Photo by Josh Ritchie.

“What is the societal benefit of this litigation?”

As head of the Pro Bono Committee at Boies Schiller Flexner, this is one of the core questions Steve Zack asks associates and partners who are proposing a new matter.

It could also stand as the underlying philosophy of Zack’s life and work.

A Cuban-American who fled the communist regime with his family as a teenager, Zack had a deep-rooted sense of injustice before he even started college. Law school, he says, was a way to “change the world for the better, to correct the wrongs I was seeing.”

His career, which has been a mix of government service and private practice, never strayed from that singular vision. He’s always been active with think groups and organizing efforts in the legal industry around diversity and inclusion, and the cases currently on his plate involve some of the most crucial issues for Americans right now, such the question of insurance coverage for Covid-related shutdowns, and a challenge to the electoral college system that has put a couple of un-popular presidents in power.

After attending law school at the height of the civl rights movement in the U.S., Zack worked for Senator Claude Pepper, known for his progressive Liberalism, and later worked as general counsel to Bob Graham, the long-time Florida governor who pushed social and environmental reform while appealing to a working-class base.

Zack, a Lawdragon Hall of Fame member in the Leadership category, has been an impactful leader in his own right. He was appointed by President Obama as the Alternate U.S. Representative to the 68th Session of the General Assembly of the United Nations. He’s an invited member of the Council of Foreign Relations, regularly discussing crucial matters of international importance with world leaders. He was the youngest and first Hispanic president of the Florida Bar, one of the early members of the Cuban American Bar Association, which has since grown exponentially, and, of national importance, as the President of the American Bar Association.   

At the ABA, as with much of his career, Zack was focused on promoting diversity in the legal profession, and increasing access to justice for indigent and underprivileged Americans. He remains involved with the group, weighing in on issues that could shape the legal landscape for generations to come, such as increasing the number of U.S. Supreme Court justices beyond nine, and whether that appointment process should be modified.

As part of the leadership at Boies Schiller, Zack is always looking for cases that have broad societal impact, and is proud of the firm’s reputation as aggressively progressive. The firm’s history of representation includes representing Al Gore in Bush v. Gore and advancing the legalization of same-sex marriage. LGBTQ+ discrimination remains a focus. “We spend a major portion of our revenues on diversity initiatives and pro bono work in the diversity area,” he says. “I wouldn’t have it any other way.”

Lawdragon: Tell me about the case you’re handling for IT Italy, the South Florida restaurant that’s being denied insurance coverage from the Covid shutdowns.

Steve Zack: It’s one of several cases we’ve filed on business interruption for restaurants and other companies. It’s very interesting because various insurance companies have different policy language. Sometimes they differ quite greatly, which of course makes a difference in the coverage.

I have to take you back a little. During the SARS epidemic, an institute that represents a lot of the insurance carriers recommended certain language that some in the industry put into place, and some didn’t. Coverage all comes down to the language in the policies.

LD: Can you give me an example?

SZ: Some policies require physical damage to the property. Well, how do you define that? If somebody can’t come into work to maintain the property, isn’t that by definition going to cause physical damage?

Then there’s government actions, which some policies include. But a lot of these policies are titled “all-risk policies.” As a layperson, that seems to be pretty broad coverage. Yet some policies try to have exclusions that you would not expect.

The overarching principle in insurance cases everywhere, but particularly in Florida, is that any ambiguity is interpreted against the insurance company.

LD: That makes sense, since they wrote the policy.

SZ: Right. And if it’s ambiguous, it should create the maximum coverage possible.

LD: Litigation like this can be so protracted, but people and companies are really suffering now. Do you think there’s any chance of a timely resolution to some of these cases?

SZ: One of the things we try to emphasize before the multi-district litigation panel is how urgent resolutions are. A lot of cases can take their time, but this is not one. People’s lives are hanging in the balance.

LD: I’m glad you’re handling these cases, Steve, because I know you have a long history of supporting access to justice, making sure the “little guy” gets represented just as robustly as large corporate entities and government bodies.

SZ: It’s tremendously important. It’s the reason I became a lawyer.

LD: Can you tell us about your work with the American Bar Endowment?

SZ: Yes, the ABE is a terrific organization that offers a $120M endowment for people and groups in need. The money comes from their sale of insurance policies, and the profit goes into a trust fund. Every year we distribute $8M, with $4M to the fund for Justice Education and $4M to the American Bar Foundation. 

The Foundation is a gathering of intellectuals who write papers and study issues affecting the rule of law. The fund for Justice Education sponsors a lot of different legal programs. In addition to that, we give away $300,000 in opportunity grants. Each grant is for between $10-20,000, to be used as seed money.

LD: What sorts of things are the grants used for?

SZ: I’ll give you a perfect example. In Kentucky, there’s some wonderful courts, but often not in the rural areas, which means people in the rural areas don’t have access to the court system. With money from the fund, the State Bar bought a bus and outfitted it like a courtroom. Called the Justice Bus, it travels around the entire state, so that even people in remote areas can access the justice system.

LD: What an incredible initiative!

