5 Tips For Improving Diversity In The Legal World

Corporate America is serious about diversity; will Biglaw follow suit?

business leadership leader lawyer team teamwork diverse diversityDiversity and inclusion in the legal profession are, as they say, “having a moment.” And let’s hope that it’s more than a moment, since there’s so much work to be done.

Here at Above the Law, we have a columnist, Renwei Chung, who focuses on diversity and inclusion issues each Friday. If you have diversity-related news that might merit coverage, please feel free to contact him.

Other ATL writers and editors cover diversity issues as well, of course. Earlier this month, for example, I wrote a piece entitled 4 Ideas For Advancing Diversity And Inclusion In The Legal Profession, based on a great event I attended that was hosted by Big Law Business.

Today’s post is in some sense a follow-up on or continuation of my prior story. At the Big Law Business event, I chatted with David Kinnear, director of corporate strategy at DOAR, a leading litigation consulting firm that works with many top law firms (including my former employer, Wachtell Lipton). Kinnear invited me to a diversity leadership breakfast that DOAR hosted last Friday in its spacious, loft-like Manhattan offices. The event was co-hosted by DOAR, Citizens Bank, and Bernero & Press, the legal consulting firm.

Here are some key takeaways from the wide-ranging and insightful discussion:

1. Litigators: make sure you have diverse trial teams.

One of DOAR’s specialties is jury consulting, so it made sense to launch the panel with a presentation by jury consultant Ellen Brickman, Ph.D., who shared some research she conducted regarding gender in the courtroom. She pointed out some depressing realities:

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  • A third or less of attorneys appearing in criminal and civil cases are women.
  • Female litigators report discrimination by opposing counsel, judges, clients, and colleagues.
  • Explicit bias is becoming less acceptable, but implicit bias is still a major problem.

Brickman and her colleagues conducted a survey of more than 1,300 mock jurors from large metropolitan areas. Survey participants read a two-page opening statement and then had to rate it. Half the respondents were told it was delivered by a man (“Patrick”) and half were told it was delivered by a woman (“Patricia”). Some findings:

  • Although survey participants rated the lawyers as largely comparable overall, they did perceive the woman attorney’s opening to be angrier, more argumentative, less friendly, and less effective.
  • In terms of persuasiveness, male respondents’ ratings of the female attorney were lower than the female respondents’ ratings of the male attorney, female respondents’ rating of the female attorney, and male respondents’ rating of the male attorney.
  • Female jurors showed an implicit bias towards female attorneys.

What implications does this have for trial lawyers? Per Brickman:

  • Diversify your trial team to take advantage of female jurors’ affinity for female attorneys (but avoid “tokenism” — having women at counsel table who don’t play any meaningful role).
  • Attend to jurors’ gender-based perceptions; use emotion carefully in presentations.
  • Build connections to jurors’ personal experiences.

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In closing, Brickman did warn against placing too much reliance on gender considerations. Research shows that jurors rely most heavily on the evidence before them; that’s their key consideration. But when the evidence is weak or contradictory, then extra-evidentiary factors start to come into play.

2. Corporate America cares about diversity — so its law firms should too.

Kelly Tullier, executive vice president and general counsel at Visa, talked about her company’s commitment to diversity. Visa went public only in 2008, so it’s at an earlier stage of its diversity journey than some other companies, and the industries it belongs to — finance and technology — are not known as leaders in diversity and inclusion. But Visa already has a chief diversity officer and a committee within the company to focus on these issues, and its board is 55 percent diverse. Visa’s investors care about diversity, which helps improve financial performance, so Visa discusses its diversity progress in its securities filings.

When Visa hires outside counsel, it focuses on substantive expertise; as GC, Tullier must explain to the board why she hired X firm for Y matter. But it focuses on diversity as well; it wants its matters staffed by diverse teams. Staffing requires performing actual work on a case. Tullier’s pet peeve is “tokenization” — bringing a woman or lawyer of color to a meeting, but not letting that lawyer say anything.

3. Pay attention to the pipeline.

Joan McPhee, a longtime litigation partner at Ropes & Gray, noted this conundrum: women graduate from law school in roughly equal numbers to men, then excel academically and as young lawyers, but somehow fail to reach the leadership ranks in the profession. What’s going on?

Some say that women “opt out” — they voluntarily leave legal practice, for various reasons — but McPhee said she hasn’t really seen this at her firm. And if it is true, then why do women opt out? There’s no clear or easy answer as to why women leave large law firms or the legal profession, according to McPhee.

Part of the problem: we as a profession are not doing a good job of developing women lawyers, especially women trial lawyers. Practicing law, especially practicing law at a large law firm, is difficult. McPhee talked about the many times that she wanted to quit, especially when she was juggling the demands of her practice with raising three young children.

A key to retaining talent is making people feel they’re part of the team. “I’m crazy about my colleagues,” McPhee said. “That sense of belonging is what helped me make it through. Without it, law firms can be lonely and isolating places.”

4. Collect information and opinions about diversity issues, and customize your approaches accordingly.

We’ve talked before about the importance of data (and so have others, such as former in-house lawyer Casey Flaherty). The point received reinforcement from panelist Milana Hogan, chief legal recruiting and professional development officer at Sullivan & Cromwell.

One example Hogan gave: mentorship programs. Based on talking to members of S&C’s affinity groups, the firm customized its programs based on what the group members felt most comfortable with — e.g., two associates mentoring one more-junior associate in one group, or one partner mentoring one associate in another group. A one-size-fits all approach should be avoided — and diversity programs should be revisited and updated to reflecting changing conditions.

5. Just do it.

If you go to enough diversity events, you can get what panel moderator Peter Wilson Jr., diversity and inclusion officer at Proskauer, referred to as “diversity fatigue.” One can get tired of hearing the same talking points raised again and again.

What’s the solution? It’s time to take action, according to former New Jersey attorney general and current Patterson Belknap partner Peter Harvey.

“Enough of this dialogue,” Harvey said. “Hire people. You can complete all these surveys and have all these surveys and have all these dialogues, but if there’s no sanction or incentive for anything, you’ll get the same results.”

One example he gave: who is the relationship partner for a given client? If diverse lawyers aren’t relationship partners, they won’t have power within their firms. “If you’re not the relationship partner and the work dries up,” Harvey warned, “it gets a little dramatic.”

Harvey urged in-house lawyers to demand diversity from their outside counsel. “When brains were doled out, they weren’t given just to a certain group of people or a certain gender,” he said.

Once you reach a certain level of law firm, everyone is capable of doing the work. So companies should prioritize diversity as well as skill when selecting counsel, according to Harvey. Speak up when you don’t see women or lawyers of color at meetings or on your matters.

And if your outside law firm refuses to work with you on diversity, Harvey told the in-house lawyers in the room, then you can take your business elsewhere. You can quote to them the words of Beyoncé, he said: “I can find another you in a minute.”

Diversity & Inclusion in Law & Legal Services Breakfast [DOAR]

Earlier: 4 Ideas For Advancing Diversity And Inclusion In The Legal Profession


David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.