January 09, 2016

Push for Diversity in Lead Counsel Gains Momentum: New Report Serves as Catalyst for Growing Efforts to Provide Women with More Opportunities to Lead Litigation

G.M. Filisko

New Report Serves as Catalyst for Growing Efforts to Provide Women with More Opportunities to Lead Litigation

With new research proving a disappointingly low level of gender diversity in lead counsel positions, legal leaders are intensifying their push for change.

“The study was very conclusive,” says Chief Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois in Chicago. “It raises what I consider to be a very serious issue of the profession. It can’t just be a report that comes out, gets a little bit of sunshine, and then gets shelved on somebody’s bookcase.”

That’s why Castillo is among those seeking change. From efforts and initiatives sponsored by court and professional organizations to academic research and individual lawyer mentoring, the issue has gained traction. Now its proponents are seeking critical mass to accomplish sustainable gains.

Facts Paint Frustrating Picture

The study Castillo is referring to—funded by the ABA Commission on Women in the Profession (CWP) and the American Bar Foundation—tracked information on appearance forms in a random sample of about 600 civil and criminal cases filed in 2013 in the Northern District court. At issue: How many women appeared as lead or a trial lawyer for plaintiffs and defendants?

The findings were reported by authors Stephanie Scharf, a founding partner of Scharf Banks Marmor LLC in Chicago, and Roberta D. Liebenberg, a senior partner at Fine, Kaplan and Black, R.P.C., in Philadelphia, in this year’s First Chairs at Trial: More Women Need Seats at the Table. Among the results are these sobering facts:

  • In civil cases, men are three times more likely to appear in lead roles than women. That’s “a marked departure from what we expected based on the distribution of men and women appearing generally in federal litigation (a roughly 2 to 1 ratio) and the distribution of men and women in the legal profession (again, a roughly 2 to 1 ratio),” the authors wrote.
  • In 59 percent of civil cases, lead counsel are all men; in 13 percent, all lead counsel are women.
  • Class actions are dominated by males, with 68 percent of appearances filed by men; men made up 87 percent of all the lawyers who designated themselves as lead counsel in class actions.

The study has triggered further research. Jaya Ramji-Nogales, a professor at Temple University, Beasley School of Law in Philadelphia, has just begun a one-year follow-up research project intended to be a quantitative and qualitative study on gender equity in leadership in multidistrict litigation nationwide. Ramji-Nogales has a one-year funding commitment she hopes will be extended if her results warrant further exploration.

“It’s a nice complement to the ABA study,” Ramji-Nogales says. “We plan to go back as far as we can, to the early 1990s, and pull the dockets to see what we can find. We’ll supplement that with interviews asking about the patterns we see in the data and talking to people about what’s actually going on. I think there’s going to be gender inequity, and I think there’ll be racial inequality, too. The question is why.”

While Ramji-Nogales focuses on the “why,” Liebenberg and others are implementing initiatives now. “What’s really helpful about this study is that it sets forth specific strategies to address the problem,” says Liebenberg, who has also served on the ABA Task Force on Gender Equity. “But there are no quick fixes. This is a problem we need to really take on.”

Judges Heed That Call

Answering Liebenberg’s call early has been the ABA CWP. It sponsored a continuing legal education program at the ABA Annual Meeting in August 2015 on what women can do to forge a path to lead counsel positions (available for purchase to view online; see page 15 of this issue). Castillo was among the panelists, and his court is further pressing the issue by cohosting with the Chicago Bar Association an April 21, 2016, conference on the topic, which will offer participants CLE credit.

“We’re inviting most of the general counsel of top companies to discuss the issue,” Castillo explains. “We also plan to have judges participate because I think judges are part of the solution in how they handle the selection of counsel for large, multidistrict cases and the appointment of counsel in pro bono cases, which we’re currently reevaluating. We hope to not only have a dialogue but to come up with an action plan customized to our district—which is the third largest in the country—that can be a model for the other 93 federal judicial districts.”

On the agenda will be the trend of women dominating jury pools and what’s already happening in terms of gender equity in the U.S. Court of Appeals for the Seventh Circuit and the Northern District of Illinois, courts that Castillo says are among the most diverse in the country. “I’m talking about things like Judge Diane Wood now being chief judge in the Seventh Circuit, that key members of my court are females, and that key members of the management committee in my court—we don’t release names—are more diverse than ever. If you just look at the seniority of my court, we have more senior female judges than ever before. Those are the leaders of our court by definition, and they’re also judges who have their fair share of complex, heavy-duty litigation.”

