Published: January 2023
Written by: Bryan Anderson

Does diversity benefit law offices in quantifiable ways? Law offices — including private firms, corporate, government and not-for-profit law offices — are service businesses. More profitability is better for firm owners. Better results serve clients and the firms. Firms want to meet clients’ preferences to win business. What evidence is there whether law firm diversity supports these interests?

Diverse law firms make higher profits

Statistical analysis of law firm data shows that more diverse firms earn more money.

Dr. Evan Parker specializes in statistical analyses for the legal market. His work has been cited in the American Lawyer, the ABA Journal and the Canadian Lawyer. In a 2018 study controlling for a variety of factors, Dr. Parker concluded with a high degree of statistical confidence that diverse law firms make higher profits. Missing in Action: Data-Driven Approaches to Improve Diversity, Evan Parker (2018).

Dr. Parker’s analysis shows that having diverse legal teams was a significant characteristic factor for law firm profitability, ranked after law firm prestige, attorney leverage, geographic concentration and whether a firm performs hedge fund/private equity work. Having diverse legal teams ranked ahead of practice area concentration, or having corporate, energy and environment, or merger and acquisition practices.

Dr. Parker concluded that partners take home significantly more money at American Lawyer 200 firms with high diversity. The median diversity “dividend” reflected in the difference between firms’ partner distributions showed that the gap between low and high diversity firms approaches $180,000 per year per partner.

Diversity improves litigation settlement and trial results

Statistical analysis of real-world data shows that diverse female-male civil trial teams are more successful than male-male civil trial teams. Lack of diversity was associated with lower likelihood of success and worse trial outcomes.

Attorney, professor and researcher Randall Kiser of the consulting firm DecisionSet conducted a study of 40-plus years of data comparing final settlement offers versus trial verdict and damage awards in both New York and California. Professor Kiser assessed whether trial team gender composition could predict win rates, decision error rates, and settlement positions.

Professor Kiser’s approach to assessing trial team successes and errors focuses on demands, offers and awards in cases that did not settle. Cases that do not settle and are tried resulting in an award have three possible outcomes in his method of assessing results:

• Plaintiff error. The award is lower than the defendant’s offer.
• Defendant error. The award is higher than the plaintiff’s demand.
• No error. The award is somewhere between the final offer and the final demand.

Professor Kiser’s statistical analysis showed that female-male defense trial teams won 7% more of their cases than all-male teams, had error rates that were 9% lower, and underpriced their settlement offers far less frequently, amounting to an average savings of $2.6 million in defendant liability. His analysis showed similar benefits of mixed female-male trial teams for plaintiffs.

Professor Bill Henderson at Indiana University Maurer School of Law commented on Professor Kiser’s findings as showing that “[s]tated another away, lack of diversity is really expensive.”

Client demands for diversity

Diversity is a competitive advantage over other firms in obtaining significant business clients and matters.

Many companies set diversity requirements for outside counsel.  For example, Facebook’s legal department requires that women and ethnic minorities account for at least 33% of outside counsel. During 2021 the Coca-Cola Company increased its target for minority and women-owned law firm legal spending from 1% to 10% of its outside counsel spending.

Beginning in 2019 more than 200 company chief legal officers signed on to an open letter prioritizing spending on firms with strong diversity and inclusion programs, partnering with law firms to promote diverse talent at every stage of the pipeline, and hiring women and minority-owned firms.

Conclusion

Data shows that more diverse firms are more profitable and that diverse teams get better results. More diverse firms have a competitive advantage in obtaining work from clients who value and increasingly demand diverse teams.

Diversity in law offices is also considered desirable for qualitative reasons. These include accessing a wider and deeper attorney talent pool, growing a larger network of firm connections useful to clients and for firm business development, language capabilities, and the firm and its attorneys being more relatable to more diverse clients.

Perhaps these qualitative factors help account for the financial benefits of diversity discussed in this article. Research would be useful in assessing the quantitative dollars and cents effects of these benefits.

The bottom line is that law offices seeking improved financial performance and results should foster diversity in their offices because doing so is a good business decision as well as the right thing to do.

