSBA Executive Director Lyn Flanigan, and the members of the bar for inviting me to be here this morning. More importantly, however, I thank all of you for your public service throughout the year. Specifically, I extend a special mahalo to President Hasegawa and the Young Lawyers Division for “stepping up” to take charge of the Hawai`i High School Mock Trial Program, which appeared to be faltering. Your willingness to assist this worthwhile program reflects your understanding that students who participate in the mock trial program develop valuable life-skills, such as problem solving, reasoning, listening, leadership, and teamwork. Your commitment to our youth and the future leaders of our community is, indeed, commendable and appreciated. (Please join me in giving yourselves a round of applause.)

Judging from the array of topics and speakers listed in the conference brochure, it appears that you will again be having many opportunities to broaden your horizons and participate in stimulating discussions. I noted, in particular, that the conference planners have included a session on Human Resource for the Law Office, which includes a section devoted to recruitment issues, but did not list “diversity” as one of the issues to be discussed. Back in 1965 when I returned from the University of Iowa Law School in search of a job, the hiring power still belonged to the Caucasians as a result of the continuing impact of “The Big Five” — the five largest corporations that had monopolized business and government in Hawai`i for years. As a result, Asian-American lawyers were still not being hired by the Caucasian law firms, which controlled most of the legal business in the mid-sixties. Within a few years, however, a sprinkling of Asians had been hired at these law firms. But, that was then, and the situation has significantly improved. Moreover, today, as a resident of the most diverse state in the nation, you may be wondering, “Why would diversity even be an issue?” I hope my remarks will provide you with some “food for thought” in answering that question.

We are all aware that the diversity of America’s people has played a major role in making this country both strong and dominant. Unfortunately, this same diversity has been the source of discrimination and bigotry — an ugly part of this country’s legacy that still exists today. And, even with our demographics, Hawai`i has not been immune from racially or ethnically charged events occurring here. For example: In February 2005, a fight broke out after a high school junior varsity basketball game on the weekend and later escalated to several altercations the following week at Radford High School when the students returned to school. According to media reports, the altercations were sparked or fueled by racial prejudice and tension between students born in Hawai`i and those from African-American families stationed with the military. One student was expelled for using a racial slur and confronting a black student, and four others were suspended.

Disappointingly, we cannot say such behavior is the result of youthful indiscretion or limited to our younger, less mature citizenry. For example, in 2004, a federal agency investigation found that Hilo High School administration failed to address problems relating to its coaches’ use of abusive, racially-charged language, mishandling students, and threatening a parent. And, more recently, you may recall media reports regarding (1) a Honolulu city councilman’s warning to developers that “we don’t want any wetbacks” working on city rail projects and (2) the CEO of the Hawai`i Tourism Authority who resigned after reports surfaced that he used his state computer to e-mail racist jokes.

Indeed, although Hawai`i is far from utopian, no other state in the nation can match the demographics of our population — where Whites comprise only 24.3% of the population. However, according to the latest Census Bureau calculations, Whites are no longer the majority in California, and, currently, there is only one state — other than Hawai`i and California — with a non-White majority — that is, New Mexico at 45 percent. Experts predict that, by 2050, no state will have Whites as a majority.

I mention these statistics because, as the demographics change, so must the attitudes and perceptions of the public, especially those perceptions that are based on negative stereotypes of certain minorities. With the country’s shifting demographic, one would hope to see an increasing trend towards more tolerance, understanding, and mutual respect. Unfortunately, what we’re seeing is a continuing presence of negative stereotypes, attitudes, and perceptions even in our nation’s courts. For example, on December 7, 2007 — the 66th anniversary of the Japanese bombing of Pearl Harbor, — a jury in Spokane, Washington returned a 10-to-2 verdict in a medical malpractice case in favor of a local doctor — seemingly not such an unusual result. However, in this case, the Spokane County Superior Judge, faced with deciding a motion for new trial based upon juror misconduct, was not so sure.

The misconduct was based upon reports that jury deliberations may have been tainted by repeated and racially-charged references to plaintiff’s attorney, Mark Kamitomo — who, by the way, also practices in Hawai`i, — and who was the only non-White participant in the trial, as the judge, court staff, jurors, parties, and opposing counsel were all White. Uncontested affidavits of several jurors revealed that, during deliberations, at least five jurors — three women and two men — mocked Kamitomo, calling him “Mr. Kamikaze” and “Mr. Miyagi,” which you may know as a character in the movie, “The Karate Kid.” One juror was said to have remarked that the comments made about Kamitomo were “almost appropriate,” given the fact that they were returning their verdict on December 7th. In granting the motion for new trial early this year, Judge Robert Austin — whom the media described as “visibly emotional” — indicated that he could not be confident that the jury’s verdict was not the result of juror misconduct and stated: “We’d hoped we’d moved beyond this, and we apparently have not. It’s upsetting.”

