It’s nearing the middle of 2018…18 years into the 21st century, and 170 years since the birth of the women’s rights movement. Yet, in the very arena that plays the most pivotal role in enforcing the rights of others, the disparity between men and women is ever more clear: women account for drastically fewer numbers of trial attorneys than men. What gives? Actually, for me, the more pressing question is, “What can be done about it?”
I want to be a lawyer when I grow up!
….and now I am all grown up, and I’m an attorney. But the reality of being a female attorney, and an aspiring female trial attorney, has brought some disturbing facts to light. Women attorneys have been found to be lead counsel for private parties in litigation roughly 20% of the time, and only about 17% of partners in big law firms are women. These are alarming figures considering that now, more than ever before, women have been graduating from law school at rates almost on par with men. There have been several theories put forth that may contribute to this phenomenon, some of the most prominent being:
- Implicit bias in and out of the courtroom;
- Clients’ views of the competency of a female attorney;
- Family caretaking and its apparent clash with the culture of some firms;
- Managing expectations regarding progress and advancement in a male-dominated field.
I think most would agree that intelligence is not the issue (and if you disagree, I dare you to tell me to my face). In fact, women historically have had a lot to offer in the workplace—the most obvious being diversity in thinking, more creative energy and a more relatable team, as you now have another gender to appeal to those in the jury pool of that similar gender.
What then, is the problem? The data and studies point to societal and structural factors that are stumbling blocks in the road to success as a female attorney. A man is three times more likely to be lead counsel in a civil case than a woman. Even more daunting is the fact that you are even less likely to be on the team trying a case if you are a woman. Furthermore, the numbers for women that are lead counsel in a case favor the representation of defendants (as opposed to representing plaintiffs).
How that translates to me is that the road to female lead counsel, while navigable, requires you to be sharper than your male counterparts to get there. Ladies, are we up for the challenge?
The Female Touch
Even with women trailing behind their male counterparts when it comes to courtroom presence, there are some unique benefits to having women on the legal team:
- Women connect with jurors better than men;
- We are viewed as more credible and trustworthy;
- We tend to be more over-prepared than underprepared; and
- We listen better (after all, we have learned to listen all our lives).
I can foresee a myriad of instances where clients may feel more comfortable with the female touch—cases where the client’s injury is one acutely specific to a woman, for example, a lawsuit for a woman scarred from a breast reduction surgery or a woman who may have experienced a wrongful birth injury, among other possible scenarios.
While acknowledging our benefits, we still need to look at the harsh realities that give rise to the disproportionate gender representation in the courtroom. Some factors that contribute to the inequity are outside of the immediate control of women, such as implicit bias (which can affect the types of work women receive), performance evaluations and the ability to meet billable hour requirements. Others are more readily in a woman’s control, such as taking time off to tend to family responsibilities. There are also some stereotypes that reflect the double-standard that still exists between the sexes—for example, the belief that a woman is prone to too much emotion, while a man who exhibits emotion on the same level may be seen as “passionate” about the case. This is especially true when it comes to the inevitable accusation of being that “angry, aggressive woman” when you raise your voice, but when a male litigator does the same, he would be viewed as zealously advocating for his client. These biases also spill out into society at large, hence possibly polluting the client’s thinking and encouraging a penchant for selecting male attorneys to represent them in court, as they view them as more competent and able to handle complex cases.
Some law firms and even judges have acknowledged these gender disparities and have found ways of removing some of the obstacles that hamper a female trial attorney’s growth. For example, one senior federal judge in New York encouraged junior members of legal teams to argue the motion they assisted in preparing and to question the witnesses they have prepared in an effort to increase minority and junior level attorney participation. Such actions have the inevitable effect of giving female attorneys more of a voice, especially when female attorneys are more likely to be second chair on a case or are more likely to have assisted in the trial preparation process but are less likely to ultimately have their voice heard in court.
The torch should not stop there. Law schools, law firms, clients, and even WOMEN should begin to make changes so that we can feel that we are in the 21st century (only 170 years from the beginning of the women’s rights movement). Law schools can increase their push for women to become trial attorneys by introducing coursework into their curriculum that encourages frank conversations about the implicit biases that exist in the courtroom. To take a step further, these schools should provide tools and skills for women to navigate courtrooms that are majority male in a myriad of scenarios; which will in turn boost the female students’ confidence and better prepare them for the obstacle course that may lie ahead.
Law firms can actively encourage the assignment of women to depositions and cases that have lower stakes to build their female attorney staff’s confidence in being trial attorneys in a court system that favors male attorneys. Similarly, junior staff should routinely be assigned to motions hearings that are not central to the life of the case. Doing so fosters a work environment that is actually favorable to the growth of all attorneys—even those who tend to be in the minority—and makes for a strong and diverse legal team.
Last but not least, women can step up to the plate by letting their voices be heard! Women lawyers can reach out to their own firms to be assigned to cases, be proactive in the development of their skills as trial attorneys and attend seminars and training designed to give them the tools to be effective trial lawyers. While this suggestion may muster more than a fair share of eye rolls, honing the skill of maintaining a calm appearance is a gem that will last a lifetime while practicing in court. By doing this, we can “own” the courtroom with our presence by maintaining an air of confidence (even when our calves hurt from wearing pumps all day and the courtroom is too hot for pantyhose). Furthermore, we should feel obliged to talk at higher volumes than we normally would—so that they can never tell us to “speak up!”
I would touch a bit more on attire, however, I haven’t quite wrapped my head around the conversation just yet. I find myself vacillating between understanding and indignation at the slant it can take into policing women’s bodies. The presence of so many rules regarding female attire in the courtroom is frustrating and annoying, and at times, the antithesis of progress.
In any event, as a young and aspiring trial attorney, I have been forced to take heed of the issues above. While a good attorney is a good attorney no matter what, we cannot deny the societal barriers that are forced upon women that sometimes make it all the more difficult to shine as brightly as your male counterpart would. I don’t have all the answers, but I believe taking the chance to face the truth is the first step in overcoming the barriers that still exist.