By Dr. Ken Broda Bahm:
One of my pet peeves is referring to individuals as “diverse.” For example, it’s never felt right hearing something like, “The firm is pleased to announce three new diverse hires.” I understand that the word is being chosen in preference to the word “minority,” a word that has its own flaws. But it is the whole and not the individual who is “diverse” as a result of greater inclusion. The firm is more diverse, not the individuals who join the firm. That reasoning, it turns out, extends to the benefits of diversity as well: It is the whole and not just the individual who benefits. And that isn’t just a feel-good sentiment; that is the conclusion drawn from an impressive body of social science research.
It is well known that the legal profession is not diverse enough, and actually lags behind many other professions in diversity. That is not just a limit on the field’s progressive credentials; it is also a limit on the field’s performance. I have written before, teams with greater diversity do a better and more thorough job when making decisions. Katherine Phillips of Columbia Business School has written an article in the current Scientific American covering some of the ways diversity is justified on grounds other than altruism. “Being around people who are different from us,” she writes, “makes us more creative, more diligent and harder-working.” These benefits of creativity, diligence, and hard work carry a clear relevance to litigation teams.
Diversity Works
Why do diverse groups do better? Katherine Phillips analogizes social diversity to diversity in expertise: You wouldn’t design a new car without mechanical engineers, electrical engineers, designers and many other experts. All bring their own expertise as well as their own perspective. Phillips argues that these same forms of “informational diversity” apply at a social level. “Diversity enhances creativity. It encourages the search for novel information and perspectives, leading to better decision making and problem solving.”
The following are some of the research findings she summarizes in the Scientific American article:
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- Female representation in firm management leads to greater innovation and profitability (Deszö & Ross, 2012).
- Racial diversity in banking management leads to better financial performance (Richard et al., 2003).
- Racially diverse small working groups performed better than racially homogeneous groups in a mystery-solving exercise (Phillips, Northcraft & Neale, 2006).
- Members of racially diverse working groups are more likely to pay attention to dissenting opinions (Antonio et al., 2004).
- Ethnically diverse research teams are more impactful (measured by citations) than ethnically homogeneous ones (Freeman & Huang, 2014).
- Diverse racial groups in jury deliberations exchange a wider range of information, make fewer informational errors, and deliberate in a more diligent and open-minded manner (Sommers, 2006).
In addition to more diverse groups bringing greater informational diversity, Phillips also points to the power of anticipation: “Simply adding social diversity to a group makes people believe that differences of perspective might exist among them and that belief makes people change their behavior.”
Toward More Diversity in Litigation
If there is a setting where diligence, thorough deliberation, and creativity are needed, it’s litigation. Preparation and persuasion both can benefit from conscious efforts to avoid homogeneity.
On the Trial Team
It’s not just about the question I’ve been asked a time or two, “Will a jury in this venue expect us to have a more diverse team?” It’s about whether your trial team is benefiting from the full range of perspectives and ideas. A more diverse trial team is greater insurance against groupthink as you assess your case and prepare for trial.
On the Witness List
That benefit extends beyond the trial team as well. Your fact witnesses will, for the most part, be chosen by the facts themselves. But when you are retaining experts, think about whether you are adding to or detracting from diversity. Particularly in a large trial where experts will be more numerous and will, to some extent, work in a coordinated fashion, a more diverse team is likely to come up with more ideas.
On the Jury
When selecting your jury, the dominant ideas guiding your strikes should be the elimination of bias and risk to your side. But in thinking about the resulting panel as a whole, it helps to think about how homogeneous or how diverse that group will be. Particularly when you need a jury that will apply heavy scrutiny and get beyond the easy assumptions, a more diverse panel is more likely to deliberate more fully and with less groupthink.
Phillips also notes a downside to diversity: It can lead to discomfort, less communication, less trust, and greater perceived conflict. But, as Phillips notes, that discomfort can be analogized to physical exercise: If there is a little pain, then we accept that because the benefits make it worth it. Ultimately, diversity isn’t charity, and it isn’t for any “them” that’s out there. Its for all of us.
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Other Posts on Diversity:
- Hire Code-Switchers
- Help Jurors Stay Off the Bandwagon
- Female Attorneys: Expect (But Don’t Accept) a Subtle Bias in the Courtroom
- Address Bias at its Roots
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Antonio, A. L., Chang, M. J., Hakuta, K., Kenny, D. A., Levin, S., & Milem, J. F. (2004). Effects of racial diversity on complex thinking in college students. Psychological Science, 15(8), 507-510.
Credit Suisse (2012). Gender diversity and corporate performance. Credit Suisse-Research Institute.
Dezsö, C. L., & Ross, D. G. (2012). Does female representation in top management improve firm performance? A panel data investigation. Strategic Management Journal, 33(9), 1072-1089.
Freeman, R. B., & Huang, W. (2014). Collaborating With People Like Me: Ethnic co-authorship within the US (No. w19905). National Bureau of Economic Research.
Phillips, K. W., Northcraft, G. B., & Neale, M. A. (2006). Surface-level diversity and decision-making in groups: When does deep-level similarity help? Group Processes & Intergroup Relations, 9(4), 467-482.
Richard, O., McMillan, A., Chadwick, K., & Dwyer, S. (2003). Employing an Innovation Strategy in Racially Diverse Workforces Effects On Firm Performance. Group & Organization Management, 28(1), 107-126.
Sommers, S. R. (2006). On racial diversity and group decision making: identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology, 90(4), 597.
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