In-House Counsel

Why Litigation Will Become Diverse More Quickly Than Other Fields Of Law

Litigation is different: Clients want profits.  Profits require diverse trial teams.  And law firms must do want clients want.  Period.

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Here’s an odd prediction, and one about which I’m relatively certain:  Diversity will improve in litigation groups more quickly than it does in other legal practice areas.

Why?

When a case is going to trial, smart clients insist on a diverse trial team:  “You can put three people on the trial team.  But it can’t be three old white guys.  We need a trial team that looks a little bit like the jury.  You must find a decent trial lawyer who is not an old, white male, and that person must hold the third spot on the trial team.”

The partner at Bigg & Mediocre clears his throat and mumbles, but the client has spoken, and Bigg & Mediocre eventually finds a lawyer who fits the bill.

Client demands force law firms to become more diverse.

And those client demands are grounded in money: We are more likely to win this case — and thus profit — if the trial team looks like the jury.

In other areas of law, the profit motive for increasing diversity is less clear.  (That’s just the profit motive.  Other motives — such as fairness and doing what’s right — are a whole different story.)

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Yeah, yeah: Studies show that diverse groups make better decisions, and diverse corporations are more profitable, and all that.

But the old, white guys who are running law firms don’t read, or don’t believe, those studies: “This firm will be most profitable if everyone at this firm went to my school, was on the same law review I was on, and clerked for the same judge that I did.  That doesn’t naturally make me choose from a diverse slate of candidates.  And the few women we hire ultimately choose less hectic lifestyles and leave the firm.  It’s not my fault; we simply can’t become diverse.”

In the tax, and corporate, and real estate departments at Bigg & Mediocre, these old predilections win.  Many of the old guys running the joints don’t care about diversity.  Those who do care have only their personal desire, and noble aspirations, to encourage them to move in the right direction.

Clients occasionally insist on diverse corporate or tax or real estate teams, but the clients aren’t insisting out of necessity.

Litigation is different: Clients want profits.  Profits require diverse trial teams.  And law firms must do want clients want.  Period.

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So, for the corporate group, you have noble aspirations prompting diversity.

But in the litigation group, you have (1) noble aspirations and (2) money prompting diversity.

Which group is going to reach its goal first, I ask you?

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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