Having whipped myself into a frenzy in my last post, I’ll try to stay calm this time as I continue to explore the question whether we should celebrate the very diverse pop-up law firm of contract attorneys doing document review work. And like I said, we won’t really understand the subtext of the pop-up narrative unless we understand the meta-narrative that created it.

To set this up I’m going to use an interesting 2015 paper by Rhode and Ricca titled, “Diversity in the Legal Profession: Perspectives from Managing Partners and General Counsel,” as well as a bit of stuff from the 2016 National Association for Law Placement (NALP) report on diversity in law firms. Rhode and Ricca surveyed the top dogs at large law firms and Fortune 100 corporations to explore why, despite professed commitments to diversity, “women and minorities are grossly underrepresented at the top and overrepresented at the bottom.” The stats for women are abysmal, especially for law firms. Here, though, I’m going to focus on minorities. And although the survey covers in-house corporate legal counsel, I’m going to look only at large law firms. Here are some of the authors’ stats:

• “Although blacks, Latinos, Asian Americans, and Native Americans now constitute about one-third of the population and one-fifth of law school graduates, they still only account for fewer than 7 percent of law firm partners. The situation is particularly bleak for African Americans, who constitute only 3 percent of law firm partners.”
• “In major law firms, about half of lawyers of color leave within three years.”
• “Attrition is highest for women of color; about 75 percent depart by their fifth year and 85 percent before their seventh.”
• “Compensation in law firms is lower for lawyers of color, with minority women at the bottom of the financial pecking order.”

The NALP report shows little improvement in the numbers (though larger firms fair better than smaller ones).

So what gives? The authors describe various diversity initiatives in large law firms, and yet the numbers are abysmal. Some common responses by the interviewees and my responses:

“Fierce competition” for a limited pool of hotshots. The corporate clients of law firms steal them away. Trying to hire laterally is really hard because firms don’t want to see their hotshots leave for fear of getting bad grades for diversity. LAME: This reason suggests that lawyers of color are treated as scarce commodities, window dressing that firms desperately fight for. You took my mannequin of color! Not fair!

Some blame “the pipeline:” law schools aren’t doing their job to produce diverse talented graduates. LAME: Yeah, I’ve noted that law schools aren’t diverse enough. But the minority students who are there can be very talented. That won’t matter, though, because they’re not in the 10 percent of their class—for reasons I’ve told you about. Large law firms won’t touch them. Why? Because firms have their own resumes—go to any firm website. Firms have to show their clients they hire only the best and the brightest, using an arbitrary grade cut-off as a proxy.

Some blame society. SUPER LAME: Just because our society is structurally racist doesn’t mean law firms have to be that way. If lawyers in the firm gripe that their minority colleagues don’t belong there, call them out and demand they provide reasoned explanations for their complaints—or maybe just tell them to hit the bricks. Yeah, hit the bricks, pal.

But wait, you say, it’s not conscious racism that’s the major problem, but pernicious unconscious racism that we have to worry about. NOT LAME: Rhode points to an eye-opening study about this. Check this out: A pool of law firm partners were asked to evaluate a legal memo. Half of them were told the memo was written by a white guy and the others were told the author was a black guy. Result: The black guy’s memo received inferior evaluations. What’s new, right?  Persons of color have to deal with unconscious racism in law school—and lots of other places.

Some blame where they’re located, which might not interest lawyers of color. NOT SO LAME: This was a problem I saw when I taught at Iowa. The state of Iowa is so not diverse. Many of my students of color from other states couldn’t fathom living in Iowa after graduation. In many cases, out-of-state students, minorities or not, wanted to return to their home states and towns. Even the native Iowans often took off to other states. The brain-drain problem.

The NALP survey gives us some numbers on the geographic issue. Nothing personal against Kentucky, but let’s compare that state to D.C. The percentage of minority partners in Kentucky is 2.2 percent as compared to 9.07 percent in D.C. The percentage of minority women partners, 0.56 as compared to 3.39. As to associates, minorities in Kentucky firms come in at 12.3 percent as compared to 22.31 in D.C. The percentage of minority women, 6.92 as compared 12.37.

Still, firms have all sorts of ways to incentivize minority grads too join them, even in Iowa and Kentucky, like giving them yachts. How do you think University of Iowa recruited a Chicago Boy like me? I still have the yacht on my bookshelf.

Some blame the difficulty finding the right work/life balance. LAME: Get rid of billable hours, i.e., the number of hours lawyers are expected to bill in a year in pursuit of profit. Because of clients’ demands for lower bills, that will happen eventually. Until then, those who have a life will get shunned. Those that don’t may well become three-times-divorced alcoholics with bad breath and constipation problems.

