Beyond The Billable Hour™
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Some Thoughts on
Tim O'Brien's article in the March 19, 2006 issue of the New York Times has created quite a stir. It was the most emailed Times article during the 24 hours after it was published. Legal bloggers, including Carol Elefant at http://www.myshingle.com/ , Bruce MacEwen of http://www.adamsmithesq.com/blog/ , The Happy Feminist http://happyfeminist.typepad.com/happyfeminist/ , Preaching to the Perverted ttp://www.gulbransen.net/preaching/ , Opinionistas, http://opinionistas.com/ Jeremy Blackman http://jeremyblachman.blogspot.com/ , and the Wall Street Journal Law Blog http://blogs.wsj.com/law/ ) all weighed in. Lorraine Koc, President of the National Association of Women Lawyers, issued a response.
The fact that the Times chose to address this issue at all is of course, positive. That the attention of the legal community, as well as the public at large, was at least momentarily focused on this issue is also encouraging. It is a start - even if it was a long time coming.
However, I found the article somewhat disappointing. O'Brien was prompted to write his article by the recent initiatives on the advancement of women by the New York City Bar and the Women's Bar Association of the District of Columbia. He addressed the issue primarily from the viewpoint of Bettina B. Plevan, a senior partner at Proskauer Rose and the President (only the second woman) of the NYC Bar Association. Ms. Plevan has been a leader in that Bar's current efforts to advance the careers of women lawyers. But she speaks from a minority perspective as someone who succeeded in spite of the obstacles faced by most women attorneys in big firms.
Noticeably missing in the article are the stories of women who were not fortunate enough to receive the mentoring and other opportunities from which Ms. Plevan benefited. And it is their stories, more than any statistics, that effectively communicate why so few women reach the top of big law firms.
I have spent the past eight years listening to these stories as I've coached women to develop strategies to overcome these obstacles. And what constantly troubles me is that their stories become buried under stacks of law firm initiatives and statistical reports and, in the case of the NY Times article, lists of obstacles which are named, but which leave the reader with at best a vague understanding of how these obstacles actually function to stymie the careers of talented women lawyers.
Rather than repeat myself here, I'd like to elaborate on the obstacles raised by O'Brien - to make them more real and palpable. If authentic change is to be made, then there can be no ambiguity about the problems women lawyers face. These obstacles must be instantly recognized, named and effectively addressed by men and women in law firms.
Monica Bay's response to the NY Times article, posted on The Common Scold on March 20, concludes with these words:
"Hmmmm...does that sound like a familiar refrain? Duh! We'll keep on hammering and hammering."
I'd like to move at least a step beyond a familiar refrain. So, here are the issues as presented by the Times, and my efforts to elaborate:
1. IMPLICIT GENDER BIAS
"Firms want women to stay. Men at the firms want women to stay, and women want to stay. So why aren't they?" asks Karen M. Lockwood, a partner at Howrey in Washington. "Law firms are way beyond discrimination - this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination."
This was probably the most misunderstood statement in the article. Almost every blogger expressed confusion about the difference between bias and discrimination and I received scores of email from equally bewildered lawyers.
The distinction to which Ms. Lockwood - who as president of the WBA spearheaded DC's Initiative on the Advancement and Retention of Women - was referring is that discrimination is overt, explicit and legally actionable while bias is subtle, implicit, and because the individual behaving in a biased manner is often not conscious of his bias, difficult to fight, legally or otherwise.
The concept of unconscious bias is crucial for a full understanding of the problem of women's blocked advancement - as well as the solution. For the past 20-30 years, research in psychology has repeatedly demonstrated that an individual can consciously believe in equity and see himself as someone who would never behave differentially toward women or minority group members - and at the same time, hold unconscious beliefs that direct behavior without the individuals conscious awareness.
Our minds consist of both conscious and non-conscious processes. Approximately 95% of our behavior is governed by non-conscious, automatic processes. Our conscious mind has no awareness of these processes. This is adaptive: it would be impossible to function effectively if we had to make deliberate, conscious decisions about when and how to turn on a light switch or brush our teeth every day. Our behavior is efficiently guided by these simultaneously occurring, multiple automatic processes.
