That observation comes from Bruce MacEwen of Adam Smith Esq., and I share his concern that false confidence will lead too many large firms to believe that everything’s going to be basically okay. For large firms, everything is emphatically not okay.  The past couple of weeks have delivered a series of examples that demonstrate one thing: the ways in which large law firms have operated over the past few decades are coming to an abrupt end.

First, consider this this Legalweek report that two major international firms, Mayer Brown and Reed Smith, are jumping onto the fixed-fees bandwagon. Mayer Brown is readying itself to offer fixed fees for all its transactional work, as well as to make more frequent use of abort agreements and success fees. Reed Smith, meanwhile, plans to use fixed or capped fees in its financial industry group, in its corporate and real estate practices, and for transactional work.

What brought about this sudden departure from the easy-and-profitable billable-hour system? The firms’ leaders cite client relationships first and foremost, which is nice to hear. But perhaps equally instructive are two other articles linked from that Legalweek story: 55 job cuts at Mayer Brown in March, Reed Smith hiring a restructuring consultant in July. Few firms undertake changes of this potential magnitude unless the outside pressures exerted on them have made things very uncomfortable. (It’s worth noting, as Jim Hassett’s webcast does, that these are not the first AmLaw 100 firms to  climb onboard this train.)

Even more revealing are the contents of a leaked strategy memo from O’Melveny & Myers that appeared on Above The Law. The firm plans to “adopt a single rate card by FY2012, with volume and ‘investment’ discounts and appropriate alternative fee arrangements … becoming the leader in providing high-end legal services on a fixed fee basis, reducing costs to clients and achieving superior economic performance through practice management oriented toward cost effective client service.” Especially noteworthy are plans to reduce associate leverage to as low as 2-1, a ratio that’s positively Canadian.

Fixed fees, if done right (a big if), are demonstrably better both for the client and the lawyer. The question is whether large firms constructed on billable-hour pyramids can really adapt their culture and systems to make such a monumental change. Many big firms still think the key to flat fees is to take the last ten bills issued for this kind of work, average them out, add 10% for contingency, and present the final figure with a flourish. Fixed-fee veterans in smaller firms are skeptical, to say the least. Here’s Valorem’s Patrick J. Lamb on these big firms’ moves:

The essential element of alternative fees that actually work is that they shift risk to law firms, meaning the value changes from leverage and body count to experience and fewer bodies.  More brain power, less body count.  So a goal of reducing leverage “in some practices” to “as low as” 2 to 1 will make anyone experienced with alternative fees laugh out loud.  O’Melveny might as well take out a full page advertisement saying it really won’t be changing a damn thing.

I’m prepared to give O’Melveny’s initiative the benefit of the doubt, actually — every journey has to start somewhere, and I want to encourage every green shoot of innovation I see. But man, is this a long journey — changing a law firm’s fee and billing structure is like re-engineering your DNA, and the best will in the world won’t make it any less difficult. And for every large firm that is finally acknowledging that the horse they’ve ridden for years has died, ten more are still clinging on to the saddle.

The O’Melveny memo states at one point: “In the very recent past, our business model, as a whole, has yielded disappointing financial and practice growth results. … [O]ur litigation clients are looking for rate and fee reductions, and we expect that mindset will continue into the next good economy and beyond.”  That understates the size of the challenge. It’s not just litigation clients — a lawyer at a large firm confirms to me that the pressure for lower and/or more predictable costs is intense and is coming from across the client spectrum. This is the new reality, and large firms will struggle to make the sort of fundamental changes needed to adapt.

Let’s look at another key element of law firm success: personnel. The results of a survey published in The American Lawyer are interesting, if not surprising: associates in large firms are measurably more unhappy than their counterparts in smaller firms. Not only that, but graduates of the “elite law schools,” from which so many big firms insist on drawing most of their recruits, are the unhappiest of all when compared to their colleagues from “less elite” schools. (It doesn’t help that, as Ron Fox points out, law schools of every rank tend to funnel their graduates towards large firms and away from opportunities to serve ordinary consumers in smaller practices.)