Let’s get back to that ballroom where about 200 very diverse contract lawyers came together in a pop-up law firm to receive orientation for a huge document review project. Oh, I didn’t mention the trainers for the orientation: large law firms. The trainers were virtually all white, although I was heartened to see lots of women. The partner who showed up to give us the big picture: a white male.

You see, the pop-up law firm was like Gary, the African American who seemed to be leading a good life until we realized he existed in the meta-narrative of a food desert that was a manifestation of racism.

Most of the contract lawyers in the ballroom seemed really happy.

Most of those lawyers wouldn’t have a chance in hell of becoming associates or partners in large law firms.

Wait a second, you say. Did you ever think that many of those contract attorneys might not want to work in a large law firm?? Walking zombies representing evil corporations?? Huh?? Huh??

Put down the Red Bull.

You ask a good question.

Don’t condescend.

Sorry.

Why am I talking to myself?

Anyway, I might be engaging in the same commodification that I just condemned: I don’t care about the minority lawyers as human beings. I just want to see more minority bodies in large law firms.

But wouldn’t we want to live in a world where lawyers of color would have real opportunities to work in Big Law, and choose not to go down that path?

Hmmm…

In my previous post, I said I would lay out the meta-narrative that created the diversity I witnessed in the “pop-up” law firm of document reviewers at the orientation in the ballroom of the Hilton in D.C.  It was an orientation for a huge merger, and my former law firm, Arnold & Porter, was the lead counsel, with other big law firms joining in. The question I asked in the post was whether the diversity I saw really rocked or whether it reflected a sad fact. The meta-narrative for my purposes begins in 1986, when I graduated from Georgetown University Law Center.

I worked my butt off in law school and it paid off. In the first year I graded on to the law review by being in the top seven percent of the class. Back then, in some schools you could clinch a spot on the coveted law review based solely on your grades; you didn’t have to compete for a spot by “writing on,” which required submitting a law-review type of paper to be assessed by the review’s board.

That result put me on a trajectory that was typical for students at the top of the class, one that in many cases would include working in a large law firm such as Arnold & Porter, what today we call Big Law, after graduation. That trajectory involved few persons of color, as was the case in my class of ’86. Why? Many of you know why, but I’m going to say a few things about this for my readers who haven’t been steeped in this stuff.

The first reason is that law schools, especially the top ones that are feeders to Big Law, weren’t diverse. They’ve made progress since then, but the numbers are still not great, or even good. Using the U.S. News & World Report 2017 rankings—which are in a love/hate relationship with law school deans—the top three law schools, Yale, Stanford, and Harvard, in terms of diversity rank thirty-eight, forty, and thirty-five, respectively. None of the top ten law schools, except for Cornell, are in the top twenty-five. Georgetown comes in at 135! (I might be a bit off—I kinda lost count after 100.)

Second, once admitted, minority law students don’t perform as well academically as their white counterparts, with very few landing in the top ten percent of their class, which is a hard cut-off for many Big Law firms. There’s a ton of literature exploring why that might be the case. It would be crazy to describe it all here. But there’s an interesting 2015 empirical study by Alexia Brunet Marks and Scott Moss revealing that even after controlling for, among other things, LSAT score, undergraduate GPA, college quality, college major, and work experience, students of color graduated from law school with significantly lower grades.

Why might that be the case? The authors suggest that the nature of legal education plays a role, including the alienation that students of color experience in and out of the classroom. Relying on studies of human cognition, they also suggest that teachers bring an unconscious bias when it comes to grading non-anonymous seminar papers or class participation. Another reason relates to the “stereotype threat,” a contested idea which posits that if  “your group,” e.g., minorities, (remember independent presidential candidate Ross Perot’s use of “you people” and “your people” to refer to both victims and offenders of inner-city crime when speaking to the NAACP’s national convention in 1992? Oops, you weren’t born then…) is negatively stereotyped in some way, such as poor academic performance, you may also perform poorly because of the anxiety you feel from laboring under the stereotype. Deborah Merritt of Ohio State’s Moritz College of Law also suggests that students of color may also lack the social capital that may help them achieve academically: Many might be the first in the family to go to law school, let alone college. They haven’t grown up within a network of lawyers among family and friends that can support them as they slog through law school—and help them get a job.

