The Conceit Of Meritocracy: Does Tradition Replace Thinking?

'We are absolutely serious about diversity. We need African Americans and Hispanic attorneys. We will do what it takes, and are very committed, but one thing ' we can't compromise on merit. We aren't going to lower our standards.' ' A statement heard from more than one law firm managing partner.

Is it true that merit and diversity conflict? Do law firms have to lower their standards in order to find more minorities?

I am, by training, a research psychologist and by profession a management consultant. I'm one of the analytic problem solvers who work in the squishy nexus between business processes and human behavior. Most 'tough' problems can be made amenable to resolution by better framing, and the most frequently missing dimension is the predictable illogic of human behavior.

I signed on to help address the diversity issue in the legal profession. That should be a matter of helping law schools and law firms find, appreciate, hire, and retain people from ethnic backgrounds that are underrepresented. What I wasn't quite prepared for is the strong perception that hiring minorities equals diminution of standards. Frankly, I thought we'd gotten past that in the 1960s and 70s. Still, my training is as a scientist, so I had to follow the data. This is a synopsis of what we found.

What is 'Merit' Anyway?

We did some reading and research on the definition of 'merit' to see if there is a resolution to the perceived conflict. There is clearly little diversity in major law firms; we were curious how much merit there is. We looked for the most rigorous definition of merit to see if somehow that is truly in conflict with diversity.

We all like the idea of merit, meaning that opportunities are earned by good work, demonstrated ability, and achievement. Merit implies that the individual is deserving of the opportunity by some combination of attributes and accomplishments, and is typically viewed as distinct from opportunities afforded by class or privileged ancestry. Since employment is not purely a prize, but a bet on future contributions, then merit or 'deservingness' needs to be some combination of attributes and accomplishments that are predictive of future performance. The question is just which attributes and accomplishments are the best predictors of success. Is undergraduate GPA a good predictor, or is participation in a team sport? Is the grade in constitutional law more predictive than the grade in corporate law theory? These are empirical matters calling for some data and analysis. In our review of merit indicators, we looked for simple empirical and rational evolution of selectors for those who will practice law. We looked for meritocratic rules that result in improved ability to predict professional success.

For the elite law firms, the definition of 'merit' has been unchanged for many years, and consists of a few key well-known indicators:

• Rank of law school as determined by U.S. News and World Report;
• Rank in class/GPA in law school; and
• Law review membership and/or Order of the Coif.

It also sometimes includes undergraduate GPA and LSAT scores.

The first two, law school and rank in class, appear to be applied not only when hiring from law school but also (in many firms) lateral associate hiring, and even lateral partners.

Your alma mater and GPA are predictors of success as an attorney even 10 or 20 years later? It appears that there is widespread belief that this is true. No other profession is as strict in hiring rules and none maintain the importance of professional school selection and grades for so long. In fact, in legal circles it is not considered surprising when mid-career positions require high SAT scores, a test taken in high school and designed to predict preparedness for freshman college coursework.

Strict adherence to these kinds of rules over time and across firms indicates strong belief that the rules produce better selections than other available rule sets. They carry some clear assumptions that the underlying processes of admissions to law schools, school selection by student, and the nature of law school work draw on the same skills required to be a practicing lawyer.

Are There Other Definitions of 'Merit'?

In looking through the literature, there aren't any studies showing that the commonly used credentials are better selectors of talent than other rational approaches. Though the notion of 'best students from best schools' has facial appeal, it carries with it quite a bag of assumptions. Maybe there are predictors of lawyering that are better than scholarship or ability to get into an elite law school since a quick look around suggests that such credentials aren't in fact the best predictors of success.

Success by Being Different?

Many established firms have sufficiently long histories that the 'founding' of the firm has receded into myth. A few are young enough that the founding cohort is still active and visible. I visited one such firm to see if the hiring committee was aware of what kinds of individuals were responsible for the firm's formative success and was told that the founding cohort of the firm were from a wide array of backgrounds, including graduates of third tier law schools and strong attorneys who weren't good law students. This group was aggressive, smart, creative, and very different in their approach to the business of law, which drove meteoric success. They were diverse in every sense, except in their shared passion to demonstrate agility and creativity in achieving success.

