Time after time, Stephanie Scharf would go into a courtroom and see the same thing. “Not only was I typically the oldest woman in the courtroom—and I’m not that old—but also there were very few women in the courtroom,” says one of the founding partners of Scharf Banks Marmor LLC in Chicago and past president of the National Association of Women Lawyers. “You could see just by observation the women were junior and the men were senior,” she explains. “It struck me that we really don’t know the facts about the roles women are playing in litigation.”
This realization inspired Scharf to pursue research on these very roles in litigation, backed with funding from the ABA Commission on Women in the Profession and the ABA Foundation. The full results are expected before year’s end. However, “the tip-of-the-iceberg data,” as Scharf calls it, show that when women appear in a case, they’re lead counsel only 40 percent of the time; when men appear in a case, they’re lead counsel 60 percent of the time.
Why does it matter? “In its most basic form, diversity matters because if clients, or—in the case of large law firms that internally control relationships with longstanding clients—firms themselves fail to look at women, they’re irrationally ignoring a source of talent,” contends Maureen Mulligan, a shareholder at Ruberto, Israel & Weiner, P.C., in Boston. “We’re a diverse country, and having women as lead counsel provides diversity of thought and diversity of innovation to problem solving.”
Women’s Work Is Vital
Just as women aren’t advancing in other ways in the profession, as their numbers attest, they’re also not taking charge of litigation matters as often as men.
“Women have been entering law school at nearly the same rate as men for more than 20 years, yet we’re still not seeing women at the top positions at law firms or in corporations—or as lead counsel in civil or criminal cases,” says Bobbi Liebenberg, a partner at Fine, Kaplan and Black, R.P.C., in Philadelphia and past chair of the ABA Gender Equity Task Force. This is harming women lawyers if for no other reason than it affects their compensation.
But it also affects the pretrial representation clients receive. “Lead counsel defines the approach to the issue and the legal strategy. That lawyer is the architect of the communication strategy—and, in my view, communication is the key to resolving disputes,” Mulligan says. “It encompasses things like how we communicate with clients to get the information we need to represent them and how we communicate with opposing counsel.”
When trials do take place, leaving women in minor roles continues to affect clients’ representation. “When you get a case to trial, you find diversity in the jury pool and, ultimately, in any jury that’s empanelled,” Mulligan says. “It’s very important to have a lawyer who can relate and connect with this diversity in the jury. The lead counsel should never be the central focus for the jury. But the jury has to be able to like and relate to the trial team. If they can’t, that poses a problem for the case.”
The issue even has a global impact. “We care that corporate counsel, in-house counsel, and lead counsel reflect the diversity of the communities in which they practice and the diversity of the needs of the clients they serve because how people perceive the court system, the administration of justice, and access to justice is a cornerstone of our democratic society,” says Judge Anna Blackburne-Rigsby of the District of Columbia Court of Appeals in Washington, D.C., and president of the National Association of Women Judges (NAWJ) in Washington, D.C. “When you look around the country and the world, if you see unrest, it’s often when people don’t trust the system or don’t feel they have access to it.”
The Data Speak Volumes
The research Scharf is conducting will fill a gap in information that exists in the profession.
“Surprisingly, there’s very little data beyond what I’d call surface information of exactly the roles women hold in their everyday practice,” Scharf says. “Other than the annual tracking of women who are general counsel in Fortune 500 companies, there’s no data on senior positions in those offices, which are a step below general counsel. And there’s no data on the roles women play in those positions in private practice.”
From 2006 to 2013, Scharf created, supervised, and reported on the National Association of Women Lawyers National Survey on Retention and Promotion of Women in Law Firms, which she says provides basic statistics about the positions women hold in law firms. “But even those surveys are limited in the view they give of everyday working women lawyers, such as whether women lawyers are in the lead on major matters for major clients,” Scharf says. “It’s hard to survey law firms. Typically, surveys of law firms are surveys of lawyers, but are only a very small and nonrepresentative sample of all lawyers.”
As she was entering an appearance for a case in the U.S. District Court for the Northern District of Illinois, Scharf had a thought. Right there on the appearance form was a trove of data, such as the type of case, the nature of the client, and whether a lawyer represents a plaintiff or defendant or is lead or a trial attorney. Scharf arranged to pull from Public Access to Court Electronic Records a representative, random sample of all cases filed in that district in 2013. The research covers about 2,000 lawyers in some 600 civil and criminal cases.
