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August 26, 2015

UPDATED: When are we going to stop treating women lawyers like ne'er-do-wells and screw-ups who require special treatment to succeed?

Women lead counsel.jpg

Look, I would rather work with women lawyers than men lawyers because I think women lawyers, for whatever reason, are generally on balance better planners, thinkers and practitioners, and better with clients, than are men. But who gets to be lead counsel in litigation is ultimately determined by both merit and the client.

When are we going to stop treating women lawyers and other female professionals like ne'er-do-wells and screw-ups who need special treatment to succeed? There's actually a discussion out there on why more women are not lead trial counsel. See this August 1 ABA piece entitled "Why aren't more women lead counsel?" The article grows out of a panel this summer at the ABA Annual Meeting, which in turn had grown out of an American Bar Foundation study. The ABF study among other things found that, unsurprisingly, men were disproportionately appearing as lead counsel in civil cases (based on 558 cases in the Illinois Northern federal district) by 76% to 24%. The study's conclusion is below. Brackets and italics are mine. The italics highlight phrases which I think would be insulting in the extreme to talented women in any profession; the implication in the italics is that women lawyers are ne'er-do-wells, screw-ups and/or congenitally handicapped:

Fostering the success of women litigators redounds to the benefit of clients, who obtain top-notch representation in their cases [Huh? Why does it help clients? More choice?]; to law firms, which have made a substantial investment in hiring and training their women litigators; and to women lawyers themselves, who are able to realize their full potential and advance in their careers. We believe it is imperative for all concerned that women are encouraged and supported in their pursuit of a career in the courtroom and the role of lead counsel at trial.

We hope that this study will heighten awareness about the existence of significant gender disparities in the ranks of lead trial lawyers. We want to spur a dialogue that will result in concrete and effective actions to increase the numbers of women lead trial counsel. These recommended best practices will help women litigators develop their skills and obtain the same opportunities for leadership roles and success in the courtroom as their male colleagues.

Me personally? And professionally? Look, I would rather work with women lawyers generally than with male lawyers because I think women lawyers, for whatever reason, are generally on balance better planners, thinkers and practitioners, and better with clients, than are men. They tend to write better. Much better with deadlines, frankly. They're feisty. Many are as mean as snakes. But who gets to be lead counsel in litigation is ultimately determined by both merit and the client.

For trial work both women and men should be lead counsel (or first chair) if (a) they deserve it based on skills and (b) clients want it. Plenty of women certainly do deserve to be lead counsel based on merit. Lots. They are legion. Are there stats on this? Of course not. Qualitatively, can we say there is currently as much female as there is male first-chair talent? Actually some kind of parity in terms of skill? Are they roughly equal in numbers? It's a hard thing to measure but, no. Probably not.

Litigation is still way overpriced, insane, male-oriented, overly-testosterone-driven and inefficient; I've no numbers (if you do, show me) but my sense is that women over the past two or three decades in private practice, and certainly in larger firms, have had the good sense to chose transactional work and more efficient forms of litigation (e.g., administrative, regulatory, ADR) than state and federal trial court forums where machismo, sporadic irrationality and other forms of male insanity are well-tolerated whether these modalities are working or not. That may change. I see women choosing both conventional trial and appellate work more and more, and getting as good at it as male lawyers or even better. In the meantime, we can assume that no one will be insane enough to suggest that the imbalance between male and female lead counsel be rectified (read: contrived) by a quota system. Right?

More important is the problem of women who want and deserve on the basis of merit to be lead counsel--but really are thwarted or held back by gender-bias. What then? It's a tough question. Here's the tough answer. Right or wrong, clients--not notions of political correctness and private enterprise-side affirmative action--should drive who serves as lead counsel. Law firms are already under tremendous pressures to embrace mediocrity and settle for something less than clients want and deserve. Firms are under no obligation to force clients to "evolve" so that women in litigation are first chairs--even when they merit lead counsel spots on defense or plaintiff teams in the finest litigation shops. Nor should they be. Granted, it's not a fair answer. But it's a client's call.

The ABA article--which makes some good points about former women prosecutors going to law firms before silly notions of "parity" creep into it and the wheels fall off--is here:

If women want to be trial lawyers, the best place to have first-chair opportunities may be with federal prosecutors, according to a recent ABA study. But considering that many assistant U.S. attorneys eventually join big firms as partners, some wonder why there are few women at big law firms leading trials.