You can probably guess the advice that the study’s authors offer big firms as an antidote: recruit outside your usual law school boxes, and make life for your new lawyers a little less punitive. It’s advice unlikely to be accepted, says Aric Press, editor-in-chief of American Lawyer: “I fear that we will look back at the exuberant spree of the last few years as the high-water mark of nonelite law school hiring. … This leaves an opportunity for the firms wise enough to seek first-class talent no matter what brand is on a diploma.” But how many firms will risk the CYA comfort of consistently recruiting from “the best and the brightest,” let alone make substantive changes to the overall associate model?

The study’s authors note that big-firm attrition is particularly frequent among women and minorities. Underlining that concern is this account of an event celebrating Working Mother magazine’s 50 Best Firms for Women Lawyers. Many of last year’s winners didn’t make the cut this time — in part, perhaps, because despite wishful thinking to the contrary, leaner times at big firms have made it harder, not easier, for women to advance and succeed:

It’s optimistic to believe that most large law firms are rethinking the work/life balance equation during these hard times. Frankly, most firms today are focused on survival and on a need to bring in more business — they are not, it seems, focusing on the larger questions of the meaning of work and job satisfaction. From where we sit, covering women in the profession for almost a decade, we don’t see a revolution on the horizon.

So: profits are dropping fast, more firms are getting ready to change the basic business model, the young talent is alienated, and diversity has been back-burnered. But that’s not the worst of it for big law firms. Because all this time, solos, small firms and midsize operations keep picking up all the opportunities that the large firms keep dropping.

While big firms allow women to walk away, one small firm encourages its employees to bring their children to work — not to an on-site day-care, but into the office, all day long. While big firms burn through their young talent, innovative companies like DirectLaw offer new lawyers reduced pricing to start up a solo virtual law platform — with 90 days’ free tuition to Solo Practice University to boot. While big firms set up committees to consider fixed fees, small firms have long since figured it out and will even tell you, as Jay Shepherd does, how they set their prices. All the momentum in the legal services marketplace today favours small, adaptable, innovative, client-focused, value-oriented, business-savvy providers. Most large law firms answer to immobile, traditional, self-centered, profit-oriented, and business-challenged. It’s not hard to pick the winner here.

Every marketplace, even one as artificially stunted as legal services, operates according to the law of supply and demand. The demand is changing, irrevocably. The suppliers that change with it will survive; the ones who don’t, won’t. Some more large firms are waking up to this fact and doing their best to change — but I’m concerned that 2009 is simply too late to be starting the change process.

Published yesterday, the article posited a relative absence of women blawggers (rather ironically, considering the term “blawg” was coined by Denise Howell) and suggested various hypotheses to explain the shortage. Within 24 hours, the article had touched off responses across the blawgosphere, from Nicole Black, Ann Althouse, Mary Dudziak, Christine Hurt, Diane Levin, and Laurie Mapp, along with Scott Greenfield and Robert Ambrogi.

The upshot of most of these posts is that the writer failed to look deeply enough into the legal blogosphere, restricting her research to the most highly trafficked sites and those of large law firms. While that’s true, I also think there’s something to be said for male law bloggers’ tendency to link to other men disproportionately more than to women. I think it’s also worth noting that if there is a serious paucity of women bloggers, it’s mostly inside of law firms, especially the larger ones. I may be verging on cynicism here, but I think that’s largely because two things law firms don’t tend to take very seriously are the careers of their women lawyers and the utility of blogs.

Several bloggers also pointed out that until this article asked the question, it had never occurred to them to think about the gender of the other bloggers they read or linked to — it was of the sheerest irrelevance. My own blogroll includes bloggers like Carolyn Elefant, Susan Cartier Liebel, Connie Crosby, Merrilyn Astin Tarlton, and Penelope Trunk, but until I made that list, I had never thought about the male-female breakdown. Ditto for the people I follow on Twitter, including most of the above as well as Victoria Pynchon, Mina Sirkin, Donna Seale, Kelly Phillips Erb, and too many others to list. But just because I haven’t thought about blawggers’ gender before isn’t an excuse to not think about it now, and I’m glad for the opportunity to learn about more women law bloggers worth reading.

