In its continuing efforts to keep the public informed about the ongoing admissions litigation, the University of Michigan makes these transcripts of the trial proceedings in Grutter v Bollinger, et al., Civil Action No. 97-75928 (E.D. Mich.), available to the University community and general public. As is often the case with transcription, some words or phrases may be misspelled or simply incorrect. The University makes no representation as to the accuracy of the transcripts.




                                                                           124

                1                      (Afternoon session)

                2                          -- --- --

                3            COURT CLERK:  Please rise.

                4            THE COURT:  Thank you.  You may be seated. 

                5            You may proceed.

                6            MS. MASSIE:  Thank you, Judge.

                7            Judge, if you don't mind, I would like to take a 

                8    step back and lay a little bit more of a foundation than I 

                9    did before on Mr. White's expertise.

               10            THE COURT:  Sure, you can, however, I'm going to 

               11    allow him to testify, as I indicated to you before, but if 

               12    you want to put more in.

               13            MS. MASSIE:  If I could, just briefly.

               14            THE COURT:  Sure.

               15                DIRECT EXAMINATION   (Continued)

               16    BY MS. MASSIE:

               17      Q   Mr. White, how many experts on testing bias are there 

               18    in the country today?

               19      A   I don't have a definition of what a testing bias 

               20    expert would be, but I said before that when institutions 

               21    of government look to see how tests can be evaluated from a 

               22    potential bias, I find out that they end up calling me. 

               23            I have dealt with other people on these panels and I 

               24    certainly consider those to be experts, as well, but there 

               25    is obviously not a company that does test bias, and it's not 













                                                                           125

                1    surprising that there are companies that make tests that 

                2    would not hire test bias experts, although they certainly 

                3    are interested in it. 

                4            But it's a question of recognizing that there is 

                5    a problem from a different perspective of a tester, and 

                6    actually, frankly, a little from a different perspective 

                7    from people who call themselves psychometricians, who I 

                8    have great respect for in terms of mathematical ability.  

                9    They can do a lot of things that I can't in terms of 

               10    mathematics.

               11      Q   So in other words, the Texas, New York and California 

               12    Legislatures didn't contact the testing companies themselves 

               13    because the testing companies have an interest in not saying 

               14    that there is bias, so if the Legislature is interested in 

               15    bias --

               16      A   Well, that's the whole point, that the Legislature was 

               17    interested, and the Committee on Higher Education held an 

               18    interim hearing where the first witness was the President 

               19    of the Law School Admission Council Board of Trustees, 

               20    Professor Gerald Torres, and the next witness was me.

               21            And so they wanted to hear both sides and I was 

               22    the person that they decided that they should fly out to 

               23    Austin to hear from.  And they heard from other experts, as 

               24    well.  They heard from the co-author of Claude Steele, who 

               25    is Dr.--













                                                                           126

                1      Q   Aaronson?

                2      A   Aaronson, Joshua Aaronson, who testified right after 

                3    I did about the stereotype threat.  And so I find that when 

                4    people ask about this, that they end up asking me.  They 

                5    certainly end up asking other very qualified people, 

                6    as well. 

                7      Q   And the Florida State Supreme Court, the American 

                8    Association of Law Schools, all the other entities that we 

                9    went over before, those are all entities, governments, 

               10    governmental bodies, et cetera, which invited you?

               11      A   That's right.

               12      Q   Which requested that you come explain something to 

               13    them about bias and testing?

               14      A   That's right, including the General Counsel's Office 

               15    of the Department of the Army. 

               16      Q   And so it's fair to say that those people recognized 

               17    you as one of the foremost national experts on bias in 

               18    testing and in particular, again, on the LSAT?

               19      A   I'd like to think so. 

               20      Q   Can you tell us about your testimony for the Florida 

               21    State Supreme Court, just very briefly?

               22      A   Well, you mean the Texas Legislature? 

               23      Q   Well, I  --

               24      A   Oh, I think the Florida State Supreme Court was 

               25    actually a very interesting thing, where we got to look at 













                                                                           127

                1    Bar examination questions.  As I mentioned, there were two 

                2    psychometricians, and there was Dr. Mary Hoover, who had 

                3    taught at San Francisco State and taught at Stanford, is 

                4    now teaching at Howard University, and is an expert in 

                5    linguistics and psychology and education, and a man who was 

                6    Cuban and who had been trained as a lawyer, but he left just 

                7    in the nick of time, according to his flight, and moved to 

                8    New York and became a professor of romance languages, and it 

                9    was very interesting to see after that long a time not being 

               10    a lawyer that he still sounded like one when he looked at a 

               11    bunch of the Bar examination questions.  But that's what 

               12    they did, is they looked at questions that they thought 

               13    might have some psychometric qualities that were 

               14    questionable. 

               15            And they asked the panel of us, including another 

               16    African American lawyer who had obviously passed the Bar in 

               17    Florida and was a very sharp character, to see what they 

               18    thought might be going on in terms of the items themselves.  

               19    And this is the sort of thing that psychometricians suggest 

               20    on a regular basis when they evaluate test bias.

               21      Q   And how did you first get involved in the field of 

               22    testing bias?

               23      A   I ended up in an interesting place at the right time.  

               24    I graduated from law school in 1973 and moved to Berkeley 

               25    to work on the Childhood and Government Project.  I was 













                                                                           128

                1    doing research essentially on the Griggs versus Duke Power 

                2    Company, which I'm sure Your Honor has heard of, which was 

                3    one of the first Title VII cases, the question of the use of 

                4    high school diplomas and standardized tests in employment. 

                5            In 1976, Alan Bakke became a very famous individual 

                6    in the California State Supreme Court and then subsequently 

                7    in the United States Supreme Court, and the students at the 

                8    law school at Boalt Hall, especially the Black Law Students 

                9    Association, felt that their voice should be heard and they 

               10    were particularly interested in challenging what was at 

               11    that point an unacknowledged assumption that they were less 

               12    qualified to be in law school. 

               13            And they thought that the basic problem that they 

               14    felt was not being addressed was the test.  And so I ended 

               15    up helping coauthor a brief to the Supreme Court to talk 

               16    about the invalidity of the MCAT and had an appendix about 

               17    the invalidity and bias on the LSAT. 

               18            As it turned out, the Bakke case came down as it 

               19    did, and the National Institute of Education and the Spencer 

               20    Foundation funded a study for the National Conference of 

               21    Black Lawyers to evaluate the law school admission test and 

               22    I was asked to be the principal investigator and I conducted 

               23    that in Berkeley. 

               24            That's when I learned a lot of information, some of 

               25    which we're presenting today, and had a number of different 













                                                                           129

                1    experts from a variety of different fields talk about the 

                2    LSAT and talk about law school admissions and talk about the 

                3    graduates of law school. 

                4            At that point, truth in testing occurred in 1980 and 

                5    I was frankly shocked, Your Honor, because we had never seen 

                6    a real LSAT test question before and we had been told that 

                7    they weren't biased. 

                8            And when we wrote our initial report for the 

                9    National Conference of Black Lawyers, all we could see were 

               10    the sample questions, and I have actually included some of 

               11    those sample questions in the report that I gave, and it's a 

               12    fascinating process, because what I did, and this is what I 

               13    did at the Association of American Law Schools, is I read 

               14    one of those questions, and before I was halfway through 

               15    reading that question, the audience was almost literally 

               16    rolling in the aisles, because I was reading it to the 

               17    Section on Minority Education, and as you would expect, the 

               18    vast majority of the audience were members of minority group 

               19    law professors. 

               20            I read that same question in 1988 -- '86, when I 

               21    was asked again to speak at the Association of American Law 

               22    Schools, got a completely different reaction, because that 

               23    audience was the Section on Prelegal Education, and it was a 

               24    wildly diverse audience, mostly white. 