Bryan Anderson is a volunteer hearing officer for the School District of Palm Beach County and assists the Legal Aid Society on fair housing civil rights matters.

Published: December 2022
Written by: Nalani Gordon 

Conversations surrounding diversity and inclusion have become trending topics in recent years. Race, gender, and sexual orientation are usually at the forefront of these conversations. However, physical and mental disabilities are not generally included in the diversity conversation. The reality is that, at every level, the legal profession has significant work to do as it relates to creating an inclusive environment for people with different abilities.

The Center for Disease Control and Prevention reports that 61 million adults in the United States live with a disability. This means that 26% of the population, or 1 in 4 adults, has a disability. Despite such high numbers, the National Association for Law Placement’s 2021 Report on Diversity in U.S. Law Firms indicates that only 1.22% of the lawyers surveyed self-identified as having a disability. The Report notes the scarce numbers of attorneys reporting disabilities but offers no theory or possible explanation for the statistic. One might wonder whether the Report’s numbers are a result of the fact that lawyers are uncomfortable with disclosing their disability or are living with an undiagnosed disability. The more pressing question is: What can we do to eliminate the barriers and social stigmatization for individuals with disabilities who want to practice law?

At the law firm level, employers can intentionally promote programs that benefit attorneys with disabilities which will also, in many instances, benefit all attorneys by creating a more accessible work environment. The American Bar Association (ABA) has implemented a pledge which calls on legal employers to affirm their commitment to diversity, specifically including people with disabilities. The ABA’s guidance offers practical steps that employers can take to foster a welcoming environment, such as starting an affinity group, conducting disability awareness and bias elimination training, and offering scholarships and fellowships for law students with disabilities. By taking practical steps toward embracing individuals with disabilities, legal employers can make a tangible impact on workplaces by bringing disability inclusion to the forefront of their diversity efforts.

Recently, the Florida Bar’s Legal Fuel Podcast featured neurodiversity expert, Haley Moss for a conversation on “Understanding Neurodiversity in the Practice of Law.” Haley (who happens to be one of my favorite law school classmates) is recognized as Florida’s first openly autistic attorney. She offered profound insight regarding neurodiversity and disability inclusion in the legal profession. One of the most insightful tidbits from Haley’s interview is Haley’s comments regarding the idea that we generally think about disabilities from the perspective of offering accommodations under the Americans with Disabilities Act. But legal employers can do more to support diverse attorneys. Most importantly, law firm and law department leaders can work to create a culture of acceptance and openness so that people with disabilities can feel comfortable with sharing their unique contributions and disclosing their individual needs.  

As a profession, the legal community is making positive strides toward inclusion. In September 2020, the Florida Supreme Court amended the Rules Regulating the Florida Bar to remove the rule that treated members of the Bar who had a history of “drug, alcohol, or psychological issues” as conditionally admitted members of the Florida Bar. The rule now broadly allows the Bar to admit members under consent agreements without any reference to psychological issues. However, this rule change is recent. The vast majority of attorneys currently admitted to the Florida Bar were admitted at a time when disclosing a mental or psychological disability could have negatively impacted their admission to the Bar. As Haley Moss notes in her interview, legal professionals, including members of the judiciary, would benefit from additional education regarding working with diverse clients, witnesses, and co-workers.

At the individual level, each of us can educate ourselves on disabilities and biases. We can also do our best to listen and treat all of our colleagues with dignity and respect. Haley’s interview is an excellent resource on the appropriate language and approach for conversations with colleagues who have disabilities (Hint: listen without judgment and ask how you can support the individual). Our clients and businesses benefit from working with attorneys with disabilities because each person brings a talent and perspective that advances our clients’ interests and our profession as a whole. Inclusion for all attorneys, including attorneys who have disabilities, is the key to ensuring that the Bar is reflective of the communities that we serve.

Nalani Gordon is an associate at Gunster. Her main areas of practice are employment law, Title IX, and business litigation.

