Youtube: https://www.youtube.com/watch?v=EsEqkFe-PD0
15mins
Michael Ehrenstein 00:00
It’s January 21, 2022, and it’s my pleasure to be joined today by Sidney Kanazawa. Mr. Kanazawa is a renowned trial lawyer and an arbitrator and has spent most of his time recently mediating cases.
Michael Ehrenstein 00:16
He’s been at this for over 40 years. He’s tried and arbitrated national and international cases. And in addition to his mediation practice, he has spent an enormous amount of time and energy devoted to the topic of diversity within our profession.
Michael Ehrenstein 00:35
And so I would like to just pick your brain for a few minutes and ask you, Mr. Kanazawa, why is this important? Why is diversity important to a trial practice?
Sindney Kanazawa 00:50
I think as trial lawyers, our job is to persuade.
Sindney Kanazawa 00:56
Our job is to bring people together to agree on something. And I think that diversity is important for two reasons. One, without diversity, you don’t appreciate that there’s more than one point of view, and that you can tend to be in a silo among people you identify with and not realize that there are other perspectives besides your own.
Sindney Kanazawa 01:24
And the other reason is that in order for you to persuade, you have to identify with people, people have to identify with you. Those two factors. Being able to see what you cannot see and being to identify with people that may be different than yourselves is why diversity and having people, being surrounded by people that don’t think like you don’t see the world like you don’t have the same life experience as you do, I think is important in order to be a good persuader.
Michael Ehrenstein 02:00
So just as a matter of practicality, as a matter of persuasion, if we want to succeed, we have to have people on our team who can identify with and understand the perspectives of the people we’re trying to persuade, is that?
Sindney Kanazawa 02:18
And I think that it’s surprising because when you come into a case, the fact that you’re coming into a case means that there’s two different perspectives. And so already, right off the bat, you know that there’s a different perspective.
Sindney Kanazawa 02:36
And one of the dangers of thinking about litigation and trial work as being like sports or like war is that when you have a warrior mentality, you tend to get into the confirmation bias mode of being able to see things that support your side and defeat the other side.
Sindney Kanazawa 03:00
And when you get into that mode, you tend to be blinded by those things that might be a different perspective and all that, and you tend to ignore it. And so having people around you that are seeing things differently have different life experiences that force them to see the world in a different perspective and all that is really important just to be able to see and then to persuade, you have to identify.
Sindney Kanazawa 03:29
In order to identify, you have to understand the perspective of people. Chris Voss talks about this in his book Never Split the Difference, and he talks about how you get hostage takers to listen to hear you to persuade hostage takers to come along with a program.
Sindney Kanazawa 03:52
An interesting thing that he says that. That really struck me when I was teaching a course at Columbia Negotiation is that if you try to get the other side to come to you and see your perspective, that’s really hard.
Sindney Kanazawa 04:10
But if you go to the other side and actively try to identify and see the world through their eyes, it’s much easier to solve their problem than to try to get them to see your perspective of the world and agree with you.
Michael Ehrenstein 04:28
So there’s two parts to this, then again. One is that we want to avoid confirmation bias for ourselves because not only does it make us maybe less persuasive because we can’t see we’re convincing ourselves, but there’s a great danger in that, not just to the client, but to us.
Michael Ehrenstein 04:51
We’re taking a case and we’re litigating and thinking that we know what’s going to happen because with our blinders on, we’re not looking at all of the risks that really are there. I hadn’t thought of that before.
Michael Ehrenstein 05:03
And the second part of it is being able to move towards the other side and see things from their perspective and therefore be able to persuade. Yeah, I get it.
Sindney Kanazawa 05:12
Yeah, that’s right.
Michael Ehrenstein 05:17
If I’m hearing you correctly, there is a very practical reason why trial practices should have diversity in their lawyers and in their staff.
Michael Ehrenstein 05:33
It helps us understand, helps us persuade. So practically it works. And it’s also the right thing to do from, I guess, a justice perspective.
Sindney Kanazawa 05:45
And from that larger justice perspective, I think our job as lawyer, when Shakespeare’s anarchist said the first thing we do is kill all the lawyers and all that.
Sindney Kanazawa 05:57
What he was really saying is that the lawyers are the glue that keeps the society together. We’re the glue that reminds people of the agreements that we have with each other that are important in keeping the society together.
Sindney Kanazawa 06:13
We’re both the disruptors and the unifiers that keep our society. We help our fellow citizens see different perspectives by being disruptors and representing clients that see a different way of different perspective of the world.
Sindney Kanazawa 06:30
And at the same time, we’re unifiers that, try to find agreements of the past and bring them forward to the present and explain why this is consistent with our agreements of the past, our conventions of the past, our statutes, our Constitution, our contracts.
Sindney Kanazawa 06:52
In that sense, in the larger justice sense, it is imperative that we be the glue, that we actually understand our role of being able to see multiple perspectives and not be locked into one silo and one perspective.
