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A Note from Our Co-Directors

A Note from Our Co-Directors
Rhode Center Co-Directors Nora Freeman Engstrom and David Freeman Engstrom

In joining the Center on the Legal Profession this year as Co-Directors, we continue to feel humbled and privileged. We are humbled at the work that has gone before and the steep challenge of following in Deborah Rhode’s footsteps, and we are so privileged to work on issues that matter, and to learn from so many on the cutting edge of defining how law is practiced—and how it should be practiced—in the modern age.

In this newsletter, we have shared excerpts of just a handful of the dozens of remembrances that flowed after Deborah’s tragic death, with more available online. In these touching tributes, you see the many and important roles that Deborah played for the people around her: inspiring teacher, transformative scholar, generous mentor, loyal friend. We’ll have a further chance to honor her legacy and remember her remarkable life with a series of panels on October 15th, and a Memorial Service on October 16th.

As you’ll see in the pages that follow, the CLP has accomplished a huge amount this year, despite the difficult transition and persistent public health challenges. We continue to play a central role driving forward efforts nationwide and in California to reform the regulation of legal services to promote innovation and access to justice. We’ve worked to strengthen legal education by engaging with the ABA on the incentives facing law schools, and we we’ve also focused inward, helping to make Stanford a model for training lawyers in the digital age. And we’ve focused—and will continue to focus—on key questions at the intersection of technology and law, exploring how technology will transform the civil justice system, with particular attention to ensuring that technology makes the system fairer and does not exacerbate existing problems of inequality and access.

We’ll be pursuing an even more ambitious agenda going forward, and so we’ll need help. To that end, we’re thrilled that our former Executive Director, Lucy Ricca, will be rejoining the Center as Director of Policy and Programs, and longtime Advisory Forum member Mark Chandler will join the Center as a Senior Fellow. We’re also thrilled that Shanin Specter and Alexandra Walsh—two of the nation’s very top trial lawyers—are joining the Advisory Forum to add their unique experiences and insight.

Next year, we will continue—and will continue to expand—on this critical work. Among other activities, Mark Chandler will lead an important project to simplify and unify filing requirements as a way to spur tech-based innovation in civil justice areas where self-represented litigants too often suffer acute access challenges. We will hold a conference with access-to-justice scholars and policymakers on legal services regulation. We will run a Policy Lab to answer pressing questions related to regulatory reform. We will bring together lawyers, judges and scholars to discuss urgent issues in multidistrict litigation, including how to improve the experience of individual litigants. And, in concert with the Federal Judicial Center, we will hold a workshop for federal judges on Artificial Intelligence and the law.

We are so grateful for all of you who continue to engage with, support, challenge, and strengthen our work, and we welcome your thoughts.

Nora Freeman Engstrom Awarded Berkeley Law’s Civil Justice Research Initiative’s Best Article Prize

Nora Freeman Engstrom 1
Stanford Law Professor Nora Freeman Engstrom

On May 26, 2021, Nora Freeman Engstrom, Ernest W. McFarland Professor of Law and Co-Director of the Stanford Center on the Legal Profession, was honored with Berkeley Law’s Civil Justice Research Initiative’s inaugural Best Article prize for “The Lessons of Lone Pine,” published in the Yale Law Journal.

Originating in a toxic-tort case in New Jersey about contamination from the Lone Pine landfill, Lone Pine orders have been used to manage cases by judges in many of the major mass-tort multidistrict litigations of the last few decades.  Designed to weed out spurious claims early, these orders require plaintiffs to come forward with prima facie injury, exposure and causation by a date certain – or else face an early and unceremonious dismissal.  In the piece, Engstrom questions the conventional wisdom lauding Lone Pine orders and uses a deep exploration of their use to illustrate broader currents that are quietly transforming contemporary civil litigation. This Article is emblematic of Engstrom’s work on the day-to-day operation of the civil justice system and her focus on thorny issues at the intersection of tort law, ethics and complex litigation.

