Over the last several months, there have been numerous articles and several presentations with the same message: American corporations’ and law firms’ considerable efforts to achieve and sustain a diverse workforce have not realized their hoped-for results.
While there is no simple explanation, it is becoming clear that solutions based on blame and mandates will not work.
Diversity strategies that use mandatory “sticks,” including required diversity training, have been shown to be ineffective and in some cases have actually caused
A recent study by the Commercial and Litigation Sections of the New York Bar Association found that female attorneys comprise only about 25 percent of attorneys in lead
Former Judge Shira A. Scheindlin said “not much changed [in her 22 years on the bench] when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel
Encouraged by Judge Scheindlin, U.S. District Court Judge Jack Weinstein implemented a new rule aimed at the long-standing practice of only having one attorney (usually the lead attorney who 75 percent of the time is a white male) do the speaking in legal proceedings. The new rule encourages firms and clients to cede these speaking opportunities to junior attorneys, which include more women and minorities. Judge Weinstein’s rule references the New York Bar study and, in part, invites “junior members of legal teams” to argue motions they have helped prepare and to question witnesses with whom they have worked.” The rule adds that the judge “is amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for a junior lawyer to participate.” Such a simple change that is not mandatory or punitive can be expected to benefit all junior attorneys and improve the roles and experiences of women and minorities in the practice of law.
Law firms can learn from Judge Weinstein’s example by looking at the way firms have “always” been run and seeing if changes that may seem unrelated to diversity
For example, mentoring and “yielding the floor” is critical to the support and success of junior, often women and minority, attorneys. However, clients and insurance carriers frequently “discourage” mentoring by refusing to pay for two attorneys performing related work on a case or for activities they consider training for a junior attorney. Firm compensation formulas also do not frequently reward, or even consider, non-billable mentoring time spent by senior attorneys.
Also, in large part client development is based on building relationships. The business world, and especially big
So what simple “carrots” might the legal profession consider with regard to these issues that might contribute to a more effective diversity strategy? One suggestion would be to encourage or incentivize partners (perhaps through a “mentoring” bonus) to structure litigation work so that the younger attorney performs most of the work and is the primary client contact. And when the senior attorney’s help is truly needed, they should not penalize him or her financially for letting the associate bill for all, or the bulk, of the time. Another suggestion would be to provide financial rewards for attorneys who originate clients that are owned or led by women or minorities.
Heather Owen is certified by the Florida Bar in employment and labor law and has been providing employment law advice to, and litigating on behalf of,