               25            And it showed me what I was finding for the next 













                                                                           130

                1    fifteen years, is that different people react to different 

                2    questions in -- the same question in very different ways.  

                3    And so the research that I can present is statistics, but 

                4    as I indicated, they are statistics that reflect one-by-one 

                5    decisions by individual students on individual questions, 

                6    and what we have discovered, I think quite clearly from the 

                7    data, is that different people from different racial groups 

                8    have different test scores largely because of the test.

                9      Q   Mr. White, let me just interpose there, if I can. 

               10            So you became aware that there were questions that 

               11    people answered differently in a way that had to do with 

               12    race?

               13      A   Absolutely.

               14      Q   And that was what started your interest in testing 

               15    bias, and in particular, bias on the LSAT?

               16      A   It was fascinating.  There were four tests a year and 

               17    I could have a new one come out and look at it.

               18      Q   Before that time, I take it, you had only had 

               19    reference -- had the ability to reference questions which 

               20    were written as samples and weren't actual questions; is 

               21    that right?

               22      A   In the bulletin of information that you get for your 

               23    application and the codes and everything that would have the 

               24    number of questions and some examples.

               25      Q   And since that time, since I guess before Bakke, since 













                                                                           131

                1    the mid '70's, you have been working on these questions, you 

                2    have made presentations, including the material that you'll 

                3    be presenting today, to institutions like the Texas State 

                4    Legislature and the Committees of the New York and 

                5    California State Legislatures before which you have 

                6    testified; right?

                7      A   Yes. 

                8      Q   And as far as you know, there really aren't a lot of 

                9    other people who do this kind of work; is that right?

               10      A   No one seems to have the interest in it that I do. 

               11      Q   And by the way, you are a member of the National 

               12    Council on Measurement and Education?

               13      A   That's correct.  I go to their convention every year 

               14    and I'm a member of the American Educational Research 

               15    Association, and Division D, which is Measuring and 

               16    Evaluation.

               17            MS. MASSIE:  That's all, Judge.  I just wanted to 

               18    give the Court more background on why it is that Mr. White 

               19    hasn't worked for a testing company and things like that.

               20            THE COURT:  Go on.

               21    BY MS. MASSIE:

               22      Q   There has been a lot of testimony about the overall 

               23    gap nationally in the law school applicant pool, the gaps 

               24    among law school applicants of different races on the LSAT 

               25    and I'm not going to dwell on that too long.  I think it's 













                                                                           132

                1    been very conclusively shown to exist in the case.

                2            There has also been some information that the gap on 

                3    the LSAT far outstrips the gap in undergrad GPA's; in other 

                4    words, there is a gap in undergrad GPA's, but it is nowhere 

                5    near as large as the gap, aggregate gap by race in LSAT 

                6    scores.

                7      A   Yes, there is a much larger gap in both the applicant 

                8    pool and the accepted student pool at the University of 

                9    Michigan, in this case, on the LSAT, much larger than any 

               10    gap on the GPA.  What we're showing in this information is 

               11    that it's true nationwide. 

               12      Q   And we're going to be focusing on the national data?

               13      A   Yes. 

               14      Q   And this gap and the difference between the two gaps 

               15    has existed for a long time; is that right?

               16      A   At least 25 years.

               17            MS. MASSIE:  Okay.  Let's quickly go through a 

               18    couple of charts that will help map that out.  If everybody 

               19    could turn to Exhibit 218. 

               20            In case, Judge, I'm getting the numbers wrong, since 

               21    we didn't straighten that out yet, I'm just going to read 

               22    what it says at the top, as well.  1976 Number and Percent 

               23    of Applicants At or Above Selected Levels of LSAT Scores and 

               24    College Grade Averages. 

               25            THE COURT:  And that's 218, as far as you believe at 













                                                                           133

                1    this time?

                2            MS. MASSIE:  What's that?

                3            THE COURT:  That's 218?

                4            MS. MASSIE:  Yes, that's the best information we 

                5    have.  We're going to have to confirm it.

                6            THE COURT:  That's fine.  If it turns out different, 

                7    you can just make one an A or something.

                8            MS. MASSIE:  Yes, that's a good idea.

                9            THE COURT:  The rest of the package you have here, 

               10    the '96, '97 will be, just so we do it right, 219.

               11            MS. MASSIE:  Good.

               12            THE COURT:  220 will be the next chart.

               13            MS. MASSIE:  Great.

               14            THE COURT:  And then just keep going until we're 

               15    through, right?

               16            MS. MASSIE:  Sounds good.

               17    BY MS. MASSIE:

               18      Q   This chart was apparently from a brief filed by the 

               19    Law School Admission Council, an organization that's been 

               20    mentioned often in this trial, in the Bakke case?

               21      A   That's correct.  The Law School Admission Council 

               22    sponsors the law school admission tests and filed one of, 

               23    I think, 62 amicus curiae briefs in the Bakke case. 

               24      Q   Tell us, quickly, what do we have to learn from this 

               25    chart?













                                                                           134

                1      A   This was the clearest indication that I had seen to 

                2    date of the independent discriminatory impact on the LSAT 

                3    compared to grades for black students as opposed to white 

                4    students.

                5      Q   How is that true?

                6      A   What I did was look originally at the largest group, 

                7    which is obviously the whites, and look at how 40 percent 

                8    of the whites who applied to law school in 1976 applied 

                9    with a college grade point average of 3.25 or above, and 

               10    coincidentally, almost exactly the same percentage of 

               11    37 percent had an LSAT at or above 600. 

               12            So that for the white applicant pool, the LSAT and 

               13    the GPA, at 3.25 for GPA and LSAT at 600, were capturing 

               14    about the same percentage of the white pool, so that we 

               15    could say in the parlance the testers would use that it was 

               16    equally difficult, because if you said I would like to get a 

               17    3.25 in college and go to law school, well, you'll be one of 

               18    the top 40 percent who apply, and if you say I would like to 

               19    get a 600 or above on the LSAT and apply to law school, you 

               20    would have been one of the top 37 percent of the whites who 

               21    applied. 

               22            Now, obviously, as Dr. Shapiro mentioned the other 

               23    day, it would be no point at all if the same people that got 

               24    the same good grades, got those kind of test scores, because 

               25    you would be wasting a half day on a Saturday.  So different 













                                                                           135

                1    people get grades and test scores and what happens is when 

                2    you require both, which actually, incidentally, law schools 

                3    do not do, they don't say you better have a 3.25 and a 600, 

                4    they use what they call a compensatory index, where you can 

                5    have high LSAT and low grades, or low grades -- low test 

                6    scores and high grades, so that's not what it's intended 

                7    to do, but it's the way the Law School Admission Council 

                8    presented the data.  Twenty percent of the whites had both. 

                9      Q   So in other words, 40 percent of the white people got 

               10    above a 3.25 or above?

               11      A   Right.

               12      Q   A different 40 percent, a different but overlapping 

               13    40 percent got the LSAT score of 600, and the 20 percent 

               14    captures the overlap?

               15      A   That's the group that was in both, yes.

               16      Q   But it didn't work that way for the black applicant.  

               17    Tell us why not.

               18      A   That's what was so fascinating for me.  This Court and 

               19    this nation has heard a lot of information about the lower 

               20    percentage of black applicants who apply to law school with 

               21    a 3.25 or above, and there is no indication that that is the 

               22    top limit of the ability of black applicants, but if the 

               23    LSAT was working the same way for black applicants as it 

               24    was for whites, this chart wouldn't look the way it does, 

               25    because instead of 13 percent having a 600 or above, only 













                                                                           136

                1    three percent do.  And so instead of cutting that group in 

                2    half, the group is cut from 13 percent down to one percent.

