A meritorious approach to merit (part 2)

These days, “merit-based” is being hurled around by some as the purported antidote to their caricature of “DEI.” Behind the food fight is an important question – how do we actually go about being merit-based in deciding who belongs?

As discussed last time, if we’re committed to find actual merit, we must first get clear about the talents, competencies, and attributes we’ve determined will lead to success, and we should also make sure to broaden our candidate pool. Now it’s time to find out which candidates have what it takes to be successful.

Use effective techniques to identify actual merit

Let’s face it – we lawyers are often not the best at interviewing lawyer candidates. It’s not for lack of intelligence or judgment. I think instead that our problem might be hubris. We consider ourselves too busy and too important to devote the effort needed for developing effective interviewing skills – the skills that allow us to determine reliably whether the candidate indeed has the talents, competencies, and other aptitudes for which we’re looking.

We seldom find what we’re not looking for. If I approach a candidate interview as merely a chance to get a “sense” of the person interviewed, or whether they will “fit” at my law firm, all I’m doing is measuring how comfortable I am with them, which opens the door to my biases. And if I’m simply checking off proxies (high law school ranking, high class rank, and so forth), I’m learning nothing beyond their resume, and may also be using unreliable predictors of success. Either way, I’m wasting time, or as Stephen R. Covey would say, I’m lost in the thick of thin things.

My time is better spent honing in on whether the candidate actually has the talents, competencies, and aptitudes I seek. So how do I do that effectively?

For hard skills, I can evaluate actual performance. For example, if I’m looking for superior writing skills, I can evaluate an unedited writing sample (of course written with the candidate’s organic intelligence, not GenAI). Remember Dr. Reeves’ metaphor from last time – when picking a runner, let’s have a race, not a chat about how well others may think the candidate can run.

For soft skills and attributes, which likely are the bulk of my selection criteria, I can use behavioral interviewing, so long as I do so effectively. Behavioral interviewing is grounded in the notion that a candidate’s actual past and present behaviors are the most reliable predictors of how they will perform in the future.

I’ve been a fan of Jim Kennedy, founder of Interview Edge, Inc., ever since I first came across his work in the 1990s and brought him in to train the lawyer interviewers at my old law firm. Many of his teachings have stuck with me:

• Before the interview, I’ll review the candidate’s resume to pick a few roles or experiences that likely will provide a window into whether the candidate has demonstrated the sought-after attributes.

• In the interview, I won’t ask hypotheticals (“how would you handle an [X] situation?”), and I’ll avoid “tell me about a time when you demonstrated [X]” questions. Hypotheticals are not based on the candidate’s demonstrable past behavior, and “tell me about a time when you…” questions telegraph the talents and competencies for which I’m looking. Behavioral interviewing is no longer novel, and prepared candidates will have anticipated such hypotheticals and “tell me about a time” questions and will have rehearsed answers. Some such candidates now may even use GenAI to simulate interviewing questions tailored to the position and my Firm, with modeled answers they can recite.

• Instead, I’ll ask about the candidate’s roles, experiences, and accomplishments, and I’ll push past my “what did you do” questions to reach the how and why. I still vividly remember Jim Kennedy describing his conversation on a plane with a fellow passenger. In introductory small-talk she shared that she was a sky diver. Sounds like a thrill-seeking, risk-taking person, right? But as Jim followed up with how and why questions, it became clear that she was a meticulous, risk-managing person – she personally folded, packed, and triple-checked her chutes each and every time, over hundreds of successful dives. The What question yielded a completely different and inadequate picture compared to what the How and Why questions revealed.
• I won’t “check off” a sought-after attribute with only a single described instance. I’ll ask about other roles, experiences, and accomplishments, looking for consistent patterns of behavior that further demonstrate the attribute is indeed there.
• I’ll ask the candidate “if I ask [your supervisor/boss/coworker, by name] about how you handled [the task or the accomplishment], what will they tell me?” This keeps things anchored in the candidate’s actual past behavior, and naming the person adds accountability for the candidate’s response.
• I will capture my thoughts on evaluating the candidate not merely with general impressions but instead based upon what I’ve learned about their specific, demonstrated talents, competencies, and attributes on which I’m focused.

And whenever possible (due to confidentiality), I’ll talk with the candidate’s references, honing in on their experiences with the candidate in light of the talents, competencies, and attributes I’m seeking.

Merit and DEI belong together

Imagine a law firm with the branding byline “we’re all the same and super-comfortable with each other.” Not so compelling to clients and prospects. And no wonder – it prioritizes us and our law firm over what our clients want and need.

So too with complacent selection processes that, whether we acknowledge it, prioritize our comfort and inertia over actually being merit-based. But if we intentionally and diligently (1) clarify the talents and capacities that lead to success, (2) broaden our candidate pool, and (3) use effective techniques to identify those with the right stuff, we can avoid the traps of our biases and of bad proxies for success. We can reap the benefits of diversity, equity, inclusion, and merit. As it should be, when we’re deciding who belongs.