Meritocracy or Mirrotocracy? Reexamining Hiring Practices of New Lawyers
In the chaotic stages of the social and political upheaval we face today, I find that quotes from revered individuals of our past are especially relevant in the world as it exists today. Take a moment to ponder Einstein and Tolstoy, individuals who lived well before our time. They were intellects who understood the flaws of individuals, who wrote about those flaws, who challenged established behaviors, who directed individuals to reflect on their own actions, and who, ultimately, encouraged their peers to think differently. For in thinking differently and upon reflection of our actions, real change may occur. The fact is that what challenges us today is not so markedly different from what challenged our forebearers. In current times, we are challenged once again to reflect on ourselves and our actions, to take a different approach, seemingly to take a left turn instead of a right turn. As we dig deep to uncover truths about ourselves, we must also do the same within the legal community, an institution with deep-rooted traditions, one that is slow to change and evolve. The time has come, in the here and now, to make meaningful strides in our community by looking within, and evolve with the coming tides of change or risk getting swept up in the debris and mired in outdated and obsolete practices and thinking. As Albert Einstein stated, the world “cannot be changed without changing our thinking.”
I find these words ring especially true for the legal world today. For many years, individuals have spouted that change is coming to the legal world or that the legal world has already changed. But as many lawyers may attest to, change is not altogether swift for those who wish to join our community today and in the future. The global pandemic has forced change upon us, made us uncomfortable, and forced the majority of law firms to pivot from demanding that attorneys remain in their offices to demanding that they remain at home. This pivot has not come without its challenges, but, for the most part, we have seen successful change where we were once convinced it would never work, where we imagined the integrity of the profession would be reduced, and where our stalwart traditions of being the last one to leave the office would mar our ability to judge who was hard at work.
As these success stories continue to be told, it has been made apparent that our previous thoughts no longer hold true and we can no longer stay entrenched in what we previously believed was the “only way.” With ingenuity and technology we have achieved what we were previously told could not be done. The thinking that tradition is too important and change is too hard has been successfully challenged. Given the data before us, why would we not tackle broader issues such as the LSAT and how we, at times, arbitrarily decide on who is selected to join law firms. We need to change our thinking, change ourselves, and pivot with the constant change we face today in a seemingly unrelenting global pandemic to think differently and make better choices for those law students and recent graduates who are the new foundation of the legal community.
The Tortoise and the Hare
The podcast Revisionist History by Malcolm Gladwell produced an episode titled “The Tortoise and the Hare.” This podcast is particularly relevant to the discussions we are having today. It challenges the thinking and actions taken related to the LSAT, the Bar Exam, and selection of candidates to join law firms. Importantly, it challenges implicit bias in the legal field, especially in hiring practices, and calls for a change in thinking or, rather, a pivot of the legal field.
While Gladwell attempts to tackle the prevalent issues regarding the LSAT, why, for example, does the test reward those who are the fast test takers when the law and an attorney’s actual application of fact to law is often arduous and slow. I will not take up that issue entirely.
Rather I encourage you to listen to what Gladwell has to say, and to challenge your own thinking on standardized testing. Ask yourself, is standardized testing really the most efficient way to weed out those who should not attend law school or is it just “what we do” because it is easier than trying to develop a better way?
Within the podcast, Gladwell attempts to tackle implicit bias and “mirrortocracy.” Mirrortocracy is a term used by Parker Analytics, a company that assists law firms by placing the right talent in the right law firm.(1) At its core, mirrortocracy embodies the actions taken by a group of individuals or an individual tasked with hiring new talent. The phenomenon of the “mirror” occurs because the individuals tasked to hire new talent are more likely to select an individual who “mirrors” their own success and story rather than select those candidates who may actually be better suited for the position.
Studies time and time again have shown that individuals who hire do so based on how alike the person applying is to the person hiring and not, in actuality, the individual who will be most successful at that particular law firm. By hiring someone like yourself, you sustain a closed feedback loop that negatively impacts the growth of a balanced, successful business.
Justice Scalia
Gladwell uses the example of Justice Antonin Scalia and, in particular, his selection of law clerks to demonstrate mirrortocracy in action. In the podcast, we hear Scalia praise his very best law clerk, the one of whom he is “most proud,” who, in fact, did not graduate from a T-14 law school (one of the 14 hardest law schools to gain admittance to) or have a particularly impressive LSAT score. The clerk was hired by a different justice but, in a roundabout way, came to work for Scalia. In fact, Scalia verbally stated that he never would have hired the clerk in the first place.
Why would Scalia never have hired a clerk whom he touted as his very best and the one of whom he was most proud? Because the clerk did not have the credentials that Scalia thought were predictors of talent and brains. What are those credentials that Scalia held so dearly? In a recorded speech included in the podcast, Scalia identifies the most important credential as having graduated from one of the T-14 law schools. He assumed, as do others, that only the “best and brightest” get into T-14 schools. Yet, unbelievably, in the very same breath he states that the schools “may not teach very well but they make a silk purse out of a sow’s ear” and that “if they are very good going in, they will be very good coming out.”