But what really struck me among all the posts on this topic, and what I’m really interested in writing about today, came from Ann Althouse. Responding to the suggestion in the original article that women avoid blogging because they’re more prone to professional or personal attack, she wrote: “The internet is not going to coddle and comfort you. In fact, the internet wants you out of here.” [Emphasis in original] While the delivery is a little harsh, I think this is a powerful and profound statement, and every lawyer who intends to build her or her profile and brand online needs to be aware of it and accept it.

The blogosphere is intensely, almost fanatically competitive. There are millions upon millions of blogs out there, and each of them needs readers’ attention to survive the way you and I need air. There’s only so much of that attention to go around, producing what Davenport and Beck called the attention economy — the decision to view or listen to something has become a significant economic choice. You could also analogize the blogosphere to the Cambrian explosion, an unprecedented and unexplained flourishing of life on Earth on a massive scale about 500 million years ago. Either way, there are only so many resources to go around, and if you really want to make a go of it in this environment, you’re in for a tremendous fight.

Some of the sadder (to me) comments in all the posts about women law bloggers came from lawyers who started blogs and gamely maintained them for as long as they could, but eventually gave up after generating very little traffic and attention. I’m a writer at heart, and that heart goes out to anyone with a manuscript unfinished or a blog abandoned because they grew discouraged by the lack of audience interest. But while some of these projects could have been saved with better marketing or friendlier circumstance, many failed on the merits — either their subject or their style, or both, just wasn’t compelling enough to earn attention credits from an increasingly busy, demanding and fickle readership.

I’m not suggesting it should be any other way, mind you — if all the 900,000 blog posts in the last 24 hours actually got read, the global economy (such as it is these days) would lurch to a sudden halt. And every environment throws up obstacles to ensure that only the truly talented and committed reach anything like a rarefied atmosphere: Seth Godin’s The Dip talks about how medical schools create the buzzsaw barrier of Organic Chemistry in undergrad to weed as many people as possible out of the pre-med stream. These are realities of every competitive environment, and they apply to the blawgosphere too.

Law blogging proponents can be a little cavalier in their standard recommendation that you “start a blog” — I’ve certainly been guilty of that sometimes. But lawyers who want to use blogs to build their brands and promote their profiles need to understand just how challenging a path they’re choosing. Even assuming you’re a really good writer and you know your subject area really well, you need to be realistic about these cold facts:

* Other lawyers are blogging about this too. Unless you’ve chosen an extreme niche, your chosen field is very likely already occupied or soon will be. Check out all the blogs tracked at the ABA Blawg Directory or LexMonitor for a sober assessment of your playing field.

* The noise level on the Internet is staggering. Everyone on the Net is yammering at everyone else to pay attention to them, and users are always on the edge of being overwhelmed. Legitimate SEO strategies are indisputably important, but appreciate that your ideal readership is always a little deafened.

* Your readers read more than just blogs. This is the single biggest mistake in every publishing medium: magazines assume that their readers only read other magazines, newspapers think they only compete with newspapers, bloggers compare themselves only to other bloggers. Everything that is printed, broadcast, sung, illustrated or otherwise meant for a sensory target is part of the attention economy. You’re up against YouTube and Extreme Home Makeover whether you like it or not.

* The Internet demands commitment. Millions of blogs are abandoned every day, and the Net brushes them aside like litter. What the Net wants from you is a sign that you’re willing to stick it out through the bad times (and there’ll be bad times, believe me). Blog readers don’t just check out the post Google has led them to — they check out how long you’ve been posting and how frequently you post. If you’re in for the long and steady haul, readers are likelier to trust you and return to you.