                3      Q   In other words, when you contemplate the number of the 

                4    percentage of black applicants who had both the grades and 

                5    the LSAT scores in the highest range, it was down to one?

                6      A   Yes.  And that's what I call the discriminatory impact 

                7    of the LSAT with respect to black applicants that doesn't 

                8    seem to be reflected in college grades.

                9      Q   Now, are you suggesting that grades are race neutral?

               10      A   Oh, no.  Oh, no, but it's a benchmark for us to 

               11    measure the relative problem.  And so insofar as there is 

               12    any problem with college grades, there is an additional 

               13    problem with the LSAT.

               14      Q   Has this problem continued, this additional problem, 

               15    for black applicants, black law school applicants?

               16      A   Well, in 1981 the LSAT changed from the 200 to 800 

               17    scale that it was based on, the same scale of the SAT and 

               18    the GRE, the 200 to 800, and they went to a 10 to 48 scale, 

               19    and I ended up at Testing for the Public.  And then in 1991, 

               20    they changed again and went to a 120 to 180 scale. 

               21      Q   And you're taking us to Exhibit 219, I think?

               22      A   And so in 1996, 1997, twenty years later, I looked at 

               23    that, as it's widely available, every law school admission 

               24    officer gets it, every prelaw advisor gets it, and if you 

               25    send an e-mail to the Law School Admission Council, you will 













                                                                           137

                1    get a very polite response and get the data. 

                2            What we found is when whites were applying to law 

                3    school in 1996 and '97, twenty years later, 46 percent of 

                4    them had a 3.25 and above in college.  Almost exactly the 

                5    same percent, 46 percent, if you round, had an LSAT at or 

                6    above 155.  So it was working the same way that a 600 did.

                7            Now, the Law School Admission Council will warn you 

                8    that a 600 and a 155 are not equateable, and I understand 

                9    that, but in terms of capturing the pool, the same number 

               10    of people managed to jump into each pile, and it went down 

               11    to 27 percent if you made it both.

               12      Q   And it was working in pretty much the same, slightly 

               13    moderated, but pretty much the same way, relatively 

               14    speaking, for black law school applicants as well?

               15      A   Instead of going down from 13 percent to three percent 

               16    twenty years ago, you now go down from 17 percent to eight 

               17    percent.

               18      Q   And combining the two?

               19      A   So the gap is not ten percentage points, it's nine 

               20    percentage points, and instead of one percent of the 

               21    students having both, now three percent of the students 

               22    have both. 

               23      Q   So in other words, the independent discriminatory 

               24    impact of the LSAT has persisted now for at least 25 years?

               25      A   Yes. 













                                                                           138

                1      Q   Substantially unchanged?

                2      A   Yes.  We have looked at the data before and after this 

                3    year and they are almost identical.

                4      Q   Now, you have done some work to try and determine 

                5    whether the SES factor on the LSAT is greater or lesser 

                6    than the race factor on the LSAT for a test taker.

                7      A   Well, that's one of the first questions that you get 

                8    when you present data to somebody.  People will say, well, 

                9    the LSAT is biased against lower class students, and we have 

               10    heard testimony about the SAT being biased against lower 

               11    class students, and they said that's all you're capturing. 

               12            It wasn't until Linda Whiteman, Dr. Linda Whiteman, 

               13    who is the former Director of Research for the Law School 

               14    Admission Council, had previously worked at the Educational 

               15    Testing Service and is now a Professor at the University of 

               16    North Carolina Chapel Hill, published data about the most 

               17    extensive study about the law school, LSAT, Bar passage.  

               18    It was called the Bar Passage Study and as part of it they 

               19    gathered socioeconomic status data.

               20            She published a chart in her article in the New York 

               21    University Law Review, which has been widely cited, that 

               22    shows the interrelationship between LSAT scores, 

               23    socioeconomic status and racial identity. 

               24            Sometimes pictures are worth a thousand words, Your 

               25    Honor.  If you are white, as you can see, regardless of your 













                                                                           139

                1    social class, you have an advantage on the LSAT.  If you are 

                2    from the upper middle class blacks, or if you are from the 

                3    upper class blacks, and you compare your LSAT score with 

                4    lower middle class whites, your average score is almost 

                5    six points lower. 

                6            And so the next page, which I think would be 

                7    number 221 --

                8      Q   It's 221.  The bar graph was 220.

                9      A   Those were the pictures, and these are the numbers 

               10    that reflect the pictures. 

               11            Essentially, if you ask the question, does it pay 

               12    to be upper class if you take the LSAT?  You say, yeah.  

               13    Depending on your racial group, it's worth about two to 

               14    three points.  Now, this is on the 10 to 48 scale and we're 

               15    now on the 120 to 180 scale, so the numbers are not going to 

               16    be the same, but the ratios and the relationships shouldn't 

               17    have changed, because as Dr. Shapiro indicated, tests are 

               18    designed to be consistent. 

               19            For example, if you were white, if you came from the 

               20    lower middle class, your average LSAT would have been 36.24.  

               21    If you are upper class white, you would have 38.31.  So it's 

               22    a little more than two points to be white if you're upper 

               23    class. 

               24            For blacks, it's about three points, 27 to 30, but 

               25    look at the difference.  If you are a lower middle class 













                                                                           140

                1    white, your average LSAT is 36.  If you are an upper class 

                2    black, your average LSAT is 30. 

                3            I think there is one point I want to make on the bar 

                4    graph, since we put it in, is that they also told the number 

                5    of students that fall into these different groups.

                6            THE COURT:  Those are the numbers underneath there?

                7            THE WITNESS:  Underneath.  And as you can see, 

                8    Dr. Whiteman actually made a point of this in her report, 

                9    that she tried to pick groups that were about the same size, 

               10    and I'm sure she also looked at what socioeconomic status 

               11    data meant, but she found for whites that that was pretty 

               12    true, about a quarter of the whites fell into each of the 

               13    groups. 

               14            If you look at blacks, though, far more than half of 

               15    the blacks were from the lower middle class.  You had 937 in 

               16    the lower middle class.  You had 280, 142, 488 in the other 

               17    three groups.  So that when we talk about socioeconomic bias 

               18    on the LSAT, there's two points to be made.  One is that 

               19    it's different than race, but it's also part of racial bias. 

               20            And so while it doesn't make sense to say that the 

               21    LSAT gap is a reflection of simply socioeconomic status, 

               22    because it's not, to say that the test is biased on the 

               23    basis of socioeconomic status is also to say the test is 

               24    biased on the basis of race. 

               25      Q   There is an additional factor, though, which is race 













                                                                           141

                1    itself.

                2      A   Absolutely.  If you look at the relative magnitudes, 

                3    you have about two to three points --

                4            THE COURT:  Which chart, 221?

                5            THE WITNESS:  The numbers --

                6    BY MS. MASSIE: 

                7      Q   The numbers on 221?

                8      A   Yes.  If you look at the numbers, class accounts for 

                9    two to three points within a racial group.  Race counts up 

               10    to six points to eight points between blacks and whites. 

               11      Q   Well, six to eight points if you're taking the lowest 

               12    socioeconomic status category --

               13      A   Absolutely.

               14      Q   -- of white applicants and the highest socioeconomic 

               15    status category for black applicants.

               16      A   Yes.  The smallest gap you can get is if you compare 

               17    lower middle class whites with upper class blacks.  If 

               18    you compare upper class to upper class, that's a seven 

               19    and-a-half point gap, or if you compare lower class to 

               20    lower class, it's a nine point gap. 

