Addressing Biases in Large Law Firms

The “vanishing ball illusion” is a simple magic trick. After producing a small ball, the magician tosses and catches it two or three times. On the final toss, the magician’s hand starts upward, her fingers unfurl, and voilà!—the ball vanishes. To most observers it disappears mid-flight, a confounding experience because the ball was in plain view.

In reality, the magician palms the ball and only pretends to toss it. It never leaves her hand. But the key to the illusion is the magician’s use of subtle gestures that help her deliberately and deftly manipulate cognitive weaknesses in awareness and attention. Each time the magician tosses the ball, she tracks its movement with her head and eyes. When she merely pretends to throw it, her head and eyes follow an imaginary path and covertly direct the attention of the audience to the anticipated spot of the ball. Neuroscientists who have studied observers as they watch the trick have found that the focus of observers is on the predicted position of the ball even as their gaze is elsewhere—not on the spot where they claim the ball vanishes. In other words, the magician fools the brain, not the eyes, and expectations sabotage perception.

In the workplace, we make countless split-second judgments about colleagues based on limited information. Much of the processing occurs unconsciously, through what psychologists call “social categorization.” We can’t possibly process the multitude of details that every new encounter presents, so we sort people into buckets (by race, gender, age, title, income, etc.) and ascribe similar characteristics to people grouped in the same bucket. This frees up limited cognitive resources.

But because we’re unaware that the process is occurring, our perceptions about colleagues feel informed, and our conclusions well-reasoned. Unbeknownst to us, though, they often flow from unconscious biases and social cues—about who is successful, how success is achieved, and the markers of success and failure—that subtly divert our focus from pertinent facts (or the lack thereof) and steer us into assumptions and conclusions that reflect the biases. It happens smoothly and inconspicuously, the way a magician leads her audience into an illusion. In one study, researchers found that seven seconds before participants consciously chose one of two options they were given, the researchers could accurately predict the participants’ decisions based on their brain activity. In the oft-cited study by Nextions, law firm partners graded a legal memo much more favorably if they believed that the author was white than if they believed he was black.

Large law firms have struggled to address the effects of biases on their efforts to retain and advance women, minorities and others. Many firms offer bias training. Of course, the magnitude and scope of the problem are much larger than anything that training alone can tackle. Biases are powerful, pervasive and slippery in nature. And they can run unchecked in a law firm environment where autonomy is preserved, people sort into alliances based on gut feel, and attorneys feel unconnected to the firm’s diversity goals.

It may be, as some have argued, that firms will see progress only after implementing systems and structures that limit subjectivity in the distribution of work assignments and development opportunities. It’s unlikely that firms will be able to scheme around biases completely, however. The impact of biases may bloat in performance assessments and other subjective determinations, like a balloon that’s been squeezed on one end only to swell at the other.

The way forward might involve much more programming and internal dialogue about inclusion; not the kind that tries to change “individual hearts and minds” in the abstract, but that helps to establish a culture of shared responsibility for the fate of individual attorneys. Until that kind of culture permeates a firm’s operations, it’s hard to see how a firm can address the effects of biases on members of underrepresented groups.

The primacy of autonomy in many firms makes it difficult for firm leaders and administrators to influence behaviors that give biases effect. In places where business development is king, revenue generators can have enormous latitude in how to staff teams, dole out work or evaluate performance. These attorneys and others can have all sorts of reasons for opting out of a firmwide diversity agenda. Some will see positive change as an inevitability that time alone will produce. For others, the work environment is an arena where everyone gets what they can get and efforts to inject some measure of “fairness” into operations, even if business-motivated, are misguided.

Even the most fervent diversity advocates may shy away from activities that, from their perspective, require them to leverage too much social capital. They may also rest on good intentions, unaware that biases (1) often conflict with the conscious opinions we hold of ourselves and (2) are not uncovered through introspection. Like everyone else, advocates are susceptible to the fundamental attribution error: the tendency to attribute someone’s behavior to character traits, and to underestimate the effect of external or situational factors on behavior. That tendency can lead to an under-appreciation for the frequency that inclusion-related problems—the negative effects that perceived biases have on people—morph into performance problems.

The attrition model under which many firms operate adds another layer of challenges. Autonomous attorneys leading matters can simply move on from associates perceived to be substandard (based on flash assessments) or avoid working with them altogether. The ranks will refresh. Minority attorneys may disproportionately suffer from that scenario. They continue to leave firms at higher rates than white male attorneys, and their overall promotion rates have been stagnant. For example, according to the Minority Corporate Counsel Association (MCCA), minority attorneys were 16% of law firm lawyers in 2015, but 21% of the attorneys who left their firms that year. The National Association for Law Placement (NALP) has found that, between 1993 and 2016, the percentage of minority partners within large firms increased only 0.21%, from 2.55% to 2.76%.