Look, I’m a strong believer in the Chuck Jones school of creative motivation. Jones was once asked whether his Warner Brothers cartoons were meant for children or adults. “I don’t draw them for children and I don’t draw them for adults,” he replied. “I draw them for me.” At the end of the day, the number of people in your Delighted Audience has to be at least one: you. And nobody has ever said a blog is only as worthwhile as the number of readers it has: Rees Morrison, for one, has said he blogs as much for his own records and to facilitate his own thinking, and doesn’t blog to attract clients or generate work.

But if you want to blog as a way to promote yourself — and I really think every lawyer should at least seriously consider doing so — also seriously consider that it’s not as easy as falling off a log. You’ll find yourself, as we all tend to do, checking your daily visits log and counting the number of RSS subscribers, and wondering how to raise them. You’ll find yourself (or a partner, colleague or spouse) inevitably asking about the ROI on this project. You’ll wonder why, even with good content and steady visitors, you (or even your whole gender) can seem invisible to people writing about the legal blogosphere.

If you’re not prepared for this beforehand, then blogging can be a deeply dispiriting experience. But if you are prepared, and you’re both realistic about the challenge and committed to the goal, then the rewards can be extraordinary. The Internet doesn’t want you here –but you can want to be here more.

I haven’t read the book, but its central premise — that evaluations are (a) key to lawyers’ career progress in law firms and (b) extremely susceptible to both overt and unconscious gender bias in favour of men — seems unassailable. But the book also seems vulnerable to two underlying assumptions: that (a) most law firms systematically rely on evaluations or indeed any other rational method when assessing and promoting lawyers, and (b) most law firms are sufficiently troubled by their clear inability to retain women lawyers that they’ll actually do something about it.

In a typical law firm, when partners evaluate associates, they often do so in a peremptory manner that reflects the low priority management has accorded the task — it’s not billable, it’s not tied to the partner’s own status or compensation, and it’s not part of a holistic approach to associate development that includes mentoring and training. Similarly, decisions to extend partnership offers are often made with subjective criteria that reflect partners’ own personal likes and dislikes, which invariably includes stereotyped beliefs about gender and ethnicity.

The real problem is the absence in many firms of rational, consistent mechanisms for evaluating and nurturing talent, and the untroubled attitude towards the negative impact that absence has on fairness and diversity within the firm. In other words, Fair Measure is a book designed for the small minority of firms that actually believe they have a weakness and actually want to fix it. The bulk of the profession likely will pass it by.

But you know what? That’s fine. Fair Measure will not — and I trust it’s not intended to — find and transform a wide audience by itself. What it will do is strengthen those lawyers and firms that envision a different kind of legal profession, increasing their effectiveness and improving their lawyers’ financial and personal well-being. When it comes to law practice innovation, that’s how real change on the ground is achieved — not by haranguing the majority in articles or blog posts, but by incrementally growing the success of the minority of lawyers with the courage and drive to do things differently.

Believe it or not, these are the richest of all times for law practice innovation. Legal innovators’ vision is still fresh and exciting, the innovation field is (though rapidly widening) still a relatively sparse one in which to compete, and we still have the lumbering colossus of traditional law practice against which we can compare ourselves favourably. The Lawyer Translator is funny and effective, and helps differentiate Halleland Lewis in the talent wars, precisely because the archetypal partner it lampoons is still very much a powerful presence in both image and reality.

“Preaching to the choir” has a bad reputation — it suggests the preacher is wasting his or her time addressing exhortations to those who already believe. But there’s a lot to be said for strengthening believers’ resolve and adding new tools to their repertoire, so that they can go out into the community and help transform it, little by little. People believe what they want to believe, and lawyers are no different. It’s the task of innovators — and a goal of this blog — to help transform what lawyers want to believe about their profession. Every day, we edge a little closer to that result.

