Prima Inter Pares
The year 2022 is a year of important anniversaries for female lawyers. It is 100 years since Dr. Ivy Williams was the first woman to be called to the Bar of England and Wales in 1922. It is 150 years since Charlotte E. Ray became the first Black female attorney in the U.S. in 1872. It is also 100 years since Florence E. Allen became the first woman elected to the highest court in a state—in her case, Ohio. However, this momentum has stalled since these women fought for parity among their male peers.
It is widely acknowledged that the position of first chair is, for a trial attorney, the most prestigious position in the trial team. The leading trial attorney has the most responsibility and the most public-facing role. First chairs undertake the more difficult cross-examinations with the more unpredictable witnesses, they deliver the opening and closing speeches, and they make the critical strategic decisions throughout the trial. It is therefore troubling that this coveted mantle does not often fall on the shoulders of a female attorney. The ABA Commission on Women in the Profession and the American Bar Foundation published a study in 2015 that surveyed a sample of civil cases filed two years prior in the Northern District of Illinois and found that only 24 percent of lead counsel were women. In other words, there were three times as many male attorneys who acted as lead counsel.
This disparity is not limited to Illinois. In 2017, the New York State Bar Association (NYSBA) Commercial and Federal Litigation Section prepared a report: If Not Now, When? Achieving Equality for Women in the Courtroom and in ADR. Three years later, in 2020, the Women’s Initiative Task Force of the NYSBA published a second study, The Time Is Now: Achieving Equality for Women in the Courtroom and in ADR, which examined whether the recommendations presented in the original study effected any change for women in litigation and alternative dispute resolution. The key findings were these:
- Female attorneys represented 26.7 percent of attorneys appearing in civil and criminal cases across New York—an increase of 1.5 percent.
- Female attorneys accounted for 25.3 percent of lead counsel roles—a tiny 0.5 percent increase.
- When a case involved only one party per side, women appeared as lead counsel at the encouraging rate of 43 percent. But, as the number of parties increased, the percentages of women appearing shrank to 26.6 percent (two parties on at least one side), 26 percent (three to five parties), and 23.5 percent (six or more parties).
- Women made up 35.1 percent of public sector lead attorneys but just 20.8 percent of private practice lead attorneys. The numbers from the previous study showed 38.2 percent of public sector lead attorneys but just 19.4 percent of private practice lead attorneys. These figures show little progress with respect to private sector attorneys, whose appearances as lead attorneys grew by only just over 1 percent.
The picture is equally bleak in appellate advocacy. In the ABA’s 2021 publication How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys, the authors reviewed the number of men and women who argued before the U.S. Court of Appeals for the Seventh Circuit in 2007 and 2017. The study made these findings, among others:
- Male attorneys arguing in the Seventh Circuit Court outnumbered female attorneys in a 3:1 ratio (an almost identical ratio as the lead attorneys in the 2015 publication referenced above).
- Only 28 percent of lawyers who argued before the Seventh Circuit in 2019 were women—a 4 percent increase from 2009.
- Female lawyers were more likely to argue on behalf of the government, especially federal and local governments, rather than for private clients.
- The gender disparity was more pronounced in certain practice areas, particularly in complex civil matters—such as antitrust and insurance cases.
If the rate of change were to remain the same, the number of female attorneys arguing before the Seventh Circuit would not equal the number of male attorneys until 2059. It is clear that change is needed—and fast.
Recognizing That the Young Are at the Gates
Women make up more than 50 percent of law school attendees and have done so since 2016, reaching 54.1 percent in 2020. Women want to become lawyers in greater numbers than ever before, and they are champing at the bit. Employers would be wise to harness the energy and optimism of the incoming female attorneys and encourage them to be bold. Law firms in particular should not merely provide lip service to gender equality by hosting seminars on motherhood or work attire but should encourage and provide practical oral advocacy training and opportunities for junior female attorneys. That training must recognize differences between men and women and the factors that can make a difference in the courtroom. For example, women frequently learn different styles of speaking than men, and in some cases, the style of speech can be perceived as a lack of confidence or even competence. This may not instill confidence in clients, particularly if the case requires oral argument. Law firms could invest in speech and language coaching for female attorneys, working on body language, self-presentation, voice timbre and projection, and choice of vocabulary. The ABA has even published a book on the subject—Her Voice in Law: Vocal Power and Situational Command for the Female Attorney (2020). Purchasing the book for all incoming female litigation associates would be a worthwhile investment.
