When you’re arguing a bad-faith case in a tough jurisdiction, you can’t afford mistakes that could alienate your jurors. Years ago, a senior partner and I defended a bad-faith case before a racially diverse jury. The senior partner planned to make a comment in his opening argument that may have seemed relatively mild, but I knew the African American jurors could take it the wrong way. I talked to him about it, and he made the same point differently. We watched as a few jurors nodded appreciatively.
This is why law firm diversity matters to insurers. The more diverse a law firm is, the better it can represent its clients. Law firm diversity can lead to meaningful settlements in mediation and arbitration, as a diverse attorney can build trust with diverse plaintiffs. At trial, it enables insurers to relate to diverse juries. Diversity can even help in document review. When I was a junior associate, I noticed a phrase in a document that my colleagues missed. That phrase ultimately helped convince the plaintiff to withdraw her lawsuit.
Like most worthwhile tasks, law firm diversity is easier said than done. Last January, a New York Times article reported on a LinkedIn post touting a prominent law firm’s incoming partner class, which included 11 white men and one white woman. The alarming lack of diversity led a leading legal website to write an open letter — signed by major global employers — calling on the firm to “reflect the diversity of the legal community.” But when the Times reporter asked one of the letter writers if she’d fire her company’s longtime counsel if his firm weren’t diverse enough, she said, “I trust him so much, I can’t see walking away.”
Understand unconscious bias
Changing law firms is always risky, and asking an insurer to leave a longstanding attorney due to a firm’s lack of diversity is difficult. But it’s also hard to spark change when you’ve worked with the same people since 1975. In 2020, with protesters demanding social justice and the Black Lives Matter movement taking hold, embracing law firms with a proven track record of diversity is imperative.
Unfortunately, law firms have a long way to go toward increasing diversity. They should start now by taking a long, hard look at themselves and how they groom their young minority associates for future partner or equity partner status. These promotions aren’t about billable hours or even quality of work; they’re about how well senior partners relate to their associates. And partners naturally gravitate toward people from their own gender, race or sexual orientation.
A 2014 experiment demonstrated how this type of unconscious bias can disguise itself as an objective evaluation. A leadership consulting company sent a memo with 22 errors to 60 partners at 22 law firms. The memos were identical. But half the recipients were told a white person wrote the memo; the other half were told an African American person wrote it. Attorneys receiving the “white” memo rated the writer 4.1 out of 5. Attorneys receiving the “African American” memo rated the writer a 3.2 out of 5. One can imagine that these same attorneys would consequently give the “white” memo writer more opportunities and career support than the equally qualified African American writer.
Law firms can reduce the impact of unconscious bias by actively seeking out and promoting women and people of color. For example, Dan Kohane, past president of the Federation for Defense & Corporate Counsel (FDCC) noticed me at a conference and invited me to an FDCC event. There, he introduced me to another past president, Tim Pratt, and they invited me to apply. Today, I’m a proud member of FDCC’s Board of Directors, co-chair of its Data Privacy section, and vice-chair of its Diversity Committee, all because someone actively sought me out.
Most firms still use the same recruitment techniques they did in 1975, and unsurprisingly, get the same results. Firms should shake up the status quo by recruiting from historically Black colleges and universities, asking law schools’ Black student associations for their best and brightest, and seeking recommendations from African American professors.
Achieving diversity at law firms will not be easy. It will not take months, but years. You may or may not have to break up with your long-time counsel to make it happen. But you should consider the value diverse counsel can bring to your business. It will send an important message to law firms at a pivotal time in history.
Sean Griffin is a commercial litigation attorney focusing on cases involving allegations of breach of contract or fraud. He is a member of the Federation of Defense & Corporate Counsel’s Board of Directors and vice-chair of its Diversity Committee. Contact him at email@example.com or at 202-906-8703. The opinions expressed here are the author’s own.