In contrast, our conscious mind is the slower, intentional, deliberate, long term planning process that thinks in language. We tend to associate this part of our brain with our concept of "mind" when, in fact, much more of our behavior is guided by our non-conscious processes.
As an attorney, you're probably particularly attached to the idea that you are a rational agent who makes conscious choices about what goals to pursue and how you respond to the social world.
But, if that were the case, why would you ever engage in behavior that you know will hurt you (e.g. overeat, drink too much, fail to see the doctor when you're sick, etc.)? Although we associate the part of our mind that thinks in words with our mind, in actuality our minds work more like a law firm - many members (processes) thrown together who often find themselves working at cross-purposes.
Keep in mind that this split between conscious and unconscious beliefs is not unique to male law firm managers and senior partners. For most of us, our non-conscious minds probably learned to respond in prejudiced ways based on thousands of exposures to racist and sexist views in the media or from role models. Many people have learned to reject these attitudes on a conscious level and are offended by the idea that they hold implicit prejudices that strongly influence their behavior. And, as long as they are carefully monitoring and controlling their behavior, they're unlikely to actively respond to stereotypes.
But most of the time, law firm life is crisis-focused. You're trying to meet deadlines and get work done so you can go on to the next project. If you're consciously focused on crafting an argument, you can't be simultaneously monitoring and controlling your responses to everyone and everything else. This is when automatic, habitual, biased responses are enacted.
Gender stereotypes are culturally-shared, socially constructed beliefs about who men and women are and how they should behave. While the male gender stereotype is consistent with the traditional picture of a lawyer (independent, assertive, strong, competitive), the female stereotype is not.
Social psychological research has reliably demonstrated that visual cues easily trigger these automatic responses. Since gender and race are often the first distinguishing characteristics you see in another person, these visual cues regularly elicit biased responses. (You can test your own implicit biases at http://www.projectimplicit.com.)
Once an implicit bias is elicited, it affects what is perceived, how it is processed, and what is remembered. Information consistent with the stereotype becomes salient while inconsistent information is ignored. Psychological research has demonstrated that work products attributed to women are evaluated as poorer than those attributed to a man. The female gender stereotype is inconsistent with conceptions of leadership, so women are less likely to be viewed as having leadership potential. Implicit biases deprive women lawyers of the presumption of competence their male colleagues enjoy. Because of this, women typically have to work harder to prove their ability. Furthermore, research indicates that when powerful men stereotype their female subordinates, they behave in patronizing ways that weaken the performance of their subordinates.
Successful women suffer as well. The same behavior viewed as assertive in a man is judged as overly aggressive in a woman. Women are less likely to be recommended for leadership positions and tend to be evaluated negatively when they are leaders because of the discrepancy between our concept of a leader and the female gender stereotype.
Joan Williams has been conducting research on "the maternal wall" at the Center for Work Life Law at Hastings College of Law. Her own research replicates findings from social psychology that motherhood is particularly stigmatizing.
This is the bias to which Karen Lockwood referred when quoted by O'Brien. When Deloitte, the accounting firm, began its initiative to retain women, consultants worked directly with managers on implicit gender bias. They uncovered assumptions that a lawyer-mother who arrived late to a meeting was "uncommitted" while the late arrival of a lawyer-father was brushed off.
If women are to advance in law firms, implicit gender stereotypes must be explicitly addressed. Consultants such as Joan Williams and Cynthia Calvert and M. J. Tocci and myself offer methodologies for doing this.
2. PUSH AND PULL FACTORS
O'Brien writes, "Although women certainly leave firms to become more actively involved in child-rearing, recent detailed studies indicate that female lawyers often feel pushed into that choice and would prefer to maintain their careers and a family if a structure existed that allowed them to do so."
Workplace flexibility is a critical issue in large law firms. (See, for example, http://www.pardc.org.) Current billable hours requirements combined with rigid work structures make it virtually impossible for a lawyer to have any life outside of the firm. This issue extends beyond work/family conflict and increasingly affects men.
