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EXPERT REPORT OF ROBERT B. WEBSTER
Grutter, et al. v. Bollinger, et al., No. 97-75928 (E.D. Mich.)
I. Statement of Qualifications:
I am a
member of the law firm of Clark Hill P.L.C. I have served as Chairman of that firm and am
currently resident in its Birmingham, Michigan office. I have been with Clark Hill since
1982, and I was a member of one of its predecessor firms from 1969 to 1973.
In 1973, I was appointed by Governor William Milliken to the Sixth Judicial Circuit,
Oakland County Circuit Court. I served in that capacity from 1973 through 1982. I served
as Chief Judge of that Court from 1976 though 1978.
Within the State Bar of Michigan I have held the positions of Commissioner (1982-1990),
Vice-President (1987-1988), President-Elect (1988-1989), and President (1989-1990). I have
served on numerous State Bar committees, and was appointed by the Supreme Court of
Michigan to chair the Committee to Revise and Consolidate the Michigan Court Rules. In
that capacity I was charged with responsibility for directing the first general revision
of the Michigan Court Rules since 1963; I subsequently also served as co-author of Michigan
Court Rules Annotated (West 1985), a standard text on Michigan practice. I also
served on the Michigan Supreme Court Task Force on Gender Issues in the Courts and, in
that role, reviewed the report of the Michigan Supreme Court Task Force on Racial / Ethnic
Issues in the Courts and related materials.
I have been a member of the House of Delegates of the American Bar Association since
1990 and a Fellow of the American College of Trial Lawyers since 1991. A complete curriculum
vitae, including list of major publications, is attached as Appendix A.
II. Information Considered in Forming Opinions:
My opinions
are based primarily upon knowledge and insight gained in the forty years in which I have
been a practicing attorney, counselor, arbitrator, mediator, bar officer, and state court
judge. My opinions are also based in part upon materials described in Section IV.B,
within, copies of which will be provided upon request.
III. Other expert testimony: compensation:
Within the
past four years, I have testified as an expert on several occasions regarding issues such
as attorney malpractice (standard of care) and reasonableness of attorney fees. Time spent
working on this matter is being charged at the rate of two--hundred dollars per hour.
IV. Opinions to be expressed and the basis and reasons therefore:
A.
One of the
most important skills for a lawyer to develop is that of being able to understand and work
well with individuals of diverse backgrounds, including racially diverse backgrounds. A
lawyer will simply be more effective in the profession if he or she can think
empathetically, interact comfortably with people whose perspectives and life experiences
are different from their own, and resist stereotypes and other obstacles to understanding.
This is important for attorneys in virtually every aspect of the profession. It is
obviously important for trial lawyers, who must interact persuasively and perceptively
with clients, witnesses, opposing counsel, judges, and juries - people who may be of
diverse races and backgrounds. But it is important for many other kinds of attorneys as
well, including those who negotiate business transactions, mediate disputes, draft
agreements, or provide advice concerning divorces, estate plans, or living wills. And as
our society becomes increasingly multicultural and diverse - and as our boardrooms and bar
associations and business meetings and communities follow suit - this skill becomes
increasingly important. Simply put, ours is a profession of service, and it must keep pace
with the Nation it serves.
This skill - being able to understand and work well with individuals of diverse
backgrounds -- is also related to issues of professionalism. Responsible attorneys act not
only as advocates and advisors, but as counselors. An attorney is a
more effective
counselor if he or she has developed this capacity. If we want our
attorneys to act as
professionals and as counselors - and not just as "hired
guns" who attend only
to the bottom line and the billable hour - then we must enable and
expect them to develop
this skill as early as possible in their careers.
Of course, this is also critical to the many other roles that
members of our profession
disproportionately play in our society: community leaders; board
members; law enforcement
officials; legislators; public servants; and so on. I personally found
this skill
indispensable to my service as a member of the judiciary.
Unfortunately, because my
exposure to people of other races was so limited before I was appointed
to the bench, I
was forced to learn about these issues "on the job" and after
I had been
practicing law for more than fifteen years.
I grew up in a predominantly white neighborhood and attended
predominantly white
schools, including Baldwin High School in Birmingham, Michigan. I
attended the University
of Michigan as an undergraduate (B.A., 1955) and as a law student
(J.D., 1957). My memory
is that my law school class had few, if any, students of color. After
law school I joined
the Detroit law firm that eventually became Hill, Lewis, Adams,
Goodrich & Tait, a
leading firm in the city. During this time I had very limited
interactions with people of
other races.
There was one exception to this. In 1967, rioting broke out in the
City of Detroit and
I was asked to represent a number of African American individuals who
had been arrested.
Observing how the justice system treated these individuals was an
eyeopening experience
for me. Learning even a little about their lives was a very important
educational
experience that changed my perspectives and challenged my assumptions.
It is unfortunate
that I only began to have these experiences a decade after I finished
law school.