Liebenberg is likewise focusing on the gains judges can make. “We’re continuing to work with the National Association of Women Judges, the National Association of Women Lawyers, and the Center for Women in Law (CWL) to educate judges and lawyers about the report and the steps that can be taken to address this long-standing disparity our statistics and findings from the report demonstrated.

“We’re creating a series of programs about the report, and we’ll continue to present them,” she continues. “There’s also a working group set up by the CWL to talk about next steps and put together program materials that bar associations, courts, and law firms can use to understand the steps that can be taken to ameliorate the problem.”

Judges have wide discretionary appointment authority for special master positions, guardians ad litem, and the lead or liaison counsel in complex commercial class action cases, Liebenberg notes. “Judges have a lot of opportunities to appoint lawyers to things like signature committees to help raise the profile and visibility of those lawyers,” she says. “For women lawyers, that’s helpful to show—not only in their law firm but also in their community—that they’re leaders.”

Clients Can Push Firms

Another route for making headway is through intensified efforts from clients, says Paula Hinton, a litigation partner at Winston & Strawn in Houston, who participated in the August panel discussion.

“If this is ever going to work, two things have to happen,” Hinton contends. “One, clients have to really be serious and enforce their programs where they say they want to see diverse teams in their outside counsel. Some companies do that and do a very good job of it. There are others that have the policies and aren’t implementing them in a way that will effect change. They need to devote the time and resources to meet with the law firms and then track the use of women and minority attorneys at all stages to be sure their policies are implemented. It can’t be done in a once-a-year client review. It has to be more systematic.”

Castillo agrees and expects that once general counsel who attend the April conference see the big picture, they’ll respond. “I think there’s a tendency on the part of general counsel of large companies to go back to the same well when they get large cases they think are significant, career-defining cases,” he notes. “Sometimes you have to get people out of their natural comfort zone to learn there are other options in representation and to learn what’s going on in actual courthouses in the United States. Once they hear more, I think it’s going to impact that easy route of just going to the Rolodex and calling up the same counsel, who tend to be males.”

Be the Boss of Your Career

The second change Hinton advocates is from women themselves. “Remember you’re the boss of you, and you’re responsible for your future,” she asserts. “You will not sit in your office and things will come for you. That doesn’t happen for anybody. We’re used to being rewarded if we did our homework and got good grades. We’re in the working world now.”

“Women’s work” on this front includes how you present yourself, not being afraid to be relentless, and establishing your presence, contends Presiding Judge Sophia H. Hall of the Circuit Court of Cook County in Chicago. Hall has been assigned to the Chancery Division overseeing business and equity cases, along with class action litigation, for 15 years; in the late 1980s, she served as president of the National Association of Women Judges.

“It’s very disturbing in a way, but if Hillary Clinton were talking the way Donald Trump is talking, do you think she’d be taken as half as seriously as he has been?” she asks. “It’s about how women and men are seen as projecting voices. There’s still a difference between the way a man says something and a woman says it. Also, stick to your guns, and be bright about coming up with a theory of your case and about articulating that theory. The last thing is an intangible—it’s a presence. You need to claim the space as though it’s yours, and you can’t be apologetic about being there.

“All that doesn’t mean you can’t have a sense of humor,” Hall cautions. “You have to. Be careful where you show it, but do show it because not doing it means you’re not human. Those are the things you have to bring to be lead counsel. The rest is the politics—with a small p—of your firm and your clients.”

You must make additional affirmative moves, according to Hinton, starting with being active in your firm. “Step up and take risks, and take opportunities to work on matters outside your comfort zone,” she advises. “If a partner is headed for trial, ask: ‘Is there anything I can do?’”

Hinton also recommends pursuing pro bono opportunities that allow you to manage cases that, frankly, make you nervous. “That should never stop,” Hinton says. “Two years ago, I did a big civil rights matter, and I’m not a civil rights attorney. But I knew I could learn it, and it was a case that put me out past my comfort zone and kept stretching me.”

And never underestimate the importance of involvement in professional organizations. “It also includes building your profile,” Hinton notes. “Be active in bar associations. Establish a reputation as a doer in your local or state organizations. Build your professional reputation by volunteering to speak, getting on CLE panels, and writing. One needs to do that to build a reputation because today very few of us are down at the courthouse daily.”

G.M. Filisko

G.M. Filisko is a lawyer and an award-winning, Chicago-based freelance journalist who covers legal, real estate, business, and personal finance topics for such publications as the ABA Journal, Consumers Digest, REALTOR Magazine, AARP.com, and Bankrate.com.