However, in my experience coaching attorneys, women are far more likely to feel pushed out of their firms than to feel pulled to full-time motherhood. Women with impeccable credentials struggle and fail to get work assignments that will allow them to develop the skills necessary for advancement. They get excluded from client meetings and business development opportunities. They get brushed off by mentors who invite junior men to chat in their offices. Women are ignored when they don't ask for credit and criticized when they do.
Many firms have adopted flexible schedule policies. However, these policies are rarely used because in most large firms doing so is stigmatized. Choosing to work reduced hours is often viewed as equivalent to a lack of commitment to ones career.
What is overlooked in the utilization statistics is the extreme variability in how the supervisors in any given firm implement balanced hours policies. While some partners (often those with young children themselves) do their best to make these schedules work for the attorneys who use them, others do everything they can to sabotage their effectiveness. They call mandatory meetings at times when balanced hours attorneys are scheduled to leave. They accuse women of "staying home" when these women have been at a deposition or hearing. They refuse to comply with assignment systems requiring them to match work to attorneys' schedules and career development needs, insisting instead on their right to continue a "hey you" system for assigning work.
I am frequently asked by firms to coach their women working flexible schedules. It's not that this is a bad idea, but it falls far short of what's needed for women to advance. And isn't this further evidence of implicit gender bias? Supervising partners need assistance learning how to work with attorneys who maintain non-traditional schedules. Resistance to change is to be expected. But without solutions that specifically address it, policies are bound to fail to accomplish their stated goals.
The Times article suggests that although women are not being adequately mentored, male associates also receive inadequate mentoring. Assigned mentoring systems are a poor solution to the problem. Psychological research shows that formal mentoring relationships are less effective than informal relationships, in terms of career development, promotion and compensation. In fact, there appears to be little difference between the career outcomes of individuals who receive formal mentoring vs. those who receive no mentoring at all. Male attorneys are more likely to be the recipients of informal mentoring simply because 83% of law firm partners aremen and people are most comfortable with similar others.
Another striking research finding is that the power of male mentors only goes so far. While male protégés who have been mentored by men are likely to receive both more promotions and higher compensation, women protégés mentored by men receive promotions but less compensation. Although mentoring is a necessary component of any initiative designed to advance women in law firms, it clearly is not sufficient.
4. WOMEN DON'T SAY "I WANT"
O'Brien attributes this quote to a law firm consultant and it may well be that the quote was taken out of context. But it's not unusual to hear suggestions that if only women would change, they would advance. Of course there is merit in helping women acquire skills necessary for managing the challenges they face in firms. NAWL consistently tries to provide such training and I certainly coach women to empower themselves in whatever ways they can. The ABA Commission on Women in theProfession's Women in Law Leadership Academy has similar goals. But attributing the problem of women's advancement to what women do or fail to do comes awfully close to victim blaming.
Psychological research indicates that women are just as competitive and self-promoting as men in same-sex groups. They're simply smart enough to know the potential consequences of behaving inconsistently with their gender stereotype in the presence of powerful men. Backlash against women who behave more assertively has been repeadely documented.
Furthermore, to the extent that women do behave differently from men, institutional support for the legitimacy of these differences is still needed.
On March 21, Patrick Lamb (http://www.patrickjlamb.com/) posted this comment on the blog, The Common Scold:
"Given the paucity of minority lawyers at major law firms, the lagging fortunes of women should come as no surprise. I can't speak for all large firms, but I can for some. They are WM [white male] clubs. It's hard to think of a single major social issue where large firms have led. When clients force them to pay attention to an issue they do. But not before...The waste of this talent pool is a travesty."
The fact is that most large law firms are monocultural clubs. Everything is viewed through the lens of white male experience. Diversity requires an organization to become truly multi-cultural. This means that differences are more than simply tolerated or accepted - they are highly valued.
