Center for Excellence in Decision-Making Roundtable Discussion

EARLE SCHWARZ, Interviewer

Earle Schwarz spent time with four of his favorite people to talk about one of his favorite projects - Center for Excellence in Decision-making (CEMD). All interviewees have been involved in the CEDM for a period of time - Judge Bernice Donald currently on the U.S. Court of Appeals for the Sixth Circuit, Judge Thomas Parker sitting on the U.S. District Court for the Western District of Tennessee, Dean Katherine Schaffzin who is the current dean of the University of Memphis Cecil C. Humphreys School of Law, and Terrence Reed, Managing Director at FedEx and current President of the Center for Excellence in Decision-making. This interview delves into the CEDM’s history, purpose, and future.

SCHWARZ: Judge Donald, rumor is that you coined the title, or the name the Center for Excellence in Decision-making, and you were involved in the Center from the time it was an idea or a glint in our eyes. Help us understand the history and your involvement, and why this project is so near and dear to your heart.

JUDGE DONALD: I will say first and foremost the opportunity to work with incredibly passionate, distinguished, and committed individuals is the first thing that attracted me. I go back to the beginning of our journey to explore and learn about the term implicit bias, which we incorporated as a part of a Memphis Bar Association project under one of our really visionary MBA leaders, Earle Schwarz. We invited a trainer to come in and make a presentation. We recognized that as the legal profession is one of the least diverse professions in the country, that we, as lawyers, have an obligation legally, ethically and I believe, morally to do everything we can to make the profession a profession that is more diverse and just. So, we invited Ms. Kimberly Papillon, who was our trainer, to come to Memphis and do several days of training for a variety of groups of lawyers.

Because we are such optimists, there was a question on the front end, I think by Earle Schwarz: If we end up with excess funds from this venture, what do we do with these funds? I think lawyers and judges are natural problem solvers, and it occurred to me in that moment that we should broaden this opportunity. We should expose more people. Knowledge is always, in my view, a shared commodity, or should be. And I thought that we ought to impact the larger legal landscape in our community, if not beyond. I'm mindful that sometimes when the term race is interjected in a term, that it can become a charged word, and it can cause some unintended reactions. But this group always wanted to be inclusive, and we wanted to build bridges, not build barriers, or increase barriers. To me a diverse institution, an equitable institution is one that provides a benefit to all participants, and one that seeks to respect and enlarge the dignity of individuals, and one that strives for excellence, a model that I thought we ought to strive for.

And so, to answer Earle’s question, I said, we will create a center, and we will call it the Center for Excellence in Decision-making because all of the things we do, the decisions that we make are intentional. And diversity and inclusion have to be intentional. Equity has to be intentional. And bias reduction must be intentional. It

just seemed to me that phrase would capture what we wanted to do. And fortunately for me, people around the table said yes, and so the Center was born.

SCHWARZ: And so it was. I wanted to go back to something you said early on, because I think it was intentional for you to refer to the fact that there were all lawyers involved in the Center and continue to be involved in the Center from day one. Is that something that is important and perhaps distinguishes the Center from other institutions with similar missions?

JUDGE DONALD: I believe it is. I'm not aware of one that just includes lawyers at this level. And there are a lot of people working in this space. But, lawyers have a unique ability because law governs our being from the cradle to the grave. There are laws and regulations that impact every phase of our existence. And as I said, lawyers are natural problem solvers. There's a quote by Charles Hamilton Houston, that says “lawyers are either social engineers or parasites on society,” and that's powerful. But I think that lawyers have that ability. We help shape society. We are in large part influencers of whatever the society looks like that we operate in and, of course, people come to us looking for us. And in order to be the leaders that we rightfully ought to be, we must be doers of that thing that we are advocating.

For us being in a space where we are the least diverse and looking towards the future, I think it was incumbent upon us. And the other issue that always defines where we are, we are so defined in large measure and so routed and attached to history because this is one of the citadels of movements toward diversity and inclusion. Dr. King made the statement that the arch of the moral universe is long, but it bends toward justice. He certainly impacted and imprinted what is going on here, and lawyers were involved then as we move from basic human rights and basic civil rights, and now we are at another echelon. And lawyers have to be involved in that also. So, I think we are different, and I think we are leaders. I think that other communities are going to look to the Center as we grow and expand and use it as a model to say yes, there are things that lawyers can do.

