Let me pose a question to the attorneys reading this article: if you mentally run through your roster of expert witnesses and consulting experts, does it look similar to the Paul, Weiss new partner class announcement that was pictured in the New York Times this January?
I’ll go ahead and venture a guess… yes.
The diversity and inclusion status of the expert witness and litigation consulting industry deserves attention from the legal community. Some of the same issues that the legal community is struggling with also affect this “downstream” consulting industry. The expert witness industry suffers from a lack of minority representation at all levels, and just like in the legal industry, the problem gets magnified the higher up the ranks you look, with the equity partner ranks reflecting poor gender parity and minority representation.
Similarly to law firms, expert witness and consulting firms lack diversity, though, unlike the legal industry, the expert witness and litigation consulting world has not yet faced the same level of scrutiny. The reason behind this may be two-fold.
First, the expert witness industry is a very niche industry, with most firms privately held. That means not much information is publicly available about the revenues of most firms, let alone their diversity numbers. In fact, this industry is so niche that other than those who belong to it and those that buy its services, I’m not sure that many people are even aware of its existence.
The second reason is that, to some extent, the lines are blurred between expert consulting and larger consulting and advisory firms that are well-known, such as the big four in the accounting world and McKinsey, Bain and BCG on the global management consulting side. There is some amount of overlap in the services that are offered in both of these areas of business, yet both get identified as consulting firms. Also, some of the firms that are operating in this space are subsidiaries of larger publicly held firms, and they get to hide behind the overall larger firm, which often has much more favorable diversity numbers. I’m hoping that by getting the legal community involved, we can push for favorable change.
By now it’s well-established that businesses gain real, bottom-line benefits not just from having a diverse workforce, but also diversity within the leadership ranks. The evidence is so overwhelmingly in favor of the benefits of diversity that we are almost at a juncture where we shouldn’t even need to justify the push for diversity. I mentioned some of this research in an article for Management Today but new research conducted in this area consistently points toward the same evidence. For example, a 2018 study by McKinsey & Company found that companies in the top quartile for ethnic/cultural diversity on executive teams were 33% more likely to have industry-leading profitability. The same study found that companies in the top quartile for gender diversity in executive teams were 21% more likely to outperform on profitability. Evidence of the benefits of diversity also can be found in many measures of financial performance, such as accounting returns, return on equity, and earnings per share. The list goes on.
A year or so ago, I had the opportunity to raise this issue in front of a panel of law firm managing partners. I asked whether the managing partners were aware of the diversity issues in the expert witness world and whether they had given thought to how they can promote the culture of diversity by exerting their influence as clients. You could hear a pin drop in a hall of around 300 or so attorneys. It was evident that the thought hadn’t crossed these leaders’ minds. And to some extent, I can understand why. The legal profession is engrossed in its own struggles, and it hasn’t turned its attention to what it can do to improve the situation in related fields.
I believe that the legal community can do a lot to help facilitate diversity and inclusion in the expert witness and litigation consulting industry. Just like in-house counsel have mobilized to do their part in addressing some of these challenges and support outside counsel, I believe law firms should undertake similar measures when they are retaining expert witnesses and consultants. For example, a 2018 Law360 article detailed some of the specific ways in which in-house counsel have attempted to influence change, including preferential treatment for firms with better diversity performance that are otherwise equally qualified to receive business; noticing when someone is on a pitch just for optics; communicating that diverse attorneys should get substantive work; some even asking about how business intake credit is divided with minority and women attorneys that are hired. In January, more than 170 general counsel signed an open letter to law firms saying that they will prioritize extending business to firms that commit to diversity and inclusion. The letter, available on a general counsel LinkedIn page, concludes on a very powerful note: “We, as a group, will direct our substantial outside counsel spend to those law firms that manifest results with respect to diversity and inclusion, in addition to providing the highest degree of quality representation. We sincerely hope that you and your firm will be among those that demonstrate this commitment.” Similar initiatives by law firms directed towards the expert witness and expert consulting industry could be helpful. Ask for diversity in teams, ask for diversity in representation, ask for diversity in pitches…ask and you shall receive. And when you do receive, look beyond the obvious. Look for meaningful and thoughtful response.
I don’t expect the response to be rapid—meaningful change seldom is. But change can and does start with a conversation, and that’s what I’m hoping to spark today.
About the Author
Shireen Meer is an economic damages expert and an associate director at the Berkeley Research Group. She can be contacted at smeer@thinkbrg.com. The opinions expressed in this publication are those of the individual author and do not represent the opinions of BRG or its other employees and affiliates.