               21      Q   I understand that you have also done some work on -- 

               22    generated by the question that people have, as they do about 

               23    socioeconomic status, whether the additional gap produced 

               24    by the LSAT doesn't reflect different grades at different 

               25    colleges, less difficult or rigorous college classes, things 













                                                                           142

                1    like that.

                2      A   That's a --

                3      Q   So in other words, do the grades mean the same thing.

                4      A   That's exactly what you will get.  When you look at 

                5    the national data and you look at the percentage of students 

                6    who apply with a 3.25 or above, people will say, well, they 

                7    went to different colleges, and so that reflects different 

                8    standards. 

                9            There was some very interesting data that we 

               10    reported as a result of the National Conference, Black 

               11    Lawyers Conference that's included in our report, Your 

               12    Honor, that actually shows that traditionally and 

               13    predominantly black colleges actually offered lower average 

               14    grades to their students than did the upper class colleges, 

               15    so that's the general world we're in, but we didn't want to 

               16    do that, we wanted to control for college, and so what we 

               17    did is we asked twelve law schools to give us their top 

               18    four feeder schools.  They were the schools that Dr. Allen 

               19    mentioned yesterday that you're just tired of hearing from 

               20    students from, and we had those twelve schools give it to 

               21    us for three years, which meant that we had 36 cohorts of 

               22    students.

               23      Q   What year was this, Mr. White?

               24      A   The study was published in 1981 and the data was from 

               25    1978 to 1980.  These were the applicant groups.  We just 













                                                                           143

                1    wanted to see what the pool looked like.  We didn't want to 

                2    know whether they got admitted or anything like that, but 

                3    just what did the pool look like from the top four feeder 

                4    schools. 

                5            Then we said, now that we have got the people 

                6    applying accidentally to these law schools from the same 

                7    college, we're going to match each individual minority 

                8    student with all the white students who applied from that 

                9    same college and accidentally ended up in the same law 

               10    school application pile with the same GPA's. 

               11            And we said, what's the same?  Well, plus or minus a 

               12    tenth.  So if you're an African American and you have a 3.0, 

               13    we will look at all the whites who applied to law school 

               14    from your college that had either a 2.9 up to a 3.1, a very 

               15    narrow band of similarity. 

               16            Dr. Joseph Gannon from Boston College presented the 

               17    results of this study that included over 19,000 students.

               18      Q   Mr. White, I'm sorry, I just want to make sure the 

               19    record is absolutely clear, so you took each minority 

               20    applicant --

               21      A   Yes. 

               22      Q   -- and matched each applicant with all the white 

               23    applicants within a GPA range of plus or minus a tenth of 

               24    a point?

               25      A   Yes.













                                                                           144

                1      Q   And then you averaged all the white people's GPA's, so 

                2    you had an average GPA that you were comparing the -- I'm 

                3    sorry -- you averaged all the white people's LSAT scores, 

                4    excuse me, so you had an average LSAT score for the white 

                5    people with the same GPA from the exact same school in the 

                6    same year as the minority applicant?

                7      A   That's correct.  That's correct.  Obviously, each 

                8    individual white student had their own LSAT score, so we 

                9    took the match between the black and that white, the black 

               10    and that white, the black and that white, and we got the 

               11    average gap that each individual black student faced 

               12    compared to all the whites that were the same. 

               13            And then I did have to ask some of my friends 

               14    that know a little bit more about math than I do, and 

               15    Dr. Joseph Gannon told me how to do it, that you weighted 

               16    that average so that you could come out with an overall 

               17    average gap that say black students from college X were 

               18    facing in that year.

               19      Q   And what were the results of that study?

               20      A   When we looked at the minority students' LSAT scores 

               21    and compared that to all their comparable whites from the 

               22    same school, we found that African Americans had 110 points 

               23    lower LSAT scores on average than the white students who 

               24    came from the same college with the same grades. 

               25      Q   And this was on a 200 to 800 scale?













                                                                           145

                1      A   It was on a 200 to 800 scale.

                2      Q   And a 100 point gap was -- how substantial was that?

                3      A   In terms of what psychometricians would call a 

                4    standard deviation, it's very significant.  Tests start from 

                5    500 and go out, so one standard deviation is 400 to 600.  

                6    That means you'll capture a third of the applicant pool in 

                7    that group.  And then another 200 points one way or the 

                8    other would be 300 to 700, and then 200 to 800.  That's the 

                9    way tests are designed, to create that spread. 

               10            And so on average, you are having more than one 

               11    standard deviation in terms of what the testers would say in 

               12    terms of a gap.  It's an enormous gap.  It's 97 points for 

               13    Chicano-Latinos, 78 points lower for Native Americans. 

               14            And this is the point that I think is very 

               15    interesting to remember.  This is data that we were doing in 

               16    Berkeley, California, even though the study was nationwide 

               17    in terms of our spread for colleges.  We were very 

               18    interested to notice that there was a 36 point gap for Asian 

               19    Americans, so that when Asian Americans were taking the LSAT 

               20    and being compared to whites who applied from the same 

               21    college to the same law school, they didn't end up with the 

               22    same LSAT scores.  They were behind 36 points on the LSAT.  

               23    They were relatively close, but they certainly weren't the 

               24    same. 

               25      Q   So this is the information that's reflected on 













                                                                           146

                1    Exhibit 222?

                2      A   Yes.

                3      Q   Minority to Non-Minority LSAT Score Differences, and 

                4    so on?

                5      A   And that was presented at our national conference by 

                6    Dr. Joseph Gannon, and then the results of the study were 

                7    published in the book and it's included in the testimony 

                8    and exhibits in my report. 

                9      Q   So even when you control for school and for GPA, you 

               10    still end up with substantial and meaningful LSAT gaps by 

               11    race in the aggregate?

               12      A   Yes.  Joseph Gannon put it best in his report when 

               13    he said, what was built up in four years was torn down in 

               14    four hours. 

               15      Q   Have you -- has Testing for the Public recently 

               16    undertaken to update this research?

               17      A   Again, this was on the 200 to 800 scale and they went 

               18    to 10 to 48, now they have gone to 120 to 180.  So it so 

               19    happened that one of my students, William Kidder, who I was 

               20    happy he took my LSAT course, then I was happy that he 

               21    decided he was going to teach the LSAT course for me, I was 

               22    happy for him that he got into Boalt Hall.  I was flattered 

               23    that he read all my old law review articles, and I was 

               24    amazed that he took on the burden of actually trying to 

               25    reproduce Dr. Gannon's study. 













                                                                           147

                1            He asked Boalt Hall to give him anonymous data 

                2    from their applicant pool and he reproduced the study that 

                3    Dr. Joseph Gannon had done twenty years ago.  He did the 

                4    very same matching process, and this time we had the 

                5    identities of the school available to us, and you can see, 

                6    Your Honor, they are very famous schools, it's the top five 

                7    feeder schools to Boalt Hall, UCLA, Berkeley, Stanford, 

                8    Harvard and Yale. 

                9            And as you can see, the University of Michigan, 

               10    also, has a lot of people applying to Boalt Hall, not as 

               11    many as the other five, but we included the top fifteen 

               12    schools, down to the University of Texas of Austin,  

               13    major colleges, universities, applying to Boalt Hall. 

               14            What we found was when we control for grades at 

               15    those elite colleges, 9.2 gap for African Americans, 6.8 gap 

               16    for Chicano-Latinos, 4.0 gap for Native Americans, and 2.5 

               17    gap for Asian Americans.  The numbers are different in terms 

               18    of absolute numbers, because you're now down to a 120 to 180 

               19    scale, but in terms of relative gaps, it's almost identical. 