 

Nora Freeman Engstrom Awarded Berkeley Law’s Civil Justice Research Initiative’s Best Article Prize

 

Engstrom has also published a companion piece, titled “Lone Pine Orders: A Critical Examination and Empirical Analysis,” in the University of Pennsylvania Law Review (co-authored with her research assistant, Amos Espeland).  And with the help of SLS’s terrific library staff, Engstrom has created a national, searchable repository of Lone Pine orders, to promote future study and analysis.  (Because the orders are typically unpublished, before Engstrom’s work, they existed beneath the radar, and research on them was difficult.)

Building off this work, the Center is co-sponsoring with Berkeley’s Center on Civil Justice a September webinar for lawyers on leadership in multidistrict litigation, and a small convening in January of lawyers, judges and scholars on lawyer-client relationships in multidistrict litigation, and how to ensure that MDL clients are represented in a manner consistent with the rules of professional conduct.

Update on the Filing Fairness Project

As summer turns to fall, the Filing Fairness Project is refining, testing, and implementing its theory of change. The next step in the process of building a fairer and more inclusive civil justice system is building partnerships with the next set of essential stakeholders: technology providers. To that end, we’ve been hard at work identifying, learning from, and collaborating with leading technology groups in and around the legal tech space.

The Challenge: Patchwork Efiling Tools Preventing Widespread Access

Update on the Filing Fairness Project
State Court Administrator and former Judge Tom Boyd (Michigan), Justice Melissa Hart (of the Colorado Supreme Court), and Justice Evelyn Wilson (of the Kansas Supreme Court) address the critical access to justice challenge.

As we’ve noted previously, new, innovative solutions are needed to help litigants, including those without lawyers, access state courts and vindicate their rights. Every year, 55 million people experience 260 million legal problems. Of those, 120 million go unresolved or conclude in an unfair way.

Filing state court documents online is very difficult (and sometimes impossible) despite readily available technology. While some jurisdictions offer technology and resources to help navigate the justice system, small differences in legal forms – and in the back-end systems through which they are filed – inhibit tech companies from scaling litigant-facing tools for nationwide or even statewide use. As a result, innovative solutions typically occur as one-off, single-jurisdiction pilots that are costly to maintain and do not spread easily to other jurisdictions.

Our Progress Thus Far: Coordination Between Disparate States

Update on the Filing Fairness Project 1
At the March kick-off, the Stanford Law School team presented on the three pillars of a successful pilot.

Beginning with a March kick-off and extending through the summer, we have worked with court leaders from six states – Alaska, Colorado, Kansas, Michigan, Texas, and Virginia – to plan a streamlined efiling approach for interested technology providers. We have also laid the groundwork to ensure that submitted litigant data is comprehensive and fileable, generating and revising (again, with the assistance of state court leaders) form fields lists that highlight common and jurisdiction-specific requirements.

Technology providers have repeatedly stressed the importance of such lists in ensuring that multi-jurisdictional efiling tool development is both possible and efficient. We are collaborating with states and tech providers to establish a formal process for updating these lists in the future.

Update on the Filing Fairness Project 2
Policy Lab students gathered after the March project kick-off. The Filing Fairness Project began as a project of the Stanford Law School Policy Labs, eventually growing into a full-fledged and long-term endeavor.

In parallel with state court coordination, we have continued the outreach with interested technology providers that began with the 2021-22 Policy Labs. Dozens of tech providers –from large, for-profit companies to small, non-profit organizations – attended a recent webinar, hosted by Stanford with state court participation, to learn how they could get involved in the Filing Fairness Project pilot. The webinar highlighted the need for innovative solutions to help individuals better navigate the state court system, including through demonstrated enthusiasm from states in expanding online access, particularly for self-represented litigants. After the webinar, attendees’ survey responses demonstrated a high degree of interest in building document assembly and efiling tools for users of state court systems.

