A. Innovation methodologies are used to create novel experiments meant to improve DEI in legal, but more significantly, systems innovation creates an opportunity to advance DEI as a critical feature of the next epoch and not an afterthought.

I begin this post with a disclaimer: I’m a woman in law. I’m not racially diverse, or otherwise so. While I have an education and appreciation of the myriad DEI issues in the profession and broader society, I do not have a personal understanding beyond my own gendered experience. I speak only for myself from my place of understanding, with the best intentions towards empowering all people to flourish through equitable systems.

Q: “Wait, is this a Diversity initiative or an Innovation initiative?”

A: “It’s both.”

In attempting to replicate the DiversityLab Hackathon model at a global law firm, this question was the repeated stumbling block that ultimately led to a failure to launch.  The challenge boiled down to siloed thinking — who is leading, whose budget does this come from, who gets the glory, and how do we engage lawyers without confusing them?

With the benefit of hindsight, those weren’t the right questions. The right questions (and answers) are:

  • What’s the problem we are trying to solve? (DEI in law.)
  • How are we going to solve it? (Innovative, creative, new ways of thinking and doing.)
Scott Westfahl

Innovation can serve as a creative problem-solving engine, with opportunity for application in the DEI space given the profession’s persistent inability to solve for it. In the words of Scott Westfahl, “We need … creative solutions that will take the anchoring point of a very traditional profession and move it way over to a different, better place.” (Diversity Hackathon video at minute 3:00.)

The challenge with this model is that it creates narrow “point solutions” rather than system-wide changes. Cf Henderson, “How to Solve the Legal Profession’s Diversity Problem,” PD Quarterly (Feb 2016) at 23 (“The legal profession’s lack of progress on diversity stems from a systems problem, not a lack of moral resolve, and applied research suggests there are ways that law firms can address the systems problem.”).

Q: Why haven’t we been able to create a diverse, equitable, and inclusive environment in legal?

DEI in law has not been solved because the problems live in the infrastructure of the profession—in the systems. Those in the space or periphery know this, the phrase “fix the women or fix the system” has been in circulation for many years (and extends to all types of diversity). DiversityLab experiments are all targeted system tweaks and interrupters.

But, this chipping away at the system is not going to work fast enough.

My mother-in-law, a career in-house attorney at a financial institution in New York, apologized to me upon her retirement. The profession was supposed to be different by now, she rued. A powerful female partner at my prior firm who has been lawyering for 48 years said the same: “It wasn’t supposed to be this way, we tried.”

Jenni Buckley

In her Designing for Diversity TedX talk on gender diversity in engineering, at 10m18s Jenni Buckley arrives at a similar place: “It’s time to admit that what we’ve been trying for 30 years isn’t working. We need to do something fundamentally different.”

Q: How might we prompt accelerated DEI improvements in legal?

The legal infrastructure we operate within today is man-made for a past era. General Counsel are forcing change in this infrastructure through innovation, not for the sake of DEI, but rather to secure the reliable data needed to better demonstrate their organization’s contributions and value to the enterprise. In this work to harmonize disparate data silos and centralize workflow tools and platforms, they are making systems changes. They are, whether aware of it or not, creating new legal infrastructure.  Cf. Gillian K Hadfield, Rules for a Flat World (2017) (introducing the concept of legal infrastructure); Post 226 (Bill citing Hadfield and hammering away at the importance of building infrastructure).

This is an opportunity to advance DEI as a critical feature of the next epoch and not an afterthought.

Q: What does that look like in practice?

Here are some examples:

Correcting bias in work assignments. Low-value work assignments are a well-known DEI challenge. With intentionally designed systems, general counsel have visibility into the types of work assigned across diverse groups and the ability to recalibrate apparent biases and provide training that yields rapid and material upskilling. These systems also provide the General Counsel with visibility into who is doing the work at law firms.

