Maybe It’s the System, Not the Women, That Needs Fixing

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Diversity

For the last several years, law firms have been touting their efforts to increase the number of women in positions of institutional and economic power, according to Patricia Gillette of JAMS, the largest private provider of mediation and arbitration services worldwide. However, Gillette says in this Bloomberg Law Insights article, the business development training programs they offer to “give women the skills they need to succeed,” for the most part, have not effected any meaningful change. Gillette discusses several action steps she says law firms should consider that may go to the root causes of the lack of women in positions of economic power.

Patricia Gillette

Patricia Gillette

Pat Gillette is one of the country’s leading experts and most sought after speakers on gender diversity and equality. Rated as a top employment litigator and trial lawyer by Chambers and other organizations for 40 years and as a leader and rainmaker in her firms, Ms. Gillette’s legal career focused on solving the most critical business issues of Fortune 500 clients. At the end of 2015, she resigned from her firm to pursue her passion for empowering women through keynote speaking and writing. She was also invited to join JAMS in San Francisco and she now spends some of her time mediating employment cases.

Ms. Gillette is the co-founder of the Opt-In Project, a nationwide initiative focused on changing the structure of law firms to increase the retention and advancement of women. Ms. Gillette has been a Commissioner on the ABA Commission on Women in the Profession, a member of ABA’s Gender Equity Task Force, Co-Chair of the BASF No Glass Ceiling Initiative, and she serves on non-profit boards, including DirectWomen, which is dedicated to preparing women attorneys to serve on the boards of public and Equal Rights Advocates.

For the last several years, law firms have been touting their efforts to increase the number of women in positions of institutional and economic power. And so they publicize and tally the many programs they have to “give women the skills they need to succeed”; they cite to the money they devote to these programs; and they brag about the number of women who participate in these programs. The firms are then put on the “congratulatory list of the day” and accept their awards for a job well done.

What gets lost in these discussions and award celebrations, however, is this: these programs, for the most part, have not effected any meaningful change. In fact, women continue to lag far behind their male counterparts in the power structures of their firms.

If law firms were run like other businesses, they would look at why the time and money they are spending on these programs is not yielding the desired results. But unlike the business model that looks at actions taken and results achieved, law firms are not as self-reflective. Rather, many simply check the box for diversity programs, without regard to the impact of those programs. And so nothing changes.

For example, consider the approach firms have taken to increasing the number of women rainmakers. The firm assumes that it is a lack of training that is responsible for the dearth of women with large books of business. So, the firm selects a training program for “the women.” The training is implemented and completed. When the training does not result in a significant (or really any) increase in the number of women rainmakers, the firm concludes that women are inherently not as good as men at business development—which in some firms means even more training, and in others, means resignation to the “fact” that women will never be in the top rainmaking positions of our firms.

From the firm’s perspective, this conclusion is not necessarily illogical: Men don’t get training and yet they occupy the top rainmaking positions in their firms. Therefore, men must know how to develop business and don’t need training. On the other hand, women are not in the top rainmaking positions in their firms, which must be due to a lack of business development skills. Thus, women need to be “fixed” and that fix is training.

But what if firms used the data they have received from years of training to challenge their underlying premise: that there is some deficiency in women that requires fixing. What if firms tested a new hypothesis: that it may not be the women who need to be fixed?

The Rainmaking Study by Lawyer Metrics, published in December 2013, which examined the personal characteristics that make rainmakers successful, informs on that issue. This study concluded, after testing hundreds of attorneys and interviewing major rainmakers across the country, that the characteristics that make rainmakers successful are not bound by gender.So this raises the question: could it be that the real limitation on women moving into positions of economic power in their firms is based on a lack of access, not a lack of skills? This lack of access can manifest in a myriad of ways—lack of access to potential clients, institutional clients, leadership positions on large cases, first chair opportunities in trials, leadership in deals, etc.

And that lack of access is grounded in the intentional and implicit biases that continue to haunt our firms. These biases are hidden in the shadows of everyday decisions in the workplace that impact the opportunities (and the lack thereof) women have to build client relationships. As a result of this lack of access, women are not given the same opportunities as men to be in positions to develop business.

Does this mean firms should eliminate business development training while testing this theory? Of course not. Business development skills are not taught in law school, despite the fact that these skills are necessary to a successful career. But instead of continuing the business development training programs that have been offered year after year, law firms should reexamine the training they are doing to ensure that it is actually effective.

The fact is that business development training should focus on the two cornerstones of rainmaking: building reputations and building relationships. But too many business development programs currently being used by firms fail to focus on the “selling” part of business development—which, of course, is all about knowing how to build relationships.

So firms should reexamine their business development training programs to ensure they are properly focused, and then offer them to all attorneys, not just women, so we stop reinforcing the myth that women are deficient in business development skills. And all training programs, including those on business development, should always be constantly reevaluated to make sure the training is actually improving the skills of the participants.

At the same time, firms should consider the following actions that may go to the root causes of the lack of women in positions of economic power:

  • Succession planning for institutional client relationships. Traditionally, institutional client relationships have been “given” by the white male responsible for the client to the white male associate or partner of his choice. That needs to change. Instead of letting a partner “will” his/her clients to a successor, without consultation, firms should actively engage partners in a discussion of who will succeed them on an institutional client relationship, with an emphasis on what is best for the firm as well as a focus on selecting women and minorities as successors, since most of these diverse lawyers have been unilaterally shut out of inheriting institutional relationships in the past.
  • Monitoring of pitches and client meetings. Traditionally, partners choose who they will take on formal pitches or outings with potential clients. That has perpetuated more men being given new client opportunities than women. Firms should change that dynamic by monitoring and enforcing gender and ethnic diversity in these business development efforts. Since most clients are focused on hiring diverse teams on their matters, this affirmative monitoring of who is chosen for pitches and who is attending other types of meetings with potential clients works to the advantage of the firm and their clients, as well as their diverse lawyers.
  • Ensuring that women and minorities are given lead roles in significant cases and deals. Statistics show that despite the number of qualified women for lead roles in litigation and corporate matters, women are far behind their male counterparts in getting these roles (" First Chairs at Trial: More Women Need Seats at the Table, by Stephanie A. Scharf and Roberta D. Liebenberg, published by the American Bar Association’s Commission on Women in the Profession). The same is true for minorities. Firms should require that qualified women and minorities be assigned to and given opportunities to be in a lead position in significant litigation matters or corporate deals and that all teams have diverse attorneys on them. (The idea of requiring women and minorities be placed in candidate pools for leadership is based on The Mansfield Rule. This rule is modeled after the Rooney Rule and was one of the winning proposals offered at the Stanford Hackathon in June 2016. The rule requires firms to consider at least one qualified woman for every significant leadership position within the firm. A modest request, but potentially quite impactful as it would increase the visibility of women for these types of positions. This same principle could be applied for various aspects of client development efforts.)
Each of these actions is a potential counterbalance to the biases that have kept women from being positioned to meet and impress clients—opportunities that men have always had. And these steps to level the playing field give law firms the opportunity to test whether there is something else—other than lack of ability or lack of training—holding women back from gaining positions of economic power in their firms.

More importantly, these actions are measurable and quantifiable, as is their possible impact, bringing law firms more in line with the way businesses approach problems: taking actions and assessing impact. And perhaps by taking these affirmative steps to increase the access of women to existing and potential clients, it will become apparent that it is the system, which needs to be fixed, not the women.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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