They continue that in any organization individual success is partly driven by how they are treated and the opportunities available to them.  To expand on this point, again quoting from the piece, “people are more likely to behave in ways that undermine their chances for success when they are disconnected from information networks, when they are judged or penalized disproportionately harshly for mistakes or failures, and when they lack feedback.”

Again supported by rigorous research, it’s an unfortunate fact that women are more likely to experience these dynamics.  Therefore, since women experience a higher degree of scrutiny and are penalized more harshly for even small mistakes (than men are), not speaking up in meetings is a perfectly rational response.  The result? They appear to lack confidence in their ideas. Voilà!  Stereotype confirmed.

So, what about gender differences in Law Land?

For this we turn to the ever-charming Dr. Larry Richard, the leading expert on lawyer psychology who, using the rigorous Caliper instrument has gathered and analyzed personality data on thousands of lawyers (as well as other white-collar professionals).  As Dr. Richard reports, “In the general population, women score slightly higher than men in Empathy and in Sociability on the Caliper. A more recent study shows that women leaders are also higher on a number of the ‘persuasive’ traits. But within the legal profession, these differences largely disappear.” (Emphasis mine.)

What doesn’t work?

Hmmm.  Where to start?  Sadly, many of the well-intentioned “women’s initiatives” at firms have actually been counterproductive (obviously some have had a positive impact – but not enough to move the needle industry-wide).  Caren Ulrich Stacy, Founder & CEO of the Diversity Lab notes, “Gender diversity is not a woman-only problem, therefore, initiatives such as women’s retreats without the other half of the population working in collaboration often undermine the very people they’re trying to help.”  Further, the additional, non-billing time required to participate in women’s initiatives is often viewed as an extra burden by younger female attorneys.

Certainly exhortations to become more diverse, without plausible remedies are pretty much a waste of time.  NAWL issued its first “NAWL Challenge” in 2006, which called for a goal to increase women equity partners at law firms to at least 30%.  That was so successful (not) that they issued another “challenge” in 2016: “The One-Third by 2020 Challenge,” like changing the wording will have an effect.  They further acknowledged the widespread adoption of women’s initiatives has not really made a difference.

Not to be outdone, in 2016 the ABA issued Resolution 113 that “urges all providers of legal services, particularly law firms, to expand and create opportunities at all levels of responsibility for diverse attorneys.”  Their “remedy” seems to boil down to measuring everything in sight, implementing “bias interrupters” and ratcheting these up if goals are not met.  “The top line takeaway is you need to analyze with metrics so there can be little question about what is currently happening in a given workplace,” said the chair of the ABA Women’s Commission. She added, “If you don’t see change, use an iterative process until your metrics improve.”  Huh?  If at first you don’t succeed…  Frankly, this approach could take millennia.  (Einstein, anyone?)

What are the specific challenges for Law Land?

It is an understatement that Law Land operates in ways vastly different from Corporate Land.  On a macro basis. Law firms have much less of a business mindset which impacts virtually every function at a firm, and, as it turns out, hobbles their efforts to increase diversity.  Professor William Henderson[7] rigorously lays out the argument for greater intentionality in all phases of a lawyer’s development – from selection, through development, training and coaching in Solving the Legal Profession’s Diversity Problem. 

He posits, “the profession’s lack of progress on diversity is a systems problem.”  The systems he refers to are those for recruitment, selection, development, feedback, evaluation and promotion.  Systems that take green law school graduates and, over time (and a great deal of effort on their part) builds them into experienced partners.  He adds, “the system is driven more by tradition and past practice than science.”  Moreover, the “systems” are sabotaged by a virtual absence of truly helpful data.  He notes, ”To the extent the system relies on measurement, the quality of the data is uneven and under-analyzed.”  One of many examples is the industry’s heavy reliance on relative academic achievement in the selection stage which does not correlate positively with success.

Henderson, then goes through each of the aspects discussed above (recruitment, selection, development, feedback, evaluation and promotion) and provides evidence-based remedies.

His approach would certainly deliver on the premise outlined in Professors Tinsley’s and Ely’s piece; everyone would experience more similar experiences (with better data, to boot).  In this, Henderson is absolutely right.  That said, based on the peculiarities of Law Land (which he acknowledges and is keenly aware of), I fear his remedies are overly ambitious for the far majority of law firms; the patients’ antibodies would likely reject the graft.

What’s working in Law Land?

There are some basics that most firms have undertaken and, should certainly continue – such as firm-wide implicit-bias training, return-to-work programs, etc.

And, recently, there have been some new developments that hold promise for approaches that might actually work.

The “Mansfield Rule”[8] requires law firms to include 30% diverse candidates (women and minorities) in slates for significant leadership roles.  This was first piloted in 2017 under the guidance of Stacy’s Diversity Lab with 50 law firms participating.  It was reported that a total of 41 firms completed the one-year program, with 40% reporting increased diversity in their leadership ranks and 38% reported increases in partner promotions for women and diverse candidates.  Angela Quinn, Chief Client Officer at Husch Blackwell, one of the participating firms, said, “We were focused on diversity before, but now it is more intentional – a way of life.”

Generally speaking, I’m not a fan of quotas, but this may be a valid mechanism to jumpstart institutionalizing consideration of similarly-qualified diverse and non-diverse candidates for a given position – diversity “training wheels,” so to speak.  Moreover, we don’t know what might have transpired at these firms had they not adopted the Mansfield Rule. That said, I have to believe once it becomes SOP to consider diverse candidates alongside their non-diverse peers, diverse candidates will be less likely to be viewed as “other” and, therefore be on more equal footing.