I’ve just shared with you some stuff in papers and studies. But I’ve lived through and seen this stuff. When I was at Georgetown there was an undercurrent of resentment towards students of color coming from a segment of white students: We didn’t belong there and were taking the seats of far more qualified candidates. As for alienation and subconscious bias, don’t take it from me. Read my posts with excerpts from my student’s article chronicling the perils of navigating through law school as a woman of color. The stereotype threat and anxiety? If you think that’s a flimsy excuse, think about being assaulted, and I mean assaulted, by UCLA Professor Richard Sander’s much criticized 2004 study suggesting that black law students are ill-served by affirmative action that places them in the elite law schools where they struggle academically. They should instead go to lower-ranked schools where they can thrive and increase the number of blacks in the legal profession. I can’t tell you how many students came to my office traumatized by that guy’s words.

How did I make it to Big Law and become a law professor despite all of these headwinds? It might have something to do with that social capital thing. I didn’t have lawyers among family and friends. But my father was a diplomat who later in life got a PhD from Louisiana State University. My mother became a socialist and relished political debate. So I grew up in an academic environment. I was comfortable in it.

But the most important reason for achieving what I wanted despite a road littered with obstacles was that I didn’t give a shit.

After almost dying and becoming a quadriplegic just before starting law school, the doubters and the haters were the least of my worries.

And if they tried anything, I’d go super-cripple on them.

Assholes.

On that happy note, tune in next time for a continuation of my take on the meta-narrative that gave rise to the pop-up law firm.

In the fall of 2016, I landed a doc review job related to a huge merger. The agency that hired me as a “contract attorney” told me to show up for orientation at a ballroom in the Washington Hilton (where Hinckley shot Reagan in 1981). A ballroom? Should I wear a tux?

I arrived at the hotel around mid-morning and made my way through the busy lobby to the ornate ballroom. Outside the room there was a long linen-covered table piled high with tasty pastries, delicious fruit, and coffee. My colleagues assaulted the table, many walking away with plates so loaded with goodies that it seemed inevitable that half of the stuff would fall off by the time they reached their seats. I would come to learn from my colleagues that contract attorneys have a propensity to hoard free food. If pizza were offered for lunch at the doc review office, the line would form almost instantly. Those at the front of the line would load their plates with multiple slices of the pie with little or no regard for whether those behind them would get any. Hence the stampede to get in line upon the announcement of the pizza’s arrival. Of course, I tried to load up my plate that morning at the hotel but knew I would drop it within seconds. Fortunately, a kind woman offered to help me, as many would at lunches at the offices—after I clawed my way to the front of the line without regard for those behind me.

I was stunned when I entered the (freezing) ballroom. It was packed with over 200 contract attorneys! There was lots of lively conversation and laughter. Many of them hailed each other with warm salutations indicating that they knew each other well, that maybe they were good friends. “Hey, girl, how’ve you been!” As I continued doing doc review work, I learned that lots of the folks knew each other because over the years as contract attorneys they worked on the same projects. Yeah, you heard that right—years. Wait, you say, I thought lawyers worked in law firms or in other career jobs. Being a contract attorney is just a temporary thing, not a career, right? How could it go on for years?

I’ll come back to this.

Getting back to the ballroom, I realized that I was looking at a “pop-up” law firm, and a very diverse one. Age-wise they ranged from the young ones looking to be fresh out of law school to the older, seemingly retired or retiring lawyers. More than half were persons of color, mostly black. More than half were women. Some were talking in Spanish, others spoke with an accent indicating they were of African origin. For someone who’s always pushed for diversity in the legal profession (and academia), I thought that rocked!

But maybe it didn’t.

Let’s start digging to see what lies beneath this narrative. We’ll begin with the following story based on true demographic facts: It was just after the noon hour when Gary walked into the McDonald’s only a block from his apartment. He was drenched in sweat from playing pick-up basketball on a very hot and humid Saturday in D.C. He was also famished, having eaten just a stale donut for breakfast, washing it down with a Red Bull.

Gary ordered his favorite meal there: A Big Mac, large fries, and a large chocolate shake. He deserved it, he thought to himself, because he left it all on the court and led his team to victory that morning. He found his favorite spot at a table looking out on the street corner. He loved cars and tested his knowledge by ticking off the specs of any given car driving through the busy intersection as he dug into his hamburger and fries. His shake that day tasted especially good, better than the Coca-Cola Slurpee he had the other day at the 7-Eleven on the opposite corner of the intersection.

Sounds like Gary had good morning and was enjoying a lunch that most of us would crave for but never admit it. Life is good for Gary, right? Maybe not.