Our Next Steps: Tech Summit Pilot Launch

Update on the Filing Fairness Project 3
The March project kick-off involved extensive collaboration within and across state delegations — mostly in the Stanford sunshine.

To begin implementing the pilot – and to build on the clear enthusiasm from both states and tech providers – Stanford has invited these stakeholders to attend a Tech Summit on October 14th to be held on the d.school campus. During this all-day working session, tech providers will receive form fields lists and efiling integration plans from each participating state, and they will engage directly with state court leaders to ask questions and begin designing pilot document assembly efiling tools.

Upon the Tech Summit’s conclusion, tech providers will commence building and testing document assembly tools that can efile court forms into multiple jurisdictions. We expect these tools to be available to the public in 2023.

Call to Action

If you are a tech provider who is interested in participating in the Filing Fairness Project Pilot, please complete this Google Form and subscribe to the CLP blog.

A Note from Our Co-Directors

We write from CLP to update you on our year so far.

CLP’s academic year began with a two-day celebration of the remarkable life and legacy of Deborah Rhode. On October 15 and 16, 2021, a set of panel discussions covered a broad set of topics befitting Deborah’s wide-ranging influence and enormous impact, both academic and personal. As Paul Brest, former dean and professor emeritus here at SLS, said: “Deborah was a pioneer and leader in every field she touched—sex discrimination, professional responsibility, pro bono legal practice, women and leadership, and just plain leadership.” We are grateful for the opportunity to honor Deborah’s legacy and extraordinary life—and we are so thankful to those of you who joined us, participated remotely, or submitted remembrances from afar. We are also deeply appreciative of the Stanford Law Review’s publication of powerful reflections on Deborah’s lasting imprint at Stanford, in the legal profession writ large, and beyond.

Building on Deborah’s singular talent for conducting original research to understand problems at their root then devising and implementing solutions—which Nora, in her Stanford Law Review Essay, termed “the Rhode Treatment”—we have redoubled our efforts to keep pushing on the issues that matter.

Access to Justice Through Innovation. We continue to play a central role in ongoing attempts nationwide, and here in California, to promote innovation and access to justice through regulatory reform. David and CLP’s Lucy Ricca have been working as appointees to the State Bar of California’s Closing the Justice Gap Working Group, tasked with recommending a design for a regulatory “sandbox” that relaxes lawyer regulation in order to spur innovation in legal services. CLP is also contributing to vigorous debate via original research, writing, and press outreach. A few highlights of this work include an ongoing Policy Labthis op-ed from CLP’s Jason Solomon, this LA Times editorial, and comments submitted in support of the State Bar’s proposal to create the equivalent of nurse practitioners to work in areas like family law, housing, and debt. Meanwhile, Nora has co-signed an amicus brief in a recent challenge to New York’s unauthorized practice of law (UPL) restrictions, and she recently participated in a roundtable discussion at Northwestern discussing that potentially pathbreaking litigation.

 

Photo of judges gavel with a scale in the background

 

The Filing Fairness Project. Mark Chandler, who joined us last year after ending his remarkable run at Cisco, is co-leading still another project alongside David and Margaret Hagan, leader of the Legal Design Lab. In particular, Mark, David, and Margaret seek to design and launch an ambitious multi-state pilot effort (titled the Filing Fairness Project) to improve civil filing systems. The pilot is bringing together six states—representing roughly 1 in 6 Americans, from Alaska to Virginia—to pave the way for scalable technology that can assist self-represented litigants with acute civil justice needs. Currently, the majority of litigants are pro se—but the forms one must complete in order to vindicate one’s rights (to respond to an eviction notice, say) are bewildering, and they differ across jurisdictions. That difference, along with variable e-filing standards and other administrative burdens, prevents technology providers from offering help at any scale. The Filing Fairness Project will try to change that—with implications that are potentially enormous.

 

Illustration in black, red and white of a prisoner walking out of a prison cell.