Traditional law firm diversity initiatives have been unsuccessful because most tread around the above challenges. The initiatives often relate to: increasing the diversity of recruiting classes (which is a necessary goal but doesn’t address that the real selection of candidates frequently occurs after people are hired); building camaraderie among members of underrepresented groups (affinity groups, networking events, retreats, etc.); and the provision of career management advice, through mentoring and coaching programs, and related training. These kinds of initiatives are valuable but insufficient. And they can have unintended features: an undercurrent that firms have simply missed the mark on decades of hires; a focus on adjusting members of underrepresented groups to an admittedly flawed system; and a reluctance by firms to engage their broader populations in diversity efforts, perhaps because of the perceived futility of doing so.

For firms to improve their diversity demographics, short of wholesale changes to the attrition model, more members of underrepresented groups will need fuller participation in their firms’ apprenticeship systems. And they will need it early on in their careers, so they can keep pace in the promotion contests that determine the “keepers.” Initiatives aimed at providing these attorneys with early, consistent access to stretch assignments and growth opportunities are a good start. These include work assignment systems for associates and shadowing initiatives.

But the apprenticeship tradition involved more than just the transmission of technical skills early in one’s career. Experienced lawyers took responsibility for the careers of their charges. They invested in them through years-long supervision and correction. They also provided the kind of cover that allowed junior attorneys to take calculated risks, to operate at the fringes of their abilities.

Unconscious biases are so impactful because they affect the informal selection of apprentices within firms, where not everyone will be a long-term apprentice. Biases around stereotypes play a part. So does affinity bias, or the tendency of people to prefer the company of others who share their interests and background. At stake is the responsibility that senior attorneys will take for certain careers, not just the work the attorneys have to offer.

Real progress will occur when firms can cultivate responsibility for the fate of individual attorneys.  After all, firms can retain and advance only those who walk through their doors. There isn’t one prescription for progress. But effective approaches will likely have at least four characteristics.

The first is team-based accountability for the development and utilization of individuals. Law firms have implemented client service teams, despite the effects on autonomy, because they recognize that a team approach to client service is more effective and ultimately beneficial than multiple individual efforts. That reasoning may apply to the development of diverse talent. Team-based accountability for development ensures that people at the firm take responsibility for an individual’s progress. Yet it sidesteps a one-to-one assignment system that may be practically unworkable in many firms given their pyramid structure. Too much diffusion of responsibility can be problematic. It could lead to bystander apathy: no one takes responsibility for tasks because everyone assumes someone else will do it.

The second is a set of defined expectations for the conduct of individuals who will serve on the above-referenced teams. The expectations would vary based on the touchpoints that individual attorneys and administrators have with junior talent. They would specify inclusive behaviors and would be part of performance criteria. Setting clear expectations would do two things. It would help all involved focus on positive action as opposed to the mere avoidance of conduct that appears biased. It would also help firms establish behavioral norms. Part of that effort will include the development of productive ways to call out conduct that deviates from expectations.

The third is a strong commitment to regular programming and dialogue about biases. In many firms, attorneys and staff responsible for diversity initiatives have spent countless hours trying to understand the operation of biases. Other attorneys and staff have spent much less time on it. The disparity can hamper diversity-related communications between the groups, as can perceptions that the priorities of the groups differ. Regular programming can help bridge the gap. Consistent, structured dialogue among individuals responsible for the evaluation and development of junior attorneys will also help; these individuals will be better able to tackle their responsibilities with an eye toward the unique challenges that members of underrepresented groups face.

Training and pointed dialogue aren’t cure-alls, though. When “skilled skeptics” find evidence about something disagreeable, they may apply their reasoning skills selectively and be slower than unskilled reasoners to change their minds. And some studies have suggested that anti-prejudice messages not carefully crafted could backfire. But on balance, bias-related discussions are beneficial. Depending on purpose and content, they can serve several useful functions: to communicate that inclusion is an organizational value and a priority; to help establish ownership among all attorneys and staff for diversity initiatives, and to solicit their input; to articulate the business reasons behind effective inclusion; to reframe inclusion as a skill and not an intention; and to foster the identification and implementation of structural changes that will help limit biases.

The fourth is a willingness to invest considerable time and resources into efforts that may not produce immediate results. This admittedly describes the status quo. A focus on diversity and inclusion is in some ways a long-term play, however, even if a quick improvement in demographics may bring firms more business in the short term. It is a quest for the best talent, for better client service and for better organizational decisions. As firms grapple with the slow pace of inclusion, they may be tempted to dismiss potential efforts that don’t open the floodgates. Sometimes, though, progress develops in the margins.

People who’ve seen the vanishing ball illusion understand that their perceptions and expectations have betrayed them, because the ball cannot have simply disappeared. We get no such clues in the workplace, where our biases and expectations around stereotypes can work to devastating effect on the potential of our organizations. Large law firms must continue to address biases head-on, through dialogue that fosters related awareness and communication as well as through systems that interrupt biases. The difficulties in tackling the problem are perhaps more indicative of the size of the task than its futility.

About the Author

Marlon Lutfiyya is the director of inclusion and professional development at Husch Blackwell. He is the vice chair of the Diversity & Inclusion Committee of the ABA Law Practice Division.

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