Other triggers include Coca-Cola’s recognition of Kansas City’s Shook, Hardy & Bacon for making significant progress on diversity and Skadden Arps’ innovative $10M program to encourage minority students at City College of New York to pursue legal careers. But I was mostly prompted by my participation in a plenary panel last Friday at the National Association of Law Placement’s Annual Education Conference in Toronto.

Sharing a stage with an advocate like Vernā Myers, and hearing her speak incisively and passionately about diversity in the law, is a moving experience. So is sitting in front of several hundred NALP members, an overwhelmingly female and not uniformly white audience, and thinking about how many of them would, if they wished, be renowned lawyers, practice group leaders and managing partners today were the law firm environments they entered not been so structurally hostile to them.

Vernā made the case that law firms’ business and cultural models are white, male, straight and Western in their orientation; I think she’s right. The fact that there’s a commonly employed compensation system called “eat what you kill” tells you how lawyers like to imagine and narrate the law firm experience. If you had set out to design a compensation and promotion system specifically to reduce the number of women in firms, you could scarcely have done better than the billable hour regime. And male or female, law firm partners are near-universally white, and they continuously hire, mentor, associate with and promote people who look like them.

The results of this culture of exclusion are depressingly clear. Women make up half of law school graduating classes, but only one-third of the practising bar and less than one-fifth of law firm partners. In terms of diversity, 25% of US doctors are from minority groups, along with 21% of auditors and accountants and 18% of professors; for lawyers, the number is 11 percent. I don’t have statistics for Canada or the UK, but I imagine they’re no better and they might well be worse.

It seems to me there are three elements involved in dealing with diversity in the practice of law. The first is to establish that it doesn’t really exist, and I don’t think anyone has a strong argument against that. The second is to establish that its absence is a problem, one that the profession should care enough about to address. And the third is to actually address it and solve it.

When attempting to show that the lack of diversity is a problem, some people argue that clients are either themselves more diverse or are making diversity a corporate priority, and that therefore lawyers and law firms should become more diverse in order to keep these clients’ business. This is sometimes referred to as “the business case for diversity.” I understand the reasoning, but I don’t agree with it.

For one thing, it assumes that firms that do innovate in diversity will have a competitive advantage over those that don’t. But innovation to gain a business edge has even less traction in law practice culture than diversity does, and most law firms have long rested easy in the knowledge that no one’s going to try something different that will just make things more complicated for everyone else. Only in the unique oligopoly of the legal services industry is innovation considered bad for business. That will change in time, because dire circumstances will force it, but it won’t be by way freely chosen marketplace maneuvers, and it’s not where I’d want to place my hopes.

And in any event, my primary reason for disliking the “business case for diversity” is that it reduces the diversity rationale to a simple matter of money and removes any consideration of social responsibility. It’s like paying your kids to clean their room and do their chores: sure, the tasks will get done, but the kids won’t have learned anything about responsibility, discipline, or contributing their small part to the family unit. They’ll have learned to do only what they get paid for, and when the money dries up, so does their work ethic. If clients stop paying lawyers for diversity, does that mean diversity doesn’t matter anymore, and it’s okay to go back to ignoring it?

If you absolutely must have a “business case” for a more diverse workplace, here’s one: businesses without diversity are at an inherent strategic disadvantage. When most or all of your people look the same and come from the same backgrounds, it’s a safe bet that they’ll all think the same and act the same, too. They’ll adopt the same analytic approaches, make the same sorts of assumptions, and reach the same kinds of conclusions; when they meet to compare notes, the groupthink atmosphere will reinforce the built-in strategic biases, and each member of the team will congratulate the other on their brilliant work.

It’s the opposite of diversity: it’s commonality. And a law firm with a surfeit of commonality lacks any number of essential ingredients to be a top-notch solutions provider: a wealth of perspectives, a broad pool of knowledge, creative dissent, constructive self-doubt, an eye for unanticipated outcomes, and most importantly, an ability to see every angle of the multi-faceted challenges clients bring to lawyers every day. A law firm afflicted with commonality fails to see what its members aren’t looking for, and sooner or later, that will be fatal.