Though the firm's success was driven by a team from widely different backgrounds, once the firm achieved a certain size, selection became similar to other firms, based on law school and class rank. In the words of one partner, 'It's just easier and you don't have to explain your decisions.'

These stories, which we believe are numerous, are strong evidence that something else is driving achievement, not just school status and student achievement.

Partner Profiles Don't Match

Our first example shows that these credentials didn't predict the great success of a new firm, but what about within a given firm, any large firm? Do the people who best exemplify these selection criteria make it to partner better than those who don't?

The Minority Corporate Counsel Association ran their own survey of the top 250 law firms, and found that roughly 40% of partners don't have the credentials that the firms use to hire new associates. Firms appear to ignore their own internal success models in determining hiring criteria.

Evidence From Firms That Hire
From Multiple 'Tiers' of Law School

The top-tier firms that only hire from top 20 law schools can never tell empirically if those hires are better than some other group, so they don't have the inconvenience of empirical data. They don't have good comparison groups.

Looking at secondary markets, where many local and regional firms live, you can find laboratories where firms hire from a wide range of schools, and there are sufficient numbers from each group to do proper comparisons. Peter Sloan, of Blackwell Sanders Peper Martin in Kansas City, had the insight to commission such a study to look at associates' productivity and effectiveness. They were surprised to find that the graduates of second-tier schools out-produced those from first-tier schools, and the graduates of third-tier schools did better yet. In work quality, the top-tier graduates, as a group, didn't come up to the level of the other associates. They also split the associates into the 'top 10% of law school class' vs. everyone else to find that class rank is unrelated to productivity or effectiveness. This isn't to say that every second-tier school graduate is better than every first-tier school graduate, but that on average the groups differed in the counterintuitive direction. It did debunk the notion that alma mater and class rank are strong predictors of success.

Research From an Elite Law School

Boalt Hall law professor Majorie Shulz and psychology professor Sheldon Zedeck are conducting a rigorous study of what makes a good lawyer and how best to measure those capabilities. In a rigorous design similar to Blackwell Sanders', the resear-chers began with a look at practicing lawyers and ask the na've question, 'What makes for an effective practicing lawyer?' They were looking for behavior, skills, or any attributes that colleagues found important, and put no restrictions on what types of attributes might surface.

They found 26 'effectiveness' factors that ranged from the obvious (Diligence, Analysis and Reasoning) to the implicit (Speaking, Integrity, Relationship Development).

When they looked at the LSAT, they saw that it measured a very narrow range of those dimensions of legal aptitude, missing the wider range of capabilities required to be an effective practicing lawyer. Law school admission is based on the possession of a few of the needed abilities, and might discriminate against those who are relatively weak in those areas and stronger in the many other areas. It may be effectively screening out those who have capability profiles that do not include strength in the few measured areas.

Yes, they found that minorities tended to have profiles that showed the unmeasured capabilities to be stronger than the measured ones. Since the LSAT is used for admission to law school, and the law school status is used in law firm hiring, the decision outcomes appear to be:

• False positives: Schools admit students who are quite good at the narrow range of measured aptitudes, but relatively poor overall. They might make good scholars, but not so outstanding lawyers; and
• False negatives: Schools rejecting students who are strong overall, but
  relatively weak in the few measured areas.

Because law firms also place high emphasis on school rank, the bias is propagated into the profession.

Do Lawyers Know the Difference
Between Merit and Status?

One question we had was: 'Do the lawyers at these elite firms believe that the credentials are predictive of capability?' Our survey covered only minority lawyers, but they were quite clear. Respondents reported that at law firms, your alma mater is not predictive of what you can do; it's about reputation. At least the minority attorneys understand that your provenance is not your potential; it's just your bragging rights.

Other Ways to Look at Merit

Looking at research, best practices, and candid impressions, there are
better ways to define 'merit' than strict use of alma mater and class rank. Selecting for the 'best and brightest' may involve a little more effort and thinking, but will yield people who are more suited to the roles, more capable, more productive, and less likely to leave the job prematurely.