Why focus on Chicago? “It has a well-balanced litigation practice,” Scharf says. “It’s not dominated by any one type of case, like immigration or criminal drug cases. It also has a large and diverse legal community that’s not dominated by one firm, just a few firms, or just a few lawyers.”
She adds that the Northern District of Illinois also has the kind of information that could show senior versus less-senior roles because the court records whether a lawyer appears as lead counsel or as the trial attorney. “And to be a trial attorney, you must be a member of the trial bar, which has certain experiential criteria,” Scharf continues. “Finally, [the appearance form] has a very detailed civil cover sheet, which has allowed us to look at the different factors of the cases.”
The tip-of-the-iceberg results show that men are much more likely than women to appear in a case as lead counsel. Why?
“It isn’t because there are more male lawyers,” Scharf contends. “It’s not because more men appear generally than women. It may be due to the fact that firms aren’t retaining senior women. There are many explanations for why they leave. My own view is there are a number of reasons. Sometimes it’s for individual circumstances. But I also believe law firms can do better at advancing women into senior roles because there are many talented, hard-working women lawyers who are great trial lawyers and who can advance more than they currently do.”
The Problem Is Solvable
The solutions to this challenge are within reach, and they involve the efforts of women, firms, and institutional players.
“Last year, I tried three cases,” Mulligan says. “Two came to me from corporate partners in my firm. I’ve developed relationships with them so they see me as the go-to person in certain types of litigation. It’s really important for women lawyers to develop relationships with the corporate lawyers in their firm who are going to be looking for litigation counsel when matters arise. Or if the firm has a more formal system in terms of how cases are handled—maybe cases have to go through the litigation chair or some other administrative process—women need to develop relationships with the people giving out the work.”
Law firms can also play a bigger role. “Firms should be aware that in their litigation practices, what their lawyers look like isn’t matching up with what jurors look like, and clients are pushing firms today to have gender diversity in their litigation teams,” Scharf says.
She adds that firms have good reasons to identify women lawyers in litigation to give them the encouragement, the training, and the chance to do more in a litigation practice and appear in a courtroom. “I think it’s up to firms to make sure their women lawyers in litigation are getting good opportunities to advance and not being relegated to document review or routine depositions—that they’re being stretched and that they’re encouraged to stretch themselves.”
Scharf says she’s personally benefitted greatly from senior male trial lawyers who helped her become a trial lawyer and succeed. “If women are to advance in large numbers, given that the senior ranks of firms are overwhelmingly men, they have to find male sponsors who will help them.
“And senior men have to think about helping both men and women,” Scharf continues. “Otherwise firms will stay overwhelmingly male. It’s not fair and makes no numerical sense to put the onus [only] on senior women to advance women.”
Help from the Judiciary
Members of the judiciary can also make a difference. “My presidency of the NAWJ focuses on ensuring access to justice for all,” Blackburne-Rigsby says. “One of the ways we can do that as judges is by using our voice to raise questions. Why aren’t more women being appointed as special masters? Why does a firm that litigates regularly in a court never have a lead counsel who’s a woman? When firms know an issue is important to the court, the legal community, and the bar, they step up, too.”
Blackburne-Rigsby adds that judges are in a unique position to observe the range of lawyers who appear before the court or who are actively involved in bar leadership. “When a court is looking to appoint people to various committees,” she notes, “judges can ask: Have we sent notice to the women’s, the African American, and other bars to let them know these positions are open? Have we done outreach so more lawyers know these opportunities exist? These things are well within what judges can appropriately do without violating the canons of judicial conduct.”
Blackburne-Rigsby and Liebenberg have united to push for progress on this issue, including participating on a panel at the NAWJ’s annual meeting in October. “We’re looking at the appointive powers of judges,” Liebenberg says. “What can they do to appoint women to positions as special masters, referees, liaisons, or lead counsel in class action cases, or to appoint them to committees within the circuit or court that will give them greater visibility in their firm and their community?
“We really see this as an opportunity to educate women judges and [to encourage] women lawyers to seek out these opportunities and volunteer for these types of appointments,” Liebenberg continues. “These experiences can be very beneficial to them in their career.”
Such efforts by a woman litigator to stretch herself and seek new opportunities are critical. “It’s not enough to just be a good lawyer,” Mulligan says. “You have to let other people know you’re a great lawyer. Nobody’s going to promote you if you don’t promote yourself.”