Many law firms are seeking to increase diversity, equity, inclusion accessibility and belonging within their team (collectively, “DEI”).

Last year, in the dynamic and evolving field of DEI, there was a pendulum swing in media headlines suggesting that the tech industry trend of divesting from such programs foretold the end of the post-George Floyd surge. This headline frenzy has intensified with coverage of anti-DEI legislation initiatives and the U.S. Supreme Court’s decision that prohibits universities from expressly using race data in admissions decisions.

The business case for diversity has not changed. While headlines may debate the “future of” DEI, the reality is that diverse teams (still) deliver better business outcomes. Diverse team members (still) know their value and law firms (still) risk losing team members, either to an existing competitor’s firm or to the team member starting a new law firm.

The analysis behind the headlines attempts to predict possible applicability of the Supreme Court’s holding to private employer DEI initiatives, suggesting that those initiatives may be safer from attack if they reflect a value proposition based in quantitative and qualitative data that relates to a specific industry or company. Through a data-substantiated DEI approach, firms likely need not deemphasize racial or ethnic diversity (as was targeted in the education admissions cases) or any other protected class of diversity.

Following are five tips for how law firms can apply DEI best practices in 2024.

1. Set the tone at the top to work past the ‘D’ in DEI

Leaders use communications strategies to direct and reinforce workplace norms, and a firm’s DEI initiatives must include a narrative built from the policies, practices and measurable behaviors and actions that compromise an equitable process. For a qualitative element such as “belonging,” which means feeling respected and valued for who you are across the breadth of any individual or group diversity qualities, this means DEI initiatives that support the people behind the “D” with tailored and measurable processes related to the data specific to an industry or company that provide equitable access and inclusivity within the firm.

Tip 1: Action steps

• Recognize the duty to establish leadership accountability, and define the DEI value proposition through quantitative and qualitative data.
• Champion DEI initiatives at the leadership level to validate their importance to the firm.
• Communicate expectations for leaders at all levels to contribute positively to an atmosphere of belonging.
• Provide leaders with the knowledge, training and resources to do so (and hold them accountable when they do not).
• Support team member-led initiatives, create new resource distribution models and—importantly—thank yourself and your leaders for the willingness to persevere.

2. Adopt or double down on a learning and growth mindset

As an evolving field, DEI work requires pivoting to new methods or applying proven methods to new contexts. Business leaders are expected to act at the right time, even with imperfect information, and they must do the same in this context. Leaders, and especially lawyers who are leaders, often prefer to mitigate risks based on a predicted net financial outcome, yet crafting and implementing a business’s DEI initiatives demands that leaders take some risks rather than mitigating them to the point of inaction. Even the most thoughtful initiatives may make some people uncomfortable, and law firms and their leaders will make mistakes and will be held accountable, directly (e.g., confrontation) or indirectly (e.g., leaving the firm or working with a lower level of engagement). Practicing a growth mindset where DEI initiatives require that the firm seek, digest and apply feedback captured through quantitative and qualitative data will support an atmosphere of belonging for team members.

Tip 2: Action steps

• Respond to feedback (be open to adjusting/ending an initiative early if needed).
• Accept that the firm may fail to achieve all/part of any DEI initiative.
• Regularly reflect and recalibrate through incremental changes.
• Celebrate and express gratitude for DEI efforts. Validate any adjustments as progress.

3. Build self-awareness and emotional intelligence

The high level of human variability in addressing DEI initiatives means emotional work is inescapable. Leaders need not carry the weight of correcting history but must appreciate the societal significance of taking small actions toward incremental progress. Actions carry more weight than any brand messaging and also require more energy, which may deplete personal emotional resources.

Tip 3: Action steps

• Make sustainably sized and consistent efforts toward long-term results.
• Demonstrate a growth mindset:

1.   Celebrate effort as you go.
2.   Learn from mistakes.
3.   Share lessons.
4.   Make repairs as possible.

4. Ask for help

DEI is a system-based set of theories and practices; no leader can or should do it alone. To develop tailored mitigation strategies to address organizational barriers, consider an internal compliance audit of DEI initiatives or a third-party assessment, perhaps a DEI auditor, a compliance audit of DEI initiatives or a third-party certification (e.g., Diversity Lab’s Mansfield Rile certification, Human Rights Campaign Foundation’s Corporate Equality Index). Identify educational or experiential gaps and provide targeted training; training should be intentional, with a follow-up plan for reinforcing the skills taught, and should engage key leaders in the firm and be tracked against metrics to measure success or long-term impact.