Training Women to Belong in the Courtroom
It’s the fire in my eyes, And the flash of my teeth . . .
—Maya Angelou, “Phenomenal Woman,” And Still I Rise
There is no substitute for “hands on” experience and one-on-one training. Beth Kaufman, partner in Schoeman Updike Kaufman & Gerber’s New York City office and chair of the ABA’s Litigation Section, has worked with others to create the Diverse Lawyers Trial Academy, an intensive training program that takes place over two days and connects lawyers who have been historically underrepresented in civil proceedings with experienced trial lawyers, in-house counsel, judges, and trial consultants. Attendees are trained in one-on-one and group trial skills development sessions on direct and cross-examinations of witnesses and the presentation of closing arguments. These events are important because their very existence makes a powerful statement: that women, along with other minority groups, belong in the courtroom. More organizations, such as state bar associations and inns of court, would do well to provide similar training sessions.
Gaining Confidence and Authority in Court
I know I have but the body of a weak and feeble woman; but I have the heart of a king.
—Queen Elizabeth I, 1588
So said Queen Elizabeth I to her troops who were assembled at Tilbury, England, to defend her country against a Spanish invasion. There is no doubt that trial advocacy takes “the heart of a king.” Oral argument is nerve-wracking even for the most seasoned advocate (and frankly, if you never get nervous, you’re probably doing it wrong). According to U.S. District Judge Norma Shapiro of Philadelphia, “Women in general lack the confidence that men seem to have in the courtroom.” Such confidence is not easy to gain, particularly when female attorneys also report receiving criticism for “overconfidence” or “arrogance” where their male colleagues received praise for the same behavior. However, to be a successful trial advocate, a female attorney must present with authority and confidence. There are some strategies for garnering success:
- Prepare, prepare, prepare: For every oral argument, you should know not merely your argument, but the other side’s arguments, inside out. There is nothing worse than being interrupted with a pertinent question from the bench that anticipates an argument from your opponent and leaves you floundering for an answer. The answer should already be in your brain.
- Dress for success: Dressing smartly and professionally is one of the ways that an advocate can sell herself, according to Iain Morley QC, an English criminal barrister, in his book The Devil’s Advocate. This does not mean necessarily expensive clothes, flashy accessories, or fancy shoes. An outfit that is comfortable, unfussy, and distraction-free will enable you to relax and concentrate on your oral presentation, which in turn will exude confidence.
- Don’t fidget: Nothing says “I’m not sure in what I am saying” like fidgeting. If you don’t know what to do with your hands, let them rest at your side, or, if you are appearing remotely, place them on either side of your laptop. Don’t fiddle with pens, with your hair, or with jewelry. If you are appearing in person, stand with your feet firmly on the floor and at a neutral width. Don’t be afraid to make eye contact.
- Practice makes perfect: No performer would do the opening night without a dress rehearsal (and a tech rehearsal . . .). Recite your statements and responses to questions to yourself and let your colleagues grill you. If you are not quite ready to film yourself and watch the recording (a cringeworthy but very helpful exercise), then try practicing in front of a mirror or some willing colleagues.
- It’s not about you: The practice of law is a privilege for which women fought hard. Representing a client in court is a sacred responsibility, and your duty to your client should be at the forefront of your mind. Focusing on your client’s needs and the task at hand will give you something to concentrate on, other than your nerves, and should ensure that any pre-appearance jitters do not overpower your presentation.
To No Longer Walk Invisible
Unlike the Brontë sisters, Mary Ann Evans (better known as George Eliot), and Louisa May Alcott, female advocates no longer need to walk invisible in order to succeed. The studies and publications cited above show that women are progressing both in confidence and number as advocates in court, but that such progress is laboriously slow. It cannot be the case that women are qualifying as attorneys in greater numbers than even before, and yet are content to remain silent observers in the courtroom. Perhaps it is time to take a lesson from Charlotte’s sister Emily and to adopt her rallying words, “No coward soul is mine.”