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Diversity Diandra S. “Fu” Debrosse Zimmermann of Going ‘All In’ on Diversity and Inclusion: The Law Firm Leader’s Playbook, “research demonstrates that organizations that view themselves as highly meritocratic tend to have members with more bias than organizations that do not. People who believe the firm is meritocratic tend to perceive themselves as unbiased and fair, which causes them to succumb more easily to unconscious biases.”14 With regard to the “stigma” argument, although there may be a stigma associated with being hired as part of a diversity initiative or “affirmative action” program, an interesting question remains- is it better not to be hired at all than to be hired and face perception challenges. How do we begin to change the culture towards creating a level playing field if we are not testing and challenging law firms to challenge natural tendencies, deep prejudices, and hundreds of years of bias and tension? The other school of thought, which fuels this article, is based on the assertion that diversity must be realized by targeted and realistic efforts which address the complexity of the issues involved. Challenges in Increasing Diversity Implicit Bias A major challenge to the inclusion of diverse lawyers in majority white male defense and plaintiff firms is the issue of implicit or “confirmation” bias. Nextion, a leadership consulting firm, undertook a study with “the hypothesis that confirmation bias in a supervising lawyer’s assessment of legal writing would result in a more negative rating if that writing was submitted by an African American lawyer in comparison to the same submission by a Caucasian lawyer.”15 In Nextion’s study, Nextion drafted a legal memo with the assistance of five (5) partners from five (5) different law firms. The legal memo intentionally included twenty-two (22) different errors. The same legal memo was provided to various firms for a writing analysis. Half of the firms were told that the author was black, and the other half were told that the author was white. The exact same memo averaged a 3.2/5.0 rating when the author was believed to be black, and a 4.1/5.0 rating when the author was believed to be white. This implicit or confirmation bias serves as a barrier in the retention of diverse candidates, and serves to support wide-spread criticism among many that different standards are utilized in evaluating the competency and contributions of diverse lawyers. Exclusion The feeling of “exclusion” among many diverse lawyers also may serve as a barrier to diversifying law firms. In ABA research, sixty-two percent (62%) of women of color and sixty percent (60%) of white women felt excluded in formal and informal networking opportunities, but only four percent (4%) of white men felt excluded.16 Diversity does not mean that diverse candidates meld into traditional attorney roles, but rather that all that makes the lawyer diverse is included into the culture of the law firm. This approach to diversity relies upon inclusion in the real sense, and sheds traditional notions of “integration” which require that non-white or female lawyers shape shift into the style and culture of their white male counter-parts. This approach to inclusion often elicits a response from majority stakeholders who comment that while they are not opposed to inclusion of minority perspectives, the economic and competency realities of the profession continue to serve as barriers. Yet, inclusion is not mutually exclusive of competency and client development and such an analysis reveals implicit biases. In my career I have found that these comments often speak to deep rooted inherent prejudices about competency and the ability of diverse lawyers to develop business. Aside from the emotional impact of exclusion on the diverse lawyer, exclusion has a real impact on case development and ultimately, revenue. As plaintiffs’ lawyers, we socialize – we socialize to develop business, to resolve cases, and to blow off steam. The exclusion of diverse lawyers from happy hour, golf trips, and birthday parties serve to prevent diverse lawyers from benefitting directly from the same business development and professional advancement opportunities that further the careers of their white male counterparts. As noted by Frank Dobbin in the Harvard Business Review:17 One reason diverse employees need formal mentorship programs, as Georgetown’s business school dean David Thomas discovered in his research on mentoring, is that white male executives don’t feel comfortable reaching out informally to young women and minority men. (emphasis added) This analysis rings true in the legal profession as well. Strategies to Realistically Increase Diversity in the Law Firms Evaluate Your Law Firm Evaluating a firm’s culture is the most difficult and important part of creating a 12 Birmingham Bar Association


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