Taking the lead

When does apparent equality not result in actual equality?

Women and men have been graduating from law school in roughly equal numbers for many years. Despite this, women have not advanced in their legal careers at the same rate as their male counterparts. One of the ways that this lack of advancement has manifested itself has been in the under-representation of women as lead counsel and trial attorneys in the courtroom.

A significant 2015 study, First Chairs at Trial: More Women Need Seats at the Table, examined this issue in the context of civil and criminal litigation in the United States District Courts. The study was the result of a joint project between the American Bar Foundation and the American Bar Association Commission on Women in the Profession and was authored by Chicago attorneys Stephanie Scharf and Robert Lienbenberg. The authors used a random sampling of cases filed in 2013 in the United States District for the Northern District of Illinois to examine the effect of gender on legal representation in the courtroom.

The study revealed that women are consistently underrepresented in lead counsel and trial attorney positions. In civil cases, only 24 percent of those who appeared as lead counsel and 27 percent of those who appeared as trial attorneys were women. In criminal cases, only 33 percent of those who appeared as lead counsel and 21 percent of those who appeared as trial attorneys were women. In other words, in civil cases, a man is more than three times more likely to be lead counsel or trial counsel. In criminal cases, a man is roughly four times more likely to appear as trial counsel.

In cases that are deemed more sophisticated and complex, the disparity is even more pronounced. For example, in class action lawsuits a mere 13 percent of lead counsel were women.

The United States District Court for the Northern District of Illinois has been at the forefront of addressing this gender gap and, in conjunction with The Chicago Bar Association, hosted a symposium last year entitled “Women Lawyers in the Courtroom.” In addressing the importance of the study, Chief Judge Ruben Castillo, a proponent of the study, says: “I encouraged the study to determine whether there is gender equality in our Courtrooms… Our symposium was held to focus more attention to this pressing issue.”

Since the gender gap cannot be closed simply by “relying on an entry-level pipeline to drive gender diversity,” the authors have made a number of constructive recommendations to the legal profession in an effort to level the playing field.

• Law Schools: Law schools should encourage women to become trial attorneys and provide the necessary support, training and mentoring for women to develop those skills. As part of that training, schools should address implicit bias so women are better able to steer through those issues.
• Law Firms: Law firms should make sure that women receive specific courtroom training and appropriate courtroom experience. Firms should track the development of attorneys to ensure that women are getting equal experience and opportunities, and take action if there are deficiencies.
• Clients: Clients should use their “buying power” to ensure that women are given significant responsibility and prominent positions on trial matters. Clients can insist that women be included on their matters and require firms to maintain metrics on how cases are staffed with an eye toward increasing the role of women as trial attorneys.
• Judges: Judges should be cognizant of the gender gap and appoint experienced and qualified women as lead counsel, liaison counsel or members of the steering committee in MDL class action cases, where appropriate.
• Individual Women Lawyers: Women need to actively seek out opportunities to develop the skills and expertise necessary to be effective trial attorneys.

Increasing the representation of female attorneys in the courtroom benefits the legal profession and its clients by increasing the talent pool, bringing in different ways of thinking and appealing to a diverse group of jurors (who are often mostly women). As Chief Judge Ruben Castillo says: “The operation of our justice system totally improves once everyone is treated equally in our courts.”