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W. Edwards Deming, the late management consultant, used to indulge in a bit of theatrics when discussing manufacturing processes with industrial executives. On one occasion, he listened to executives explain the circumstances of a series of industrial fires and how they likely were isolated incidents. Having examined the pattern of fires, however, Deming declared that it was a statistical certainty that fires would continue at the same rate indefinitely, because problems with the way in which the plant was managed practically ensured that outcome. In fact, Deming said, the plant was a more reliable producer of fires than of good products � statistically speaking, that is. W. Edwards Deming, Out of the Crisis 324 (1982). Deming applied the same statistical approach and theatricality to industrial safety issues, product quality, morale and a host of ills. Beneath his bombast was an acute awareness that recurring outcomes are the product of management processes, and that erratic outcomes derive from the lack of rigorous process. Deming came to his insights from a background that is unusual today, combining strong statistical reasoning with a “theory of knowledge” epistemology, which studies how we know what we know. The statistical reasoning that Deming espoused is now widely practiced and taught, and it provides a good diagnostic model for problem solving � in fact, the National Quality Award criteria used by the National Institutes of Standards and Technology are based on this logic. It tells managers when they are managing too tightly or not tightly enough, and whether causes are systemic or transient. Most importantly, it can tell managers when their actions are working on the root cause of a problem or merely remediating the bad results of a bad process � what manufacturers call, respectively, “reworking” a process as opposed to “patching” the outcome of a bad one. When applied to the practice of law and to ethnic diversity within the legal profession, this reasoning offers valuable insight and grounds for humility. A variety of sources report that African-American and Latino attorneys are poorly represented in national law firms and in major corporate law departments. Their representation in the legal profession is lower than it is within other professions, and the trend is not encouraging, despite considerable efforts to improve the situation. One challenge involves the pipeline leading minority attorneys into law firms, which isn’t showing much response to diversity efforts; another is retention of minority attorneys. Minority groups seem to be leaving firms and the practice of law at a greater rate than are white males. See Elizabeth Chambliss’ Miles to Go: Progress of Minorities in the Legal Profession, American Bar Association or the Minority Corporate Counsel Association’s “ Creating Pathways to Diversity.” The causes of this persistent problem are not agreed upon, and likely are complex. Some observers focus on bias, others on differences in attorneys’ preparation for the practice of law. Recently, it has been suggested that attrition is even an unintended consequence of affirmative action. Rationally, one can find elements of plausibility in each of these explanations. Richard Sander, “A Systematic Analysis of Affirmative Action in Law Schools,” 57 Stan. L. Rev. 367-484. Law firms and corporate law departments have launched a great many initiatives to promote diversity within their ranks, including mentoring programs, diversity training and greater outreach in the form of summer associate programs for minority first-year law students. Yet these efforts continue to fall short. Taking Deming’s approach, this would suggest that a persistent process is the cause of this persistent failure. The Deming mantra, “It’s management,” is apropos. But specifically, what is going on here? Statistical analysis The statistician’s basic diagnostic approach is to determine which processes are contributing to the persistent outcome. They aren’t transient practices, nor are they specific to individual law firms, since the issue is true for virtually all major law firms. One ends up with a fairly short list of processes that are normative in the industry and affect associates, from Day One to their election to partnership (or their decisions to leave the firm). The processes appear to be relatively few: hiring, integrating, training, assigning to projects and performance review. In process-management jargon, most of this is called the “work process,” the cycle of processes that assure that a person is capable of doing the work and that assign the work, plus the tools and methods the firm supplies its young attorneys and its process for reviewing their performance. If law firm diversity efforts were methodologically sound, then they would involve making changes to those processes to really attack the problem, and then measuring to see whether the changes are effective. In looking at firms’ efforts, however, one finds a decidedly mixed bag. Firms make some effort at re-engineering their core work processes, but also many efforts that don’t directly change them. The result, from a methodologist’s point of view, is merely to slap a patch on malfunctioning management processes. Some of the meaningful efforts firms use to increase diversity include: • Capability-based selection, or using behavioral interviewing to determine whether a prospective new hire is a good fit for a role. Behavioral interviewing attempts to predict how well a job candidate has learned from, and excelled at, challenges in the past. • Nonpreferential assignment processes, which impose tighter rules for assigning work to associates in order to assure a fair distribution of learning and of exposure to the best partners. This is the antidote to “free market” methods, in which associates compete for assignments and partner relationships, and which appear to disadvantage minorities. • Performance management systems that are objective and rate demonstrated abilities against published guidelines. • Training programs that foster collaboration and teamwork by giving groups of young associates the same assignments for learning purposes, and that shield the identity of actual authors of legal documents in the early stages of associate training so that they are judged on their work alone. Alternatively, firms make high-minded efforts that don’t directly address underlying causes, but rather attempt to ameliorate the consequences of their management practices. These can be identified easily because they don’t change those core management processes. They include: • Minority mentoring, entailing the assignment of key partners to mentor minority associates. • Affinity groups, which are firm- or company-sanctioned meeting groups whose members share a common race, sex or sexual preference. • Diversity training intended to raise awareness and sensitivity within the broader firm to the issues that affect members of minority groups. • Ombudsmen who can intervene on behalf of minorities when it is apparent that they are being treated unfairly. • Scholarships and outreach programs to bring more minorities into the pipeline. • Retention programs that monitor minorities and try to identify at-risk attorneys and intervene in their cases. Now, law firm diversity programs are inevitably a mixed bag of activities, and they differ from firm to firm. Categorically, every effort is sincere and well intentioned and may have positive effects. But