August 23, 2017 Practice Points

Where Are the Women Litigators?

By Joelle Simms

Despite comprising half of all law school graduates, women make up only one quarter of the attorneys appearing before New York courts, according to a recent report titled “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR.” The report, issued by the Commercial & Federal Litigation Section of the New York State Bar Association, examined the gender of attorneys appearing in court before federal and state judges at various levels. Based on responses to 2,800 questionnaires completed by judges, the report found that women continue to be overwhelmingly underrepresented in the courtroom—especially in the civil and complex litigation space. In particular, the report observed that:

  • Women made up approximately 25% of all attorneys and lead attorneys appearing in court;
  • Women made up less than 20% of civil litigators appearing in court;
  • Women made up less than 20% of litigators in cases involving 5 or more parties.

Retired U.S. District Judge Shira A. Scheindlin, who sat on the bench from the early 1980s through 2016 and worked on the task force to produce the report, expressed her incredulity that this type of gender disparity still exists in a Law 360 article entitled “Fighting to Close the Gender Gap in Litigation,” by Matthew Perlman, wherein she is quoted as stating “[t]he remarkable thing is it didn’t change. That became jaw-dropping... Even in the last year, 2016, I’d walk in to the courtroom on a new case, let’s say a big commercial case, and it was just a room full of guys... I mean really remarkable, almost not a woman in sight.”

The results of the survey led the task force to conclude that “[u]nfortunately, the gender gap in the courtroom... has persisted even decades after women comprised half of law school graduates” and that “[t]here is much more that law firms, corporate counsel, and judges can do to help close the gap.” For law firms in particular, the report makes the following “suggested solutions”:

  • Women’s Initiatives. Those in positions of leadership should aim to (1) mentor female attorneys on how to gain courtroom and leadership experience; and, (2) actually provide opportunities for that experience. Female attorneys, associates in particular, should not only prepare for court appearances, trials, or depositions, but should actually be allowed to argue motions, examine witnesses, and conduct the depositions.
  • Formal Programs to Provide Opportunities. Firms should create programs through which lead attorneys provide courtroom or other meaningful litigation roles to female junior associates on a quarterly or semi-annual basis. The task force explains that creating such formal programs sends the message that the firm is committed to providing substantive opportunities to women. Such programs, however, must be monitored to determine whether they achieve the goals of training and retaining women attorneys.  
  • Other Speaking Opportunities. Firms should encourage women attorney to obtain and engage in other speaking opportunities, including involvement in civic or industry groups. These opportunities allow attorneys to practice public speaking and can enhance growth and development of skills necessary in the courtroom.
  • Sponsorship. Finally, firms should focus on sponsorship of women attorneys, not just mentorship. The report distinguishes the two by quoting an American Bar Association Law Practice Magazine article titled “Mentors Are Good, Sponsors Are Better,” by Kenneth O.C. Imo: “Mentors are counselors who give career advice and provide suggestions on how to navigate certain situations.” Sponsors, though similar to mentors, additionally “have the stature and gravitas to affect whether associates make partner. They wield their influence to further junior lawyers’ career by calling in favors, bring attention to the associates’ successes and help them cultivate important relationships with other influential lawyers and clients—all of which are absolutely essential in law firms.”

Ultimately, notes the report, “while one size does not fit all, and the solutions will vary within firms and practice areas, the legal profession must take a more proactive role to assure that female attorneys achieve their equal day in court and ADR.”

 

Joelle Simms is an associate at Bressler, Amery & Ross, PC. in Fort Lauderdale, Florida.


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