 

Law and Lawyering into the Digital Future. The Filing Fairness Project is one way we are seeking to maximize technology’s positive impact on the legal system. We are also forging new knowledge on technology’s impact. David’s forthcoming first-of-its-kind book, Legal Tech and the Future of Civil Justice (Cambridge University Press), follows from last year’s conference of the same name and gathers expert voices from CLP and beyond on the future of law and legal practice.

Protecting Consumers and Clients. CLP has also shone much-needed light on important issues in legal ethics, including on witness recantation in criminal cases. Efforts to enhance client protection and participation will continue with a May convening regarding attorney-client relationships in multidistrict litigation—where leading scholars, practitioners, and judges will join us to discuss the present and future of aggregate litigation.

 

Photo of professionals in a boardroom

 

A Stronger, More Diverse ProfessionOne aspect of strengthening the profession is ensuring that judges have the legitimacy they need in our democracy. We recently co-hosted a discussion on attacks on the judiciary, where Nora was a featured speaker. Nora also recently signed a letter to Chief Justice John Roberts urging the Supreme Court to adopt a Code of Conduct. Meanwhile, Orrick Chair Mitch Zuklie, Diversity Lab’s Caren Ulrich Stacy, and Fenwick Director of DEI Mira Dewji spoke to the class “Reforming the Profession,” co-taught by Jason Solomon and the Rock Center’s Mike Callahan, about the most promising levers and difficult challenges in increasing diversity among lawyers. We are currently considering our next project on how to best make an impact on diversifying the profession—a critical issue and major priority.

 

Black and white photo of Todd Venook

 

The Team. Todd Venook, a Yale Law School graduate and, most recently, a law clerk in the Middle District of Alabama, joined us last fall as our inaugural Civil Justice and Technology Fellow and has already made a significant contribution. We’re also looking to hire a Justice Innovation Lead to drive the Filing Fairness Project through its pilot stage. With our team more fully in place, we’re eager to broaden and deepen CLP’s imprint on critical issues facing the profession.

Many thanks to all of you who support our efforts, engage with our work, and challenge our thinking. We are grateful for your partnership, and we look forward to another successful year.

Nora Freeman Engstrom
Co-Director, Stanford Center on the Legal Profession and Ernest W. McFarland Professor of Law

David Freeman Engstrom
Co-Director, Stanford Center on the Legal Profession and Professor of Law and LSVF Professor in Law

CLP + Legal Design Lab = Student opportunities in A2J + Design + Tech

On September 21, the Center on the Legal Profession and the Stanford Legal Design Lab co-hosted a gathering, titled CLP + Legal Design Lab = Student opportunities in A2J + Design + Tech (video here), to highlight the multiple hands-on student opportunities offered over the next twelve months.  The gathering, held in the law school’s Crocker Garden and within the University’s Covid protocols, was well attended by students within and beyond the law school and curious about projects focused on access to justice and leveraging design and technology.

 

 

CLP + Legal Design Lab = Student opportunities in A2J + Design + Tech 3

 

Professor Nora Freeman Engstrom, co-director of the Center on the Legal Profession, kicked off the event with a call to action on the access to justice crisis in the United States. The event, featured short speeches via Zoom by the Honorable Bridget McCormack, Chief Justice of the Michigan Supreme Court, and Ronald S. Flagg, the President of the Legal Service Corporation.  Both Chief Justice McCormack and Mr. Flagg spoke passionately about the American access to justice crisis and stressed that the magnitude of the crisis requires bold action aimed at truly systemic change.  Each noted, echoing a line often repeated by CLP’s Founder Deborah L. Rhode, that the American promise of equal justice under the law does not reflect the reality for most Americans facing legal problems and turning to the justice system for help.  As Chief Justice McCormack said, “I am here to tell you that disruption is what is needed right now in our legal system.”

