Category: The World of Document Review

The World of Document Review #4 Click

Okay, here’s the last post of my series uncovering the subtext of the world of document review. Although I hope you’ll enjoy what you’re about to read, you won’t really get the big picture surrounding the narrative, the meta-narrative that created the narrative, unless you’ve read my previous posts. They explain how racial and gender discrimination in legal education and the practice of law have helped create the doc review world. Think about it. Why would it even exist? Here I’ll finish telling you why. I’ll give you the last piece of the big picture meta-narrative that answers that question. It has to do with the Great Recession that rocked the country starting in 2008, and the rise of technology in the legal field. Here we go.

As I set out in my first post, a few years ago, after teaching law at the University of Iowa since 1990, I returned to Washington, D.C., where I went to law school at Georgetown University Law Center and practiced law for four years at Arnold & Porter, a large D.C. law firm, a “Big Law” practice. To earn some “fun money,” I started working as a contract attorney, meaning an attorney hired on a temporary basis to work on projects involving big litigation or business transactions being handled by Big Law firms. My first project was a huge business transaction that required over two hundred contract attorneys. The orientation took place at a large hotel ballroom in downtown D.C. When I walked into the room I saw what was essentially a “pop up” law firm. And I was struck by what you would never see in a law firm that size or larger. It was comprised mostly of people of color. At least half were women and a majority African American. Two law firms, one amazingly diverse, coming together to work on a major project with real consequences. So cool! Especially for someone like me who has advocated for diversity in both academia and the practice of law.

Well, maybe not as cool as I initially thought.

I really liked what I saw on the surface in the ballroom. But something wasn’t right. I couldn’t pinpoint it though, especially since I was newbie contract attorney and knew little about that type of practice. After all, I had been in the proverbial ivory tower for over two decades.

I needed to dig. Dig for the subtext, the counter-narrative that belies what we see on the surface. Here’s what I found. I’m going to use a stylized narrative, a story, based on the data I’ve given you in my posts so far. I’ll try to capture what this world is like but the story is purely fictional. There’s nothing in this account that discloses anything about the real cases I’ve worked on and I’ve created the characters in my head. At three in the morning. Sitting in my office. Eating leftover Halloween candy I never intended to give the trick-or-treaters.

CLICK

On the top floor of a newly constructed building there’s an elegantly appointed, spacious office with large windows giving you a bird’s-eye view of D.C. It’s a cold mid-December morning but the sky is clear and the sun bathes the room in a warm light. That’s the senior partner’s office in a Big Law firm, and the person ensconced in an expensive black leather chair is a white male dressed in an Italian custom-made charcoal-grey suit, his feet kicked up on a gleaming, neatly arranged desk. He’s a “rainmaker,” a nationally prominent lawyer who brings in big-time and very profitable litigation. And he’s landed a whopper of a case defending a corporation in a class-action lawsuit involving a defective product that’s harmed thousands of plaintiffs. Billions of dollars in liability are on the line, with possible crushing punitive damages that will tank the company. He’s on the phone with the opposing counsel’s top dog, a very successful and wealthy plaintiffs’ attorney. They’re discussing the big picture strategic positions of the parties. As an “equity” partner, he owns part of the firm and shares in the firm’s profits. He banks about $3 million a year.

Another white male darts out of a smaller office down the hall doing the “I-gotta-pee-so-bad” half walk/trot to the bathroom as he reads a memo, allowing him to bill the client while he attends to his bodily functions. He’s the “junior partner” who handles the supervision of behemoth cases brought in by the rainmakers. Typically junior partners are salaried and don’t have an equity stake. This fellow’s annual salary is $1 million. He hopes that if he gives up sleep for the next few years he’ll be able to join the firm’s equity club.

A few floors there’s a still smaller office. The windows aren’t nearly as large as those of the rainmaker’s and they reveal only a partial view of the city below. But on a sunny day the natural light warmly visits the office in the afternoons, hitting the wall featuring diplomas and family photos. The desk and office chair are high quality but you wouldn’t know it because files are strewn in chaotic heaps on the desk and floor. The person seated behind the wall of files is a white female dressed in a smart business outfit from Nordstrom’s, her eyes glued to her laptop while she cradles her phone between her neck and shoulders as she talks to the junior partner. That’s the office of an associate who’s been at the firm for eight years, a “senior associate.” She’s coming close to being considered for partnership. Many of the lawyers who started with her have left the firm but she’s sticking it out, regularly working eighty-hour weeks in the hope of adding yet another woman to the partnership ranks still dominated by men at the firm. Her job is, among other things, to supervise the production of documents demanded by plaintiffs’ counsel as delineated in a “request for production.” This will involve millions of documents, mostly electronically stored, ranging from emails, to contracts, to PowerPoint presentations. In return for her dedication she takes home $340,000 per year.

