December 11, 2017

The Commission Reports and Judges Listen

Ann Farmer

In March 2015, lawyer Dora Monserrate-­Peñagaricano was representing a client in a deposition hearing in the U.S. District Court for Puerto Rico when she complained aloud to a colleague that the room was hot.

“You’re not getting menopause, I hope,” interjected the opposing lawyer, Camilo Salas, in front of 14 other, mostly male, lawyers.

Monserrate bridled at his comment. And in a sanctions hearing several months later, U.S. District Judge Francisco A. Besosa also chastised Salas for it, quoting the American Bar Association report First Chairs at Trial: More Women Need Seats at the Table to emphasize the comment’s discriminatory nature and negative impact: “An ABA report published this year,” stated the judge, “identified ‘inappropriate or stereotypical comments’ directed at female attorneys by opposing counsel as one of the causes of the marked underrepresentation of women in lead trial attorney roles.”

It’s not the only time that the First Chairs report—which examines why there is a dearth of women lawyers in lead counsel and trial counsel posts and what to do about it—has been cited in sanction hearings. Since its release in 2015, this first-of-its-kind study, published as a joint project of the American Bar Foundation and the ABA Commission on Women in the Profession (CWP), seems to be having the precise effect that its coauthors hoped it would.

“I think having judges call that behavior out, and having a study that they can rely on,” is a powerful tool for change, says coauthor Roberta D. Liebenberg, a former chair of the CWP and a senior partner at Philadelphia-based Fine, Kaplan and Black, R.P.C. Stephanie A. Scharf, who heads the litigation practice at the women-owned Chicago firm Scharf Banks Marmor LLC, served as Liebenberg’s coauthor.

The two began by taking a random sample (608 cases) of all the civil and criminal cases filed in 2013 in the U.S. District Court for the Northern District of Illinois. They examined the cases from the perspectives of (1) type of case, (2) type of practice setting, and (3) type of client. They found that women were consistently underrepresented in lead counsel roles in almost all types of legal settings. Notably, men were three times more likely than women to serve as lead counsel in civil cases. And when surveying criminal cases, the authors found that men were four times more likely than women to serve as trial lawyers.

“You could go into any courtroom and just by being there know that there are not enough women as first chair trial lawyers,” Liebenberg says. “But because we did the statistics, the thing has really taken off. It’s been cited by several courts in sanctioning lawyers for biased behavior, like during a deposition. It’s been cited in a law review article. It’s been cited by The Wall Street Journal and the New York Times. And it really shows you how important the statistical backup is—to validate what we can all see with our eyes.”

It has also set the stage for a correlating study. Temple University Beasley School of Law in Philadelphia recently released its statistics on all leadership counsel appointments made in the past five years with regard to multidistrict litigation (MDL). Again, men were found to secure the vast majority of top positions.

“While progress has been made, especially in 2015,” says Dana J. Alvaré, a research fellow at Temple’s Stephen and Sandra Sheller Center for Social Justice and author of the report, the research indicated that female lawyers were appointed to only 16.5 percent of total MDL leadership positions. And when they were appointed, it was more often to second-tier leadership roles.

Specifically, women received 15 percent of first-tier leadership positions and 19 percent of second-tier leadership positions over a five-year period ending July 1, 2016. The results also showed that the gender of the judge, the district of the appointing court, and the type of case had no significant effect on the rate of female appointment. The percentages do appear to increase, though, when there are more slots to fill, as in big cases.

“We were very excited to see that the First Chairs report got so much press and was discussed so widely among the bench and bar,” says Alvaré, who hopes that the Temple results, the statistical piece of which debuted during an ABA webinar in November 2016, similarly contribute to “the ongoing discussion in the legal community about how to achieve greater diversity in court appointments and the profession as a whole.”

“I’m not necessarily shocked,” says Aimee Wagstaff, referring to the Temple statistics. A founding partner at Andrus Wagstaff PC, a Denver-based firm where she specializes in MDL, Wagstaff adds that she thinks “it’s embarrassing to our profession—that needs to change.”

