Female Lawyers Can Talk, Too

As a Federal District Court judge in New York, I often encountered this courtroom scene: A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman). After he conferred with her repeatedly, I would ask myself why she wasn’t doing the arguing, since she knew the case cold.

In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role — even though women have made up about half of law school graduates since the early 1990s.

I worked on a recent report by the New York State Bar Association’s commercial and federal litigation section based on the first-ever observational study of women speaking in court. We asked judges to note the genders of the lawyers who primarily spoke in court in every case they heard over four months, and collected and analyzed 2,800 responses. The results demonstrate that women have not made nearly enough progress in the legal profession.

The report found that women were the lead lawyers for private parties barely 20 percent of the time in New York State’s federal and state courts at the trial and appellate levels. Women were twice as likely to appear on behalf of public sector clients. The offices of the United States attorneys, district attorneys, the state attorney general and the corporation counsel of the City of New York, as well as Legal Aid offices and federal defenders, have achieved some level of gender equality in courtroom appearances.

But the overall number was dismal: 25 percent in commercial and criminal cases in courtrooms across New York.

Why has the private sector failed so badly? The survey was not designed to answer that question, so I can only speculate. But the statistics do tell part of the story. In private sector cases, the client, rather than the government or the court, picks the lawyer. The survey definitively showed that when there was a big, “bet the company” civil case, few clients were prepared to put their business’s fate in the hands of a woman. The more complex the case, the less likely that a woman was lead counsel. The same was true when a criminal defendant retained private counsel.

What can be done? Judges, clients and law firms all have a chance to improve this bleak picture. Let’s start with judges. They can suggest that the lawyer who wrote the brief or prepared the witness should be the one to argue. Often it is a woman. Judges are generally more diverse than the lawyers who appear before them. They should bear some responsibility to ensure that the lawyers who speak in court are equally diverse.

Clients, particularly corporate clients, can demand that their legal teams be diverse. They should recognize that diversity is an asset in the courtroom. Diverse teams reflect the community, and cases are argued to judges and jurors who reflect the community. Hewlett-Packard, Oracle and Facebook, for example, have demanded that the firms representing them field a diverse team of lawyers. I hope other corporations will soon follow.

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