Given Hawaii’s diverse community, one might think that what happened in Spokane would not happen here. To the contrary, in 1996, the Hawai`i Supreme Court, in State v. Jackson, was called upon to decide whether the defendant had been deprived of his right to a fair trial by an impartial jury based upon allegations that the jury took into consideration that defendant was of African-American descent. After returning its verdict, the jury foreperson reported that two jurors made some comments that, arguably, revealed racial prejudice. One juror — an elderly Japanese female — expressed surprise that the defendant, whom she referred to as “colored,” had such a “pretty” and “non-Black” wife. The second juror, in the context of discussing the effects of alcohol, remarked, “That’s the way they are.”

Because the first juror’s comment was made after the jury had reached agreement on the verdict, we held that the comment could not have affected the verdict. We were, however, more troubled by the second comment, but, ultimately, upheld the trial court’s denial of defendant’s motion for new trial based upon the fact that, among other things, (1) the foreperson had challenged the second juror as soon as the comment was made and had reminded the jury that race was not to enter their deliberations, (2) that the juror who made the comment immediately denied any racial meaning behind his statement, (3) that other jurors had reacted negatively to the comment, and (4) the guilty verdict was supported by substantial evidence.

I would like to think that this was an isolated incident as my research did not uncover any other similar case involving juror misconduct with racial overtones. However, an incident related to me by my secretary gives me pause. In August, during the Beijing Olympics, she was shopping and observed a cashier visibly irritated with an elderly Chinese couple who was ahead of her in line. After the couple left, the cashier turned to my secretary and said, “Damn Chinese! Can’t even speak English. They should all go back where they came from. Then, we can bomb the whole damn country and get rid of all of them, since they’re all a bunch of Communists anyway!”

My secretary was appalled. She said, “He must not be watching the Olympic coverage because, if he were, he surely would have learned through the many mini-documentaries about the creativity, work ethic, industriousness, and pride of the Chinese people.” Can you imagine being a Chinese lawyer, with Chinese clients, and having this cashier serve as a juror on your case? A troubling thought, indeed.

What’s equally troubling to me was that, during my research, I was reminded of a 1999 case in which the supreme court was compelled to reverse a defendant’s conviction on four counts of sexual assault because a prosecutor’s comments, made during rebuttal argument, were deemed sufficiently egregious to bar retrial. In that case — State v. Rogan, — the complaining witness had invited the defendant, a soldier stationed at Fort Shafter, to her home. Although the versions of what happened in the complainant’s bedroom was disputed at trial, it was undisputed that, when complainant’s mother came home, she walked into her daughter’s bedroom, at which time, defendant put his clothes back on and ran out the door.

In retort to defense counsel’s argument that the complainant’s parents wanted a conviction and that they allegedly coached their daughter, the deputy prosecutor stated:

Yeah, you can bet the parents wanted a conviction. This is every mother’s nightmare. Leave your daughter for an hour and a half, and you walk back in, and here’s some black, military guy on top of your daughter.

We held that the prosecutor’s argument was not “an unembellished reference to evidence of race simply as a factor bolstering an eyewitness identification of a culprit. . . . The line of demarcation [was] crossed . . . when the argument shift[ed] its emphasis from evidence to emotion.”

I have mentioned these cases and incidents to emphasize the continuing existence of, and the need to eliminate, negative stereotypes of certain minorities — which, in Hawai`i, ironically includes Whites, as well as to underscore the importance of diversity and cultural sensitivity. I believe diversity and cultural sensitivity are especially relevant in any discussion about human resources in a law office and, in particular, recruitment.

In a recent ABA Journal article, entitled Demanding Diversity: Corporate Pressure is Changing the Racial Mix at Some Law Firms, it was reported that diversity is one of four factors utilized by Shell Oil Company in evaluating and selecting outside counsel, along with quality, professionalism, and cost-effectiveness. John M. Esquivel, associate general counsel for Shell Oil in Houston, explained that diversity is valuable to Shell because — in the context of selecting outside counsel, “[w]hen they’re in the courtroom, when they’re negotiating, they represent Shell.” As also indicated in the article, general counsel for Sara Lee Corporation, Roderick Palmore, and a growing number of corporate legal chiefs, including Shell Oil’s general counsel, Catherine Lamboley, have observed that “having a variety of perspectives on a legal team can open the door to innovative thinking, strategy and solutions, and differentiated thought that they might not get from a group of white, male lawyers who share the same suburban upbringing and socioeconomic background.”