 

CLP + Legal Design Lab = Student opportunities in A2J + Design + Tech

 

Chief Justice McCormack and Mr. Flagg framed the issue as one of systemic challenge rooted not only in easily-recognizable issues such as underfunding, bureaucracy, and poverty, but also in the institutional design of law, the practice of law, and the legal profession.  Chief Justice McCormack highlighted the challenges facing the approximately 80% of consumers who lack legal representation and are trying to access the legal system to resolve their justice needs and act upon their democratic rights, “It’s hard to imagine another public good that would prohibit you from accessing it if you couldn’t afford [someone to help you] access it.  [Imagine if we said] ‘You can’t use that highway unless you can afford a highway helper to show you how to get on the highway.’  We wouldn’t stand for that.”  Mr. Flagg agreed, noting:

Our judicial and administrative systems for enforcing those rights were largely built by lawyers, on the assumption that people using the systems will be represented by lawyers.  And in many categories of life altering cases that assumption is simply false.  In family law cases, in many jurisdictions across the country, less than 10% of the litigants are represented.  Even more unfairly, in eviction cases in many jurisdictions over 90% of tenants are unrepresented while over 90% of landlords are represented.

The speakers noted the Covid-19 pandemic exacerbated many of the challenges already endemic in the civil justice system, increasing to the point of impossibility physical access to the courts, increasing the difficulties for people trying to go it alone, and increasing the need for virtual and other technology-based solutions.

Despite this bleak picture, both Chief Justice McCormack and Ron Flagg exhorted the students to take the opportunity of their position at Stanford and, for the law students in attendance, of a legal education, to create the disruption so needed to launch impactful systemic change.  Chief Justice McCormack said, “If law schools are only building bespoke lawyers ascending to bespoke firms to serve the elite clients who can pay those bespoke lawyers they’re not going to be part of the solution.  The work of the [Stanford policy labs], in my view, is how we will make transformational change happen.  By your faculty and all of you engaging directly with stakeholders and bringing the university’s expertise and your excellent ideas and innovation to the table.”

 

 

After the rousing calls to action from Chief Justice McCormack and Mr. Flagg, Professor David Freeman Engstrom, Co-Director of CLP, introduced the policy lab leaders to provide more detail on the projects and answer students’ questions.  Mark Chandler JD ‘81 and until recently the Chief Legal Officer at Cisco, has joined CLP as a Fellow and is leading, along with Professor Engstrom and Margaret Hagan, the policy lab titled:  Unlocking Technology to Promote Access to Justice:  A Pilot to Reform Civil Justice Filing Systems.  The policy lab will serve as a launch for a longer-term project which seeks to develop standardized and simplified formats for use by self-represented litigants and legal services organizations in simple but high need civil justice areas (domestic violence, eviction, consumer debt).   The policy lab students will be doing the initial needs finding and strategy planning for the project, conducting stakeholder interviews, identifying high potential jurisdictions and civil justice areas, and preparing for a convening of stakeholders during winter quarter.

Chandler recalled getting interested in access to justice as a law student, inspired by “my mentor Deborah Rhode.”  As General Counsel of Cisco, he was a trailblazer in developing and using legal technology, but when he and his colleagues volunteered in legal aid offices, he found they were “in the dark ages of technology,” with lawyers filling out forms when they could be helping more clients. Invoking the example of a 40 year-old single mother with two kids seeking a protective order for domestic violence in California, he pointed out that even the government’s own website for self-represented litigants made the process seem complicated.  Chandler pointed to the need for more Turbo Tax-like solutions to help self-represented litigants, and recalled his discussion with Flagg about whether to leave Cisco and pursue this project. “I asked him ‘Is it impossible?’ and he said ‘Not impossible, just very hard.,’’ Chandler recounted.  And Chandler closed by quoting President John F. Kennedy’s famous challenge in the context of going to the moon—that we tackle challenges “not because they are easy, but because they are hard, because that goal will serve to organize and measure the best of our energies and skills, because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win.”

