December 05, 2018 Articles

Time’s Up on the Lack of Female Trial Attorneys

Why is this and what is the solution?

Anne E. McClellan

At a continuing legal education seminar on trial practice in Phoenix, Arizona, several years ago, the all-male panel of seasoned litigators was asked what still made them nervous. One of the more widely known and respected panel members responded, “A female attorney on the other side. There aren’t many of them, but the ones that make it to handle a trial will give you a run for your money.” His comment still rings true. Few female litigators receive meaningful courtroom experience, and even fewer serve as trial attorneys. The ones who achieve the designation of lead counsel, generally, had to outperform their male counterparts and prepare twice as hard for each courtroom opportunity to overcome implicit biases. The lack of female attorneys in the courtroom deserves attention, and it is long past time for change.

Where Are the Women?

Women have made up approximately half of law school graduates for decades. Yet, they hold only 19 percent of all equity partner positions in law firms and only 22 percent of general counsel positions, and female attorneys still earn less than their male peers. Given these statistics, it is no wonder most women feel their gender has hindered their legal career.

The litigation bar, in particular, has a concerning gender gap. Women make up only 35 percent of litigation attorneys, and the statistics are even bleaker when actual court time is analyzed. In a 2016 study by the New York State Bar Association, only 25 percent of attorneys appearing in court were women. In 2015, the ABA published the results of an empirical study of the participation of women as trial attorneys. It revealed that women are significantly less likely to appear as trial counsel, and they are even less likely to act as lead counsel. In fact, the ABA’s study showed that a man was three times more likely to act as lead counsel on a civil case than a woman. Women were more likely to appear as trial counsel when representing the government, although still not in numbers equal to men. When representation of governmental entities was excluded, men acted as lead counsel in almost 80 percent of civil cases. In over half of civil cases (59 percent), all of the attorneys who entered appearances were men, even though it is common for more than one lawyer to enter an appearance in a civil case. Even when the stakes are lower, meaning the case is viewed as less complex and less likely to go to trial, such as a pro per case, men represent 65 percent of the lead counsel. If you have ever heard a woman say that trial practice feels like a boys-only club, the statistics back her up. Women attorneys are demonstrably and significantly underrepresented in court.

Why Does It Matter?

One would think the statistics would be embarrassing enough to motivate change, but the legal field has been continuing in this dismal state for decades with very little progress. The question then becomes how to motivate real change now? Law firms are businesses, so one method is to examine whether the lack of diversity is hurting their bottom line. The answer is a resounding “yes” for public companies, which realize a 15 percent hike in net revenues by increasing female leadership to 30 percent. Gender-diverse companies are also more likely to outperform their peers, have a higher cash flow, and be more innovative.

A new study indicates that the same is true for law firms. The study showed that diverse legal teams perform better, earn 25 percent more of their clients’ expenditures, and are more likely to be recommended to clients’ peers. In a smaller study, diverse law firms generated more profits per partner, and less diverse firms suffered reputational damage and experienced higher employee turnover, both of which are costly.

Pressure from outside sources, particularly clients, should also motivate law firms to find ways to include and support women in their trial practices. Law firms can no longer ignore the effects that lack of diversity has on their ability to attract clients. More and more clients are demanding diverse representation, and many major corporations, including HP, Wal-Mart, MetLife, Microsoft, and Facebook, have instituted formal policies requiring law firms to meet diversity minimums and prove in billing submissions that minorities are actually performing the work. Failure to do so results in termination of the legal representation or forfeiture of fees.

Notably, although the percentage of female general counsel is far below where it should be, those numbers are increasing. In fact, the number of female general counsel more than doubled between 1999 and 2008. Currently, about 25 percent of Fortune 500 general counsel are women, and that number is expected to rise to 35 percent by 2020. General counsel hold the power to select outside counsel and demand diverse representation. This is not to say that female general counsel will always select female outside counsel. However, general counsel are increasingly being retained through external searches rather than internal promotions, and it is likely that these women have worked in law firms, learned about firms’ reputations for treating female attorneys fairly (or unfairly), and networked with their female peers, including forming lasting relationships with female litigation attorneys. A lack of female attorneys could, therefore, affect a firm’s chances of retaining or gaining the female general counsel’s business.