Just above the street level there’s an even smaller office. It’s a clean and comfortable office with windows that overlook a loud, chaotic D.C. thoroughfare. On sunny days the office will catch a shaft of light for about an hour. There are two lawyers in the office, one an African American male, the other a Latina. They, too, are dressed business casual, most of their cloths bought at J. Crew and Jos. A. Bank. They are the “junior associates,” working like crazy with the senior associate to organize the request for production, putting in long hours and giving up many weekends. Since they both share the room, they’ve had ongoing conversations about their chances of becoming partner, recognizing there a very few attorneys of color at the firm. More often than not, they leave the firm in their fourth or fifth year. What the hell. They’re making $190,000 a year. Take it while you can get it. Pay down some of their huge student loan debt.

Then there’s the equivalent of the basement. About ten blocks away from the firm there’s a non-descript office building sandwiched between a parking garage and shoe repair shop. Just outside the entrance doors and off to the right there’s a middle-aged man with a prematurely heavily-wrinkled face and an alcoholic’s nose. He’s sucking on a cigarette while he scrolls through his IPhone. He’s wearing Costco’s finest pants and a long sleeve shirt that’s so wrinkled it could’ve been taken from an elephant’s bed. A security card hangs from a lanyard around his neck.

An African American woman looking to be in her thirties enters the lobby carrying a big cloth bag in one hand and a cup of coffee in the other. She’s annoyed by the smoker. On more than one occasion she’s come close to telling him to poison himself down the alley alongside the building but decided he wasn’t worth her time. She’s wearing crisp black pants and a maroon top, both bought on sale at Kohls. Nice clothes, smart shopping, she thinks to herself after every shopping trip there.

The security guard says, “Happy Monday!” The woman, who’s wearing earbuds, says nothing but offers a faint smile, the best she can do on a Monday. There’s nothing happy about it. She crams into the elevator and presses the button for the tenth floor. The smoker will do the same when he’s finished. Her face is expressionless. Once on her floor, she uses her security card to open a heavy glass door and walks through a small reception area with a cardboard sign of the contract attorney agency perched precariously on a shelf behind the reception desk. Seeing a receptionist there was hit or miss. Who cares?

Two weeks ago she had attended an orientation program for the contract attorneys hired for the project. It was in a large hotel ballroom with a stage put together for the PowerPoint explanation of the protocol the attorneys would use to review the millions of documents requested by plaintiffs’ counsel. She knew a good number of the people there. A gentleman sat next to her and marveled at the diversity in the room. “So cool!” he said. She stared at him. He got up suddenly and found another seat. She felt sorry for him. Obviously a newbie.

The firm’s junior partner began the program with a brief welcome and an overview of the project, after which he handed the program over to the senior associate. She spent the next three hours going through the slides. The African American woman studied the protocol, absorbing it quickly. She tuned out the senior associate, who was just reading the protocol. Super boring.

Her mind drifted to the book she had just finished on the Metro from Shady Grove, Maryland, the last station on the red line. The commute to D.C. was over an hour but at least she could afford her one-bedroom apartment. It was the best she could do after the divorce. Thank god they had no children, which would’ve made the separation even nastier. The book, “Just Mercy,” by Bryan Stevenson, really resonated with her. It was an autobiography of an African American lawyer who committed himself to exonerating those wrongly accused of horrific crimes and, in many cases, sentenced to death. All of his clients were the most vulnerable in society, those without a voice: people of color, the poor, exploited women, children, and the mentally challenged. He barely made enough to pay the rent and buy groceries. But he was doing the right thing, she thought. He was on the right side of history.

She’s wondered whether she could’ve been like him. He was a 1985 graduate of Harvard Law School, when the legal market was booming. He had choices. She graduated in 2010 from a fourth-tier law school way down in the national rankings. She had no chance of getting into the top tier law schools given her LSAT score. Some of her friends warned her against taking on massive debt to get what might be a worthless J.D. degree. She ignored them. She had been raped in college. As a survivor, she was determined to become a lawyer and work in some way to help other survivors.

Just after her first year in law school the country plummeted into the greatest financial crisis since the Great Depression. The legal profession imploded. Many law firms collapsed. Those that survived did so by laying off lots of lawyers and slashing costs. Many observed that the profession was entering a new normal. The days of plentiful jobs where demand exceeded supply, like the decade of the 1980’s when Stevenson graduated, were over. For good. Still, she thought she had a decent chance of finding some work in the profession, maybe not in her field of choice right away. After all, the law school she attended all but promised she would land a job no more than a year after graduation, luring her and many others to enroll by showing them what turned out to be misleadingly high placement numbers.