Indeed, it was not until I took the bench in 1973 that my education
on these issues
really began. As a partner in a prestigious big-city law firm
practicing in the civil
justice system in the nineteen-sixties, my exposure to African American
attorneys had been
extremely limited. But my experience was entirely different as a judge
presiding in a
county that included a number of cities (such as Pontiac) whose
populations were
substantially African American.
In my years on the bench I watched, listened to, engaged with, and
learned from a
number of African American attorneys who appeared before me. By way of
example, this
includes an attorney who was the best cross-examiner I had ever - and
to this day have
ever - seen, and it includes an attorney whose quiet dignity and
scholarship later led to
an appointment to the federal bench. These encounters exposed and
destroyed racial
stereotypes I did not even know I harbored. And, again, I found myself
exposed to new
perspectives, new kinds of life experiences, new ways of looking at the
world - indeed,
new worlds. But I did not learn only about differences; I also learned
about similarities,
about how much of the human condition transcends racial boundaries.
Now, more than ever,
our profession needs lawyers to be bringing these kinds of skills and
insights to the
bench -- not to be acquiring them there.
In sum, the ability to empathize and work effectively
with people of
diverse races and backgrounds is critical to our profession. It is an
ability that must be
developed as proficiently, and as soon, as it possibly can. For it is
finally this simple:
we cannot represent someone as effectively, cannot counsel someone as
insightfully, and
cannot persuade someone as convincingly, if their race or background
makes them a stranger
to us.
B.
When law schools graduate racially diverse student bodies, the legal
profession enjoys
an incidental but important benefit: a diverse legal profession
enhances the appearance of
justice and increases public confidence that our system is fair,
unbiased, and accessible
to all.
Reports of various Michigan commissions and task forces confirm that
the appearance of
bias in the judicial system constitutes a significant concern.
In 1986, the Michigan Supreme Court formed the Citizens Commission
to improve Michigan
Courts. The Commission, supervised by Justice Patricia Boyle, was asked
"to recommend
to the Court ways in which the court system may be made more readily
accessible and more
responsive to the needs of citizens of this State."
The Commission divided itself into committees, held public hearings,
reviewed hundreds
of letters, and conducted surveys. As a result of the investigation,
the Commission issued
some fifty recommendations to the Supreme Court.
In the course of its recommendations, the Commission found that
"Fully one-third
of the citizens of the state of Michigan believe that blacks and women
are not treated as
well by the court system as are whites and men ..." The Commission
therefore
recommended that (among other things) the Supreme Court form a task
force to study the
extent and nature of the "disparate treatment accorded
citizens."
In 1987, the Supreme Court responded by issuing Administrative Order
No. 1987-6,
creating a Task Force on Racial / Ethnic Issues in the Courts and a
Task Force on Gender
Issues in the Courts. These Task Forces issued Reports. Of particular
importance here is
the following finding by the Task Force on Racial / Ethnic Issues:
Diversity is an important goal for a quality justice system. The
presence of minorities
in all areas of the profession is not a guarantee of unbiased
behavior. However, the
research done by the Task Force is conclusive on several points.
First, the presence of
minorities in the profession increases public perception of fairness.
It further responds
to the need of citizens to feel less isolated and alone within the
legal process. When
asked an open-ended question regarding recommendations for ensuring
equal and fair
treatment in the Michigan Court system, 231 court users said
"increase the number of
female and racial / ethnic minority judges and attorneys." The
next highest response,
"speed up the system," gained only 47 proponents.
In the fall of 1996, State Bar President Victoria Roberts created
the State Bar Task
Force on Race / Ethnic and Gender Issues in the Courts and Legal
Profession to determine
what, if any, progress had been made toward the goals identified in the
earlier reports.
In 1998, the Task Force issued its conclusions. This quotation from the
executive summary
of that report underscores the importance of diversity in the
profession to the appearance
of fairness:
The appearance of bias, as well as the reality of bias, damages
our profession and our
courts in their fundamental role as protector of freedom and
dispenser of justice. In a
very real sense, the implementation of these recommendations
continues the process of
insuring that the Michigan justice system accurately reflects the
diversity of the
constituency it serves, and that participants at all levels are
afforded a level playing
field upon which to operate.
I believe that task forces in other states have reached similar
conclusions.
In sum, when diverse classes of law school students enter the legal
profession it
enhances the appearance that our system is just, unprejudiced, and
equally available to
people of all races. Of course, the educational reasons law schools
admit a diverse array
of students - and the policies they use to do it - are beyond my
expertise and personal
knowledge and I offer no opinions with regard to these issues.
Nevertheless, as an
attorney, bar leader, and former judicial officer I know that a system
of justice only
works well if people respect it, and that people cannot respect a
system that appears to
be unfair, to perpetuate prejudice, and to exclude certain people from
its administration.
"Compelling Need" Table of Contents
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