We said from the outset, we want to first start with our own home. We want to start with the legal profession, but we do not want to end there. We want to embrace the fullness of our being as lawyers, and in time move out, but first we want to fix our house. And I think that was the right thing to do.

REED: If I could piggyback on what Judge Donald said regarding how we are different than other organizations because Earle, your question is correct, it implies that there are other entities out there that provide diversity and equity and inclusion training, and how are we different. Well, Judge Donald is right, we have specifically targeted training workshops toward our actors in our criminal justice system. We have had state and federal court judges go through our training workshops. We have had attorneys in the U.S. Attorney's Office, Federal Public Defenders, Shelby County District Attorneys, and key decision makers within law firms and in-house counsel. Because lawyers and judges do have such an impact on everyone in society, we decided to start, just like Judge Donald said, in our own backyards. One way that we are different is that we decided to target our diversity, equity and inclusion training workshop towards these particular lawyers that have such a profound impact on our community's public. And that's really how we are different. I know from working with the National Civil Rights Museum they have a training series, too. But it's unlike the Center, and it's not targeted towards these particular key decision makers. It is targeted towards the public that submits an application, and then they are chosen. So that’s really the main difference between the services that the Center provides with other entities that provide this similar training.

SCHWARZ: Judge Parker, you were in the audience for Kimberly Papillon's presentation at the Bench Bar conference in St. Louis and were deeply affected and moved by that presentation. Then, you made a presentation about the value of the CEDM at the Memphis Bar Association's annual meeting a couple of years ago. What attracted you to the Center and has

encouraged you to stay involved and to presumably, be involved for a long time to come?

JUDGE PARKER: Judge Donald touched on one thing that attracted me. Just look at this group of people that we get to work with. And there are many others. Chancellor JoeDae Jenkins was there from day one. Dean Schaffzin attracted me out of the gate. And Earle, you're exactly right. I sat in that audience and heard Kimberly Papillon's address. I had heard the term implicit bias, but that was the first time I really sat through a lengthy discussion of what it is, and how it can impact the decisions we make, especially if we are not aware of it. As Judge Donald said, we want to make intentional decisions, not knee-jerk reactions.

I was attracted to being able to work with a group of people to improve the process of decision making, starting with the legal community, where our decisions affect not just ourselves, but they affect other people oftentimes. It’s critically important that we do our best. And I think that when we allow implicit bias to interfere with those conscious intentional decisions, we are not doing our best.

To add to what Terrence was saying, the legal community is a group of lawyers who thought of this, with Judge Donald being the main one. If we are not going to look at our own house first and deal with that out of the gate, how can we then go and try to influence what other people are going to do. That was an important part to me.

SCHWARZ: Without asking you for a ruling on any topic or particular case, it sounds as if you believe that your decision making has been improved by the training you have received under the auspice of the CEDM.

JUDGE PARKER: Well, I do. I will add that in the Western District of Tennessee, Judge McCalla was a real leader in this area. He has had discussions of implicit bias as part of his jury selection process for many years. When I came to the bench, I got his outline, and I use many of the same questions that he does to put it on the table and talk about it. What I am hoping to gain, and where I think a judge can affect this is to help learn more about the science of decision making and the science behind implicit bias. How we operate will not only help make better decisions for ourselves, but we will also incorporate insights across the legal system, which hopefully would include jury selection and sentencing questions. These concepts come into play over and over again on a daily basis for us.

JUDGE DONALD: I certainly agree with everything Judge Parker said. Many times when people think about implicit bias and its effect on the work that judges do, they think about it in terms of the criminal mode, but it is equally applicable in the civil context. Implicit bias can affect not only decisions that jurors make, but the decisions that judges make. If we think about it, the science says, where there is the greatest discretion, there is the greatest opportunity for bias. We make rulings on motions to dismiss, on summary judgment motions, on evidentiary decisions, on credibility of witnesses, and a whole range of things. As legal professionals, we certainly want to make the best decisions we can and insure that the decisions we make are fair and just.

SCHWARZ: There has been mention of one of the nice things about working with the Center is the opportunity to interact with a number of really special folks, deep thinkers, and persons committed to progress