Michael Ehrenstein 07:12
It’s nice when the right thing to do and the practical thing to do are actually the same thing. It’s not often yes, but given that this seems like such a given that both the right thing to do and the practical thing to do seem to be the same, how are we doing as a profession in promoting diversity? Within our profession?
Sindney Kanazawa 07:42
Unfortunately, we’re far behind other industries. A lot of data to indicate that our diversity is actually decreasing rather than increasing and all that, and that we really need to reach out and try to bring people into the profession and to our trial practices that are able to see different perspectives, our credibility as lawyers.
Sindney Kanazawa 08:19
I mean, I think the most important thing that we can offer to our larger society is trust. Building trust. Building trust not only for ourselves and our clients, but building trust among other people and all that.
Sindney Kanazawa 08:31
And what’s interesting is we’ve declined on that trust meter tremendously in the last few years. In part, it’s because we’ve thought ourselves as warriors as opposed to scouts, as opposed to people who are trying to see what’s really out there and trying to find a way to solve the problems going forward.
Sindney Kanazawa 08:54
We settle 98% of the cases. And so the idea that we are teams that are fighting against each other is the wrong analogy. We actually are trying to make the two sides one team. That’s what an agreement is.
Sindney Kanazawa 09:09
We actually come together as one team. And so if you’re trying to create one team as opposed to deceiving the other team and fooling them with a fancy play or something like that, your attitude and your way of approaching each other has got to be different.
Sindney Kanazawa 09:26
And it’s got to be to build that trust and to try to see the different perspectives that people have out there.
Michael Ehrenstein 09:35
So why do you think that we’re falling behind other professions in the promotion of diversity? Why are we failing so badly at this point now?
Sindney Kanazawa 09:48
In part, it’s, I think because we shifted our thinking about our role as lawyers. In 1909, the ABA put out its first canons of professional responsibility, and it emphasized integrity and impartiality as as a central part of our role as lawyers.
Sindney Kanazawa 10:11
That 1909. Um, you know, Rules of Professional Responsibility continued on till 1969, when it was changed, and in 1969, the emphasis was still integrity and impartiality, but it also added the idea of individual community.
Sindney Kanazawa 10:27
In 1983, the ABA changed the rules to talk about zealous representation, and zealousness showed up in the preamble three times, and the word client showed up 17 times in the preamble. The word client never appeared in the prior versions, the preambles of the prior versions.
Sindney Kanazawa 10:48
And all of a sudden, we start to think of ourselves as warriors, as warriors that are trying to advance a particular position, as advocates for ticket position. And one of the most amazing things in that current version, the 1983 version, is that it says in there that if opposing parties are represented by good counsel, then the Council can assume justice will be done.
Sindney Kanazawa 11:16
Not to actively try to achieve justice, but we can assume that justice will be done if we’re advocating for our clients. And all that in the last few years here is California is the only state that doesn’t follow the ABA Model Rules, and California amended its Rules of Professional Responsibility, and it does not have that concept of zealousness.
Sindney Kanazawa 11:43
That concept of being a warrior. It actually goes back to the original kinds of concepts of integrity and impartiality, which I think was part of the reason that when Nixon delivered his checkers speech, he cited a law firm to vouch for his credibility before the American people.
Sindney Kanazawa 12:07
When the McCarthy hearings came to an end, it was a Boston attorney defending an associate on television that brought the McCarthy student in, that we had a gravitas and credibility at that time that we no longer have, in part because we thought of ourselves differently as warriors, as opposed to people who are the glue that keeps us society together.
Michael Ehrenstein 12:35
Mr. Kanazawa are there any books that you can recommend for our fellows which can highlight the virtue of diversity in general?
Sindney Kanazawa 12:47
Yes. This book that was just published by Tom Kaufman called Inclusion, and the subtitle is How Hawaii Protected Japanese Americans from Mass Internment, Transformed Itself and Changed America is a really interesting book about the difference between the Japanese on the West Coast that were all incarcerated and the Japanese in Hawaii, who, by and large, were not incarcerated during the Second World War and how that came about and how this idea of being able to see the world through the eyes of others.
Sindney Kanazawa 13:21
Being able to empathize, being able to identify with different people made a big difference in terms of what people saw. One of the most interesting things that came about where they take a single fact and twist it in different directions.
Sindney Kanazawa 13:38
On the West Coast, there was no evidence of espionage or sabotage. But the West Coast generals and even Earl Warren, who was attorney general at the time, said that was proof that it was coming.
Sindney Kanazawa 13:54
And in Hawaii, they said that was proof that there is no there’s no likelihood of espionage or sabotage. And so it’s a really interesting, actual, you know, kind of lab experiment about how this difference in perspectives can change history, really.
Michael Ehrenstein 14:19
Change perception. One fact, and. It was viewed completely. Opposite by different people. Right.
Michael Ehrenstein 14:25
Mr. Kanazawa. Thank you so much. For your wisdom and sharing with us. We appreciate it.
Sindney Kanazawa 14:34
Thank you. Thank you for the opportunity.