Women-owned businesses are also on the rise. According to the National Women’s Business Council’s 2012 Survey of Business Owners, women-owned businesses increased by 26 percent between 2007 and 2012, and there are over 9.8 million women-owned businesses in the United States. One in five businesses with revenue of $1 million or more are women-owned, and women-owned businesses account for 31 percent of all privately held companies. If the issue has been that male clients tend to select male attorneys, law firms need to be positioned for a change.

Some attention must also be paid to perceptions of all-male trial teams in the courtroom because providing clients with the best possible representation should be the primary motivator for law firms. Women make up over 50 percent of the jury pool, and data indicate that female jurors have a preference for female attorneys. In addition, more diverse legal teams are better equipped to generate themes of the case and develop witness questioning that will appeal to more diverse juries, and different perspectives are important to accurately evaluate cases.

Jurors are not the only people in the courtroom who pay attention to the gender makeup of the trial team. About 30 percent of state and federal court judges are women. Many of these female judges have experienced the struggles that continue to face female litigators, and, presumably, they will not look favorably on a firm that continues to perpetuate that struggle. Both male and female judges recognize the lack of diversity, and some are issuing standing orders encouraging law firms to give female attorneys courtroom experience. Judges are paying attention to more than just the legal arguments, and ensuring that the firm has a diverse trial team is an important part of developing a good reputation with the court.

Reputation is also key to hiring talented attorneys. If a law firm lacks female attorneys and does not have a reputation for promoting female litigators, it is not likely to attract the best female litigators; that talent will go to a competitor firm.

What’s the Solution?

To borrow from the new legal movement, time’s up for law firms. It is incumbent upon them to develop diverse trial teams that have the training, support, and experience needed to successfully represent clients in litigation. It is important to hire female attorneys, but it is just as important to create a firm culture that respects, values, and includes those women. Law firms should review their data to identify and correct, on an ongoing basis, inequities in pay and promotion between male and female attorneys. Firms must scrutinize their expectations and determine whether female attorneys are being unfairly criticized or held back because of a lack of “face time” as opposed to a lack of quality of work or a lack of valuable contribution to the firm, recognizing that women often carry a disproportionate share of the burden of child care and household management. It is also vital that opportunities are not taken from female attorneys based on assumptions of what she can handle or will want to do. Instead of assuming that a female attorney with small children will decline work that requires out-of-town travel, the assigning attorney should discuss the opportunity with her and allow her to decide what is best for her career and family. If she declines the opportunity because of personal obligations or other reasons, that should not serve as a basis to deny a pay raise, promotion, or future opportunities. She should be measured on her contributions and value to the firm.

Firms need to encourage women interested in litigation and implement programs that focus on developing those women, such as assigning equity partners to sponsor female attorneys and ensuring women are included in both formal and informal networking activities within the firm as well as with clients. Firms also need to include women on trial teams and give them meaningful court experience. If a female attorney prepares the brief or prepares the witness to testify, she should handle the oral argument or courtroom examination. If the firm has provided proper sponsorship, training, and experience, there is no reason to withhold that courtroom experience. Firms should communicate these expectations to clients, explaining the benefits the client receives from engaging a diverse legal team. Because the nature of litigation today provides less trial and courtroom exposure in general, firms need to provide alternative training platforms so that female attorneys gain necessary litigation skills.

It is imperative that firms create a safe environment where female attorneys and leaders within the firm can discuss diversity issues and develop tools and strategies to effect change. There are numerous articles detailing potential solutions for lack of diversity, and there are outside consultants with experience in assisting law firms in implementing those solutions. There is simply no excuse for a law firm’s failure to recognize the problem and take meaningful steps to correct it.

Individual attorneys also share responsibility for correcting the culture that discourages female involvement. Women continue to experience disrespectful behavior from colleagues and clients, including being told they are “better to look at” when they fill in for a male colleague at a deposition or hearing, or being called “honey” or “sweetheart” by clients and other attorneys. There is abundant research available regarding the implicit biases professional women, particularly women of color, face. Education and change on an individual basis must be part of the process.

Female attorneys must also take it upon themselves to seek the training and development they need to become trial attorneys, including joining professional networking groups, attending litigation and trial-related education and training programs, and advocating for themselves to their firms.

Women are an integral part of a law firm’s litigation practice. Progress has been too slow regarding the inclusion of women in the law, and female attorneys are not the only ones suffering. Law firms are missing out on improved performance, profits, and client services, and clients are not getting the best representation available. The time is now for law firms, individual attorneys, clients, and judges to step up and take action.

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