SZ: The biggest problem with our legal system frankly is a lack of access for indigent populations, which disproportionately impacts women and minorities. Groups like this are working to correct the imbalance, and I’m proud to be a part of it.

LD: I know that you’ve spoken internationally for years about the rule of law and the importance of a robust and transparent justice system like we have in the U.S. I’m curious, from your vantage point, do you think the past four years, under Trump, exposed weaknesses in our system, or even eroded the rule of law in this country? Or do you see it more as a stress test that proved how strong our system really is?

SZ: That’s still an open issue, isn’t it?

LD: Right.

SZ: We’re learning how strong our system is. And in some ways, how weak it is. A significant number of Americans feel disenfranchised. That has to change. When I was a United States delegate to the United Nations, I addressed the General Assembly on the rule of law. I said it then and it still holds: The rule of law is the basis for liberty and justice. There’s two kinds of law that people talk about: the rule by law and the rule of law. There’s a real distinction there. Under the rule by law, certain people in power declare something to be law, and that’s often not in the favor of many others. So the rule of law is essential, because that way it is applied fairly to all people in the community. That has historically not been the case in many countries.

LD: How do you think the Biden administration will do?

SZ: I think he is exactly what our country needs at this time. I was very active in the election of President Biden. He is thoughtful, respected, and is seen as someone who’s a genuinely good person. People can disagree with his politics, but you’ll be hard-pressed to find people saying he’s not a good person. That sort of morality is very important for our system to function.

LD: I think you’re right, but it almost sounds a little revolutionary.

SZ: Historically, when I’d interview lawyers, I’d ask questions about their education and the type of practice they want. Over time I’ve learned the most important question to start off with is, are they a good person? I once wrote an article when I was president of the Florida Bar, that to be a good lawyer you had to be a good person. And I thought that was pretty uncontentious. Well, when it was reported in the paper, I cannot tell you how many letters I got from people who balked at that statement. For me it continues to be fundamental to any person I hire or that I want to work with. Or that I want to elect in a leadership position.

LD: That makes so much sense. Leaders who are bad people can cause a lot of damage.

SZ: As you know, I’m a Cuban American and I have, in my lifetime, experienced the loss of liberty. It’s not a theoretical exercise, I saw it happen in Cuba. I thought it would never happen here. For the first time, with the attack on the U.S. Capital on January 6th, I thought maybe I wouldn’t soon be as optimistic as I’ve always been.

LD: Wow.

SZ: When I was president of the American Bar, I set up a commission on Hispanic legal rights and responsibilities. I also lectured extensively about civics education. One of the real problems we have in America is that people graduate today from high school and have had no opportunity to understand the United States Constitution and the Bill of Rights.

There was an edition of Newsweek four or five years ago that talked about civics education and how lacking it was. More people knew about Judge Judy than who was on the United States Supreme Court. When they were asked what the three branches of government were, they would say Republican, Democrat and Independent.

LD: That’s scary.

SZ: That’s very very scary. Since that time, Sandra Day O’Connor emphasized her concern about this issue all during her tenure and afterwards. She still talks today about the importance of civics education for the next generation. Sometimes kids are aware of their rights, but not their responsibilities. We have to understand that we’re all responsible for maintaining the principles of the United States Constitution and the rule of law. This is the only way to protect the poor and disenfranchised against the rich and powerful.

LD: I know you’re doing a lot of work within the legal industry as well, in terms of equal representation. A lot of law firms are still struggling with diversity and inclusion, although I think we’re moving in the right direction. If you could talk to all the law firm leaders in the country, what would you say we need to do to create the kind of change we want to see?

SZ: I would say, be careful about diversity fatigue. We’ve been talking about diversity for so long and we’ve come a long way but we have a long way to go. Some people are ready to stop, and they were at the beginning of the process. I don’t even think we’re at the middle. We have to continue to set goals and set metrics that we expect law firms to honor.

This is not only the right thing to do, it’s a good thing to do from a business perspective. Because the board rooms of America today look very carefully at how your firm and how the profession is becoming more diverse.

I continue to believe that’s one of the fundamental obligations of our profession. The profession has to look like our society. If it doesn’t, then the respect for law will clearly end one day.

When I was Governor [of Florida Bob] Graham’s general counsel, he had a process he went through to make judicial appointments. If there was a superstar, that person would be appointed. If it was somebody who was not qualified, it didn’t make any difference what their political connection was. If neither was the case, then he focused on getting the bench to look like the community that it served. And it really made a difference. There were counties in Florida that had a large Black population without a single Black judge. That’s just unacceptable, and he changed that through an active focus on it.

LD: Talk to me about the work you’re doing as the head of BSF’s Diversity Initiatives.

SZ: We’re very active in that area. We spend a major portion of our revenues on diversity initiatives and pro bono work in the diversity area. We don’t make any decision without considering the impact on diversity. We have a staff person who is solely responsible for diversity efforts, working alongside our lawyers. There are various programs that we have signed onto that have made commitments to enhance diversity. We look at diversity at all levels, not just the young lawyers but our most senior lawyers and those who are in leadership roles. We’re a trial firm, and we make sure that diverse lawyers take significant roles on our trial teams, so that they have every opportunity that everyone else has.