 

 

Margaret Hagan, Director of the Stanford Legal Design Lab, presented the Lab’s autumn policy lab Justice By Design: Eviction.  The policy lab is a continuation of the ongoing eviction work Margaret and her team have led since 2018, work that has only become more pressing during the pandemic.  The class focuses on creating, evaluating, and scaling new interventions to prevent eviction & mitigate the harms they do to families, health, and communities.  This fall, the policy lab client is the NAACP.  Students will work on 2 particular issues that the NAACP is facing, as the organization works to prevent eviction with an innovative, community-driven pilot program in South Carolina:  (1) How can courts be more involved in mitigating the harms caused by eviction?; and (2) Can we train large groups of community members to do ‘legal first aid’: spotting legal issues and referring people to services?

The event concluded with refreshments and much discussion among presenters and attendees.

Discussion: Indigent Defense During the Pandemic and Beyond

Professor Ron Tyler of Stanford’s Criminal Defense Clinic moderates an October 26 discussion on “Indigent Defense During the Pandemic and Beyond” with Avis Buchanan, Director of the D.C. Public Defender Service, and Ricardo Garcia, Los Angeles County Chief Public Defender. This followed an October 15 panel with some of the leading “progressive prosecutors” in the country – District Attorneys Chesa Boudin of San Francisco, Eric Gonzalez of Brooklyn, and Marilyn Mosby of Baltimore. Both panels were co-sponsored by Stanford Law’s Center on the Legal Profession and Criminal Justice Center.

How Should Legal Education Be Regulated?

In October 2020, the Center co-hosted a virtual convening on legal-education accreditation with the Institute for the Advancement of the American Legal System (IAALS) and Law School Transparency.

 

The context and motivation for the convening came from three important publications on legal education that came out in early 2020, before the onslaught of Covid-19: the report from the ABA Commission on the Future of Legal Education, Ben Barton’s Fixing Law Schools, and LST’s 2025 Vision from Law School Transparency.

One theme of all three reports—and many other recent publications and commentary—is that legal education must do better on access, affordability, and innovation. Despite general agreement that reform is needed, change is too slow and halting, in part because law schools face structural barriers that frustrate reform efforts.

This virtual convening—which included some of the country’s leading experts—zeroed in on one of these structural issues: the accreditation standards and process for law schools. All three recent publications raise concerns that the ABA’s accreditation standards contribute to the homogeneity, high cost, and lack of innovation that characterize U.S. law schools. These criticisms are not new, and indeed, the ABA Council on Legal Education—the accrediting body and regulator of law schools—has shifted in recent years towards less reliance on prescribing “in

puts” for schools (i.e. size of the library) and more on outcome measures (i.e. what students must know and do).

In particular, the gathering kicked off with brief remarks from the principal authors of each of the three reports, followed by a discussion with the ABA Council’s two most recent Managing Directors on the key principles of law school regulation. The group then turned to the question of how the accreditation standards affect the kinds of educational models that emerge (and don’t emerge), spurred by remarks from former Undersecretary for Education and president of the Western Association of Schools and Colleges accreditor Jamienne Studley and an academic dean from the innovative university Minerva, which has a 100% online curriculum and is a leader in higher education at teaching and measuring learning outcomes.

Finally, the convening closed with discussion of how to do quality assurance focused on student outcomes—how to assure that new lawyers graduate with the competencies they need for practice—led by University of Michigan professor Lisa Lattuca who was the co-principal investigator of a national study on the impact of outcomes-based accreditation on student learning in engineering programs. There was also discussion about possible next steps, which the Center has pushed forward since the convening.

Building a Diverse, Inclusive Profession

Building a Diverse, Inclusive Profession

 

On February 2, the Center for the Legal Profession co-hosted an event (video here) with the Black Law Students Association, Women of Stanford Law, and the Stanford Center for Racial Justice that focused on how to address the scope of racial and gender inequality in the legal profession.