This is truly a statement to ponder given we admit law students to schools by a standardized test, the LSAT, which arguably tests students’ ability on how well they take a test and how fast they can do it. We don’t admit people to law school based on their grades, personality, background, or work experience. Instead, we admit individuals based on a score that is ultimately determined by the test mentoring they receive. Scalia who graduated from a T-14 school and had a path to success embodied this notion of a mirrortocracy. He selected people to be law clerks who had gone to top schools like he did because he believed they predicted success as an attorney. He thought it a safe choice.
Even though Scalia had the proof before him, that an individual who didn’t fit his criteria could actually not only be successful but also be considered the best, he still continued his practice of only hiring clerks from T-14 schools. This entrenchment, of never changing one’s thinking on a subject, even with the proof in front of you, is something we must pause to consider. Why, when the legal profession is desperate to attract a new perspective and infuse new life into the profession, would we continue to entrench ourselves in what does not predict success? Antonin Scalia was perhaps one of the best and brightest of our time, a person trained to think at the highest level, and yet he didn’t attempt to break the cycle.
Focusing on Different Facts
When law firms seek to hire graduates, they first seek to attract individuals from a T-14 school, arguably because a T-14 school is a school the firm can market towards clientele and justify billing practices. By solely focusing on the name brand of an elite school, LSAT scores, and sometimes work experience, law firms miss abundant opportunities to hire talented individuals. Research and data have proven multiple times over that the school a person graduates from does not directly correlate to a person’s success or effectiveness in the legal profession. In fact, the data shows that where a person goes to school is just a random predictor of whether he or she will be an effective attorney and what success he or she may have. Of course, graduating from a top law school opens doors and provides opportunities unavailable to graduates of a lower echelon school, but that school is not a predictor of one’s ability to perform well, analyze fact patterns, process legal briefs, and apply the law in a meaningful way. I would argue that an individual’s dedication, passion, drive, time spent, effort, and receipt of one-on-one mentoring are, in actuality, the predictors of a person’s ability to practice law and to practice it well. What if, instead of focusing on the name of the law school a person attended, hiring personnel sought out a different set of facts to determine if the individual is actually a good fit for the firm? What if law firms and judicial officers were barred during the hiring process from knowing the law school the person graduated from? What if? How would this change the face of the legal profession? Would firms be more willing to see past the mirror, to see past the brand, and hire those considered less desirable because of where they went to school?
Considering the data, if the law school a person graduates from is just a random predictor and has no correlation on how well a person will actually do in the legal world—then why do large law firms focus much of their search at the T-14 schools? What if you challenged this thinking, what if you changed this thinking, and started looking at new talent with a different set of criteria? For example, the data from Parker Analytics reflects and correlates the commonality amongst successful rainmakers in large firms with those who attended night school, who have blue collar backgrounds, who attended lower echelon schools, and those who turned to the legal profession as a second career.
Breaking the Loop
The data and facts are before us, yet the struggle continues wherein we remain entrenched in old hiring practices, thereby continuing the same feedback loop from which we so desperately need to depart. The time is now to challenge one another to start thinking in different ways, to approach hiring in different ways, and to look at new lawyers in a different manner. We need to hire new lawyers based on their knowledge, grades, personality, overall fit with the firm, interests, goals, and ability to work in the legal industry, not primarily based on where they went to school.
We are faced with the fact that we must first change our thinking and change ourselves to halt the feedback loop we remain entrenched in for meaningful action and lasting change to take root. It is our responsibility as legal professionals to act as gatekeepers to this profession, we must protect it, we must nourish it, and, in doing so, we must be nimble and meet change head on. Gladwell argues that as gatekeepers we must select new recruits on the basis of fit and ability, not on their skill at answering 25 questions in 35 minutes, thereby determining their entrance to a law school. The time is now to challenge one another to think deeply about these ideas, to step up to our responsibility, and to dig deeper into these issues. Tradition is important but if we don’t bend, flex, and stay nimble, tradition will become obsolete and change will be forced as we have seen firsthand during this global pandemic. Why not meet change head on and embrace it?
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Jessica Timmington Lindstrom
JLindstrom@winthrop.com
Jessica Timmington Lindstrom is a sixth year associate attorney at Winthrop & Weinstine, in the area of trusts and estates with a specialty in elder law. She has a passion for helping people tackle complex problems and making the puzzle pieces fit just right for each individual’s situation. When not practicing law, she can be found at Lake Vermilion with her husband and dogs or showing her American Saddlebred horses nationally.
1 Parker Analytics, Evan Parker, founder, works to increase
diversity, challenge established thinking, accelerate
progress, and eradicate inefficiencies in the legal world.