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Sybil Procedure: Overcoming bias requires institutional change

This piece is about the strange twists and turns that our careers take.

These days, about 20% of my practice focuses on diversity, equity and inclusion. I help clients conduct assessments and tailor programing to address identified issues or achieve diversity goals. But here’s my confession: My route to this good work has roots in my own selfishness.

Almost six years ago, I realized that clients weren’t hiring women to run cases. There were lots of women in support roles (running discovery, second-chairing trials, writing briefs, etc.). But there simply weren’t a lot of women leading the trial teams. Federal Judge Shira Scheindlin summarized the problem in a 2017 New York Times op-ed titled, “Female Lawyers Can Talk, Too.”  Specifically, she cites a New York State Bar Association report concluding that “women were the lead lawyers for private parties barely 20 percent of the time in New York State’s federal and state courts at the trial and appellate levels.” Tellingly, these numbers also reflect the fact that, “[w]omen were twice as likely to appear on behalf of public sector clients.” In other words, private-sector clients aren’t hiring women to lead their cases. This depressed me because it’s what I want to be doing. So I set out to try to figure out why women private-sector clients weren’t hiring women to lead their cases.

I dove into decision-making research, reading everything from Daniel Kahneman to Jennifer Eberhardt (both of whom I recommend!). My search led me to conclude that unconscious bias was playing a pretty big role in the selection of lead counsel. When the media and Hollywood tell us that a good lawyer looks like Gregory Peck or Tom Cruise, it’s hard for the casting folks to hire Halle Berry for the role.

I decided I needed to share my new knowledge about bias so that our profession could combat it, and I could lead case teams. But along the way, my deep dive into the research on bias in the legal profession taught me something much more profound. Sure, our profession is a difficult place for women. But I learned that it is even worse if you are a person of color.

At every step of our profession — from hiring talent to giving employee feedback to promoting people to partner — attorneys of color face real obstacles to achieving success.

When it comes to hiring, for example, multiple resume studies suggest that employers are more likely to call back applicants with white sounding names than those with Black sounding names.  And companies are more than twice as likely to call diverse applicants for interviews if they submit “whitened” resumes than candidates who reveal their race.  Notably, this practice is just as strong for businesses (and law firms) that claim to value diversity as those that don’t.

Fair promotion is difficult because our profession fails to evaluate diverse attorneys fairly. In one powerful study, scientists examined the impact of bias on our perceptions of associates’ writing skills. Researchers provided law firm partners a memo from a hypothetical third-year associate who attended New York University (NYU) Law School. The memos were exactly the same and contained 22 errors, including spelling and grammar errors as well as analytical errors. Half the partners were told the memo was written by a Black associate named Thomas Meyer while the other half were told that the author was white. The exact same memo averaged a 3.2 (out of 5.0) rating when the partners thought the author was Black and a 4.1 rating when they thought the author was white. Even worse were the comments. The Black author was told “needs lots of work” and “can’t believe he went to NYU,” while comments for the white author read that the writer “has potential” and “good analytical skills.”  Notably, the comments for the “white author” were encouraging, while the comments for the Black author didn’t even offer suggestions for improvement. “Can’t believe he went to NYU,” is just an insult.

Retention of diverse talent is difficult when people feel like they aren’t being reviewed fairly. Cleary Gottleib, for example, actively recruited and hired more than thirty Black associates between 1989 and 1996 but was unable to retain any of them. To understand why, the firm interviewed former associates who mentioned a “subtle yet pervasive tendency by almost exclusively white partners to favor those who looked like themselves.”  In light of the study discussed above, you can see why people might feel this way.

So what do we do about this? I still want to lead cases, but right now, I’m spending 20% of my time helping law firms become more diverse, equitable, and inclusive. I’ve learned that it’s not enough to simply teach implicit bias CLEs. Research, in fact, suggests that it is very difficult for humans to simply will themselves to eliminate their biases, even if they know they have it. Real change requires changing our institutions. We have to change how we hire and where we recruit talent. We have to change our feedback processes to ensure that associates are receiving fair and helpful feedback. And we have to make sure that diverse talent feels welcome and included in law firms.

I never thought that this mission would become part of my life’s work. But, on the way to achieving my goals, I took a turn down a different path. And I’m so glad I did.

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on complex commercial and intellectual property disputes. She can be reached at sdunlop@greeneespel.com.

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About Sybil Dunlop

Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at sdunlop@greeneespel.com.

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