Large firms have a long way to go before they become multi-cultural organizations. And until this occurs - whether through the increased numbers of women graduating from law schools or client demand - the opportunities for significant numbers of women to advance to positions of noteworthy power in law firms will be limited.
Without institutional change, our efforts to empower women lawyers are likely to benefit these lawyers themselves, but not their current firms. Some women have already abandoned the large law firm struggle in favor of women-owned law firms. Many of these firms are becoming quite successful. Whether such firms will become serious competitors of large firms remains to be seen - but there are positive signs.
ISSUES NEGLECTED BY THE NEW YORK TIMES ARTICLE:
Bruce McEwen, founder of the Adam Smith, Esq. blog, wrote a letter to the editor of the Times (http://www.bmacewen.com/blog/pdf/NYT.2006.03.19.BJMLettertoEditor.pdf) in which he states:
"When a law firm entertains a proposal about how it might do business differently, the all-but-universal but immediate question is, "Who else is doing this?" And when the answer is, 'no one really,' the initiative's fate is sealed."
This is consistent with my experience. Law firms want change - but not more than other firms. I think the fundamental issue here is values. I don't think that the majority of partners with power in big law firms are convinced of the business case. The costs of attrition have been repeatedly presented, but few seem moved. Some clients have asked to see firms'diversity figures, but it's easy to inflate figures by including non-equity partners. And many of these firms have institutional clients who are willing to overlook the absence of diversity in a firm. Although certainly there are many firm managers and senior partners who want to increase opportunities for advancement for women either because they believe it's the right thing to do, or because they see it as an economic imperative, most firms have not reached the "tipping point" needed for real change to take place.
Superficial changes are made. For example, a firm may start a women's initiative but underfund it. A firm may have a balanced hours policy in order to attract talented women lawyers, but as long as no other firm has a significantly higher utilization rate, the partners as a group are satisfied. The firm is equal to its competition for talent so there's no need to do more.
5. SHORT-TERM THINKING
The business case for diversity requires a longer time perspective than one year out. However, most firms are focused on profits per partner in the current year. If their clients aren't clamoring for diversity now, partners assume that things will remain this way. Those of us trying to produce change can keep on "hammering and hammering" that diversity is essential for the long-term economic health of the firm, but unless enough partners with power buy this, we're running in place.
The most compelling evidence to support diversity requires looking beyond this year's revenue. Costs of attrition accumulate over time. The loss of clients to more diverse firms can be anticipated. The competitive advantage that firms which advance women will enjoy is around the corner. But seeing these metrics requires long-term thinking.
The issue of rainmaker satisfaction is almost as taboo as the issue of implicit bias. Rainmaking is typically done by a small minority of partners - usually men. Because they bring in the greatest amount of revenue, they hold the greatest amount of power.
Of course, every law firm is a business, and every business must be profitable. But firms publish their profitability every year in the American Lawyer in order to attract lawyers whose goal is to earn the most possible. Every large firm manager fears that short term losses in profitability will result from efforts to increase flexibility and diversity. There is always another firm with higher profits per partner that year to woo away the rainmakers, eroding the economic base of the departed firm.
Not long ago I had an interesting conversation with partners at a financially successful, large consulting firm that had accomplished more in its efforts to advance and retain women than any large law firm. These partners noted that their business model did not allow for a partner with power equivalent to that of a law firm rainmaker to emerge. Every manager was measured by the same criteria, so no individual or small group of partners had such a disproportionate amount of influence.
Initiatives that effectively advance women in law firms must address profitability issues from the perspective of firm managers and key partners. It's difficult to imagine the conversation continuing without these issues being put squarely on the table.
To end on an optimistic note: I regularly coach women attorneys to become rainmakers. Once these women recognize that they need not mimic the approaches of their male colleagues, they're freed to develop their own unique styles. As their comfort increases they realize how powerful their networking skills and connections can be in enabling them to bring in significant business. The road to power in large law firms is paved this way. Opportunities for the advancement of women lawyers increase as more women become rainmakers. Large firms might want to concern themselves with whether these women rainmakers will want to stay.
[Bibliographic sources available upon request.]
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