How Design Thinking Can Improve Diversity in the Legal Industry
Diverse attorneys in our profession have watched the same story unfold, again and again.
An African American attorney, for example, accepts a job at a law firm only to find that while law school lacked diversity, the firm is worse. There are no leaders of color. Few are women. The work is 24/7 and even with some reassurances, the slog toward partnership seems daunting, with no guarantee for equity partnership.
This is a challenging environment for any attorney. But for minorities — people of color, women, and LGBTQ — these challenges are compounded because they have few if any high-ranking role models at the firm to offer guidance for how they can navigate the complex system, never mind a path toward firm leadership.
The story is familiar, and one we’ve lamented before. Attorneys in both law firms and in-house in corporations do not reflect society and, most importantly, do not reflect the customers of the corporations they represent.
A law firm rich with diversity is a business imperative. And yet too many minority attorneys still end up leaving law firms, believing it not a viable path. Instead of the attorney, firm, and client each receiving what they need, none do.
We know diversity is a problem. Why, then, can’t we solve it?
In the language of design thinking, lack of diversity is an example of a “wicked problem.”
Developed within the sphere of social planning, the wicked problem is a cultural or social challenge defined by interconnected elements, an indeterminable scope, and a regular fluctuation of characteristics, thus defying the possibility of reaching a singular solution. Diversity in the legal industry displays these characteristics because it connects directly to other social problems and institutions, such as education, the economy, and race, each of which possess their own challenges.
Year-end data from 2015 shows exactly how wicked the diversity problem has become for the legal industry.
Despite efforts to counter the trend, the profession has actually lost ground, with female and African-American associates down the past five years. And there is a lack of diversity in leadership positions within law firms. In 2015, despite non-whites comprising nearly 23% of Americans, minorities accounted for just 7.5% of partners in the nation’s major law firms and, at 2.6% of partners in 2015, minority women continue to be the most dramatically underrepresented group at the partnership level.
Partnership in law firms is just the first indication of a problem. Representation of attorneys of color on law firm executive or management committees was at merely 7.1% in 2014 according to a MCCA/Vault report, showing less than a 2% improvement in almost 10 years.
With negative progress in attracting, retaining, and promoting diverse attorneys, and a lack of diverse attorneys in leadership roles, it is clear we need different solutions for this problem.
But the source of the problem is complicated in the wicked sense. Is it a lack of an inclusive culture, for instance, or diverse leadership, a result of different culture, behaviors or communication by diverse and women attorneys, and/or implicit or overt bias?
A variety of people and organizations have made significant diversity and inclusion efforts in the industry: law schools, student organizations, law firms, corporate diversity programs, bar associations, diversity and inclusion organizations, legal industry consultants, and others. They push a variety of programs, such as pipeline, mentorship, professional development, and networking opportunities.
These questions of diversity within law schools, law firms, and in-house departments are exactly the types of interwoven elements that create a wicked problem. In the end, we have an interconnected web of community, a vast array of theories explaining the reasons for our failures, and plenty of proposed programmatic “solutions” to fix the issue. However, it is clear — we have not found the right solutions.
Design thinking offers a way to address our industry’s wicked diversity problem.
For those yet unfamiliar, design thinking is a discipline that uses design methods to match the needs of one or more users with a feasible and viable business strategy that provides value to that user. It can be a powerful tool to innovate new design solutions for the delivery of legal services, and, in the case of diversity, employee experience.
One prominent example is an organization, IDEO, using design thinking to revamp the Los Angeles County voting system. At Seyfarth, we use design thinking to improve our delivery of legal services through SeyfarthLean.
If design thinking can simplify complex problems facing governments, corporations, and others, perhaps it can help us devise solutions for the lack of diversity in our profession by lending a new set of tools to think about the problem.
The user must come front and center
In design thinking, there is a relentless focus on the user experience. In product design, it is typically easy to identify the “user” of a product — the person who literally uses the Dyson or the iPad.
In this case, the focus must be on the people at the center of the problem we want to solve — the diverse attorneys whose pathway through the profession is stifled. We must think of them as users of the legal industry, and approach the lack of diversity in the profession from their point of view, using a process that builds empathy around their experience.
This reveals a problem for the legal industry.
Organizations focused on business law — corporate legal departments and law firms — do not consistently build empathy around employee experience.
Many law firms approach their organizations in the same way they approach clients, believing their attorneys — especially junior attorneys — are lucky to work for them. They fall victim to adopting a purely organizational- and production-focused view of their attorneys, often looking harder at the number of hours billed than the employee experience.
This is the same attitude that leads some law firms down the wrong path with clients — they believe clients are lucky to receive their “artisanal” services at exorbitant prices in a manner defined by the firm, not the client.
