According to one of the characters in Wreck-It Ralph 2: Ralph Breaks the Internet, the first rule of the internet is: never read the comments section.
The pupillage committee at 20 Essex Street recently decided to use a ‘contextual recruitment system’. Our move was reported in various legal websites. I made the mistake of reading the comments.
There was some unreasoned hostility (‘FFS’), along with other adverse comments which were at least sufficiently coherent to merit a response. First, however, some background.
No one thinks the Bar should be the exclusive domain of a particular privileged section of society. Like everyone else, we believe that diversity in the legal profession is desirable, for the reasons well summarised by Lord Neuberger over a decade ago in the Entry to the Bar Working Party report. More recently, Baroness Hale’s ‘another planet’ remarks to The Guardian were widely reported, and echoed in The Times by Lord Pannick, who gave some entertaining examples of antediluvian sentiments expressed in the past.
The Neuberger Report recommended collective effort at various stages (eg early engagement with schools) and in various ways (eg proper training in fair recruitment). The implementation of the recommendations has resulted in considerable progress. Among other things, recruitment processes have been fundamentally improved, in terms of fairness, objectivity, and alertness (helped by training) to the traps and errors to be avoided.
In theory, with these improvements in place, it should not be difficult to make the Bar a diverse profession. There cannot be any shortage of people with the potential, whatever their background, to succeed. The profession does not require specialist skills that can be acquired only at an early age. Anyone with common sense and clarity of thought and expression can do it.
In practice, however, things are easier said than done.
What’s the contextual approach?
One of the main issues encountered during the recruitment process relates to the assessment of academic results. Most applicants for pupillage are at a relatively early stage in life, so their academic results tend to form a significant part of their achievements to date. These days it is recognised that academic results may not be a particularly accurate predictor of future success, but it remains the case that: (a) they do provide at least some evidence of intellectual and analytical ability (a key criterion); and (b) there may be little else to go on in that regard, other than performance in interview and whatever exercise may be set as part of the recruitment process.
The question then arises: how exactly does one take account of academic results? Is it a straightforward matter of looking at the grades, or is a more nuanced approach required? What do you do if candidate A has the better grades, but you have a suspicion that, if background circumstances were factored in, candidate B’s grades might actually represent the more impressive achievement?
It is largely with this sort of dilemma in mind that we decided to use the contextual recruitment system (CRS) provided by a company called Rare, which a sharp-eyed junior tenant brought to the attention of the pupillage committee. Rare gave us a detailed presentation in chambers, which we found persuasive. The CRS is already in use by numerous law firms.
The central concept is apparent from the word ‘contextual’. The system is intended to allow a recruiter to put a candidate’s achievements into the context of the candidate’s circumstances.
"The basic point is simply that some achievements may gain lustre from their circumstances. If you want accurately to assess how impressive a 100-metres time is, you need to know the strength of the headwind."
It does this in the modern way – data and algorithms. The recruiter gets told, in quantified terms, how a candidate’s academic results measure up against those of their contemporaries at the same institution – the candidate’s ‘performance index’. Though not decisive, it seems obviously relevant to know whether and if so to what extent a candidate has significantly outperformed others at the same place. In this way, instinct is replaced by hard data.
At present the data covers A-level results at UK schools (both state and private) and law and history degree results at UK universities; the aim is to extend beyond this.
The nuts and bolts of the system are simple. The candidate fills in a short questionnaire, and Rare generates a report based on that. The report includes the performance index mentioned above and, where applicable, ‘red flags’ indicating different types of adversity the candidate may have faced.
It is up to the individual recruiter to decide precisely how it uses the information which the system provides. We are in the early stages of this experiment, and may tinker with the details. But basically we are likely to adjust our assessment of a candidate upwards where the candidate has achieved a particular level of outperformance, and likely to pay closer attention to some ‘red flag’ candidates. We would be disappointed if the use of the CRS did not enable us, in due course, to recruit some excellent non-stereotypical candidates who might otherwise have slipped through the net.
Answering our critics
Back to the comments our move generated.
Merit-only. One comment was along the lines that using a CRS was ridiculous because all decisions should be made simply on merit. However, there is no inconsistency. We agree that decisions should be made on merit; the central remit of our pupillage committee remains to recruit the best candidates. The question is how one identifies the best candidates. This is not an experiment in positive discrimination, and we recognise the statistical reality that a highly selective academic institution (whether in the state or private sector) may well generate a relatively large number of objectively excellent candidates. The basic point is simply that some achievements may gain lustre from their circumstances. If you want accurately to assess how impressive a 100-metres time is, you need to know the strength of the headwind.
The comment indirectly reminded me of a poignant photograph, taken in 2015 in the Philippines, which briefly went viral across the internet. It showed a young boy doing his homework, at night. But the boy had no home in which to do his homework. So he was kneeling on a shabby pavement outside a McDonald’s, writing in a workbook placed on a makeshift bench, using the light from the McDonald’s window to see what he was doing. He was concentrating hard.
The photo was widely reported around the world. There was unanimity that the boy’s resourceful determination was inspirational, and a reminder to be grateful for relative good fortune (‘the picture to show your kids the next time they moan about anything’). But there were different versions of the lesson to be learned. Some thought the photo simply bore out the old saying that ‘where there’s a will, there’s a way’. Others were justifiably wary of that sort of interpretation – adversity cannot always be entirely overcome by a bit of individual determination.
‘Yemeni asylum-seekers’. Another commenter sarcastically asserted that all you now have to do to get a pupillage is say you are a Yemeni asylum-seeker–you’ll be guaranteed a place. This overlaps with the previous point about merit, and also raises a further point: the outside possibility of candidate misinformation. But we are aware of that already, with or without the CRS.
Virtue-signalling. Finally, we were accused of ‘virtue-signalling’, ie an empty show of commitment to a good cause, unaccompanied by anything of substance. Nothing could be further from the truth. We are trying to do our bit, and there seems nothing wrong in anything that signals to the world that the Bar is continuing to evolve the methods by which it can be made open to all, irrespective of anything but talent.
It is too early for us to give any definitive view on its effectiveness in practice. We are not yet in a position to say that we have recruited an excellent candidate as a direct result of using the CRS. We also do not know whether there will be any indirect benefits, eg in terms of client perception (an increasing number of clients show an interest in the diversity of chambers). But we certainly think it is worth a try, as one piece of a bigger jigsaw.Michael Coburn QC is head of the pupillage committee at 20 Essex Street, where he practises in commercial law.