               20      Q   What is a -- just give us some idea, if you would, of 

               21    what a 9.2 gap means in terms of the average LSAT scores of 

               22    accepted applicants to different schools.

               23      A   We found it very hard to find law schools that were 

               24    nine points different in their average LSAT scores.  We 

               25    actually put together a little table for --













                                                                           148

                1            THE COURT:  You mean admissions?

                2            THE WITNESS:  No -- yeah, in other words, if you 

                3    looked at, say, the University of Michigan Law Schools and 

                4    their student body and just for accident's sake I decided 

                5    to compare it to Ohio State --

                6            THE COURT:  Right. 

                7            THE WITNESS:  -- the difference between the average 

                8    LSAT scores of those two law schools is five points. 

                9            THE COURT:  And within the law school itself, it's 

               10    going to be substantially less?

               11            THE WITNESS:  Well, that's the other thing that's 

               12    very interesting, Your Honor, and it's very disturbing, 

               13    because what the Association of American Law Schools does 

               14    now is they publish data for the benefit of students, 

               15    because they try to be as open as they can about their 

               16    admissions policies without making it seem overly 

               17    mechanistic, and so what they report is the 25th percentile 

               18    and the 75th percentile, so they are basically taking the 

               19    middle half of the class, because they admit some people 

               20    have very high grades or test scores and they admit some 

               21    people have lower test scores, and they don't want those to 

               22    be what people focus in on, but they say, here's what most 

               23    of the class looks like. 

               24            Most schools have a five or six point gap between 

               25    their 50th percentile.













                                                                           149

                1            THE COURT:  Within that school?

                2            THE WITNESS:  Within that school.

                3            THE COURT:  When you compare the two, it was still 

                4    within that range?

                5            THE WITNESS:  Within the range; very difficult to 

                6    find a nine point gap across the country anyplace, yes. 

                7            So what it means in terms of the substance of the 

                8    argument that's made about law schools is that law students 

                9    are mismatched and somehow they should go to a lesser 

               10    prestigious law school or lesser selective law school. 

               11            The fact is, you're either matched or you're not 

               12    matched.  There is not a nine point gap that you can go to 

               13    another law school and fit in.  That is a much bigger gap 

               14    than you will find in the law school admission process.

               15    BY MS. MASSIE:

               16      Q   Did you get any objections to the update of the study 

               17    that caused you to further refine it?

               18      A   Well, the other question that you often get is, yeah, 

               19    they went to the same college, but did they do the same 

               20    major. 

               21            Dr. Whiteman said in her study that when she looked 

               22    at the national data, the majors for the different racial 

               23    groups were pretty much the same, that if you're going to 

               24    apply to law school, it's not surprising that you studied 

               25    political science or you studied economics or you studied 













                                                                           150

                1    history or you studied sociology, and I think there are 

                2    about eight major categories where you would be going into 

                3    law school, but it's possible that you're going to the same 

                4    college and taking different majors. 

                5            We had the data in the Boalt Hall study to actually 

                6    analyze that.  There's obviously fewer students who are 

                7    matched at this point, because they may not be in the same 

                8    major, and so we said, okay, we're only going to include the 

                9    African Americans where we can find a white student who took 

               10    the same major and happened to apply to Boalt Hall from that 

               11    same college. 

               12            So we would be reducing down any variation that you 

               13    would get.  Well, you were a poli-sci major and I was an 

               14    economics major, no wonder you got a better GPA, okay, so 

               15    just take history majors and compare those.  Match them 

               16    again on GPA's, match them in the same major from the same 

               17    elite university.  The gap from African Americans is now 

               18    down from 9.2 to 9.1.  I'm not sure if that tenth of a point 

               19    is worth celebrating.  Chicano-Latino goes up from 6.7 

               20    to 7.0.  Asian Americans goes up from 2.5 to 3.6 points. 

               21            So what it means is when you actually match majors 

               22    and then match grades and match test scores, the gap goes up 

               23    slightly between blacks -- or between Chicano-Latinos and 

               24    whites and goes up slightly between whites and Asians and 

               25    stays virtually the same for African Americans. 













                                                                           151

                1            So somewhere there is a nine point gap on the LSAT 

                2    that can't be explained by past educational performance at 

                3    the most elite colleges in the country. 

                4      Q   Or by socioeconomic status?

                5      A   Certainly we looked at the other points, as well.

                6      Q   By the way, you have been referring to Exhibit 224 on 

                7    the majors; is that right?

                8      A   Yes.

                9      Q   And William Kidder, the research associate associated 

               10    with Testing for the Public who carried out the update at 

               11    your direction, just so the Court knows, he was an intern 

               12    at my law firm for a month last summer; isn't that right?

               13      A   Yes.

               14      Q   That was after he had undertaken all of this research 

               15    and so on; correct?

               16      A   Frankly, Miranda, as much as we have gotten to know 

               17    you, we had never heard of you at that point.  This was 

               18    1998.

               19            MS. MASSIE:  I'm shocked.

               20            THE WITNESS:  This was 1998 when we got the data, 

               21    Your Honor.

               22            MS. MASSIE:  Still unthinkable.

               23    BY MS. MASSIE:

               24      Q   So the LSAT adds to discriminatory impact on top of 

               25    the correlation of race with class?













                                                                           152

                1      A   Yes.

                2      Q   And on top of the selection problems that result, 

                3    that we have heard a lot about, that result in lower 

                4    representation of blacks, Latinos, Native American students 

                5    on selective campuses that result in their getting lower 

                6    grades on the campuses, all the different forms that 

                7    discrimination takes, the LSAT adds something on top of 

                8    that?

                9      A   That's what is so surprising, is the Court has already 

               10    heard one example among many that could have been presented 

               11    of students who actually go to those campuses with very 

               12    different experiences on those campuses, which affects their 

               13    grades. 

               14            And so when you actually match the black student and 

               15    the white student at the same college with the same grades, 

               16    you're not matching in a way that is neutral, you're 

               17    actually taking people who had different experiences on that 

               18    campus and managed to get the same grades, and so for that 

               19    test bias to still occur is probably reflecting something 

               20    actually larger than we can capture with the numbers. 

               21      Q   Have your interactions with students over the years 

               22    and your study of the testing literature and your analysis 

               23    of specific questions and all the work that you have done 

               24    over the last couple of decades on the LSAT and on testing 

               25    bias in general given you a sense of what some of the 













                                                                           153

                1    contributing causes may be?

                2            MR. KOLBO:  Your Honor, I have to object on 

                3    foundation at this point, if this is more than a yes or no.

                4            MS. MASSIE:  I just asked if he had any knowledge 

                5    of it.

                6            THE COURT:  Could you repeat the question?  I was 

                7    writing something down and I --

                8            MS. MASSIE:  I will rephrase it. 

                9            THE COURT:  Okay.

               10    BY MS. MASSIE:

               11      Q   Do you have any opinions, do you have any basis 

               12    for knowing what some of the contributing causes might be, 

               13    gleaning from your work with students and your review of the 

               14    literature and your analysis of test questions over the 

               15    years?

               16            THE COURT:  The causes for?

               17            MS. MASSIE:  For the additional gap beyond what we 

               18    have been talking about.

               19            MR. KOLBO:  Your Honor, unless, again, it's a yes or 

               20    no, I object to the foundation.

               21            THE COURT:  Answer yes or no, first.

               22            THE WITNESS:  Yes. 

               23            THE COURT:  Now lay your foundation.

               24    BY MS. MASSIE:

               25      Q   Tell us what your basis is.













                                                                           154

                1      A   When you go to National Council on Measurement 

                2    Education conventions for about twenty years and read as 

                3    much literature as you can, eventually you start to realize 

                4    what is essentially given wisdom in the testing community, 

                5    and the ways in which standardized tests are made by an 

                6    individual company or an individual test provider are 

                7    private information.  They are sometimes made public, 

                8    certainly there are technical manuals that are available, 

                9    but the general approach of making a test is what's called 

               10    classical test theory, and that is part of the making of 

               11    the test. 