efforts that look at and modify core processes are more likely to realize long-term success in retaining minorities and enabling them to succeed at a lower cost. By making processes more transparent and objective, they drive out intended bias, as well as unintended bias and superstitious and traditional behavior that don’t contribute to the objective. They benefit everyone. The reactive efforts � the patches � suffer from several problems. First, they produce false positives, in the form of short-lived benefits attributable to what social scientists call the Hawthorne Effect. The Hawthorne Effect is the behavioral equivalent of the placebo effect: The subject of a study changes his or her behavior while under observation, but the positive response wears off in time. Law firm managers pay attention to the problem and communicate their sincerity, so a certain portion of the target group responds positively to the effort. The underlying problems still exists, however, so the effect fades. Moreover, efforts specifically targeted to underrepresented minorities can inspire social backlashes that can counterbalance any good they do. Some mentoring programs, for example, work. In an unpublished survey of minority attorneys at law firms and corporate law departments conducted by Major, Lindsey & Africa in October 2005, successful minorities almost universally reported that they enjoyed special mentoring relationships that gave them perspective, encouragement and the occasional kick in the rear. Good mentoring works. Inevitably, though, mentoring and other programs that sit on top of defective management processes just cover the symptoms. The problems driven by the core processes still keep flowing and inevitably leak out all over the place. Many firms are looking for ways to reform these core management processes. Frequently what drives this reassessment is not specifically the retention of minorities, but rather the cost of recruiting and grooming associates and associate turnover in general. These firms therefore may miss the opportunity to screen for unintended bias in the way they operate. Program components aimed specifically at improving a firm’s diversity may tend to be on the patching, or reactive side. Additional activities, programs and specifically diversity-themed committees overseeing diversity-themed efforts are the norm. But the quest for diversity-related honors, banquets and awards are not likely to achieve lasting change unless they focus on the reform of those core processes to simply be more rigorous in benefiting anyone who passes through, without bias. A few firms and corporate legal departments have gotten the picture. Their leaders realize that making all of their processes more rational, objective, transparent and fact-based will improve both the experience of being in the firm and the quality of work performed, and at the same time will remove the biases that disable firms from identifying and developing minority talent. These firms are rare and often go unrecognized when diversity awards are distributed. They demonstrate more than good intentions, but rather an analytic discipline and clarity of thought that achieve a confluence of productivity, profitability, client satisfaction, retention and diversity. Here are two examples of working on fixes rather than patches. Scott Terrillion, vice president and associate general counsel at Boehringer Ingelheim Pharmaceuticals Inc., related his personal path to enlightenment during a seminar in New York on April 12. The journey began when he compared his own law firm experience with his wife’s. He had never realized that a woman’s experience at a law firm was much more stressful than a man’s, subject to fewer opportunities and more bias. He became acutely aware that women and minorities may live and work in the same physical spaces, but sometimes have very different experiences within them. He applied that awareness when he went in-house, first to a line-management role and then to a position as in-house counsel and eventually as manager of the in-house legal department. In training Terrillion as a manager, Boehringer Ingelheim stressed selection of the best employees and managing them with skills that reflect both rigor and concern for the development of team members, without regard to status, class or credentials. Rigorous behavioral interviewing was integral to the process, and enabled hiring managers to see beyond r�sum�s and traditional indicia of professional status. Elitism doesn’t work If a law firm screens candidates based on what law school they went to and how well they did there, it won’t achieve much diversity. There simply are not enough African-American and Latino law students in the top law schools who would survive the “top quarter” cut to populate the top 200 firms. A firm would be fortunate to get one African-American and one Latino in an incoming associate class. If firms look during interviews for the actual capabilities they need, the conversations will be rich and will reveal the candidates who really have talent. At Boehringer Ingelheim, Terrillion learned to practice a more rigorous and competitive selection method, and this helped him to find the best attorneys. Diversity was a natural consequence of this better process. Kansas City, Mo.-based Blackwell Sanders, challenged itself to improve on selection and retention of associates. It is harder for firms not in major markets to attract top talent, and Blackwell Sanders wanted to improve its ability to find the best and keep them. The firm evolved a system for selecting, assessing and promoting associates that is rigorously transparent, objective and behaviorally based. It, too, uses a behavioral interviewing approach in its selection process, one that enables the firm to spot talent that others would miss. The system that Blackwell Sanders evolved was documented and published for other firms to emulate ( From Classes to Competencies, Lockstep to Levels). By re-engineering the work process for associates, the firm has been able to identify and retain minority talent and help those professionals succeed. The result has been a doubling of minority associates and a 22% increase in female associates. A “high” minority attrition rate declined to nothing within four years � minority associates were staying with the firm. All indicators moved in a positive direction. Incoming associate classes’ minority representation more than tripled as a consequence of looking for talent rather than box scores. Peter Sloan, Address at the NALP 2007 Annual Education Conference (April 26, 2007). Fixing the process benefited associates and partners and enabled diversity; it was not a patch on the old process that was focused on minorities, but a cure that improved the base process for everyone. By challenging the underlying processes, becoming more disciplined and unbiased, firms remove the source of the problem. In the long run, these fixes will be more effective than patches, and likely will be simpler and easier to maintain. Roland A. Dumas is the director of diversity and marketing for legal recruiting firm Major, Lindsey & Africa, based in its San Francisco office. He holds a doctorate from Stanford University, where he conducted research in psychophysiology and neuropsychology. His firm sponsored the seminar at which Boehringer Ingelheim Pharmaceuticals’ general counsel related that company’s experience. Boehringer Ingelheim is a client of his firm.

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