Black partners make up a small percentage of lawyers. In IP law, that number is even smaller. As we celebrate Black History Month L. Scott Burwell, Frank A. DeCosta III, Ph.D., Mareesa A. Frederick, and Gerald F. Ivey discuss diversity in IP law, their personal experiences as Black lawyers, and how we can keep the momentum for change and progress going.
When I started law school, I didn’t know that I wanted to specialize in patent law. I first discovered the field of patent law as a 1L, but after graduation joined a large general practice firm because I wanted exposure to a variety of practice types. It took me about 18 months to realize that patent law was by far the most fascinating of all the practice areas. Once I decided to devote my career to patent law, I knew I wanted to be somewhere where intellectual property law was the sole focus. Fortunately, my desire coincided with Finnegan’s interest in a lateral associate and I joined the firm in 1995.
My former firm had a number of Black partners and associates. At the time I joined Finnegan, there were no Black attorneys at the firm. But despite the absence of colleagues with a similar background to mine, I always felt supported by the partners with whom I worked. As an associate, I was the beneficiary of training and guidance from some of the finest practitioners of patent law in the land. I was extremely fortunate to work alongside and learn from people like Charlie Lipsey, Carol Einaudi, Bob Bajefsky, Jean Fordis, and many others who put me in a position to succeed.
While support provides a necessary foundation, success is ultimately built on a lot of hard work. So that’s what I did. I set out to learn as much as I could about the intricacies of patent litigation at the district court and appellate levels. I learned how to develop the factual record and how to make compelling legal arguments. I learned which arguments to advance, and, just as importantly, which to forgo. I learned when to be a vocal advocate, and when to sit down and say no more. As I developed my skills, I was entrusted with more and more responsibility by partners and clients alike. It wasn’t always perfect, but each moment of imperfection served as a learning experience that contributed to my overall development.
To me, becoming a partner does not represent the culmination of a long journey, but instead is another step in the progression of a long career. But it’s an important step, as I now have the ability and responsibility to provide the guidance and support for the next generation of Black attorneys, and to effect change in areas in which it is most needed.
My primary role models in the STEM fields are from my family. My father is a retired cardiologist who was the first Black professor at the University of Virginia School of Medicine. His father was a Howard University-trained chemist who taught chemistry, biology, and mathematics in the DC public schools. I have always been interested in science and technology, and that interest is no doubt due to the early and continuing exposure to those fields that I received from my father and grandfather.
Though she was an English teacher and not a lawyer, my mother is primarily responsible for my career as a litigator. She was the most persuasive person I have ever known and my advocacy skills are a direct result of her influence. She also taught me the power of the written word and very patiently cultivated my nascent talent. Clients have told me that I’m a skilled brief writer, and my mother deserves all the credit for that.
In discussing familial role models in the STEM and legal field, I must also mention my paternal great-grandparents. My great-grandfather was a physician who owned the Black hospital in segregated Bluefield, West Virginia in the first half of the 20th century. And my great-grandmother, who ran the administrative side of the hospital, was a graduate of Howard University School of Law—one of two women in the class of 1923. Though I never knew either of them, I am constantly inspired by their success in the STEM and legal fields at a time where Blacks had so few opportunities.
I am extremely fortunate to have had so many positive role models in my family, particularly because of the comparative dearth of Black role models in the field of patent law at the time I began practicing. Though demographic change has been slow in coming and much work remains to be done, I am delighted to have witnessed growth in the number of Black attorneys—at both the partner and associate level—at Finnegan and in the profession at large. It is critically important to me that this diversification continues, which is why I am committed to serving as a mentor and role model for junior attorneys and students who are considering careers in patent law. Apart from advising and mentoring Black associates at the firm, I have also taught courses in patent law and policy for over a decade at Howard University School of Law. And whenever I’m in Houston Hall on the HUSL campus, I make a point to visit the hall of portraits from previous classes to say hello to my great-grandmother.