               12            There are other parts of the making of the test that 

               13    are actually made very public, and those include the types 

               14    of questions that are selected, the types of passages that 

               15    are included on the test, and then besides how tests are 

               16    made, it's how tests are taken.

               17      Q   What do you mean?

               18      A   That when Dr. Steele talks about stereotype threat, he 

               19    is not talking about anything unique to the test, he is not 

               20    saying that there was a stereotype on the test and people 

               21    felt threatened about it, he is saying that the test itself 

               22    evokes a stereotype.

               23            So he chose his GRE items, which was the first 

               24    study, the one I read in most detail, because they were GRE 

               25    items, and he thought they were tests of verbal ability, and 













                                                                           155

                1    he thought that he could do some psychological studies on 

                2    them.  And he came up with a theory that he can identify 

                3    stereotype threat, but that's something that the test 

                4    company has no control over.  They can't choose a different 

                5    reading passage.  They can't choose a different logic or 

                6    reasoning question.  They can't even choose different test 

                7    specifications and have any impact on what might be going on 

                8    when different students from different racial groups take 

                9    the same test.

               10            And so it's the combination of how the test is made 

               11    and how the test is taken that results in what seems to be 

               12    about a nine point gap among people who have performed 

               13    equally in college. 

               14            THE COURT:  But you don't know what percentage each 

               15    may play a part?

               16            THE WITNESS:  No, no.  There is no way of telling 

               17    that. 

               18            I think that Dr. Steele has given some information 

               19    that gives you dimensions, and so what he was able to 

               20    manipulate in a laboratory setting, which is a much less 

               21    threatening setting than a law school admission test, 

               22    gives us at least, I would imagine, a lower bound of what 

               23    stereotype threat could be on the LSAT.  And as I say, in 

               24    the real thing, that's different than sitting around in -- 

               25            THE COURT:  The real world?













                                                                           156

                1            THE WITNESS:  -- in a lab in the Stanford Psychology 

                2    Building.

                3            THE COURT:  Nobody obviously studied that, because 

                4    how do you study that?

                5            THE WITNESS:  That's the point.  So we have the nine 

                6    points.  And it's clear at least in theory, and I think 

                7    that there is documentation for at least a lot of the 

                8    information, that both the test development process that you 

                9    heard about from Dr. Shapiro and the test taking process 

               10    which you have heard from Dean Garcia affect the way in 

               11    which this nine point gap results.

               12            THE COURT:  When you teach the course, you talk a 

               13    little bit, I'm sure, about test taking?

               14            THE WITNESS:  Oh, yes, that's what we teach.

               15            THE COURT:  I shouldn't say a little, that's --

               16            THE WITNESS:  That's what we teach. 

               17            THE COURT:  And in your experience, I was going to 

               18    ask you this later, but in your experience, in the courses 

               19    that you give, what's the percentage of increase after 

               20    taking your course, if you know?  I mean, I would suspect 

               21    you keep some statistics.

               22            THE WITNESS:  Your Honor, what I do is I give a real 

               23    LSAT that's obviously not official on the first day of class 

               24    and then I compare it with what students tell me their LSATs 

               25    were in the past, and at one point I averaged it out and it 













                                                                           157

                1    was five points.

                2            THE COURT:  That's how they do it?  I thought maybe 

                3    that they have students take one test and then take it 

                4    again.  No?

                5            THE WITNESS:  Well, that's the trouble with the high 

                6    stakes test, that you don't want to use people as guinea 

                7    pigs, and since the Law School Admission Council will report 

                8    your average LSAT score -

                9            THE COURT:  You can't do that?

               10            THE WITNESS:  -- you don't want to do that to a real 

               11    human being, you know, but that's why we give an official 

               12    test, and obviously it doesn't have the same impact in the 

               13    same setting as a real test does, but it gives us some 

               14    indication of whether or not we have changed some people's 

               15    scores.

               16            MS. MASSIE:  I don't know if you have any other 

               17    questions, Judge.  I'm just about to finish up.

               18            THE COURT:  No, he has answered my questions.

               19    BY MS. MASSIE:

               20      Q   In your opinion, Mr. White, is there a level playing 

               21    field for minority law school applicants on the LSAT?

               22      A   Certainly not. 

               23      Q   And if you didn't use affirmative action in law school 

               24    admissions, would using the LSAT be an unfair double 

               25    standard that discriminated against minority applicants?













                                                                           158

                1      A   It would be an unfair double standard.  One way of 

                2    seeing the dimensions of that double standard is to look at 

                3    the index that the University of Michigan used.  Having a 

                4    nine point gap on the LSAT is like taking nine tenths --

                5            THE COURT:  I'm sorry?

                6      A   -- taking nine tenths of a point away from your score.

                7            THE COURT:  The index?  

                8            THE WITNESS:  That's right.  In other words, they 

                9    give you a constant and then multiply a number by the LSAT 

               10    score and multiply a number by the GPA and add it up.  It's 

               11    in the report that Dr. Larntz provided. 

               12            THE COURT:  They say they don't really use it.  They 

               13    say the computer --

               14            THE WITNESS:  Oh, it's the index.  They do it 

               15    mathematically or automatically once they get the index,  

               16    but if you want to see what the impact of a nine point 

               17    gap is --

               18            THE COURT:  I see.  It's obviously there.

               19            THE WITNESS:  It's like looking at the GPA of a 

               20    black student and saying, well, we'll just knock this down 

               21    nine tenths of a point.  So if you've got a 3.5, we will 

               22    call it a 2.6.  How's that?  That's what the nine point 

               23    gap does for the index.

               24    BY MS. MASSIE:

               25      Q   And in your view, Mr. White, to what extent should 













                                                                           159

                1    race be taken into account in law school admissions?

                2      A   I think it's essential, and the thing that I was so 

                3    surprised about in terms of the response was not that the  

                4    Law School Admission Council had no explanation for the gap 

                5    when I presented it at the Society of American Law Teachers 

                6    on a panel with the President of the Law School Admission 

                7    Council just a month ago, this is not news, and it's not 

                8    news to admissions officers either. 

                9            I think that over the last 20 to 25 years admissions 

               10    officers have recognized that there is this independent gap, 

               11    and it's part of the folklore  of admissions, so that people 

               12    recognize that this gap is part of the evaluation process.  

               13    And so just as you would like to know what school somebody 

               14    went to and what major they had, you would like to know what 

               15    race they are when 

               16    you evaluate their LSAT score.

               17      Q   Let me go back and ask the last question, because I'm 

               18    interested in your opinion on this as an expert on the test 

               19    rather than on the admissions process.

               20      A   Yes. 

               21      Q   In your view, to what extent should race be taken into 

               22    account in admissions?

               23      A   It should clearly be taken into account in evaluating 

               24    the LSAT scores of the applicant.  It is -- an aspect of 

               25    evaluating the information is knowing the LSAT score, and 













                                                                           160

                1    knowing the race of the people who took the LSAT score is 

                2    part and parcel of evaluating that part of the applicant's 

                3    file. 

                4      Q   And if you chose as an institution to take race into 

                5    account in a separate way, how much does it need to be taken 

                6    into account?