This attitude cannot persist, with clients or our talent. In law firms and corporations, our people are our biggest asset. Law school graduates have many options both inside and outside of traditional career paths in law. A long-term career in BigLaw or in-house may not be the only attractive option for bright, diverse attorneys, and given declining law school enrollment, life in legal may no longer be the most coveted career path for diverse and talented college students.
For all these reasons, failing to take a user-centric view when designing for employee experience in law firms is hugely problematic, and not just for reasons related to diversity in the profession.
Therefore in order to improve our level of diversity, we must consider the experience of diverse attorneys throughout their career path — and the specific impediments they do not overcome.
Modeling a diverse attorney’s journey through a broader system
Design thinking also encourages creating models to examine problems, using stories shared by users and themes from those stories to develop a framework for proposed solutions.
At Seyfarth, we have modeled a variety of solutions in an effort to improve diversity and inclusion in our firm. One such example: we evaluated the attorney experience in law firms during points of transition (i.e., from junior to managing associate, from senior associate to partner), and have made strides in re-thinking the way we support attorneys on their career path.
As a result, we instituted a successful “triad” mentoring system unlike others we’ve seen, while also pursuing various multi-disciplinary projects involving client teams.
For systemic change, however, we must examine the entire legal industry and the potential barriers a diverse person might experience. We should also think of the legal industry as just one that faces the same issues. We are not alone, so when modeling possible solutions, we should draw from a variety of sources — across other industries, perspectives of thought, and across the full spectrum of the law, including majority attorneys, as well as other legal professionals.
We must be open to experimentation and failure
Finally, design thinking is useful for examining this problem because it encourages prototyping different ideas, often to failure. In businesses other than law firms, you see ample evidence of this concept. Companies focused on design thinking dedicate resources to research and development. People in design-centric organizations are allowed to prototype a new idea and, importantly, fail without judgment.
Failure is not often allowed in law. We are expected to win at all costs in whatever project we are engaged in — the deal, the litigation, the argument. Lawyers are risk averse and uncomfortable with ambiguity.
Our significant strength as a profession, however, is that lawyers are masters at developing new and creative ideas. We create and try new arguments in litigation every day, and propose new and innovative business solutions for our clients within legal frameworks. While lawyers are often willing to brainstorm out-of-the box ideas, issues arise when those ideas don’t achieve the desired result.
This coupling of an aversion to failure with creative idea generation can therefore impede progress.
Our fear of failure stymies innovation and arrests our creativity, preventing us not just from executing our great ideas but even suggesting new and different ones that might fail.
In prototyping solutions to improve workplace conditions for everyone in our organizations and to ensure the profession propels diverse attorneys toward success, we need to allow bad ideas to surface without judgment, embrace open dialogue without fear, and cultivate bias toward action. We need to be open to prototyping together, across organizations, with a willingness to try something new.
Using design thinking to solve the wicked problem of diversity
If we were to begin a design challenge to improve diversity and inclusion in the law, what should it look like?
First, we should focus on the diverse attorney experience. Through the lens of the “user,” we could include development of experience maps that show the career path for diverse attorneys who wish to pursue certain types of work within the profession. A mapping process of that type could help educate leaders in the profession to understand, in a truly empathetic way, the barriers diverse attorneys face. It could also explain to diverse attorneys how they are progressing along their career path while opening our collective thinking to alternative and lucrative career paths in law that differ from the stereotypical.
For modeling, we should create multi-disciplinary teams — ones that include lawyers, legal professionals, and professionals from outside the law. We need input from many perspectives, and we must be willing to prototype quickly with new and wacky ideas, without judgment.
We then must tackle some of the thorniest issues facing us as a profession. They include:
- Lack of enough flexible work solutions for all business lawyers, which likely means faster progression away from the billable hour model and alternative routes to partnership
- The lack of diverse leadership across the profession, including elected leadership roles within firms
- Retention of diverse attorneys in law firms through associate positions and into partnership
- A shrinking pipeline of diverse students that threaten future gains for diversity in corporate law
A new design system for how the legal industry addresses the lack of diversity and inclusion likely means a drastic change in how we address status quo — and a new system that benefits everyone.
We should embrace that change. If we do not, we face dangerous consequences. Lack of diversity impacts our ability to relate to clients and their customers, deliver innovative solutions, and deliver creative arguments in the courtroom, or in business.
Design thinking is a power tool in a change agent’s toolbox that may help our goals of improving diversity in the profession. Let’s use it to suggest better, creative, empathetic, and judgment-free solutions that avoid the same old story that ends with diverse attorneys leaving the halls of our firms and corporations. Design thinking might help to solve this wicked, wicked problem.
And please return March 16 for our next post by Steve Poor.
More on Design Thinking from Rethink the Practice
- Lean by Design, by Steve Poor
- Why Design Matters to Seyfarth, by Josh Kubicki