Blackwell Sanders has done well for itself in terms of diversity, retention, work quality, productivity, and associate satisfaction by completely revamping both its selection and performance-management process ' basing selection, promotions, coaching, mentoring, and training on a demonstrated capability assessment. They have even published the details of their methodology for other firms to use.

Jim Kennedy, of InterviewEdge, has introduced capability based screening to several law firms, who are becoming more careful and wise in their recruitment ' making fewer assumptions and assessing carefully for a more complete fit to the job.

What is the effect of restricting law firm hiring to the top of the class from elite schools? When law school status and class rank are the primary selectors for new lawyers, there are some predictable outcomes.

Homogeneity

The firms won't have sufficient experience with other backgrounds to develop an understanding of what makes for good attorneys. From time to time, they hire a person with a non-traditional background, make the person feel like a fish out of water, and then watch the person leave. Then, the firms will say: 'Well, we tried that, but it just didn't work out; they just couldn't keep up.'

Turnover

The structure of the firm requires a certain amount of turnover in order to be financially rewarding to the partners. Pyramid structures require a flow of talent into the bottom and then bleeding off over time, as individuals rise. 'Good' turnover is an orderly process in which a successful associate moves to an in-house role with one of the firm's clients, and supports the client relationship between the corporation and the law firm. In spite of this 'necessary' turnover business model, there is excessive turnover in many cases. People who leave 'early,' during the first 2 or 3 years, have typically cost the firm more than their billable hours have returned They also increase recruiting costs and leave work undone and unbilled. These might be considered 'misfits.' The highly credentialed associates are also mobile and leave easily for more money to other firms that are credential focused. Both misfits and firm-hoppers cost the law firm dearly in terms of productivity and cost.

Effective Elimination of a Meaningful
Presence of African-Americans or Hispanics

There are sufficiently few African-Americans and Hispanics in law schools (a percentage that may even be on the decline), that restriction of law firm careers to only those in the top of the class at the few elite schools will numerically restrict new entrants into the profession. The absolute number relative to the number of new law firm hires might be regarded as negligible. The black or Hispanic junior associate will remain an isolated, endangered species at the elite firms, and subject to the additional stresses associated with being the rare minority.

The absence of minorities in major law firms and the lack of change in that respect will send a clear message to prospective black and Hispanic attorneys: Pick another line of work. When looking forward at careers, these students see success in medical, business, and financial careers as possible. There are increasing numbers of people such as themselves in the ranks of the successful in these careers. Corporate law, however, has not seen meaningful change in the representation of African Americans and Hispanics in recent years.

What do we Conclude?

Clearly, the rules by which law firms select new employees is not as meritorious as they could ' and should ' be. Their traditional definition of merit does not have the support of research, and has the side effects of higher turnover and less diversity. With research and experience indicating that there are better indicators of merit, firms would be well served to adopt them and look at all candidates with good educations who have the aptitudes that portend success. By not restricting the initial selection to top of the class of the most prestigious schools, firms will experience at least two benefits: They will see a larger number of individuals who have the potential to be successful; and they will also see more African Americans and Hispanics. The firms that move in the direction of selection based on true merit rather than selection based on less than entirely relevant credentials will experience benefits that could make them more competitive.

We see early signs of movement toward capability based selection and performance management, mostly in smaller firms. We also see a few law firms becoming even more credential focused, requiring yet higher grades and high test scores all the way back into high school. This is reminiscent of Leon Festinger's 1960 social psychological book, When Prophecy Fails, which recounts the behavior of a cult that predicted the end of the world and the salvation of the believers via spaceship. When their prophecy failed, instead of becoming more rational, they actually became more devoted to their beliefs, no matter how much they are contradicted by the facts.

As the psychologist, I see the inevitability of rational capability based hiring rules and the benefits of improved diversity, decreased employee churning, and improved work environments. Economic and social pressures will drive this change. The question remains: How fast will it occur and which major firms will take the lead?