Moderator Joanna Grossman, a visiting professor at Stanford and professor at SMU Dedman School of Law, framed the discussion by noting that the lack of diversity and inclusion is evident in several different measures, but one of the most telling is the pyramid shape of advancement in the profession. For example, women have been 50% of law school graduates for about 20 years, but only 18% of equity partners in law firms. Lawyers of color are 22% of associates, but only 6% of equity partners. Women of color are the least represented, comprising slightly under 3% of equity partners. The lack of vertical equity is not the only way of measuring diversity or inclusion in the legal profession. Still, Grossman pointed out, it gives us a way of focusing on the persistent issue that reflects a much deeper set of problems: bias, structural inequities, complacency, power dynamics and resistance to change.

Panelists discussed the norm of lawyers being white and male, and how that affects the profession.  Shauna Johnson Clark, Norton Rose Fulbright’s global and U.S. chair, as well as its head of employment and labor in the U.S., mentioned that outside of large law firms and Fortune 500 legal departments, the profession is fairly diverse.  For Clark, one of the most important factors in diversifying large law firms is to create a firm culture environment that allows people to be “as close to their authentic selves as possible.”

Joseph West, a partner and Chief Diversity and Inclusion Officer at Duane Morris who previously served as the President of the Minority Corporate Counsel Association while in-house at Wal-Mart, emphasized the importance of implicit bias training.  Such bias comes into play at different “chokepoints,” he explained, including recruiting, compensation, mentoring, and who gets what work.  Clark, an African-American woman, mentioned that earlier in her career, when she was introduced to a new client, they would often say: “Where’s my lawyer?” She dubbed this phenomenon “sticker shock.”

Sandra Simkins. the Director and co-founder of the Children’s Justice Clinic at Rutgers Law School, argued that the norm of a female lawyer in many areas of public-interest law was itself a problem and comes with its own unique set of challenges. She pointed out that any profession that is primarily staffed with women becomes a “pink ghetto” (the subject of her recent article) with lower status and less compensation. In Simkins’ view, the gender stratification for women in public interest begins in law schools, as clinicians and legal writing professors (both primarily women), are at the lower end of the law school hierarchy.

The panelists discussed the opportunities associated with in-house counsel making diversity a priority in their hiring of outside counsel. “Client demands drive everything,” as West put it. And he said that GCs at a range of companies were starting to prioritize diversity and inclusion.  Doing this meaningfully, West pointed out, means making sure that the diverse partners who own the client relationship are getting the “origination credit” for firm compensation purposes.  Another approach – used by former GC Brad Smith at Microsoft – is incentivizing in-house counsel to reach diversity and inclusion metrics by tying a portion of their bonus to such goals. Clark noted that if we want to see real change, then corporate clients need to give diverse lawyers “at-bats” to run a deal or try a case. “Greatness — performing and delivering results – is the great equalizer. The problem is giving people an opportunity to be great,” she said.

The legal profession also needs to focus more on data and metrics, according to the panelists, in order to make real progress on diversity. Clark challenged law firms on this score: “In terms of making progress, if you are ashamed to even measure it, then that just speaks to the problem.”  But the data challenge is even worse outside the world of large law firms.  For years, the ABA has marked women’s progress in firms and other areas, Simkins pointed out, but there have been no reports or attempts to document women’s public interest careers. Grossman pointed to the continued importance of data collection from professional affinity groups like the ABA Commission on Women in the Profession and West’s former organization, the MCCA, which collaborated on the well-regarded “bias interrupters” study.

West noted greater attention in law schools to the issues around diversity and inclusion as well. Recently, there have been roundtable discussions hosted by the ABA Council on Legal Education about whether or not bias training should be mandatory in law school. “There is a greater understanding of the need for fluency around diversity and inclusion and equity, particularly as it relates to bias, and I don’t think that’s going to change,” he said.