Tip 4: Action steps

• Build a community of peers and leaders who value DEI initiatives. Prioritize being mentored by a leader with more DEI experience and mentoring a leader or peer with less DEI experience.
• Employ or engage internal or third-party support personnel and professional experts.
• Provide targeted training and accountability for applying the training’s lessons.

5. Implement substantiated DEI initiatives

This is tough work. DEI initiatives should include measurable organizational behaviors and a value proposition supported by quantitative and qualitative data, implemented with best practices:

• Diversity: Based on a value proposition specific to the industry or company, create specific, clear and measurable DEI initiatives, and track results.
• Equity and access: Provide an equitable process of policies, practices, behaviors and actions, and track opportunity, contribution and advancement.
• Inclusivity: Evaluate, identify and support underrepresented groups through equitable processes.
• Belonging: Whose perspectives were considered, prioritized and/or left out? Practice asking these questions to create a culture where team leaders and team members do the same.

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Jill Warning is director of DEI at SRD Legal Group, which is a women-owned virtual law firm. Warning is in the practice of law and specializes in providing legal services to financial services companies. Warning is a military spouse who regularly attends the National Association of Minority and Women Owned Law Firms’ conferences (her views in this article were influenced by her attendance of a March 2024 NAMWOLF conference in New Orleans) and is a member of the NAMWOLF Emerging Leaders Initiative and events committee. In 2023, Warning moved with her family from Newport, Rhode Island, to Honolulu, where she has built new favorite running routes in her Ko’olau mountainside neighborhood.

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Mind Your Business is a series of columns written by lawyers, legal professionals and others within the legal industry. The purpose of these columns is to offer practical guidance for attorneys on how to run their practices, provide information about the latest trends in legal technology and how it can help lawyers work more efficiently, and strategies for building a thriving business.

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Interested in contributing a column? Send a query to [email protected].

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Appellate Practice

Court scolds Weil partner for brief found to ‘incorporate by reference’ nearly 2,000 words from another document

By Debra Cassens Weiss

February 20, 2024, 1:34 pm CST

A partner with Weil, Gotshal & Manges apparently missed an opinion telling his law firm that incorporating an argument by reference can’t be used to exceed word-count limits in briefs, according to the U.S. Court of Appeals for the Federal Circuit.

The partner, Mark Perry, would have exceeded limits by more than 1,300 words if he had been allowed to “incorporate by reference” nearly 2,000 words from a prior brief in a related case, the Federal Circuit said in its Feb. 16 order, issued sua sponte.

Reuters, Law360 and IPWatchdog have coverage.

When opposing lawyers objected to the attempt to incorporate the material by reference, citing the prior case involving Weil, Perry “chose to do nothing,” the Federal Circuit said.

The better course, when it becomes apparent that a lawyer has violated a court order, would be to bring it to the court’s attention and withdraw the improper argument, the Federal Circuit said.

Instead, Perry had argued that the Federal Circuit never ruled on incorporating an argument by reference when it involves the same party’s brief in a companion appeal.

The position “is unreasonable given this court’s prior opinions,” the Federal Circuit said.

“Since appellee has made this argument, it gets this order,” the appeals court said.

Perry had argued that his intent was to “enhance efficiency,” “streamline the briefing,” and “save the time and resources of the court.” The Federal Circuit said those goals were not served.

“Requiring the court to cross-reference arguments from multiple briefs in multiple, separate cases does not increase efficiency nor does exceeding the word count. But we accept this mistake was made in good faith,” the appeals court said.

The prior case involving Weil is Microsoft Corp. v. DataTern Inc., a 2014 decision. The Federal Circuit also cited a 2023 decision, Medtronic Inc. v. Teleflex Life Sciences Ltd.

“We hoped not to have to write this order,” the appeals court said. “Rule 28 of the Federal Rules of Appellate Procedure seems clear. Microsoft seems clear. Medtronic seems clear. These cases hold it is improper to exceed the word count through incorporation by reference.”

According to coverage by IPWatchdog, Rule 28 limits most references in appellate briefs to documents that are part of the intrinsic record of the case. Parties may also adopt part of another brief by reference in appeals with multiple appellants or appellees.

Perry’s incorporation by reference was part of a footnote.

“In retrospect, it would have been better not to have included it,” he said in his supplemental brief arguing against sanctions.

The Federal Circuit did not sanction Perry but said “future litigants should appreciate” that future violations will likely result in sanctions.

The appeals court’s order was issued in in patent infringement litigation between Comcast Cable Communications and the Promptu Systems Corp., a speech-recognition technology company. Perry represents Comcast in four related appeals.

Perry and Weil did not immediately respond to an ABA Journal email requesting comment.