By Vivek Jayaram
There are two main reasons why diversity is so critical to growing a successful business. First, inclusive work environments generally produce happier employees, which results in greater productivity, morale, and retention. Second, a business that is run by people with different points of view is more likely to succeed because a diverse group of people will be able to better understand an increasingly diverse consumer base and audience. Although quite a bit has been written about the relationship between employees and an inclusive workplace, not so much has been said about the latter, particularly in a law firm setting.
“It depends” is probably the most common answer given to any legal question. For clients, it’s probably frustrating to hear. But in reality, it’s the correct answer to many legal issues because there’s often no bright line, no guaranteed outcome. So what are lawyers really saying when they say “it depends?” It depends. They may be referring to a fact-intensive inquiry that a judge or a jury will undertake in ultimately deciding a dispute, if such a dispute reaches the summary judgment or trial stage. They might be talking about what the C-suite’s real objective or goal is in acquiring a startup’s assets and technology, and whether it’s worth going through with the transaction in light of some potential IP ownership issues that were revealed in due diligence. Or they may even be alluding to certain PR or media fallout from taking a specific action; entering into a deal with an unpopular company or aligning the company with a controversial cause or leader. For that matter, a lawyer might be placing understandable importance on how a specific judge would perceive your look, feel, and demeanor on the witness stand in light of any inherent biases that she is known to have.
When there’s no clear cut answer to a legal question (and that’s the majority of the time), the “it depends” inquiry turns on the person or people answering the question. It seems pretty obvious that a client is best served by receiving input to its query from as many different (yet legally sound) points of view. But typical law firms are not particularly diverse, and so a client is usually getting a specific point of view, maybe two if she’s lucky. Building a firm that has a core commitment to diversity, then, is a benefit to clients, not just to employees.
Let’s consider a case for trademark infringement (an area in which our firm handles on a regular basis). The core question in most trademark infringement cases is whether there’s a likelihood of confusion between two or more trademarks. To answer this question, a Judge (on summary judgment or a bench trial) or jury has to determine the confusion question through the lens of a consumer. The overwhelming majority of partners in American law firms are white males. The majority of consumers are not. From a client perspective, they’re more likely to get better advice on a trademark infringement matter by employing a firm that has different viewpoints, including the majority viewpoint that already exists (a viewpoint that is equally important). In addition, there is a major push within the federal judiciary to not only appoint a more diverse group of judges, but also to hire clerks from different backgrounds. This is important because it means that in a trademark infringement case may have a Judge or a law clerk that has viewpoints that are not represented on your team’s bench, causing a disconnect between advocate and decision-maker. That’s a problem.
This is the first example that jumped to my mind. There are countless others. But the point is that while inclusive work environments are great for culture and morale (reasons enough to take action), the benefits of a diverse workplace impact the ability to deliver the best legal advice for clients.
One of the joys of running a practice is learning about the people with whom you collaborate on a daily basis. It’s amazing what happens when smart, respectful people with differing viewpoints come together to make a decision based upon a given legal framework. I am grateful to have learned so much from colleagues who have a vastly different background than mine. I’ve adopted arguments that I would not have discovered on my own because of these varying perspectives.
Always be inclusive. Your clients will thank you for it.