Having a preponderance of male leaders, she says, doesn’t avail clients, who benefit from different perspectives on strategy and from juries seeing women lawyers out in front, particularly when the litigation is gender specific. “I think when you’re talking about women’s issues and women’s products and MDLs that only affect women, it’s critical to have women in leadership roles,” observes Wagstaff, who set precedent in 2015 when Kansas Federal Judge Kathryn H. Vratil appointed her national co-lead counsel of the Ethicon Morcellator MDL with a first-time Plaintiff’s Steering Committee (PSC) composed of a majority of women. In that case, Wagstaff represented dozens of women (or their families) who claimed that Ethicon’s surgical device spread undetected uterine cancer while the women were undergoing fibroid removal or hysterectomy surgery.

“Leading an MDL is hard,” says Wagstaff, who urges experienced MDL lawyers to take time to mentor younger lawyers so they can develop the necessary skill sets. She suggests putting them on committees, like a discovery or subcommittee, and giving them small leadership roles, like running a project or heading up a deposition schedule.

“And then eventually they can become a PSC member themselves,” says Wagstaff, “and then eventually an executive committee member, and eventually maybe run an MDL. But there are so many intricacies in running an MDL and so much at stake. It’s not something you can just jump right into because you’re a good lawyer.”

Wagstaff hosts the annual Women En Mass retreat she founded four years ago. A free event that takes place in Aspen, Colorado—in 2016 it attracted 230 women—it’s a bonding opportunity for mass tort lawyers. “It’s a safe place to talk about these issues and how to combat them,” she says.

Meanwhile, the First Chairs report, which also stresses mentoring and other best practices for law schools, firms, women lawyers, clients, and judges to take to halt discrimination and promote women first chairs, continues to impact the legal field.

Washington, D.C.–based National Association of Women Judges, for example, spurred by the report, drafted a resolution that encourages trial judges to take gender and minority diversity into account when making their discretionary lawyer appointments.

Chief Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois, likewise, after reading the report, convened an all-day conference involving more than 450 people, including general counsel, law firm representatives, and individual lawyers, to discuss its findings and strategies. “It has been very gratifying to see that attention and to see the action steps,” says Liebenberg, noting that other courts are convening similar conferences.

Wagstaff notes that Minnesota’s Chief U.S. District Judge John R. Tunheim, after reviewing the applications for lead counsel in the fluoroquinolone products liability litigation underway, and seeing that they were all men, requested that counsel consider adding a woman lawyer to the plaintiff’s executive committee. His advocacy resulted in the addition of lawyer Yvonne Flaherty to the team.

Yet another judge who took heed of the First Chairs report is U.S. Magistrate Judge Paul S. Grewel for the Northern District of California, who presided over the January 2016 sanctions hearing of Peter Bertling regarding his comments to lawyer Silvia Guersenzvaig during a deposition.

Prior to the deposition, Bertling created significant delays by not producing documents that had been requested by the opposing counsel. During the deposition, Bertling continued to flout guidelines. He made extremely long speaking objections, coached and spoke for witnesses, and, at times, cut them off. At one point, Guersenzvaig, the plaintiff’s lawyer, asked him not to interrupt her. He responded, “[D]on’t raise your voice at me. It’s not becoming of a woman. . . .”

Judge Grewel, in his decision, wrote, “There are several obvious problems with his statement, but, most saliently, Bertling endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” Furthermore, the judge stated, Bertling’s comments “reinforce the male-dominated attitude of our profession.”

Citing the First Chairs report and its finding that these types of comments contribute to women’s underrepresentation in the legal field, Grewel then ordered Bertling to make financial reparations to the plaintiffs and to donate $250 to the Women Lawyers Association of Los Angeles Foundation.

First Chairs at Trial is available for download at www.ambar.org/firstchairs.