                7      A   You don't want to make it mechanical, but unless there 

                8    is a gap of more than nine points, I would say that the law 

                9    school -- between the student's LSAT scores -- I would say 

               10    that the law schools hadn't taken enough account of it.  I 

               11    think that even though people recognize there is a gap, 

               12    people were surprised at how large it was.  They were 

               13    surprised about nine points.  I think schools underevaluate, 

               14    but I certainly think that they have to evaluate it with 

               15    that knowledge in mind. 

               16      Q   We need more affirmative action in law schools 

               17    admissions, not less?

               18      A   Oh, certainly.  The idea that people have been getting 

               19    a benefit on the LSAT is clearly not the case. 

               20            MS. MASSIE:  Thank you. 

               21            MR. NIEHOFF:  Your Honor, if I could have just sixty 

               22    seconds.

               23            (Brief pause.)

               24            MR. NIEHOFF:  We don't have any questions. 

               25            THE COURT:  Plaintiffs, any questions? 













                                                                           161

                1            MR. KOLBO:  Your Honor, we have no questions.

                2            THE COURT:  Mr. White, thank you very much.

                3            MS. MASSIE:  I'm sorry, could I reoffer Mr. White 

                4    as an exhibit -- as an expert, sorry -- and also offer the 

                5    exhibits into evidence?

                6            THE COURT:  Any objection to the exhibits?

                7            MR. KOLBO:  We have an objection only to the report, 

                8    Your Honor, for the reasons that I objected to his 

                9    qualifications.

               10            THE COURT:  What report?

               11            MS. MASSIE:  And I didn't offer the report in, and I 

               12    sure should have, so I thank Mr. Kolbo.

               13            MR. KOLBO:  You're welcome.  I thought that's what 

               14    you were referring to.

               15            MS. MASSIE:  I was just referring to the exhibits.  

               16    His report is --

               17            THE COURT:  Let's take them one at a time.

               18            You have no objection to the exhibits referred to?

               19            MR. KOLBO:  I have none, Your Honor.

               20            THE COURT:  Those will be received.

               21            MS. MASSIE:  I apologize.  I had it written down on 

               22    a post-it, which has disappeared, but I'll find it and make 

               23    it clear for the record.  I would like to offer the report.

               24            THE COURT:  And the objection to the report is?

               25            MR. KOLBO:  Based on the foundation and fact that 













                                                                           162

                1    the expert is not qualified in all these areas, Your Honor, 

                2    and the report addresses areas that he's not qualified in. 

                3            THE COURT:  I will admit the report with the 

                4    understanding I'm only going to include those areas for 

                5    which he has expertise, and I think that's what he has 

                6    testified to, what he has expertise in.  He has already 

                7    testified what areas he doesn't have expertise in, so if 

                8    the report includes those areas, then I will -- we won't 

                9    consider it.

               10            MS. MASSIE:  Excellent.  Thank you, Judge. 

               11            It's 173, by the way.

               12            THE COURT:  Very well.  Thank you, Mr. White. 

               13            THE WITNESS:  Thank you, Your Honor. 

               14            THE COURT:  Next witness, please.

               15            MS. MASSIE:  We actually had thought that, and I 

               16    meant to mention this before starting up again, we thought 

               17    that we were going to go through until 4:00.

               18            THE COURT:  Yes, we are.

               19            MS. MASSIE:  And so we thought that there was going 

               20    to be some cross examination, so we asked Professor Woo to 

               21    come back next week.

               22            THE COURT:  That's fine.  I have no problems with 

               23    that.

               24            MS. MASSIE:  Sorry, I should have mentioned that 

               25    before.













                                                                           163

                1            THE COURT:  No, no problem at all, none whatsoever.  

                2    I just -- that's fine. 

                3            Tomorrow morning, then, I guess is our next thing.  

                4    Let me just make sure everybody is on the same page in terms 

                5    of scheduling.  Tomorrow morning we're going to put the 

                6    rebuttal testimony on, and Monday we're going all day.  I'm 

                7    just looking at the schedule for Monday.  We have the class 

                8    in, we talked about that, and at 11:00 I have just two, real 

                9    quick matters, nothing else in the afternoon, and I think we 

               10    talked about going into the evening on Monday, did we not?

               11            MS. MASSIE:  That would be fine.  That would be 

               12    great.

               13            THE COURT:  It's up to you.  I won't make plans 

               14    Monday.  If you want to go, we can. 

               15            And then Tuesday we will start at 2:00, and I think 

               16    since we're starting at 2:00, if you want, I don't mind 

               17    going into the evening on Tuesday so we can get at least 

               18    a -- you know, I mean, I know it's hard for you guys, 

               19    probably harder for you than for me, so, you know, when I 

               20    say the evening, 6:00, 6:30, it's up to you.  I don't want 

               21    to --

               22            And then Wednesday, as I said, unfortunately, I 

               23    can't be here.

               24            And then by Thursday, I expect -- I'm just looking 

               25    at Thursday's docket.  We have a pretty free docket.  I have 













                                                                           164

                1    nothing else, except Thursday we'll probably take lunch a 

                2    little closer to 12:30, and other than that, there is just 

                3    one other miscellaneous matter. 

                4            And I think Thursday, probably, unless there is a 

                5    witness that we haven't talked about, you can get everything 

                6    done without coming Friday, that would be great, but I'll be 

                7    here Friday, and Friday I have nothing else but this on the 

                8    docket.

                9            MR. KOLBO:  And just to make sure, as I mentioned 

               10    this morning, we're still working with, and I'll be talking 

               11    to Counsel about this over the weekend if necessary, we're 

               12    trying to figure out whether Professor Heriot should testify 

               13    Monday or later in the week, subject to her availability and 

               14    so forth.

               15            THE COURT:  And I will -- I haven't had a chance to 

               16    read it sitting right here.  By tomorrow morning I will have 

               17    the answer for you, and I'll take it home and read it 

               18    tonight and listen to a little bit of argument and be 

               19    prepared to rule. 

               20            Let me just tell you one other thing that -- it's 

               21    not my intention, because I know Ms. Massie mentioned 

               22    before, really to do closing arguments.  I'm not sure that 

               23    they are going to be fruitful here. 

               24            What is going to be very fruitful to me, at least, 

               25    is some kind of written summary, and what I have in mind, 













                                                                           165

                1    and I would be more than glad to offer it at this time, and 

                2    when we can -- we don't have to necessarily discuss it 

                3    today, what I'm looking for is a concise summary of your -- 

                4    what you believe to be your best arguments and positions and 

                5    with specific reference to evidence or witnesses, and if 

                6    you can, to -- you don't have to quote things and that, 

                7    fortunately, you have ordered daily transcripts, so we all 

                8    have transcripts, don't waste your time, you know, and cite 

                9    it to a specific page or something of that nature, rather 

               10    than, you know, if there is something specific that you want 

               11    to cite it to, try to help us identify the most persuasive 

               12    evidence, you know, kind of like a closing argument, but 

               13    give me a little more opportunity to maybe direct our 

               14    attention to specific things and focus on the most 

               15    important things that you believe are important. 

               16            I have in mind maybe twenty pages or so, 

               17    simultaneous submission, and the same thing you would do 

               18    in a closing argument, but in a written thing, so that we 

               19    can digest it, and it's just more meaningful when you have 

               20    a little time to put it together and to focus. 

               21            And I would like it as soon as the trial is over, if 

               22    possible.  These kind of trials, I have to, and I have set 

               23    aside a lot of time to start putting together things, and I 

               24    like to do it as quickly as possible because it's still 

               25    fresh, and credibility issues and all of those things, you 













                                                                           166

                1    know.  The longer it goes on, the harder it is to even -- 

                2    when you read the transcript, to -- you know, that's why I 

                3    have paid a lot of attention to watching witnesses and doing 

                4    the kinds of things that I, as a Judge, do in making a 

                5    decision.

