Building a Diverse Trial Team in Complex Litigation

While the business world continues to recognize the increased effectiveness of diverse teams, it's no secret that law firms continue to struggle with diversity and inclusion within their own ranks. The business case for diversity and inclusion is clear. In addition to the well-publicized research finding that companies with greater diversity are more profitable (see V. Hunt et al., "Why Diversity Matters," McKinsey & Co. (Jan. 2015)), a recent study of over 1,771 in-house lawyers found that the most diverse outside counsel teams perform at higher levels than non-diverse teams and are more likely to be recommended to clients' peers. "Diversity Delivers 25% Higher Share of Wallet," Acritas (May 12, 2016). But, according to the most recent National Association of Women Lawyers report, only 8 percent of equity partners in large U.S. law firms are people of color and 20 percent are women. D. Peery, "2018 NAWL Survey on Retention and Promotion of Women in Law Firms." And women of color represent only 2 percent of all equity partners. Id. As a result, corporate counsel face a continual challenge in hiring lead outside counsel consistent with their company's strategic values.

For complex litigation matters headed to trial, the challenge is even more pronounced. In-house lawyers must consider whether their trial team reflects the values of their organization, in addition to having the personal and professional experience to connect with a diverse jury pool. This is no easy task. According to a 2015 report by the American Bar Foundation and the ABA Commission on Women in the Profession, women in private practice at large and small law firms accounted for only 16 to 25 percent of first-chair appearances. Similarly, the New York State Bar Association's 2017 report, "If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR," notes that "the most striking disparity in women's participation [as lead counsel] appeared in complex commercial cases." Specifically, the report explains: "women's representation as lead counsel shrank from 31.6% in one-party cases to 26.4% in two-party cases to 24.8% in three to-four-party cases and to 19.5% in cases involving five or more parties. In short, the more complex the case, the less likely that a woman appeared as lead counsel."

In light of these challenging statistics, corporate counsel should consider the following strategies to increase the diversity of their litigation teams, and particularly the number of women and people of color who serve as lead counsel in complex litigation matters.

Check the track record: Although law firms as a whole have diversity issues, some firms perform demonstrably better than most in diversity measures. Organizations like the National Association of Women Lawyers, the Human Rights Campaign, and the National Association for Legal Placement regularly evaluate and reward law firm diversity and inclusion efforts. Check how outside counsel has scored on the Human Rights Campaign's Corporate Equality Index, the Women in Law Empowerment Forum's Gold Standard Certification initiative, The American Lawyer's Diversity Scorecard and the Law Firm Diversity Database produced by Vault in partnership with the Minority Corporate Counsel Association. While these are just a few of the most-recognized measures of law firm diversity, in-house counsel will find that a handful of firms are consistent leaders in workplace inclusion and diversity, while others rarely make the cut.

In selecting law firms, corporate counsel can also ask for information regarding diverse lawyers with trial and lead counsel experience. Specific questions to consider are: (1) how many women and people of color in the firm have first-chair jury trial experience in civil cases or complex arbitrations; (2) what percentage of the jury trials handled by the firm in the last 24 months included women or people of color in the trial team (i.e., those with speaking roles at trial); and (3) who are the firms' go-to lead counsel for complex litigation matters?

Reward innovation: Several organizations have taken the lead in developing and implementing effective diversity programs for law firms, with considerable success. For example, Holland & Knight, along with a group of 65 firms, has partnered with Diversity Lab to implement a program -- named the Mansfield Rule after the NFL's Rooney Rule -- requiring it to consider women, LGBTQ+, and minority attorneys for at least 30 percent of its candidate pool for leadership roles, equity partner promotions, and lateral hires.

Litigation departments leading the way in diversity and inclusion are also implementing programs designed to get diverse litigators on-their-feet courtroom experience. Some firms are tracking the types of courtroom opportunities that its attorneys receive to identify and eliminate possible racial and gender disparities. Other firms count time spent on trial-related activities by associates toward their billable hours requirements, even if that work will not be billed to the client. These programs help build the pipeline for diversity, and help prevent the continuing exodus of diverse talent from law firms.

But hiring law firms that support innovative diversity initiatives is not enough; in-house counsel should also communicate to firms that these programs impact where outside counsel dollars are spent.

Build relationships with affinity bar organizations: National and local affinity bar associations have been leading the way in diversity and inclusion efforts for decades. Nationally, organizations like the Minority Corporate Counsel Association, the National Asian Pacific American Bar Association, and the National Association for Women Lawyers can provide referrals for diverse lawyers with first chair trial experience across the country. Locally, the California Minority Counsel Program and California Women Lawyers, among many others, provide local events, referral networks, and lawyers with state-specific expertise. By connecting with these organizations -- through volunteering to speak on a panel, becoming a member, or inviting their members to present in-house legal education programs -- corporate counsel can build relationships with lawyers who may be outside of their established professional networks.

Go beyond the pitch team: Most law firms have learned that it is important to present diverse teams for client pitches, but inclusion at the pitch stage does not always mean that the trial team will be similarly diverse. In-house counsel have considerable power in insisting that diverse lawyers are named lead counsel for matters, and that credit is awarded in a manner reflecting the contributions of diverse lawyers. If it is unclear who will be leading a particular matter, on the trial team, or receiving the credit for work, ask. Corporate counsel can also encourage their outside counsel to allow more junior diverse lawyers to take key depositions, argue motions, and obtain other meaningful litigation experience. By ensuring that clients understand the need for diverse teams in trial practice, not just business development activities, corporate counsel can influence staffing, compensation, and leadership decisions at law firms, which helps build a pipeline of first chair talent for cases in the future.

By employing these strategies, corporate counsel can both build a more effective trial team in complex litigation matters and help foster a more inclusive and diverse legal profession.