Women in Leadership? Not as Lead or Trial Counsel

women in leadershipWhere are all the women in the courtroom? Last month the American Bar Association’s Commission on Women in the Profession came out with some disheartening news: men are three times more likely to be lead counsel in civil cases than women. According to the Commission’s study, “First Chairs at Trial, More Women Need Seats at the Table,” not only are women struggling to achieve leadership roles on cases, often they are absent as trial attorneys, period.

The study was inspired by the practice experiences of Stephanie Scharf and Roberta Liebenberg, both litigators, who noted that “far too often, when we enter a courtroom filled with lawyers on a range of cases, each of us is either the only woman lead counsel or, at best, one of only a few women taking the lead in court or in major parts of litigation.”

The study was based on a random sample of all of the cases filed in 2013 in the United States District Court for the Northern District of Illinois. This court was chosen because of the diversity of cases on its docket, the diversity of the firms within its region, and the information it keeps on attorneys in cases. 558 civil cases and 50 criminal cases were randomly selected. On those cases, 2,076 lawyers appeared on the civil cases and 135 lawyers appeared on the criminal cases.

Few Women Lawyers and Fewer Women in Leadership Roles

The results of the study were grim: Around two-thirds, or 68%, of all attorneys appearing in the civil cases were men, whereas only 32% were women. And when it comes to leadership, the disparity gets even wider. Only 24% of lawyers appearing as lead counsel were women while 76% were men. Thus, a man was three times more likely to play the role of lead counsel on a civil case than a woman.

The researchers predict that if these results were to be extrapolated to the nearly 11,000 civil cases filed in the Northern District in 2013, approximately 6,490 cases had no women appearing as lead counsel.

In criminal cases, women comprise 33% of the attorneys appearing as lead counsel and 21% of the trial counsel.

The study also found that the type of case had some impact on the amount of disparity. In contract cases 85% of lead counsel are male; in torts 79% of lead counsel are male; in labor 78% of lead counsel are male; and in intellectual property rights 77% of lead counsel are male and in “other statutory” cases 88% of lead counsel are male. However, there was no type of case in which women lead counsel outnumbered male lead counsel.

Surprisingly, women fare best as lead counsel in cases involving the government: 31% of women are lead counsel in cases involving the U.S. government, 32% in cases involving the state of Illinois, and 40% involving municipalities.

Trials Reflect Workplace Diversity More Generally

While these numbers are disheartening, they shouldn’t surprise anyone. As we’ve noted in the past, although men and women are graduating from law school at nearly equal rates, the career paths of the two genders are markedly different. The study notes, for example, that today only 17% of equity partners in big firms and 22% of general counsel in the Fortune 500 are women.

The study comes to the conclusion that “[i]t is evident that women are consistently underrepresented in lead counsel roles in all but a few settings and for all but a few types of cases,” but the question is, why? Well, according to the researchers, it’s for many of the reasons we’ve written about before.

The study noted that “men are less likely than women to leave private practice, men are more likely than women to advance beyond the associate ranks and become partners, and men earn more than women.” This can be the result of things such as the implicit bias women, along with minorities, face in the work place, the fact that women are more often than men to take time off to care for the family, or even more direct forms of sexism, such as the double standard in the way female attorneys speak.

All of these things combine to hinder the progress of women litigators and they are “often have to demonstrate greater levels of competence and proficiency and are held to higher standards than their male colleagues.”

Developing Women in Leadership Roles

The Commission recommends a change in culture in law schools, firms, the courtroom, and even with female attorneys themselves. They suggest that law schools encourage women to become trial lawyers, not just through training and mentoring in advocacy, but also by equipping them with tools “specifically designed to help women law students navigate the implicit biases they may face in the courtroom.”

Law firms are directed to also improve their training of women litigators as well as encouraging them to take on more pro bono cases. They also suggest firms make a conscious effort to give women litigators more opportunities to take depositions and give oral arguments. Clients are encouraged to be more proactive in seeking out female representation, as are judges when it comes to judicial appointments. And women are encouraged to take initiative and continue to hone their skills in the face of obstacles.

At the end of the day these are not quick fixes, but the Commission hopes the study “will heighten awareness about the existence of significant gender disparities in the ranks of lead trial lawyers” and “spur a dialogue that will result in concrete and effective actions to increase the numbers of women lead trial counsel.”

They also note that this problem likely extends to minority litigators, though they were unable to collect such data. The Northern District of Illinois does not track the race of litigators. Still, based on other studies of women and minorities in the legal profession, it is likely that the problem persists for minorities and is exacerbated for female minorities. We have much work to do to make sure the diversity in the legal profession reflects that in our society.



Our law school intern from University of Illinois college of Law Lindsey Lusk contributed to this post.



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