Innovation is impossible without diversity
Introduction
Law firms, legal departments and technology companies do not represent the full range of identities in our society. Women continue to be kept out of leadership positions. Black and minority ethnic participation is almost zero. Life is still hard for lesbians and gays, while bisexual and transgender representation is near non-existent.
The legal industry is also failing to innovate. There are pockets of change. Looking at the market as a whole though, matter delivery is as it was 20 years ago. Outside of some very small pockets (eDiscovery, data management systems), there is really no technological progress. The picture is the same in in-house departments.
I explain here why the absence of diversity is causing the failure of innovation.
The gap where innovation would be
Innovations means doing things in a better way than before. That can be broken down into two essential features:
- A change occurs,
- That change is an improvement.
The focus to date of legal innovation has been culture and awareness, but there has not been the penetration into matter delivery.
Even if we take as an example eDiscovery for US litigation which is considered the most mature innovative technology market, the tech providers will tell you that only around 5% of cases use structured or unstructured learning techniques such as visualisation or continuous active learning. The predominant method of delivery remains keyword searches and paralegal review. Which is an improvement on hardcopy and associate review, but has been standard practice since 2000 or so.
Given awareness has increased, and options have increased, why has behaviour not changed?
It’s generally because people don’t like the changes. They transform the job into something lawyers find less interesting, and undermine the prestige of the profession. When a continuous improvement manager explains that legal products need to be optimised as if they were manufacturing production lines, that doesn’t sit well with someone who takes pride in the social status of the profession.
There are more fundamental challenges this sort of change would bring. Legal service delivery would become democratised – clearer knowledge systems and technology would mean more people could deliver the services. In the computer science we are already seeing tensions rise as superstars skip university altogether and go directly into the professions. You hear this argument quite often, but in the guise of concern about the professional development pathway. AI for due diligence is often opposed on the basis that junior will see fewer contracts and learn less, same for proof reading technology or translation. Those old enough will recall this being used to object to document comparison software initially being introduced.
That sense of ‘like’ and ‘not like’ isn’t an inherent truth. A workplace of AI and modernity is no worse than one with mahogany shelves and leather books. The issue is that, by definition, people in charge make their organisations the way they like them. Unless different people are in charge, things won’t be any different.
It is here that the absence of diversity starts to be felt as the driver of the innovation gap. The profession reflects the preferences of a subset of society – cis straight white men from wealthy background who were educated at one of a very small number of institutions.
There is also a second mechanism by which the lack of diversity impacts innovation. Innovation projects in law often don’t land as lawyers do not have the professional skills to land them. Their life experiences and the education/training they are provided with equip them to be academics – legal researchers. But not to be project managers, or commercial negotiators, or risk assessors. However, people of colour who have had to negotiate their way into privileged spaces, or women who have balanced motherhood and career, or LGBT people who have had to decide the pros and cons of coming out to a group of friends, have inherently strong skills in these areas. Without those capabilities, the conversion from ideation/awareness to change won’t happen.
The mechanism for discrimination
One of the apparent contradictions in the profession is how the institutions remain so monochrome when they invest so much time and energy into speaking about diversity. To understand this you have to understand the mechanism by which discrimination primarily takes place, which is the concept of ‘fit’.
Almost all professional selections (like job hiring or promotion) involve some sort of subjective assessment process to ensure that the person meets the values of the firm. This is either implicit, or is expressly covered as a recruitment criteria and handled in a ‘fit’ interview. This aspect of partner selection was previously called (openly) the ‘clubability’ assessment – would this person fit in my gentleman’s club.
I think we can dig even further down into what ‘fit’ is, and it is assessed on two criteria.
Affinity is one – do we get on with this person? And you are more likely to get on with people who share your interests. They like football like you do. They listen to classical music. They are into cycling. They ski. Enjoy foreign holidays. Things that are relatively niche activities in society. That affinity where it exists creates trust, opens mentoring opportunities, and allows you to have a quiet word in the ear when you have issues.
Judgement in the second. Making the right decisions is seen as the primary objective skill based factor in picking leaders. What else is there? You can’t make them run a 100m and pick the fastest. But what is the best judgement? We’re likely to see someone as having made the ‘right’ decision if they make the decision we would have made if we were in their shoes. Again therefore, when we select for judgement, we are just selecting for similarity to ourselves.
What you’re doing isn’t working
- Either you have achieved diversity (bravo), have never tried (possible) or what you have done has not worked (likely). If your organisational diversity is not what you would like, you should probably accept your approach to date has not been the right one.
- First, let’s begin by trying to eliminate fit as a selection criteria. Hire people whether or not you like them. Decide who can do the job best, regardless of whether they annoy you. I recall one interview where my co-interviewer wanted to exclude a candidate for ‘setting their teeth on edge’, despite their apparent qualifications. I found many years later that that candidate had aspergers.
Secondly, when they come work for you, make a workplace where people you like are not advantaged. Note I did not say “where people you do not like are disadvantaged” - stop discriminating in favour of people you like. In other words, try not to have work social events (at all, I would suggest), try not be friends with people outside of the office (or even worse, inside of the office), and try to find a way to accommodate a social approach that is tailored to each individual. By that last one I mean, some people love chit chat, some people hate it – observe and embrace.
Thirdly, approach “judgement” in a different way. You should actively seek people who solve things differently to you or propose alternatives.
Finally, accept that this will mean some friction. Things will be less comfortable for all of you, you will not have friends at work, life will be more clinical and businesslike – that I’m afraid is just the price of success.