Published: November 2022
Written by: Jason McIntosh 

The social and economic benefits of a diverse, inclusive, and equitable legal industry have been highlighted, discussed, and emphasized frequently in recent years.  The Florida Bar recognizes that minorities are significantly underrepresented in the legal profession when compared with the general population.  Fair representation and equal access are crucial to an unbiased system of justice.  Tangible progress towards improving that disparity has been shown in data collected by various organizations.  But what remains discouraging is how much that progress slows each step up the legal profession’s ladder.

According to the 2020 Census, Florida’s race and ethnicity demographic breakdown was 73.2% white, 17.2% Black, 3.9% Asian with 26.5% of the population identifying as Hispanic or Latino.

According to the Florida Bar Economics and Law Office Management Survey, in 2021, 81 percent of Florida Bar members were white, 11 percent Hispanic/Latino, 4 percent Black/African-American, 1 percent Asian, and 3 percent were categorized as Other.

At the law school level, the numbers have shown the greatest level of progress.   Over the last 20 years at least 1 out of 5 law school students can be classified as belonging to a racial or ethnic minority, according to data collected by the American Bar Association (ABA).

As one may expect that progress has revealed itself in overall gains year over year in the placement and hiring of diverse candidates at summer associate/clerk level.  According to the National Association for Law Placement (NALP) Report on Diversity at U.S. Law Firms, this year’s summer associate class at U.S. Law firms was ‘the most diverse ever’.   The percentage of summer associates of color grew by nearly 5 percentage points in a single year, the largest gain the 29 years that NALP has been tracking the information.  Women made up more than half of all summer associates for the fourth year in a row, and the proportion of LGBTQ summer associates increased to 8.41% which was also a historic high. 

As noted by NALP Executive Director James G. Leipold in the report “The challenge for the industry is to retain, train, develop, and promote this talented and diverse pool of new lawyers so that 5 years from now the associate ranks as a whole reflect similar diversity and representation, and 10 or 15 years from now we can celebrate a partnership class that is similarly diverse.” 

And therein lies the problem.  Progress is much slower amongst the associate ranks and certainly when it comes to partnership.  Among the firms that submitted data to NALP, lawyers of color accounted for less than 28% of all associates in 2021, and less than 11% of law firm partners.  Additionally, when you break down the racial demographics even further the year-over-year growth among Black associates and partners all lag behind the corresponding numbers of Asian and Latino attorneys.    Black lawyers accounted for 5% of associates in 2021 and 2% of partners. The data shows 6.1%/2.86% and 12.5%/4.3% for Latinos and Asian attorneys respectively.

The numbers are even more alarming gender dynamics are accounted for.   According to Leipold, “Less than 4% of partners are women of color… [with] Black and Latinx women each continued to represent less than 1% of all partners ins U.S. law firms”

The optimist in me is hopeful that despite the incremental increases that the trend continues upward as firms continue to see the financial and social benefits of diversity, equity and inclusion.  However, the cynical part of me sees the recent data as a potential outlier in response to much of the civil unrest and many social justice movements that we saw after the killings of George Floyd, Breonna Taylor, and others in 2020. 

In the aftermath of some of the protests, demonstrations, and demands for change, many corporations made it a priority to increase the diversity of their personnel, the spotlight of minority-created content services and goods, and increase their support for minority businesses and charitable causes.  As often happens with our news cycle hot button issues are out of sight and out of mind.  It’s easy to focus on an initiative when it’s the current event, but an issue that is as complex as this will take years of intentional and deliberate action to correct.

There is no doubt that the disparity has been recognized and efforts are being made to rectify the issue.  However, making sure these changes continue to trickle up the legal hierarchy is where the real challenge lies.   

As co-chair of the Palm Beach County Bar Association’s Committee for Diversity and Inclusion and as a Black partner at a reputable firm in the county I want to prioritize taking this challenge head-on.  That is why we’ve created a new “Law Firm Outreach” subcommittee chaired by Amelia Jadoo.  We have plans to try and identify, spotlight, and give a platform for qualified diverse attorneys and help to put them in positions to have success.

