Butler Snow’s Andrew D. Tharp and a discussion on diversity with Danielle Diviaio, Director & Senior Counsel II, Boehringer Ingelheim USA Corporation; James K. Grasty, former Senior Vice President, Merck & Co.; and Lisa Warren, Assistant General Counsel, Johnson & Johnson (Retired)
Diversity is more than a word to be tossed about in order to gain favor or “check a box.” More than ever, diversity is critical to an organization’s success. But achieving true and lasting diversity within law firms and businesses has proven to be a challenge for many organizations.
To better understand real “diversity in action,” we have empaneled current and former in-house counsel from some of the world’s leading companies to describe their experiences and provide practical advice. We hope that our readers will benefit from this wealth of knowledge and experience, and we are grateful to our participants for their willingness to contribute to the discussion.
1. Can you describe an instance of “diversity done right” for your organization? Proudest moment?
There are several instances of diversity done right that come to mind. However, one particular moment stands out in my mind. While getting ready for a busy year of jury trials, our outside counsel was able to put together several diverse trial teams. During the trials, as those teams came together on important strategy decisions, those backgrounds allowed for different and new ideas.
Despite the growing evidence that diverse legal teams yield better results, more creative solutions and enhanced problem-solving capabilities, a notable gap persists in the number of female and underrepresented attorneys that are given an opportunity to work on matters for major clients. To ensure that Merck was benefitting from the fullest extent of varying legal knowledge, experience and perspectives, the former GC, Mike Holston, envisioned an assembly between our in-house team and outside counsel to ensure the latter fully understood the priority of inclusiveness to Merck. Towards that end, we organized and hosted a Diversity Summit in March 2016. Each firm in the Merck Legal Network at that time was urged to send their firm manager together with their Chief Diversity Officer to our assembly. In addition, participating firms were requested to include a number of female and underrepresented partners/associates with whom we were unfamiliar in the hope that it would mark the beginning of a relationship with a view toward facilitating their prospective possible engagement. The Summit was hailed by internal and external attendees alike not only for evidencing the importance to Merck of our network firms continuing to invest in the ongoing development of women and attorneys of color but also for contributing to an actual increase of their involvement on Merck legal matters.
In a high-profile mass tort, we recognized an opportunity to provide diverse lawyers with deposition experience. We asked our trusted, seasoned counsel to identify lawyers in their firms who they deemed to be “superstars” to be given this opportunity. To ensure continued high quality, any lawyer recommended was given an opportunity to take one plaintiff’s deposition. Advance training was provided to those participating. We then reviewed the transcript to decide whether or not to add that lawyer to the approved list of deposition takers. We accomplished our goal: identifying and advancing the skills of our next generation of trial lawyers at our outside counsel firms.
Along the same lines, we sought out and retained experienced diverse litigators wherever we could find them. We integrated them into our trial teams and provided them with training, engagement with our virtual teams and, finally, much-sought-after trial experience. They were often starting as third chair and moving up as they gained experience and familiarity with our products and cases.
2. Are there approaches you would like to see applied—or applied more consistently—by your outside law firms to address diversity?
Having a diverse law firm is great, but I would like to see that diversity more frequently on the actual teams working on my matters.
Permit me to make two preliminary observations before responding to your specific inquiry. First, merely having a diverse workplace doesn’t equate with inclusion. Second, since intuiting diversity rarely occurs, increasing the level of engagement by women and underrepresented lawyers requires purposeful efforts by outside firms and in-house counsel alike.
One approach that should be an imperative for firms is ensuring that all of their attorneys be given an opportunity to make meaningful contributions and succeed on merit. Although this seems like a glaringly obvious point, the failure of many law offices to actively seek and value perspectives from people having different backgrounds, cultures and experiences means that too many women and minority attorneys aren’t receiving the same opportunities to contribute as their white male counterparts. Considering the distinguished academic and other backgrounds of the attorneys hired into the firms, sidelining rather than fully engaging and exploring opportunities to develop them is a missed opportunity for the firm and its clients. Our outside firms are at their best when they are inclusive, collaborative and drawing upon the fullest extent of varied perspectives in their offices. Therefore, it behooves law firm managers and department heads to build legal teams comprised of, among other things, people representing different genders, races and nationalities. It’s been my observation and experience that such staffing creates the greatest opportunity for analyzing and solving the vexing problems facing businesses today.
