May 06, 2020 Feature

The Trials and Tribulations of Women Litigators

Women are still underrepresented in lead counsel roles. Why?

Roberta D. Liebenberg

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As a prelude to this article, I would like you to participate in a quick thought exercise. First, take a moment to think of three or four famous lawyers. Now visualize three or four fictitious lawyers from TV, movies, or literature. Odds are that all of the real and fictitious lawyers who came to mind were trial lawyers and all were men.

I have been a litigator for over 40 years, and thus I am acutely aware that litigation has long been, and still remains, a male-dominated field. This is particularly true in antitrust cases and class actions, which are the focus of my practice. Year after year, in case after case, I have found myself to be either the only woman or one of very few women in the courtroom, in depositions, and in meetings of counsel. And in the cases in which other women were in the courtroom along with me, they were often serving in a second- or even third-chair capacity, rather than as lead counsel.

My anecdotal belief that women are grossly underrepresented in first-chair roles in litigation has been shared by many others, including my friend and colleague Stephanie Scharf, an experienced and highly accomplished litigator from Chicago who serves as chair of the ABA Commission on Women in the Profession. Several years ago, we decided that the best way to shine a much-needed spotlight on this long-standing problem was to conduct an empirical study of the participation of women in lead counsel roles in civil and criminal litigation. Such a study had not previously been conducted, and we believed that it was important to obtain statistical data to determine the extent of the gender gap in first-chair roles generally, and also in the specific context of different types of cases, subject areas, and clients.

The research for our first-of-its-kind study was cosponsored by the ABA Commission on Women in the Profession and the American Bar Foundation. We used a random sample of all of the cases filed in 2013 in the U.S. District Court for the Northern District of Illinois. That district is large and diverse; its cases cover a wide range of subject areas; and the law firms that handle cases there are diverse in terms of size, their gender composition, and their types of cases and clients. In the appearance forms in that district, the lawyers are asked to designate whether or not they are serving as “lead counsel” and/or “trial attorney.” Using the PACER system, we randomly selected 558 civil cases, involving 2,076 lawyers, filed in 2013. We also randomly selected 50 criminal cases, in which 135 lawyers appeared.

Illustration by Jackie Bestemen

Illustration by Jackie Bestemen

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