Law firms are professional services businesses. Our business thrives when we provide value to our clients. As a full-service intellectual property firm, that value manifests itself in the counsel we provide clients, our victories for clients in the Patent and Trademark office and in the courts, and the guidance we provide in complex IP transactions. None of this would be possible, however, without the teams of excellent professionals at Finnegan. We recognize that our teams draw strength from diversity. Diverse backgrounds provide diversity of thought, diversity of experience, and diversity of perspective which all contribute to creating a framework with immense power to attack and solve issues faced by our clients throughout the world. Hiring, retaining, and promoting diverse talent has to be driven by a recognition that it’s not just the right thing to do from a social benefit perspective, it is critical to business success. With that recognition, diversity becomes part of the DNA of a firm and will have longevity that transcends news cycles. Clients have the ability to reinforce this business practice by placing their matters in the hands of firms that are aligned on the issue of diversity and holding firms accountable. Finnegan is fortunate to have clients that for many years have shared our perspective that all voices are needed at the table to deal with the complex challenges our clients face at the intersection of technology and the law.
While it is gratifying to reach these milestones, the predominate hope is that there will be many more to follow us and that we will soon get to the point where there will be no more “firsts” to celebrate. We also recognize that none of us got to where we are without substantial support and guidance from many along the way. As the story goes, if you are walking down a country road and you see a turtle sitting on top of a fence post, you know he did not get there by himself. Like that turtle, I had many mentors over the years that believed in me when I doubted myself, opened my eyes to opportunities that I didn’t know existed, and modeled excellence in substantive areas of engineering and the law. I am also grateful for the fantastic clients that have turned to us to help guide them through some of their most critical business challenges involving IP matters.
So, while our names get highlighted on occasions like this, we all owe a debt to many whose shoulders we stand on. That drives us to use our platform to pay that debt forward by engaging in activities that drive the hiring, retention, and promotion of diverse talent in IP law to increase the pipeline. We are also actively engaged in promoting diversity within STEM fields which not only increases the diversity of IP creators, it also increases the potential pool of future IP professionals.
Growing up, I didn’t know any Black women scientists. Fortunately, I went to an all-girls high school, so I started to see that science is not just for certain subgroups. I grew up in the Washington, DC area, and in the late 1990s, Catholic schools were closing due to declining enrollment. My high school was one of them, and I, along with others in my class, transferred to an all-boys school, St. John’s, that had recently turned co-ed. I was the only girl in my math class and one of three in my science class. But I did well in those classes, and that is when I began to realize I had an interest in math and science.
After high school, I was fortunate to attend Spelman, a historically Black women’s liberal arts college in Atlanta, Georgia. Initially, I was unsure of the type of engineering degree I would pursue, but during my freshman year, I settled on chemical engineering because I always enjoyed the process of making things. Chemical engineering offered me a wide scope of industries to work in—from food and beverages to pharmaceuticals. And it helped that a number of my fellow Spelmanites were also pursuing chemical engineering degrees, and that had a great influence on my decision.
Finnegan’s strategy of enhancing diversity and inclusion includes a number of internal and external initiatives that focus on recruiting, retention, a supportive infrastructure, professional association involvement, and community relations. The firm is Mansfield certified, which indicates that the firm will consider and appoint a diverse group of candidates for leadership and governance roles, promote to equity positions, and/or hire at least 30% diverse attorneys.
It is important for the firm to offer opportunities for diverse attorneys to succeed. We closely monitor the firm’s client pitches to ensure that women and diverse attorneys have the opportunity to interact directly with clients, resulting in access to the best billable and nonbillable opportunities key to an attorney’s development and promotion. From July 2019-July 2020, 92% of the client pitch teams included at least one diverse attorney.
From a recruiting perspective, we cast a wide net in our search for identifying and hiring qualified diverse law students. We have a number of initiatives designed to retain and promote diverse talent, including partnerships at historically diverse engineering and science undergraduate and graduate programs, where we educate diverse students on careers in intellectual property law.