But even this argument, which I think has a lot of value, is still fundamentally self-interested: it promotes diversity as a means to the firm’s ends, rather than as an end in itself. The only really valid argument in favour of diversity is that it matters on its own merits and for its own inherent rightness.

Nature is diverse: the natural order of things is to spawn as many variations on a theme as possible and to set them all to work together. People are diverse: not one of us is exactly like anyone else, and when given the opportunity, we invariably mix and match and swirl together to produce vibrant, cosmopolitan and fulfilling communities. The essential rightness of diversity in everything around us is so obvious that if anything, the burden should lie on making a powerful case against it.

Diverse workplaces are better. They look better; they feel better, they are better. There is something refreshing, uplifting, and constantly sharpening about a diverse environment: you feel a deeper connection to the real world around you when you’re no longer surrounded by the artificiality of sameness. You are never more yourself than when those around you look and think differently from you, because you’re challenged to bring your unique background and characteristics into play at all times. Diversity is good, and its absence in the practice of law is bad for us and bad for the system and society we serve.

It remains to decide whether the legal industry’s commonality should and can be addressed. On the former point, all I can say is that if diversity is a good thing, then the legal profession should be a leader, not a laggard, in encouraging it. We talk a great game, we lawyers, about our commitment to higher standards and the respect we ought to receive for our valued contributions to society. If so, then we need to be out there driving diversity in our ranks forward, leading by exhortation and example, demonstrating that diversity is inherently right and lawyers are equally right to be aligned with its promotion. Other professions have done it, and there’s no excuse for lawyers to be so far behind.

So how do you achieve diversity in the law? I’m actually not big into either incentive programs or mandates from governing bodies: if all you’re doing is using a carrot or a stick to motivate or force change, then attitudes towards diversity remain unmoved or even become soured. I do think attitude matters, because resistance to diversity is grounded in biases, conscious or unconscious, against people who don’t look like we do.

Vernā talked about the fact that too many people in the law look at a woman or a member of a minority and automatically make negative assumptions about their intellect, their work ethic, the position they hold, and the route they took to get there. If we’re honest, we’ll admit that we all do that: to meet a truly open-minded person is rare, and to meet a person free from all biases and assumptions is impossible. Ridding our nature of these biases is certainly too tall an order, but there’s no reason we can’t actively question those assumptions.

White, male, straight lawyers who see a colleague or potential colleague who differs from them in one or more of these characteristics (among others) need to be aware of the inferences they’re drawing and the conclusions they’re jumping to, and they need to actively shake their minds loose from those biases every time. It’s an excellent habit to get into, especially since lawyers are especially good at seeing an issue from any angle and adopting new positions from which to understand and analyze a situation.

Accepting diversity starts with a conscious effort by those of us in the profession’s majority to see difference not as an obstacle to be surmounted or minimized, but as an opportunity to think fresh, see clearly, learn something valuable — and appreciate the barriers that our conveniences and assumptions create for others. A diverse legal profession lies just the other side of a willingness to constantly challenge our own assumptions about others. That’s not even close to too high a price to pay.

In a survey of 61,297 partners in 1,562 U.S. law firms of all sizes (from 50 or fewer lawyers to more than 700), the total percentage who were white was 94.6%.

Let’s look at that slightly differently, to help it sink in: the total percentage of all minority lawyers was 5.4%. For minority women, the number shrinks to 1.65%. That is to say, there were 1,011 female minority partners in this survey, or about two-thirds of one lawyer per firm. If you lined up 100 typical partners at U.S. law firms, the first 94 would be white (and the first 81 of that group would be male). The last five would be members of visible minorities; only the final, 100th lawyer would be a female member of a minority group.

I mean, come on.

At least the profession is starting to talk about this, though I’m not betting heavily on an imminent change. I don’t have anything else pithy to add. I just thought you might want to sit and think a little about that 100th partner.