Jason McIntosh is a partner at Lytal Reiter Smith Ivey and Fronrath, and he practices in the area of Personal Injury

Published: October 2022
Written by: Marc Hernandez

This year the President of the United States appointed Justice Ketanji Brown Jackson, the first female African American justice, to the U.S. Supreme Court. In addition, the Governor of Florida appointed Justice Renatha Francis, the first Jamaican American and second black woman, to the Florida Supreme Court. These appointments are not only a success story for the justices themselves but also a success story for diversity in the judiciary. But whether this represents the start of a new trend, or a relatively isolated occurrence remains to be seen.

The American Bar Association recently released its annual profile of the legal profession for 2022. In its 124-page report, the ABA analyzed, among other things, the diversity of the judiciary. The ABA found the “federal judiciary has become increasingly diverse over time,” especially since 2021. However, the ABA explained that progress was uneven, and “[d]iversity varies year by year.” For example, from 2020 to 2022 the percentage of African American or black judges on the federal bench increased slightly from 9.5% to 11%. In the same period, the representation of Hispanic federal judges grew from 6.5% to 7.7%, while the share of Asian Americans grew from 2.6% to 3.8%. Finally, the percentage of female federal judges rose from 27% to 30%. 

At first glance, these statistics indicate positive, albeit incremental progress at increasing diversity in the judiciary. Yet, the numbers need context. Although black judges comprise 11% of the federal bench, they are underrepresented compared to the total black population in the U.S., which is 13.6%. Hispanics fare worse as the percentage of Hispanic federal judges, 7.7%, is less than half that of their share of the U.S. population, 18.9%. Likewise, women account for 51% of the U.S. population but only 30% of federal judges. Three states—Nebraska, North Dakota, and Idaho—have absolutely no female federal judges.

Some may argue that if minority judges are compared to the pool of U.S. lawyers—rather than the entire U.S. population—they are not underrepresented. The ABA concedes this point is factually true, but the implied conclusion—that diversity is not an issue and full representation has been achieved—is not. The reason the percentage of Hispanic federal judges exceeds the percentage of Hispanic lawyers—but not the percentage of all Hispanics in the U.S.—is because the percentage of Hispanic lawyers is exceedingly low to start. Only 5.8% of all lawyers are Hispanic even though 18.9% of Americans are Hispanic. Of course, this begs the question: why is the percentage of Hispanic, black, female, and other minority lawyers lower than their share of the U.S. population?

We should all be concerned with the answer to this question if we hope to eliminate the vestiges of racial prejudice and other unjust systemic disadvantages. Reasonable people can disagree on the best policies to achieve that objective. For decades, one tool has been race-conscious admissions policies at universities and other educational institutions. Under current law, universities may consider—i.e., they are not required to consider—race or ethnicity as one of many factors in the process of evaluating each applicant as an individual. As the U.S. Supreme Court held in Grutter v. Bollinger, universities have a compelling interest in attaining a diverse student body and the educational benefits flowing from that like promoting cross-racial understanding, breaking down racial stereotypes, and enabling students to better understand persons of different races, promoting learning outcomes, preparing students for an increasingly diverse workforce and society, and preparing students as professionals.

However, the continued validity of Grutter, which was a 5-4 decision, is now in doubt. This term the U.S. Supreme Court is poised to reconsider Grutter in two cases brought by Students for Fair Admissions against Harvard and the University of North Carolina. In both cases, the petitioner explicitly asks the supreme court to prohibit the use of race-conscious admissions policies by universities. The ABA has filed an amicus brief in opposition and asked the supreme court to affirm Grutter. The ABA maintains it has “a profound interest” in the two cases because “[r]acial and ethnic diversity in the legal profession cannot be produced without diversity in undergraduate institutions and law schools that serve as the pipeline to the legal profession.” In other words, law schools are the training grounds for future lawyers, and if fewer diverse students are admitted to law schools then fewer will have the opportunity to graduate, practice, and become judges, professors, or partners later in the professional pipeline.   

Regardless of the Supreme Court’s eventual decision in the Students for Fair Admissions cases, most if not all should agree with the ABA’s view that a diverse bench and bar are critical to minimizing implicit bias among lawyers, and to “inspiring greater public faith in the rule of law.” The methods for achieving that diversity may change but the goal should not.

Marc Hernandez is a board-certified appellate attorney at Lytal, Reiter, Smith, Ivey & Fronrath, and a Palm Beach County native.