It’s the year 2000 and I am an eager, young attorney fresh out of the Brooklyn District Attorney’s Office, now working for a prominent criminal defense attorney. I am in federal court in the Southern District of New York representing my client at his arraignment. He, along with eight of his alleged co-conspirators, are accused of selling a controlled substance. As I look around the courtroom, there is no question that I am the odd “man” out. Specifically, the eight attorneys representing the other defendants are all white men of the same age group (over the age of fifty). This experience was unlike the DA’s office where the ratio of male to female lawyers (including prosecutors and legal aid attorneys/public defenders alike) was roughly 50/50. As a result, I remember feeling quite intimidated. Nonetheless, I acted like I belonged, even seeking bail at my client’s request, knowing that the request would be denied (I could feel the eye rolls behind me by the other lawyers as I made the request). However the denial of bail is not what sticks with me (nor the eye rolls), but rather the composition of the attorneys in the courtroom. Why was I the only woman – over or under the age of 50 – there that day? And this is just one extreme example of many since my foray into the private sector where I have been the only women among a field of men in a courtroom/hearing room. Why the disparity?
Shira A. Scheindlin, a retired U.S. District Court Judge of the Southern District of New York, attempts to answer these question in her recent Op Ed in the NY Times entitled Female Lawyers Can Talk, Too. In this article, Scheindlin comments on the disparity between male vs. female attorneys who take the lead role in court appearances. Specifically, Scheindlin states that in her twenty-two years on the bench, “the talking was almost always done by white men.” This is true, notes Scheindlin, notwithstanding that women have comprised about fifty percent of law school graduates since the 1990s.
In making her point, the former justice references the “Groundhog Day” of courtroom scenes wherein the senior male partner is engaged in the oral argument, only to turn to the young lawyer sitting next to him, often a woman, to assist him in responding to tough inquiries by the judge. This of course begs the question, why wasn’t the female lawyer making the argument?
Scheindlin references a recent study and report by the New York State Bar Association’s commercial and federal litigation section, with which she was involved, that confirmed the unfortunate fact that women lawyers still lag far behind their male counterparts in taking the lead role in court. The study, the first of its kind, involved judges keeping track over a four month period of the genders of the lawyers who primarily spoke in court in each of their cases. The results demonstrated that females were lead lawyers for private parties barely twenty percent of the time in New York State’s federal and state courts at the trial and appellate levels. That being said, consistent with my experience, the study found that women were twice as likely to appear on behalf of public sector clients e.g., the offices of the United States attorneys, district attorneys, the state attorney general and the corporation counsel of the City of New York, as well as Legal Aid offices and federal defenders. However, the overall number was bleak with women appearing as lead counsel in only twenty five percent of commercial and criminal cases in courtrooms across New York.
Scheindlin speculates that the reasons why the private sector has not reached the same level of general equality as the public sector is because the client is driving the decision as to who will be lead counsel in any given matter. And this is true in both criminal and civil cases. Sadly, the survey showed that the more that was at stake in any given action, the less likely the client, whether an individual or a business, was prepared to put their fate in the hands of a women.
As a female litigator, this is truly disheartening.
In answering the question of what can be done to improve the situation, Scheindlin suggests that changes can be made by judges, clients and law firms alike. First, judges should insist that the individual who actually wrote the brief/prepared the witness should be the one to argue the points or do the examination; second, clients should demand diversity in their legal teams; and third, law firms should ensure that their female lawyers are given the same leadership and courtroom opportunities as men.
While well intentioned, Scheindlin’s idea that judges should get involved in determining how a party should be represented in court seems impracticable and inconsistent with their position as the neutral in the courtroom. However, her other points are well taken and clients and law firms would be well suited to heed Scheindlin’s advice in this regard. As she aptly points out in the conclusion of her editorial, while progress for women has been a slow and often difficult process, if “…business leaders and the bar at large want to achieve real gender diversity in the legal profession, they have the power to make it happen. The road map to change is clear.”
Angela A. Turiano, Esq. Bressler, Amery & Ross, PC in New York, NY.