'We are absolutely serious about diversity. We need African Americans and Hispanic attorneys. We will do what it takes, and are very committed, but one thing ' we can't compromise on merit. We aren't going to lower our standards.' ' A statement heard from more than one law firm managing partner.

Is it true that merit and diversity conflict? Do law firms have to lower their standards in order to find more minorities?

I am, by training, a research psychologist and by profession a management consultant. I'm one of the analytic problem solvers who work in the squishy nexus between business processes and human behavior. Most 'tough' problems can be made amenable to resolution by better framing, and the most frequently missing dimension is the predictable illogic of human behavior.

I signed on to help address the diversity issue in the legal profession. That should be a matter of helping law schools and law firms find, appreciate, hire, and retain people from ethnic backgrounds that are underrepresented. What I wasn't quite prepared for is the strong perception that hiring minorities equals diminution of standards. Frankly, I thought we'd gotten past that in the 1960s and 70s. Still, my training is as a scientist, so I had to follow the data. This is a synopsis of what we found.

What is 'Merit' Anyway?

We did some reading and research on the definition of 'merit' to see if there is a resolution to the perceived conflict. There is clearly little diversity in major law firms; we were curious how much merit there is. We looked for the most rigorous definition of merit to see if somehow that is truly in conflict with diversity.

We all like the idea of merit, meaning that opportunities are earned by good work, demonstrated ability, and achievement. Merit implies that the individual is deserving of the opportunity by some combination of attributes and accomplishments, and is typically viewed as distinct from opportunities afforded by class or privileged ancestry. Since employment is not purely a prize, but a bet on future contributions, then merit or 'deservingness' needs to be some combination of attributes and accomplishments that are predictive of future performance. The question is just which attributes and accomplishments are the best predictors of success. Is undergraduate GPA a good predictor, or is participation in a team sport? Is the grade in constitutional law more predictive than the grade in corporate law theory? These are empirical matters calling for some data and analysis. In our review of merit indicators, we looked for simple empirical and rational evolution of selectors for those who will practice law. We looked for meritocratic rules that result in improved ability to predict professional success.

For the elite law firms, the definition of 'merit' has been unchanged for many years, and consists of a few key well-known indicators:

• Rank of law school as determined by U.S. News and World Report;
• Rank in class/GPA in law school; and
• Law review membership and/or Order of the Coif.

It also sometimes includes undergraduate GPA and LSAT scores.

The first two, law school and rank in class, appear to be applied not only when hiring from law school but also (in many firms) lateral associate hiring, and even lateral partners.

Your alma mater and GPA are predictors of success as an attorney even 10 or 20 years later? It appears that there is widespread belief that this is true. No other profession is as strict in hiring rules and none maintain the importance of professional school selection and grades for so long. In fact, in legal circles it is not considered surprising when mid-career positions require high SAT scores, a test taken in high school and designed to predict preparedness for freshman college coursework.

Strict adherence to these kinds of rules over time and across firms indicates strong belief that the rules produce better selections than other available rule sets. They carry some clear assumptions that the underlying processes of admissions to law schools, school selection by student, and the nature of law school work draw on the same skills required to be a practicing lawyer.

Are There Other Definitions of 'Merit'?

In looking through the literature, there aren't any studies showing that the commonly used credentials are better selectors of talent than other rational approaches. Though the notion of 'best students from best schools' has facial appeal, it carries with it quite a bag of assumptions. Maybe there are predictors of lawyering that are better than scholarship or ability to get into an elite law school since a quick look around suggests that such credentials aren't in fact the best predictors of success.

Success by Being Different?

Many established firms have sufficiently long histories that the 'founding' of the firm has receded into myth. A few are young enough that the founding cohort is still active and visible. I visited one such firm to see if the hiring committee was aware of what kinds of individuals were responsible for the firm's formative success and was told that the founding cohort of the firm were from a wide array of backgrounds, including graduates of third tier law schools and strong attorneys who weren't good law students. This group was aggressive, smart, creative, and very different in their approach to the business of law, which drove meteoric success. They were diverse in every sense, except in their shared passion to demonstrate agility and creativity in achieving success.