After she graduated, she and her husband, a graduate student in urban studies whom she met and married in law school, moved to D.C. even though they didn’t have jobs lined up. He was able to find a good bartending gig, which allowed her to study for the D.C. bar. She passed the first time around. Now that she had become an “esquire,” she joined the Washington Bar Association’s Young Law Division to build a job-yielding network but with no luck. The best she could find was a dead-end internship with the D.C. municipal government.

They both started to panic about money and crushing student debt that eventually would become due. As the stress rose the marriage crumbled. He blamed her for pushing them to move to an expensive town where every other person is a lawyer, many of whom are unemployed or underemployed in the profession. He left for Seattle. She moved to Shady Grove. A jobless lawyer. Unlike Stevenson, she felt she had no choices.

The woman remembered a conversation she had with someone at a D.C. Bar meet-and-greet. They talked briefly about work as a contract attorney. She was told that kind of work exploded after the financial crisis, especially in places like D.C. and NYC, when Big Law clients demanded lower legal bills and balked at paying for the training of clueless junior associates, who typically were assigned to document review work. What really helped create and grow that job market was the rise of electronic discovery. Back in the day, lawyers had to deal with actual paper when doing doc review. No more. Now everything is electronic. There’s software that lawyers use to record whether documents they’re looking at on the computer screen should or shouldn’t be turned over to the opposing counsel. There’s even “technology assisted review,” which allows the software to learn as the lawyers code the documents, making the review more efficient. In a nutshell, today most document review in large Big Law cases is farmed out to help reduce the price tag for clients while maintaining the firm’s profit margin. Agencies are the intermediaries that find the contract attorneys who’ve become proficient in the software. The woman thought about it. Hmmm… She eventually dismissed it. Although it’s important work, she would find a real job, a job that would propel her to the goal she had set out for herself.

The woman walks down a hallway and uses her card to enter her office. It’s a cavernous, windowless room with nothing other than long, cheap folding tables. On those tables are a hundred or more computer screens, keyboards, and mice, meaning the computer “mouses,” but the facility has furry little creatures that come out at night looking for food droppings. The screens are only a few inches away from each other. The office chairs are cheap and worn, many with questionable stains, some obviously broken in some way. The industrial carpet has seen much better days, permanently recording coffee and food spills. The doors are stained black with thousands of handprints layered over each other. Some might call it office art, the woman supposes.

When she gets to her assigned space—she asked to be moved but was told no—she sets her coffee down and immediately signs into the computer, not bothering to take off her coat. It’s 9:05 a.m. She has to record her time in fifteen-minute increments. By logging in right away she can bill from 9:00 a.m. rather than 9:15 a.m. She’s paid $30 an hour, so that means $7.50, half of her round trip commuting costs. And cumulatively those fifteen minutes will help her pay the enormous ACA insurance premiums. No benefits for contract attorneys unless they’re on a long-term job.

Once logged in she takes her coat off and pulls out of her bag the things she’s grown accustom to bringing to the projects over the past seven years: hand sanitizer, hand cream, snacks such as crackers and fruit, and a portable phone charger. She also pulls out a shawl because she sits under a vent that blows cold air even in the winter. Then comes her lunch, a chicken salad in a Tupperware container. She hopes she won’t be the victim of fridge theft. It happens too often.

She returns to her station. The room is filled with people who’ve settled into the same routine. They’ll spend at least eight hours that day staring at the computer screens clicking the mouse to indicate whether the documents are relevant to the litigation, and whether they are protected by attorney-client privilege. Many wear earbuds and listen to music or podcasts. On occasion they’ll pull them out and chat with each other, sometimes breaking out in raucous laughter. But they’re careful not to do that often as they risk being reprimanded by an agency supervisor for being too loud and disturbing others on the floor. For that reason, some talk to each other in whispers. The woman doesn’t like that. Sounds like they’re in church. That space is sacred. This place. She stops herself.

Throughout the day the reviewers check their email and maybe check out Facebook. They’ve learned through the years to do this furtively in the room, placing the smartphone under a pad of paper and leaning over the desk as if concentrating intensely on the work. They do this because some agencies at least officially say that phones have to be put away. If they want to make a phone call they have to leave the room and find a space in a hallway. There’s no privacy for the call but reviewers have learned out of reciprocal courtesy to tune each other out.

Some people, like the guy sitting next to the woman, apparently don’t give a shit about phone use in the room. He spends most of the time scrolling through stuff on his phone, maybe funny videos, only occasionally coding a document. Over the years he’s learned how to code near the minimum number of docs per hour—projects will require a minimum per hour, maybe sixty—to avoid getting fired. Even if he falls well below the minimum, he knows that some agencies look the other way if there are others clicking quickly through the docs. The woman feels both contempt and pity for this guy and others like him. They have no self-respect. Maybe they were prideful, inspired law students but years of doc review have sucked that out of them, leaving a mere shell that barely resembles a lawyer.