Earlier career advancement. In addition to right-fitting work without bias, the reduction or elimination of routine work through automated systems reduces creates the capacity needed for talent to focus on more impactful contributions. Leaders can offer cultural guidance for how to best show value in the environment—perhaps to think and problem-solve creatively or take risks in pursuing the next frontier of value. With law’s “leaky pipeline” for diverse and women attorneys, the opportunity to demonstrate value—and be recognized for it—early is critical.

Quantified value. Currently, our system favors people who can grind because we measure contributions in hours (inputs) not value (outputs). This is often viewed as the Mom Issue, but includes anyone with some responsibilities (ex. aging parents) or passion to feed outside of work. Quality metrics on value delivered would level the playing field and simultaneously help overcome selection bias and embedded social network advantages – it’s hard to argue with success.

  • Jason Barnwell shared his thoughts on this topic. He credits Bill Henderson and his Moneyball presentation, which got Jason thinking about how we distort our selection behaviors. Jason’s Hypothesis: “The future state of our work is more project based and succeeds when we bring together diverse perspectives to solve adaptive problems and create new solutions that address emerging opportunities. The leadership work that many women do builds cohesion that helps these teams succeed. This effort is often not recognized or rewarded. It is currently a tax on their careers. If we can identify more of the intrinsic value of our outcomes and start correlating it with the actual inputs (what we do and how we do it) then we can start addressing some of the biases…or compete more effectively against organizations that retain them.”

Effective collaboration. Technology systems allow us to efficiently capture and share knowledge across teams, which creates the conditions for lawyers to work collaboratively and get credit as a team. Cf Post 188 (explaining how Goldman Sachs migrated to the team-based approach in the 1960s thanks, in part, to a new team-based compensation model). That is a massive system change in the mindset of the legal profession – incentivized and rewarded teamwork. This has a two-fold impact.

  1. Designing for diverse teams ensures that they happen. With diminishing representation as you ascend in law, this means that diverse talent will be included and offered access into higher-level work and decision-making.
  2. Diverse teams produce smarter decisions with greater financial returns. See Post 238 (sophisticated empirical model by Evan Parker showing this to be true in the AmLaw 200). As a result, not only will the newly included individuals benefit, but the successful team outcomes create a flywheel effect that reinforces that value of DEI.  See David Rock & Heidi Grant, “Why Diverse Teams are Smarter,” Harv Bus Rev, Nov 4, 2016 (referencing a 2015 McKinsey report on 366 public companies that found those in the top quartile for ethnic and racial diversity in management were 35% more likely to have financial returns above their industry mean, and those in the top quartile for gender diversity were 15% more likely to have returns above the industry mean).

Opening the talent market—regulations. In discussing systems, I would be remiss not to mention the biggest one in the United States – Rule 5.4’s prohibition on nonlawyer practice and ownership. In learning from the UK’s liberalization, models like a 100% employee-owned and thus economically aligned business become possible. See Post 106 (discussing how it took 15 years after the repeal of UK’s ban on fee-splitting for the creation of UK’s first employee-owned law firm).  Here’s what that looks like: Our Legal Team | Hodge Jones & Allen (hja.net).

Opening the talent market—culture. The way law is “done” is changing and yet the people we have doing it have largely stayed the same. There’s a gap between what we have in place, and what’s needed. Why is that? As Bill queried, “Are we lawyers reluctant to collaborate intensively with nonlegal professionals because deep down we fear an unflattering comparison of our professional abilities?” and concludes, “If so, ego and attitude may be a bigger barrier to innovation than Rule 5.4.” Post 106.  Reprogramming a cultural system of ego, attitude, and protectionism to one of inclusive, multi-disciplinary collaboration creates a legal industry teaming with diverse lawyers, engineers, designers, technologists, and others for a richer, and frankly more interesting, engine of legal professionals.

We have a short window of opportunity to challenge and influence a new world order for legal through the systems’ innovations that are happening. If we take this moment to pause and consider how new systems could position and empower more diverse and women attorneys to lead, then we can design and build them.