                6            MR. PAYTON:  I think that makes a lot of sense.  Let 

                7    me just report on some of the conversations that the three 

                8    of us have had about this, which may be changing. 

                9            I think we all agree with that, and we were talking 

               10    sort of informally among ourselves about, once the evidence 

               11    is fully received, we should be in a position to have 

               12    something to the Court, we said, in two weeks.  Is that too 

               13    long?

               14            THE COURT:  That's fine.  I mean, I was hoping ten 

               15    days, but --

               16            MR. PAYTON:  We can do that.

               17            THE COURT:  I'm not going to quibble over ten days, 

               18    just because, as I said, my OCD.  I set aside time to work 

               19    on this opinion and to read some of the transcripts and 

               20    so forth.

               21            MR. PAYTON:  Let me just keep going.  I'm coming 

               22    right back to this. 

               23            The second thing we have talked about is whether or 

               24    not, in addition to that, it wouldn't be of help to the 

               25    Court, all three of us, wouldn't it be of help to the Court 













                                                                           167

                1    to have brief closing arguments immediately after the close 

                2    of the evidence and do this as well, so if we finished on 

                3    Thursday, have closing argument on Friday. 

                4            THE COURT:  I'm not opposed to it.  I'm just not -- 

                5    absolutely, just again, part of my whole thing is not to 

                6    do things that are useless or -- and certainly it's not 

                7    useless.  When you hear something and then you sit down and 

                8    read it, it sticks in a little bit further, so I have no 

                9    problems.  Look, you know, but by the same token, I don't 

               10    want to -- if we can't finish it by Friday with closing 

               11    arguments, I would probably say economically and so forth 

               12    it doesn't make sense, but if we can, with some limitations, 

               13    maybe 45 minutes each, because after that, you know --

               14            MR. PAYTON: I think that's actually helpful to us 

               15    to have some limitation. 

               16            THE COURT:  Yes, no more than 45, with the 

               17    understanding that we're going to get something in writing, 

               18    that will at least get our thinking going and we will be 

               19    able to take it and see what's going on.

               20            MR. PAYTON:  That's what I think.

               21            THE COURT:  I have no problems; and then a twenty 

               22    page submission after that just kind of focusing in 

               23    specifically on those things that, you know, that you 

               24    think that I should really take a look at.

               25            MR. KOLBO:  Do you anticipate us submitting post 













                                                                           168

                1    findings of fact?

                2            THE COURT:  No, whatever you want to do in that 

                3    twenty pages, whatever you think is important.  First I 

                4    thought, you know, that findings of facts and conclusions 

                5    and all, whatever you think is important in that twenty 

                6    pages, direct your attention to it. 

                7            I'm not going to tell you how to do it or what to do 

                8    or anything of that nature, just realize you don't have to 

                9    waste your time in terms of quoting things, we will all have 

               10    transcripts, and say, this is really important, read page 

               11    so-and-so, volume so-and-so, give us the page and the volume 

               12    and line and all that, we will be able to take a look at it 

               13    and whatever. 

               14            Kind of like you guys had the war rooms, now we're 

               15    going to set up a war room where we will all have all the 

               16    volumes.

               17            I've tried many, many cases, so I know it just 

               18    shifts over to this side, so.

               19            MS. MASSIE:  Judge, that sounds very good, with this 

               20    exception, I think we're going to need a bit more than ten 

               21    days or two weeks.  Can I talk you into three weeks?

               22            THE COURT:  You can talk me into it, but I'll be 

               23    very honest with you, that I've got to start putting it 

               24    together in ten days, you know.  I'm not -- I will wait and 

               25    I will read it, and I'll pay attention to everything you 













                                                                           169

                1    have to say, but as I say, I'm going to -- I have been a 

                2    judge long enough to know that the more time that goes on 

                3    after the trial, the less opportunity you have to really 

                4    capture it, and I'm just being real upfront with you and 

                5    real honest with you, you know, the essence of the trial and 

                6    the kind of things that are important. 

                7            So I'm not -- you know, ten days would really be 

                8    preferable, because I just -- as I said, may be my OCD 

                9    or something, but I'm one of these that I'm going to be 

               10    focused.  I have set my schedule aside for this time, and I 

               11    have my schedule aside for as long as it takes to put this 

               12    together, because I think it's important and that's why I 

               13    kind of pushed you into a trial date and I pushed you into 

               14    this.  And I told you, plus, we're getting letters and phone 

               15    calls and, you know, as I told you before, that we're 

               16    stacking up, and I think there is a lot of interest in it. 

               17            But most importantly, I guess it's the way I work, 

               18    and that is that I feel much more comfortable doing it 

               19    as quickly as possible in terms of at least starting the 

               20    process going, because I do remember what's going on, and 

               21    part of this whole case is the witnesses and what they have 

               22    to say and how they had to say it and all those things, and 

               23    the more time goes on, just the more it goes.  So see what 

               24    you can do in ten days and we will go from there. 

               25            Tomorrow morning, then, we said the courtroom will 













                                                                           170

                1    be open at 8:00 and the Marshals will be here to open the 

                2    building and everything at 8:00 and we will start about 

                3    8:30.  Everybody agrees, or is that good or do you want 

                4    to readjust that?

                5            MS. MASSIE:  Judge, we just filed some papers 

                6    regarding Gail Heriot.

                7            THE COURT:  Oh, good.  If you have them -- who did 

                8    you file them with?

                9            MS. MASSIE:  I think they have been filed on the 

               10    fifth floor. 

               11            I'm sorry, I thought they had been filed and served, 

               12    but they have not. 

               13            THE COURT:  If you just give me a copy, you can file 

               14    them upstairs after, and if you want, I'll sign right on 

               15    there so you don't have to bring another copy down, and that 

               16    I have already gotten my copy.

               17            MS. MASSIE:  Great.

               18            MR. KOLBO:  And Judge --

               19            THE COURT:  If Caroline was here, she is sick today, 

               20    I would file them, but we have nobody to file them.

               21            MS. MASSIE:  Oh, no, that's fine.

               22            MR. KOLBO:  Your Honor, we want to get the matter 

               23    argued tomorrow, but we probably won't have a brief 

               24    submitted in response to this.

               25            THE COURT:  You don't have to.  I'll listen to oral 













                                                                           171

                1    arguments tomorrow.  We have plenty of time tomorrow and 

                2    I'll be more than happy to. 

                3            Okay, anything else? 

                4            See you tomorrow morning.  Thank you. 

                5            COURT CLERK:  All rise. 

                6            (Proceedings adjourned at 3:15 p.m.)

                7                          -- --- --

                8    

                9    

               10    

               11    

               12    

               13    

               14    

               15    

               16    

               17    

               18    

               19    

               20    

               21    

               22    

               23    

               24    

               25    













                                                                           172

                1                          CERTIFICATE

                2    

                3                     I, JOAN L. MORGAN, Official Court Reporter 

                4    for the United States District Court for the Eastern 

                5    District of Michigan, appointed pursuant to the provisions 

                6    of Title 28, United States Code, Section 753, do hereby 

                7    certify that the foregoing proceedings were had in the 

                8    within entitled and number cause of the date hereinbefore 

                9    set forth; and I do further certify that the foregoing 

               10    transcript has been prepared by me or under my direction.

               11    

               12                                    _________________________
                                                     JOAN L. MORGAN, CSR
               13                                    Official Court Reporter
                                                     Detroit, Michigan  48226
               14    
                     Date:_________________________
               15    

               16    

               17    

               18    

               19    

               20    

               21    

               22    

               23    

               24    

               25    



Transcripts – Table of Contents


Legal Documents – Table of Contents