Corporate America is not the only one taking diversity seriously — so are law students. In October 2007, law students from Yale and Stanford law schools released “diversity report cards” for certain law firms, ranking them by how many female, minority, and gay lawyers they have. A group of Yale Law women also released a ranking of the top ten family-friendly law firms based on factors such as the amount of paid paternity and maternity leave and billable hour requirements. A New York Times article reports that these students “have ambitious plans, including asking elite schools to restrict recruiting by firms at the bottom of their rankings” and “plan to send the rankings to the general counsels of the Fortune 500 companies with the suggestion that they be used in selecting lawyers.”

According to the National Association for Law Placement, a Washington, D.C. non-profit group, only about 4% of partners in the United States are lawyers of color. The ABA’s Commission on Racial and Ethnic Diversity in the Profession reported in November 2005 that, “since 1999, national minority representation in partnership increased by a mere 0.7 percent. The picture for minority women is even more bleak, with 75 percent of them leaving their law firms within the first five years.”

There are those who believe that diversity is a “fad”; however, one need only look to and examine the workforce and marketplace today as compared to just ten years ago. With the influx of immigrants from Asia and the Pacific Islands, even the diversity of Hawaii’s already multi-ethnic environment is changing. Similarly, diversity is not — as some have argued — just another version of “equal employment opportunity” or “affirmative action.” For example, equal opportunity and affirmative action are government-initiated and legally-driven; whereas diversity is voluntary and productivity-driven. As more aptly stated by Mauricio Velasquez, President and CEO of the Diversity Training Group:

When a workplace and a marketplace are getting increasingly diverse — organizations must adapt, change, [and,] quite frankly[,] proactively anticipate these changes so to not allow emerging diversity issues to grow out of control. . . . [D]oing the same things we have always done in managing our human resources while the workplace and marketplace are changing dramatically is organizational suicide.

As I mentioned earlier, the demographic breakdown in Hawai`i has Whites at 24.3%, thereby placing them — unlike like their mainland counterparts — clearly in the minority. As such, there are some who believe that “reverse” discrimination exists in Hawai`i with regard to Caucasians. Consider for example the young Caucasian couple that was beaten in the Waikele Shopping Center parking lot in April of last year. Witnesses reported that one of the assailants — a “local” teenage boy — became angry when his vehicle was struck while the White couple attempted to park their car. Although there was no damage to either vehicle, indicating that the collision was apparently minor, the teenager jumped out of his car, yelling “f-ing haole” and kicked the driver’s side door of the other vehicle. The incident, you may recall, escalated to the point where the teenager’s mother and father became involved and the Caucasian couple were severely injured.

On a final note, it has been reported that “the buying power of people of color has grown dramatically over the past decade. The combined buying power of people of color in the U.S. grew from a base of nearly $600,000 billion to $1.4 trillion in 2001.” And, this, obviously, is one of the key reasons why businesses are proactively diversifying not only their products, but taking into account the bigger picture of diversifying their workforce. Take Wal-Mart Stores, Inc., for example, — an Arkansas-based company — which has adopted diversity as a retailing and recruitment philosophy, offering multi-cultural products that cater to the store’s specific location and a workforce that understands the community. These businesses recognize that a workplace that encourages and supports differences also promotes innovative perspectives that ultimately result in better client services. They are also diversifying their marketing strategies, as well as being selective about the companies, organizations, and other businesses with whom they associate. They are taking greater care to first determine the value that the particular entity places on — and its commitment to — diversity.

Ladies and gentlemen — We, who are in the business of providing “justice” to our citizenry, must recognize that demographics plays a role in shaping the attitudes and perceptions that can influence the business of the law and of the courts. Moreover, with the increasing number of immigrants coming to the United States, the existing problems of access to justice become compounded by issues pertaining to language barriers, cultural differences, and difficulties associated with assimilating into the mainstream of American life. Therefore, for those of us in the business of ensuring access to justice, the value and commitment we place on diversity can and will affect the public’s trust and confidence in our profession and in our justice system as a whole and — for those engaged in the practice of law — the “bottom line.”

I encourage each of you to take stock of the racial and ethnic — as well as gender — diversity within your own firms, explore cultural sensitivity training seminars and programs, and establish a diversity criteria for recruitment that will promote all of the benefits that come with diversity and cultural sensitivity. Thank you.