“Most male litigators who serve as federal prosecutors, they get their tickets punched. There’s no absence of female lead prosecutors, and they also get gobbled up by big firms. But what happens to them, and why aren’t they serving as lead counsel?” asked Ruben Castillo, chief judge of the Northern District of Illinois U.S. district court.

Castillo spoke on a Saturday panel at the ABA Annual Meeting—“Women as Lead Counsel at Trial: What You Can Do to Take the Lead,” sponsored by the ABA’s Commission on Women in the Profession—that discussed the lack of women serving as lead counsel. He noted that the event had very few men in the audience.

“I’ve been on the bench 21 years, and I would say I’ve had about 14 or 15 cases where the women before me were lead counsel,” Castillo said, adding that he plans to have some sort of conference on the issue in the future.

The panelists focused on a recent study by the American Bar Foundation and the Commission on Women in the Profession titled First Chairs at Trial: More Women Need Seats at the Table (PDF). The study reviewed 600 Northern District of Illinois cases filed in 2013. Out of the 558 civil cases, 76 percent of the lead counsel were men. For the 50 criminal cases, 67 percent of the lead counsel were men. Out of the 50 criminal cases that went to trial, 79 percent of the lawyers serving as lead counsel were men.

Another panelist, Sandra Phillips, noted that she recently hired two women of color to lead two significant class action cases against her employer, Toyota Motors North America.

Phillips, the holding company’s general counsel and chief legal officer, says that she actively seeks female outside counsel, and occasionally gets pushback from law firms. Often, she added, the firms respond that older white males have the most experience and knowledge about her employer, and it would be unfair to assign the work to someone else. “If we’re going to move the needle on this, we need to dispense with this notion of fairness. It’s not fair that 79 percent of the people who are taking the lead in the courtroom are men,” said Phillips, who is based in Torrance, California.

“Who really wins cases?” Phillips added. “Lawyers who have been around for 40 years and know the company well, or lawyers who can tell a good story in the courtroom, who are collaborative, competitive and solution-oriented?”

Paula Hinton, a Winston & Strawn litigation partner based in Houston, says that she does sometimes encounter implicit bias, usually from clients.

“They tend to go with what they think is the safe choice of a white male for their lead lawyer who has an established reputation,” she said. “But at trial time, if the case is in a ditch, I get parachuted in. What happens is it’s not going well with what they thought was a safe choice.”

A potential solution mentioned to improve first-chair gender numbers was letting lawyers who write briefs argue them, recognizing that the writing is often done by female associates or junior partners.

“Sometimes when a male senior partner is in front of me arguing, I can see the female associate next to them flinching, as the beautifully written brief they wrote is ruined,” said Sophia Hall, a Cook County, Illinois, circuit court judge.

When judges notice that a first-chair lawyer seems to be having problems making his or her argument, they can ask the lawyer seated next to him or her for further explanation, panelists said. If the associate can do a good job answering the court’s questions, it’s often a sign that he or she will be a good trial lawyer.

“In larger cases where there’s a courtroom full of suited lawyers, I’m looking for someone who is going to help me understand,” added Hall, mentioning one complex case where a “woman piped up, ‘I have a chart.’ “

Hall said: “That got my attention. You can call attention to yourself by having not only a sense of the law but also the context, and present it in a way that’s understandable.

“The other important thing is that a lawyer leading the case can work with personalities. With male lawyers, sometimes you go through testosterone pyrotechnics, and females can sit back and cut to the chase. As judges, we’re looking for a voice of reason that’s calm and intelligent. If you can do that, it will allow you to look really good.”

The issue of calling attention to yourself was also addressed.

“You need to have a reputation that precedes you. You don’t get the reputation by just sitting in your office,” said Stephanie A. Scharf. A litigation partner with Chicago’s Scharf Banks Marmor who co-authored First Chairs at Trial with Roberta D. Liebenberg, a senior litigation partner with Philadelphia’s Fine, Kaplan and Black.

“Nothing is better than trying a case,” said Liebenberg when asked why she never abandoned litigation as a career. “There’s nothing more exhausting, but there’s nothing better.”

Posted by JD Hull at August 26, 2015 11:40 PM

Comments

I think generally, women need to understand entrepreneurialism better. I don't teach my daughter to take risks, but my testosterone driven son craves risk, as I do. My daughter naturally seeks security and protection, and I think hormones play a large role in this. Working for someone else is the same as "security." Not much room for success as a slave to the need for certainty.

Posted by: Michael Ehline at August 25, 2015 06:52 AM

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