This article is part of a working series, culminating in a white paper currently scheduled for release in January 2021.
A plethora of articles identify attorney attrition, especially among women and BIPOC, and most especially BIPOC women. There are many culprits, evidently, although a very significant and recurring one continues to be lack of opportunities at work and lack of credit attribution for work performed. In other words, lack of transparency and accountability in the assessment of job performance continues to plague the legal profession and drive traditionally non-status holding individuals out of the field. The answer, then, would be to increase transparency and objectivity in the attribution of credit, the award of bonuses, and the granting of promotions. This is where Legal Project Management comes in.
Legal Project Management ("LPM"), in a nutshell, increases transparency, objectivity, and accountability by actually tracking who does what, how well they do it, and whether they do so efficiently. Although the tool is usually discussed in the context of giving in-house counsel metrics for matter success, the information collected as part of LPM can and often does encompass team member contributions. Given that measurable efficiency and effectiveness can only be reported in an objective and transparent system, these characteristics are the same as those recommended by diversity & inclusion advocates. The logical conclusion, therefore, is that implementation of LPM is not only good for a firm's bottom line and client relations but also--more importantly--could be an actionable anti-oppression tool with immediately measurably impact.
Gender and racial inequities in the legal profession are the result of complicated interactions, but one common thread is the lack of objective assessment of individuals' merits.
We know why women and BIPOC folks leave the legal profession...But here is a reminder.
A June 2020 ABA report on attrition in the legal workforce didn't mince words, "Women of color have the highest rate of attrition from law firms as they continue to face firm cultures where their efforts and contributions are neither sufficiently recognized nor rewarded,” This notion that lack of recognition drives attrition is common among women of all races.
A 2018 ABA Presidential Initiative, "Achieving Long-Term Careers for Women in Law," similarly found that the aspects of law practice that women disliked involved some form of discrimination, including:
Lack of “face-time”
An atmosphere of competition vs. teamwork
Issues with credit allocation
The task force for the presidential initiative, when asked why gender disparities remain at law firms, pointed to:
Closed compensation system
The credit system disadvantages women
The breadmaker/homemaker stereotypes persist
The “boys club” limits opportunities for women
Ageism impacts men and women differently
Going back to the 2020 ABA Report mentioned above, after reviewing why women, especially BIPOC women were still fleeing the profession, made the following recommendations:
Adopt best practices for reducing biases in decision-making. The report calls for “serious consideration” of who is making decisions critical to advancement and success, how they’re making decisions, and whether the decisions adequately consider the potential for biases.
Improve access to effective, engaged mentors. Female lawyers of color report being more likely to have mentors than others, but their mentors are less likely to have influence at the firm.
Go beyond recruitment to focus on inclusion and retention.
Incorporate an intersectional approach to addressing diversity and gender. Gender, race and other social identities can interact to create distinct experiences.
Create a more inclusive culture in the legal profession.
These recommendations are critical, demand utmost dedication to change, and must disrupt the status quo. They are not easy fixes, nor are they meant to be. That being said, this article, and the white paper on this topic scheduled to come out in January 2021, focus on how to implement the first recommendation by adopting Legal Project Management.
The legal profession has long-been woefully reductive in its assessment of attorney performance, to the detriment of women and BIPOC.
Gender and racial inequities in the legal profession are the result of complicated interactions, but one common thread is the lack of 1) opportunity and 2) objective assessment of individuals' merits. The truth is, though, that both of those things are difficult to track when cases are ongoing and basically ephemeral once the case is over.
Usually, women and BIPOC lawyers are so busy keeping their head down and proving themselves that they don't have the luxury of also fighting to wrestle opportunities for substantive work out of their colleagues' laps. Even when they do get access to these opportunities, as stated above, they don't always get the credit owed for the work completed. This latter outcome is overwhelmingly based on perceptions of competency. Unfortunately, attorneys' perceptions of "work completed" and "quality of work" are subjective and myopic.
For instance, one partner on one case may think a particular associate did fantastic but if that associate had been on another team, they would have been viewed as underperforming. Conversely, one partner on one case may not know how well a woman associate on another case performed because they never saw her work. When it is time for a review, each partner will advance their own idea of who did well. When that happens, there are few objective and standardized measures of performance. Therefore, lawyers will tend to praise the lawyer within their "network." As it turns out, networks are often made up of people who relate to each other. More often than not, these relationships fall along gender and racial lines. Once that begins to happen, the gap between men and women, white and BIPOC only increases, only further widening the meritocracy gap. If we add to this the fact that the law is itself quite subjective as a field, things only get worse.
In a profession where women and BIPOC attorneys continue to be shortchanged, operating in a world that places women and BIPOC at a disadvantage, from which they need to overperform to prove themselves, the mushy non meritocracy of the law only furthers the grip of the "old boys club." The way out of it is the imposition of objective metrics, where possible, and tracking of who gets to do what. These empirical measures would at least create real data points to assess firm diversity and inclusion track record before BIPOC and women attorneys flee. These measures would also significantly decrease plausible deniability in the face of inequality. If that's not a step towards success, I don't know what is.
Why would Legal Project Management address this?
Legal Project Management ("LPM"), according so Susan Raridon Lambreth, principal at LawVision and founder of the LPM Institute, "Legal project management is a process of defining the parameters of a matter upfront, planning the course of the matter at the outset with the facts you have at the time, managing the matter, and, at the end, evaluating how the matter was handled (from both the firm or law department perspective and the client perspective)." Stated another way, LPM asks the following questions:
What are we going to do?
How are we going to do it?
Are we doing the things we agreed on, the way we agreed to do it?
How well did we do the work we planned to do?
How could we have done it better?
If a firm is answering these questions, not only for each case but for each person working on that case, objectivity and transparency in assessing a person's contribution to the firm skyrockets. LPM moved away from "the billable hour" as the sole measure of success and instead asked whether cases are doing what they set out to do, within the budget allocated, and tracked the outcome of those tasks. If an attorney is an inefficient biller, LPM will ferret that out. If an attorney has lower billables but is a better substantive performer, LPM will identify that too. In other words, LPM takes legal teams closer to a true meritocracy which, as stated above, benefits women and BIPOC attorneys.
Even more fundamental, LPM reports can track what opportunities were given to which attorney. For example, an LPM report would delineate how many hearings an associate was able to argue, compared to another, how many briefs an attorney was able to write, as opposed to another, and what level of responsibility various attorneys were given. If a certain demographic is consistently given more responsibility or more exposure, leadership needs to ask itself whether and why they are placing other attorneys on the team at a disadvantage. LPM, then, short circuits the fruitless and self-defeating inquiries of "whether this is happening," to jump right to the heart of the matter: "Now that we know this is happening, and how, what do we do about it?"
With that objectivity and transparency comes equity. At the very least, this objectivity and transparency make it harder to hide inequity. This difficulty in masking inequity is, frankly, half the battle. Anything that makes it harder to argue "but we were fair" makes it that much harder to maintain status quo and without that status quo, equality as a chance.