Though the firm's success was driven by a team from widely different backgrounds, once the firm achieved a certain size, selection became similar to other firms, based on law school and class rank. In the words of one partner, 'It's just easier and you don't have to explain your decisions.'

These stories, which we believe are numerous, are strong evidence that something else is driving achievement, not just school status and student achievement.

Partner Profiles Don't Match

Our first example shows that these credentials didn't predict the great success of a new firm, but what about within a given firm, any large firm? Do the people who best exemplify these selection criteria make it to partner better than those who don't?

The Minority Corporate Counsel Association ran their own survey of the top 250 law firms, and found that roughly 40% of partners don't have the credentials that the firms use to hire new associates. Firms appear to ignore their own internal success models in determining hiring criteria.

Evidence From Firms That Hire
From Multiple 'Tiers' of Law School

The top-tier firms that only hire from top 20 law schools can never tell empirically if those hires are better than some other group, so they don't have the inconvenience of empirical data. They don't have good comparison groups.

Looking at secondary markets, where many local and regional firms live, you can find laboratories where firms hire from a wide range of schools, and there are sufficient numbers from each group to do proper comparisons. Peter Sloan, of Blackwell Sanders Peper Martin in Kansas City, had the insight to commission such a study to look at associates' productivity and effectiveness. They were surprised to find that the graduates of second-tier schools out-produced those from first-tier schools, and the graduates of third-tier schools did better yet. In work quality, the top-tier graduates, as a group, didn't come up to the level of the other associates. They also split the associates into the 'top 10% of law school class' vs. everyone else to find that class rank is unrelated to productivity or effectiveness. This isn't to say that every second-tier school graduate is better than every first-tier school graduate, but that on average the groups differed in the counterintuitive direction. It did debunk the notion that alma mater and class rank are strong predictors of success.

Research From an Elite Law School

Boalt Hall law professor Majorie Shulz and psychology professor Sheldon Zedeck are conducting a rigorous study of what makes a good lawyer and how best to measure those capabilities. In a rigorous design similar to Blackwell Sanders', the resear-chers began with a look at practicing lawyers and ask the na've question, 'What makes for an effective practicing lawyer?' They were looking for behavior, skills, or any attributes that colleagues found important, and put no restrictions on what types of attributes might surface.

They found 26 'effectiveness' factors that ranged from the obvious (Diligence, Analysis and Reasoning) to the implicit (Speaking, Integrity, Relationship Development).

When they looked at the LSAT, they saw that it measured a very narrow range of those dimensions of legal aptitude, missing the wider range of capabilities required to be an effective practicing lawyer. Law school admission is based on the possession of a few of the needed abilities, and might discriminate against those who are relatively weak in those areas and stronger in the many other areas. It may be effectively screening out those who have capability profiles that do not include strength in the few measured areas.

Yes, they found that minorities tended to have profiles that showed the unmeasured capabilities to be stronger than the measured ones. Since the LSAT is used for admission to law school, and the law school status is used in law firm hiring, the decision outcomes appear to be:

• False positives: Schools admit students who are quite good at the narrow range of measured aptitudes, but relatively poor overall. They might make good scholars, but not so outstanding lawyers; and
• False negatives: Schools rejecting students who are strong overall, but
  relatively weak in the few measured areas.

Because law firms also place high emphasis on school rank, the bias is propagated into the profession.

Do Lawyers Know the Difference
Between Merit and Status?

One question we had was: 'Do the lawyers at these elite firms believe that the credentials are predictive of capability?' Our survey covered only minority lawyers, but they were quite clear. Respondents reported that at law firms, your alma mater is not predictive of what you can do; it's about reputation. At least the minority attorneys understand that your provenance is not your potential; it's just your bragging rights.

Other Ways to Look at Merit

Looking at research, best practices, and candid impressions, there are
better ways to define 'merit' than strict use of alma mater and class rank. Selecting for the 'best and brightest' may involve a little more effort and thinking, but will yield people who are more suited to the roles, more capable, more productive, and less likely to leave the job prematurely.