The reviewers are very diverse, a heck of a lot more diverse than the Big Law firm that hired them, much more diverse than the profession as a whole. Many are African American. Latinos as well. About half are women. Africans, too, many from Nigeria. There’s a wide age range. You have your recent graduates who can’t find jobs right away. You have folks who’ve retired and work for fun money or to battle loneliness—or maybe they can’t stand to be with their partners all day. The bulk of the others are lawyers who’ve been laid off or otherwise haven’t been able to find non-contract attorney jobs for some time. It’s common knowledge that working more than a couple of years as a doc reviewer is the kiss of death. Law firms and other employers in the legal profession won’t touch them.  That’s probably why the recent grads look super anxious and miserable. You can spot them a mile away.

Now and then when the woman visits the cramped lunch room she’ll overhear some reviewers musing over their situations in life. It’s not so bad, someone says. Sure, we don’t make law-firm salaries and have no benefits, but doc review is decent money and we leave work behind us after we punch out. We can have a life! When the woman hears that, she chuckles to herself. The most terrified persons she’s ever seen is when a firm lawyer or agency person walks into the room and announces the project is over. As the reviewers gather their belongings, they wonder how quickly they can check their phones and laptops for other project openings. If they hit a dry spell they’ll be waiting on tables or driving for Uber.

The woman has settled in and arranged everything in her space for the day. She’s wiped everything down with sanitizer and wrung her hands with moisturizer. The door opens and the two junior associates walk in, trying to appear confident, competent, and friendly all at the same time. It’s not working. Simultaneously funny and pathetic. The reviewers slip their phones quickly under their notepads. Except the guy who doesn’t give a shit.

The associates thank everybody profusely and express great confidence in the awesome work everyone on the team will do on behalf of the client. To help move the project along they’ll be patrolling the room to answer any questions the reviewers might have. The woman rolls her eyes. She’s far more skilled than these kids when it comes to doc review. But she, like all other reviewers, has to grin and bear it. Some of the fawning is nauseating.

The woman stares at the computer screen. Her face still emotionless. She closes her eyes, imagining another life. The life of a passionate lawyer. Feeling alive. Inspired. Noble. How she felt as a first-year law student. A life that wouldn’t seemingly be pre-determined by her race and gender. A life where she could at least have a shot at being another Bryan Stevenson. That’s all she wanted. Just a shot.

She opens her eyes. Something powerful wells up inside her. It happens a lot at the beginning of her day. As always she exhales slowly to keep it inside, fearing that if it escapes her it won’t come back. She’ll eventually become yet another reviewer who doesn’t give a shit. She can’t let that happen.

She blinks away a budding tear.

And starts on her first document of the day.

Click.

Epilogue

The woman did eventually get her shot and wound up doing policy work in D.C. for an international foundation promoting gender equality. When she left her last and final doc review project, her co-workers as well as the agency personnel cheered for her, as they did for everyone who could leave that world. She let herself breakdown and cry. They were her friends after all (well, not all of them), even though they all scattered quickly as soon as they punched out. Rarely would they socialize outside of work.

Although she was miserable doing doc review, she knew that it was important work for the client and that the agencies perform an important role in finding good reviewers. If you carelessly fail to code documents privileged and not discoverable, vital information that would’ve remained confidential now must be disclosed to opposing counsel if it’s relevant. This could be disastrous.

She also realized that the contract attorney doc review industry now plays an important part in the new normal of the legal profession. Law firms have had to re-think their business models. They’re now moving away from the billable-hours structure to fixed price or budgeted arrangements with clients. And that will involve farming out document review so that firms aren’t charging clients high hourly fees for work done in-house by junior associates making $190,000 a year.

The woman tried to find the gentleman who clumsily sat next to her at the orientation for a big project years ago. But he was nowhere to be found. She wanted to tell him that in a way it was cool to see so many people of color there. Thirty years ago there were far fewer in the profession as a whole. It still bothered her, though, that most Big Law firms were still a pyramid in terms of diversity. At the top, the partnership ranks, you see few people of color and not enough women. The diversity grows as you move down the pyramid, with the greatest number at the base, the doc reviewers.

Would she want to be a partner in a Big Law firm? Probably not. But she wants to live in a world where she could have a real shot at it if she wanted to. Just a shot.

 

 

The World of Document Review #3 Diversity Rocks! Maybe Not.

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…

The World of Document Review #3 Diversity, Law Schools and the Big Law Track

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.

The World of Document Review #2 Exploring Diversity

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.

The World of Document Review #1 A windowless room packed with lawyers

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.