We also offer several mentorship opportunities for diverse associates. We recently launched a mentorship program where we pair a high-performing diverse associate with a client mentor for one year in an effort to develop the associate’s business development, relationship building, and leadership skills. The program consists of various training sessions, assignments, and milestones. We have a similar program for first-year diverse summer associates, where we pair them up with one of our clients. The associate will spend a portion of their summer with their client in-house and then the other half at Finnegan. It is a way for them to get exposure to what it’s like being an in-house attorney and what it’s like working at a law firm. Our Diverse Attorney Sponsorship program also pairs high-performing associates with members of our Management, Compensation, and Coordinating Committees to further support their development, retention, and advancement.
In 2003, we established the Finnegan Diversity Scholarship, which awards law school student applicants $15,000 per year for tuition and law school fees, as well as an offer to join the firm’s summer associate program. Nearly $495,000 has been awarded since inception of the scholarship.
The firm also supports, sponsors, and/or participates in numerous organizations aiming to (1) increase diversity and inclusion in IP law and the legal industry; (2) provide crucial leadership, development, and networking opportunities for diverse attorneys; and (3) advance justice for those in marginalized communities.
I came out of law school and passed the Bar in 1982. At that point, there were four Black partners at major law firms in the District of Columbia: Vinny Cohen at Hogan & Hartson, Jim Coleman at Wilmer Cutler, Dwight Murray at Carr Jordan, and Fred Abramson at Sacks Greenebaum. I had already realized that I was interested in trial practice, but there were few organized programs to teach trial advocacy skills and not much of a network for mentoring, especially for young lawyers of color. Mentoring challenges and barriers due to ill-informed stereotypes were particularly daunting for young women entering the legal profession and trial practice. Nevertheless, each of the individuals I mentioned above spent generous amounts of their time with me, particularly Dwight and Jim, when I took the initiative to reach out to them early in my career for guidance and advice.
There were significant challenges and controversies concerning affirmative action and diversity within the legal profession when I came out of law school. It was not unusual to hear prospective employers mention that they had “never hired a Black lawyer before”, or, on the rare occasion when a firm had, the one time they tried, “it didn’t work out.” Whenever this came up, I always welcomed the opportunity to invite the partners into a gentle discussion so that they felt more comfortable with the issues and the possibility of hiring lawyers of color. And, I still remember the advice I received from Justice Louis Powell, which was that, in the practice of law, at some point—regardless of the challenges—we all have to prove ourselves in the same arena or on the same playing field. For me, that “arena” was the courtroom.
I was also fortunate that the bar associations in the District, Virginia and Maryland were uniformly committed to civility and professionalism, and my scores of “cold calls” to leading practitioners—all of them strangers to me—were consistently met with generous assistance and advice on all aspects of legal practice, including trying cases, jury selection, civil procedure, and brief writing. So, while there were no lawyers within my own firm who were able to mentor or guide my development, lawyers in the community, like John Lenahan, a former AUSA who joined the IP practice at Crowell & Moring, selflessly gave of their time and experience to help me become well trained. All of these lawyers have either passed away or retired at this point, but I am not sure that kind of uniform generosity still exists today. Fortunately, most established law practices consider it a part of their mission to provide mentoring outreach and legal training for new lawyers entering the profession from diverse backgrounds and across gender lines. Nevertheless, no great acumen is needed to realize that there is still much to be done in this area.
I “ended up in a patent firm” because of my jury trial expertise. For the first 18 years of my career, I spent a significant amount of my time as a partner at one of the country’s largest law firms trying cases to juries involving product liability issues on behalf of automotive and equipment manufacturers and medical cases on behalf of physicians and hospitals. Over that time, I had tried some 60 cases or more to juries and was engaged in teaching trial practice at the University of Virginia Trial Advocacy College, where I am now a Co-Director. For years, Finnegan sent (and still does) several of its experienced associates to that program for training. My demonstrations (versus nationally recognized lawyers), lectures, and critiques eventually gained the notice of Finnegan‘s management, which invited me to join the partnership in 2000. My experience in explaining and demonstrating complicated engineering and medical issues to juries blended well with the technical tutorials required in patent cases. And, as a result, the transition was a bit less complicated for me.
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