I live in Miami, and it is truly a melting pot. If it doesn’t work in Miami, it’s not going to work anywhere. Because in Miami, the average juror will be a combination of Hispanics and Black people and Haitians and Anglos, transplants from other states, old time Floridians. And it is essential for a jury deliberation that they have these different perspectives, which are best delivered by a diverse group of lawyers.

LD: What are some of the groups you’re working with?

SZ: LCLD is a big one, that’s the Leadership Council on Legal Diversity. The initiative trains young, diverse lawyers on how to take leadership roles in their communities and offices.

LD: Training attorneys on the business side of things is so important for that demographic. Especially client relations.

SZ: Absolutely. And it’s beneficial all around. If you want to know how not to get a new client, bring a group of lawyers who all look the same. Talking to clients today, without exception, they have to see that you have a diverse group of lawyers and that those lawyers will be working on their matters, and in decision-making roles.

Clients don’t always want a first-year lawyer handling their case. But there is no client that I’m aware of today that doesn’t want to see diversity in the lawyers that represent them.

LD: That’s very encouraging. Speaking of positive change in the world – tell us about the electoral college litigation you’re handling?

SZ: The basis of the electoral college system, as you know, comes down to the fact that the Hamiltonian and Jeffersonian philosophies are so different. Jefferson wanted everyone to vote, and he wanted each vote to count equally. The Hamiltonian philosophy was that, well, you couldn’t really trust the people. You had to have an elected official who cast the vote. That’s how we got the electoral college originally.

Now, on a number of occasions, the popular vote has been greater than the electoral vote, and yet the electoral vote controls the win. There’s an argument that in many states, the winner of the popular vote gets all the electoral votes. So if you win by one vote, it could be 14 electoral votes, even though maybe you should get seven for one and maybe six for the other. That would be more in line with the constitutional requirement of one person, one vote.

So we’re challenging the electoral college way of electing a president. Which is of course so fundamental. We’ve seen what happened in recent years.

LD: Yes, this conversation is freshly relevant right now, with Trump’s election and all the political gerrymandering on both sides, but you also have the long view of it, with your representation of Al Gore in the Florida recount.

SZ: Right, and whether you agree or disagree with the United States Supreme Court’s decision there, there’s one thing that everybody should agree on: More people went to the polls thinking they voted for Al Gore. They should’ve been able to actually vote for him. Same with Hillary Clinton. In the future, that has got to be protected, so that people know when they go to vote, that their vote counts.

LD: Can you tell us a bit about your approach with these cases? It seems like a thorny issue that a lot of people would like solved, but we seem to have trouble figuring out how.

SZ: The biggest issue is going to be reapportionment. Everything that happens in our country is based on reapportionment. Reapportionment decides who your elected officials will be.

The term seems to make people’s eyes roll back in their head, but everything, everything is based on reapportionment. It comes down to how the Senate seats will be divided in the 50 states, how districts are drawn. This is essential because, depending on how you draw districts, you get different legislators, different parties, different philosophies.

You can divide a state many different ways. Some will benefit one party, others will benefit another party. The Voting Rights Act of 1982 said that wherever possible you have to create what’s called majority-minority districts, where the majority of voters are racial or ethnic minorities.

One of the reasons we’re so divided in Congress and have so much difficulty passing legislation is that historically one of the principles of reapportionment is compactness. Compactness in simple terms is a district that looks like a perfect square, two by two by two, with the same number of voters in each district. That’s easy to paint. But when they throw out compactness in order to establish minority-majority districts, what does that mean? That means that I actually had to draw a district that went through 12 counties to string together enough minority voters to create a minority district. But by doing that, it changed the whole nature of the legislature. This happened in every state.

Today, it’s gotten incredibly sophisticated with what’s called TIGER (“Topologically Integrated Geographic Encoding and Referencing database”) maps, which are maps of your population. When I tried Johnson v. De Grandy representing the Florida Senate almost 30  years ago, you had to have million-dollar computers to draw these maps, and it would take days. Today, anybody with a laptop can draw the map in like an hour. One of the cases we’re handling right now is about making sure that the Census counts everybody, that it’s not cut off too soon, because that’s going to determine what the maps ultimately look like.

LD: This is such an important issue to tackle, and it’s progressive, moving us forward in the right direction. Are cases like this helpful in attracting new talent to your firm?

SZ: Fostering equality and fighting discrimination in all its forms goes to the very core of who we are. And yes, it draws the younger generation to our law firm. They want to participate in lawsuits that will change the very society we live in for the better.

When I went to law school, that was a fundamental reason that most of my generation went to law school. This was in the ‘60s, the Kennedy generation, the Peace Corps. We wanted to change the world. That shifted for a while, economics played a greater role than societal change for a couple generations it seems, but I see the pendulum swinging back. I think this generation, the folks in law school now or just starting their careers, they’re going to law school for the same reason I did: to right the wrongs they see in the world.

When I lecture, I’m often asked what makes a good lawyer, and what’s the difference between a good lawyer and a great lawyer? I tell them: A good lawyer makes a living. A great lawyer makes a difference.