Robert Hunter

Robert McNamara was one of America’s best and brightest. Having risen meteorically to the top of the Ford Motor company, he gave the job up weeks later to be President Kennedy’s Secretary of Defence. That meant he was responsible for the conduct of the Vietnam war, so he asked soldiers to compile body count reports, totting up the number of enemy troops killed so that he could analyse the results statistically.

It ended in tragedy. Keen to report success, soldiers died searching for bodies or (reputedly) shot non-combatants.

It also ended in failure. McNamara had underestimated factors that couldn’t be quantified. As Ho Chi Minh had said, “you can kill 10 of our men for every one that we kill of yours, but even at those odds, you will lose and we will win”.

So nowadays McNamara is known for the ‘McNamara error’ – assuming that factors you can most easily label and measure are the most telling ones. ‘The lure of the metric’, it’s sometimes called.

All of which seems an odd way to introduce an article about disabilities (which this is). But if you’ve got one, you may have an idea where it’s going.  I was a partner in two City law firms and a solicitor advocate for over 25 years. Many frauds I saw worked by fraudsters getting victims to make the McNamara error.

They’d get victims to focus on a visible, seemingly objective, metric but manipulate it with an invisible one (juking the stats, in street parlance). More relevantly, my hearing declined throughout my career.  I was profoundly deaf for most of it. But I was lucky. I was always able to show I could do the job before people realised how little I could actually hear.

So what was the partner’s job? Mostly team supervision, I found. To benefit from what colleagues did really well, you’d need to deal with what they sometimes struggled with. So you spend a lot of time explaining, redrafting and so on. Much is judgement. Writing off the time you spend getting work to the required standard sometimes costs your firm money.  But filling the ‘dips’ in team members’ abilities is part of the job – unless the ‘dip’ results from something we call a ‘disability’.

Enter the distinction without a difference. Sometimes it’s just plain funny. For example, when colleagues want your help, but won’t speak up, so you can’t work out how. (‘Disabilities’ need the wrong kind of help – think British Rail and snow).

But it gets serious, particularly for junior employees, if the ‘disability’ requires financial outlay. Now there are labels ‘reasonable adjustment’ and ‘support’ to add to the ‘disability’ one and outgoings are easy to quantify: (£50 for a wheelchair ramp, or whatever). The stage is set for us to make McNamara’s error. Very often, we do.

Avoiding the McNamara error is about finding a balance between what can’t be measured and what can.  Take billings, the traditional lawyers’ performance metric. Lawyers juking the stats to enhance billings (for example, hogging work they should pass on) harms teamwork. And teamwork is vital for a law firm’s success and usually why you have one.

In 2018, Gideon Moore, Linklaters’ managing partner, abandoned individual partner billing targets for that reason. Profits jumped. But it takes self-confidence to rely on judgement rather than labels and figures.

Years back a partner told me, “we all have our good and bad points. Your bad point is you’re deaf”.  People thought I’d be offended. (He’d called my deafness ‘bad’.) I wasn’t particularly. He’d got the key point right.

Teamwork means accepting – within reason – the costs and inconveniences of other people’s differences to get the benefits. We lose our dignity when we fixate on someone else’s individual differences but expect them to deal with our own. As the recent ‘Legally Disabled’ survey shows, that’s a major problem in law firms.

Perhaps dignity doesn’t always matter as much as it should. But a lot of discrimination is just under-confident management. We lose money. That might.

Robert Hunter was a partner at Allen & Overy for 24 years and Herbert Smith Freehills for eight. He is a founder and trustee of City Disabilities (