Blackwell Sanders has done well for itself in terms of diversity, retention, work quality, productivity, and associate satisfaction by completely revamping both its selection and performance-management process ' basing selection, promotions, coaching, mentoring, and training on a demonstrated capability assessment. They have even published the details of their methodology for other firms to use.

Jim Kennedy, of InterviewEdge, has introduced capability based screening to several law firms, who are becoming more careful and wise in their recruitment ' making fewer assumptions and assessing carefully for a more complete fit to the job.

What is the effect of restricting law firm hiring to the top of the class from elite schools? When law school status and class rank are the primary selectors for new lawyers, there are some predictable outcomes.

Homogeneity

The firms won't have sufficient experience with other backgrounds to develop an understanding of what makes for good attorneys. From time to time, they hire a person with a non-traditional background, make the person feel like a fish out of water, and then watch the person leave. Then, the firms will say: 'Well, we tried that, but it just didn't work out; they just couldn't keep up.'

Turnover

The structure of the firm requires a certain amount of turnover in order to be financially rewarding to the partners. Pyramid structures require a flow of talent into the bottom and then bleeding off over time, as individuals rise. 'Good' turnover is an orderly process in which a successful associate moves to an in-house role with one of the firm's clients, and supports the client relationship between the corporation and the law firm. In spite of this 'necessary' turnover business model, there is excessive turnover in many cases. People who leave 'early,' during the first 2 or 3 years, have typically cost the firm more than their billable hours have returned They also increase recruiting costs and leave work undone and unbilled. These might be considered 'misfits.' The highly credentialed associates are also mobile and leave easily for more money to other firms that are credential focused. Both misfits and firm-hoppers cost the law firm dearly in terms of productivity and cost.

Effective Elimination of a Meaningful
Presence of African-Americans or Hispanics

There are sufficiently few African-Americans and Hispanics in law schools (a percentage that may even be on the decline), that restriction of law firm careers to only those in the top of the class at the few elite schools will numerically restrict new entrants into the profession. The absolute number relative to the number of new law firm hires might be regarded as negligible. The black or Hispanic junior associate will remain an isolated, endangered species at the elite firms, and subject to the additional stresses associated with being the rare minority.

The absence of minorities in major law firms and the lack of change in that respect will send a clear message to prospective black and Hispanic attorneys: Pick another line of work. When looking forward at careers, these students see success in medical, business, and financial careers as possible. There are increasing numbers of people such as themselves in the ranks of the successful in these careers. Corporate law, however, has not seen meaningful change in the representation of African Americans and Hispanics in recent years.

What do we Conclude?

Clearly, the rules by which law firms select new employees is not as meritorious as they could ' and should ' be. Their traditional definition of merit does not have the support of research, and has the side effects of higher turnover and less diversity. With research and experience indicating that there are better indicators of merit, firms would be well served to adopt them and look at all candidates with good educations who have the aptitudes that portend success. By not restricting the initial selection to top of the class of the most prestigious schools, firms will experience at least two benefits: They will see a larger number of individuals who have the potential to be successful; and they will also see more African Americans and Hispanics. The firms that move in the direction of selection based on true merit rather than selection based on less than entirely relevant credentials will experience benefits that could make them more competitive.

We see early signs of movement toward capability based selection and performance management, mostly in smaller firms. We also see a few law firms becoming even more credential focused, requiring yet higher grades and high test scores all the way back into high school. This is reminiscent of Leon Festinger's 1960 social psychological book, When Prophecy Fails, which recounts the behavior of a cult that predicted the end of the world and the salvation of the believers via spaceship. When their prophecy failed, instead of becoming more rational, they actually became more devoted to their beliefs, no matter how much they are contradicted by the facts.

As the psychologist, I see the inevitability of rational capability based hiring rules and the benefits of improved diversity, decreased employee churning, and improved work environments. Economic and social pressures will drive this change. The question remains: How fast will it occur and which major firms will take the lead?