Moreover, to improve their overall diversity and inclusion efforts, law firms would benefit from actively measuring not just their hiring statistics but also staffing, compensation and attorney development initiatives. Monitoring whether women and attorneys of color are being mentored, afforded the opportunity to serve on firm committees, making partner, building relationships with in-house counsel of major clients, and not only attending pitch meetings but having an opportunity to work on those matters for which the firm has been retained are a few of the benchmarks against which firms should be measuring their progress.
As is true for other valued initiatives, advances in the diversity sphere require a commitment of authority and resources by the firm, as well as managerial accountability for the success or failure of the diversity effort. Meaningful progress is most likely in those instances where the entire firm shares responsibility for the ownership and implementation of agreed-upon initiatives.
Make diversity a priority. Create an environment such that your firm develops a reputation that draws high-quality diverse applicants. You want to be known as the place where everyone is treated well and gets meaningful and interesting work. Be the firm that provides meaningful opportunities to all and is generally sought after.
3. Conversely, what diversity-related “avoidable mistake” advice would you give to those outside your organization?
Moving a step further than just having a diverse law firm and diverse team on active matters, everyone on the team should have a voice and feel comfortable sharing ideas.
Unfortunately, there is a long list of “avoidable mistakes” that have impaired meaningful diversity and inclusion progress. Several of the more significant failures include:
- Underestimating the potential for contribution from every lawyer on the team
- Failing to actively enlist the involvement of those having different experiences and backgrounds
- Neglecting for some people the development of substantive, technical or business skills that are essential for professional advancement and/or client development
- Maintaining the status quo when new, better options exist
- Avoiding the provision of developmental, constructive feedback when appropriate
- Tolerating the lack of meaningful diversity progress by accommodating individual or organizational shortcomings
The confluence of these deficiencies spawns frustration as well as feelings of isolation and neglect, all three of which partially explain why so many women and underrepresented attorneys continue to leave law firms.
Be mindful not to set anyone, diverse or not, up for failure. Be sure to provide all with the tools they need to succeed, including opportunities with supervision and constructive feedback on an ongoing basis.
4. Attracting and retaining diverse candidates can be challenging for organizations. Can you relate any experiences—good or bad—you’ve seen regarding attracting and retaining diverse candidates?
Diversity has to matter and be ingrained in practice—not just done for the sake of statistics.
Quoting Shakespeare, “Some are born great, some achieve greatness, and some have greatness thrust upon them.” Implicit in the observation, if applied to lawyers, is the reality that while all distinguished lawyers are not born that way, extraordinary attorneys can be developed with the proper investment of time and resources. Thus, the firms that have had the most recruitment and retention successes have been purposeful about making developmental support available to each of their attorneys. Such assistance has enabled the recipients to improve the totality of their capabilities. Those same firms have also committed to providing regular feedback to leverage attorney strengths and enhance their development needs. And they’ve actively explored opportunities to collaborate with those who are different from themselves while simultaneously enabling women and attorneys of color to work on matters with key clients. On the macro level, their success also has much to do with their willingness to accept managerial accountability for creating an inclusive environment as well as their commitment to fully embracing the benefits of a diverse culture.
Outside firms may find it useful to be active in organizations that cater to minority lawyers. Use their events and programs as networking opportunities to identify and recruit qualified candidates. Some examples of such organizations are the National Bar Association, Hispanic National Bar Association, National Lesbian and Gay Law Association, and National Association of Women Lawyers. This is not an all-inclusive list. There are several others. There are also state organizations and law student organizations.
5. What is your greatest diversity-related concern for this industry going forward?
As I mentioned, diversity has to matter and be ingrained in practice—not just done for the sake of statistics.
New socio-political influences, evolving legislation and globalization continue to spawn a dizzying pace of change in the business and legal arenas. To help clients navigate what has become an increasingly ambiguous labyrinth, law firms must be able to draw upon lawyers having the broadest range of knowledge, perspectives and experiences. As Mark A. Cohen points out, a more diverse legal profession should not simply be an aspiration, it has become a necessity. Given the responsibility of lawyers to uphold the letter of law and preserve the quality of justice for all, it’s disheartening to know that opportunities for some attorneys continue to be limited because of their differences. Reports that the legal profession continues to be one of the least diverse occupations may further impede the recruitment and retention of new women and underrepresented minorities. This impediment would be to the disadvantage of the firm as well as to the clients it serves.
We need to hire and retain lawyers from all walks of life, from all cultures, from all races, from all ethnicities, and from all experiences in order to secure the benefits of their differences. Diversity of people informs diversity of views and perspectives. This results in more informed, balanced and generally better decisions and work product. Additionally, especially in litigation, our lawyers need to reflect our juries and jurists.
My concern is that it is taking too long to get there.