You see, Gary is African American who is in between menial jobs and lives in Mayfair, a poor African American neighborhood on the east of the Anacostia river, the east side being largely black and poor. On the west side of the river there’s a much wealthier world where only about thirty-three percent of the residents are black. The nearest grocery store is nearly a mile away and Gary doesn’t own a car or have access to one. He avoids taking public transportation because of the violent crime that plagues the eastside—a friend of his was stabbed to death on a bus two months ago.

It turns out that Gary lives in a “food desert,” a term that has come to describe poor neighborhoods that don’t have access to healthy food that can be found in grocery stores. So Gary’s food intake in his part of the world comes from fast food restaurants and convenience stores. He eats Big Macs all the time, unless he decides to wolf down a 7-layer burrito at Taco Bell, which is next to the 7-Eleven, or sinks his teeth into hot, crispy fried chicken at Popeye’s just a block away. Because of Gary’s diet, he’s overweight and suffers from high blood pressure.

Is he living the dream? Hmmm . . .

What’s the point of all this? Frankly, I’m not sure. But while I’m semi-lucid let me try to answer the question. We can’t fully understand “the space” Gary lives in, the space in which he’s eating a Big Mac, without knowing the “meta-narrative.” In other words, Gary’s world wouldn’t exist, or at the very least we wouldn’t be able to understand it, without knowing the overarching world that created and sustains it, a meta-narrative filled with colliding currents of race, class, age, and gender in D.C., in many cases manifested by gentrification that has pushed African Americans, especially those with lower incomes, into the poor, segregated neighborhoods east of the Anacostia. Without that meta-narrative, the fact that a guy named Gary ate a Big Mac would be useless, if not nonsensical, information. Taking it to an extreme, if nothing existed in the universe and suddenly only the narrow story of Gary and his Big Mac sprung into being, it would be gibberish. It wouldn’t even be that because no one would exist to call it so.

Getting back to the ballroom and the question whether the diversity I saw rocked, just as we couldn’t fully answer the question whether Gary was having a good life without looking at the meta-narrative that created his food desert, we can’t fully answer the question I’ve posed without knowing the meta-narrative the created the narrative of diversity I witnessed that morning as I tore into my danish and burned my tongue on super-hot coffee.

I’ll lay out the meta-narrative in my next post, which will begin when I graduated from Georgetown University Law Center in 1986 and joined Arnold & Porter, the second-largest law firm in D.C. at that time. I was livin’ the dream. Private jets, endless bottles of Chateau Lafite 1865, and weekend scuba diving jaunts in the Bahamas.

I’m hallucinating and need to stop.

Time for a Big—I mean, a kale salad.

Over the past year I’ve lived in the world of “doc review” or document review in Washington, D.C.  With this post I begin an exploration of the life narratives I’ve discovered thus far in this world, of stories in this “community” of human beings.

Picture this: A windowless room packed with lawyers. (I could make a joke of this but I won’t.) They sit erectly or in various degrees of “slump” only two feet from each other staring at computer screens plopped on long folding tables, their hands draped over a mouse, their index fingers clicking away for eight or more hours a day, sometimes seven days a week.

Each lawyer’s station has any number and assortment of personal belongings, ranging from their smartphones—if they’re permitted to have them out—to hand cream and pain relief pills, to cups of coffee or tea, to a can of, say, smoked almonds. For lunch and/or dinner they eat at their stations, some of the food prepared at home, but much of it bought from food trucks parked outside the building.

A good number of them have earbuds plugged in and listen to music or podcasts. And lots of them leave the buds in even when walking around the floor, say to the kitchen or bathroom. The dress code is business casual with a range of adherence to the code, from crisp tops and bottoms to what appear to be yesterday’s pajamas. About half of the reviewers are women, and the group is pretty racially diverse. Maybe a quarter of them are African, many of them Nigerian. They range in age from their mid-twenties to a smattering of sixty- and seventy-year olds.

What documents are they reviewing? In big corporate mergers or litigation, thousands upon thousands of documents, many of them emails, have to be produced to the government, say, the Department of Justice and/or the Federal Trade Commission, or in litigation to the opposing party. The reviewers are using coding software to register whether, among other things, the document is responsive to the matter, and, if so, whether attorney-client privilege applies, in which case the document may not have to be produced. When the reviewers click on the mouse, they’re putting checks into tiny radio buttons with a bunch of coding options. In virtually all projects, the reviewers are expected to go through a certain number of documents per hour, perhaps seventy or more.

That’s what we see on the surface.

But what’s the subtext?

What lies beneath?

Stay tuned.