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Last November, Sharon Nelles was trying very hard not to think about cookies. The Sullivan & Cromwell partner was about to begin trial in a massive antitrust suit in Des Moines against her client, Microsoft. It was the second time Nelles was defending the technology giant in a class action that had gone to trial, and this time Nelles wanted her focus to be a little different. During the first trial in Minnesota two-and-a-half years earlier, Nelles had taken the role of chief of staff for the defense. In addition to examining key witnesses such as name plaintiff David Ellingson, she organized office space, coordinated defense team meetings, and selected the food. No one specifically asked Nelles to take on these administrative duties: She volunteered. “At the same time, there was never an expectation that anyone else would do it,” she says. And it was a comfortable role for Nelles-as an up-and-coming female litigator, she had always strived to please, “to not only write the best brief, but to bring it with cookies.” This isn’t just a metaphorical goal: She actually brought cookies to a last-minute mediation that convened on Mother’s Day several years ago. This trial would be different. Again, Nelles would be the only woman in court representing Microsoft, but she delegated the logistics and food menus to a junior, male partner and resolved to focus solely on preparing for her witnesses. “I’m a 41-year-old partner at Sullivan & Cromwell trying a nationally televised case, why am I worrying if people are happy with the food?” she says. The next morning she picked up Starbucks en route from her hotel for the lawyers reviewing juror questionnaires in the makeshift Des Moines office. “Patterns are hard to change,” she admits. Even decades after luminaries such as Mary Jo White, Sheila Birnbaum, and Maureen Mahoney proved that women could shine in Am Law 100 litigation departments, female litigators are still grappling with the old stereotypes. Of course, women in all practice areas battle obstacles: Despite entering law firms in equal numbers to men, women represent only 17.9 percent of partners in U.S. law firms, according to a 2006 report from The National Association for Law Placement. But female litigators like Nelles are in a unique bind. They’re expected to attend to all of the details of running a case; and yet, to advance their careers, they must resist becoming the stereotype of the “pleasing” female. They’re expected to be tough advocates for their clients, but not too tough, lest judges or opposing counsel call them the dreaded b-word. Many balance the long and unpredictable hours of litigation with family responsibilities, but many also feel they must work harder than men to prove that they are serious about getting the good assignments, and eventually the prize of partnership. They must consider the implications of every gesture, from bringing coffee to mentioning child care problems. “It’s like Simone de Beauvoir’s women as ‘The Other,’ ” says Kathryn Ruemmler, the deputy director of the U.S. Department of Justice’s Enron Task Force. “ Fundamentally, that’s what women are most conscious of-we’re not just lawyers, we’re women litigators, and I guarantee that men don’t feel that way. The guys are just lawyers.” Almost 15 years ago, Sullivan & Cromwell partner Karen Patton Seymour was asked to type a few things in court. Seymour was an assistant U.S. attorney prosecuting a large securities fraud case. When the court reporter didn’t show up for trial one day, the defense counsel asked Seymour to take the transcript. “I had to tell him no-they didn’t teach me court reporting at my law school,” Seymour recalls. Seymour is no longer mistaken for a court reporter, but women today still face reminders that the playing field isn’t level in or outside of the courtroom. Assistant U.S. attorney Ruemmler remembers an elevator ride with one defense lawyer in the 2004 Enron Nigerian barge trial who said to her: “While we’re picking the jury, why don’t you go get us some sandwiches?” Ruemmler, 35, was one of three lead prosecutors. Dismissing the occasional sexist remark might be the easy part for female litigators today. The larger obstacle is dealing with more subtle gender expectations. Paul, Weiss, Rifkind, Wharton & Garrison partner Roberta Kaplan learned the hard way the dangers of mimicking a man’s hard-hitting courtroom style. As a fourth-year associate, she tried to imitate the aggressive, no-holds-barred approach of her mentor, Martin London, to cross-examine a witness in an upstate New York bench trial. “I really fell flat on my face,” says the now 40-year-old litigator, who recalls the judge’s visible dismay at her tone. Experiences like that taught Kaplan that she would have to develop a courtroom persona that was slightly different than that of her male counterparts. It was a surprising realization, she says: “[As a young lawyer], I thought I could become a trial lawyer in the model of the great trial lawyers, and those kind of cultural and societal biases wouldn’t be there.” Less aggressive-and, therefore, more “appropriately” female-styles can be confining, however. Ruemmler, for example, describes her courtroom persona as polite. “When I think a witness is lying, I’m conscious of the fact that I don’t want to be too harsh, and I find that frustrating and a little limiting,” says Ruemmler. “At times, it’s hard to own the courtroom when you are being polite.” It’s not just women’s words that are scrutinized. One defense lawyer in the trial of former Enron CEOs Kenneth Lay and Jeffrey Skilling chided Ruemmler for revealing her anger toward a witness through her body language during cross-examination. “There are many male trial lawyers who can get away with outrageous, bombastic behavior, but I cross my arms and [I'm] showing [my] emotional reaction,” she says. Even those who have been in the courtroom for several decades occasionally struggle to define an effective style in the context of these expectations. Take Emily Nicklin, a 53-year-old Kirkland & Ellis partner who has tried more than two dozen cases. Nicklin, who is not a football fan, says she found herself attempting the uncomfortable role of sports commentator during a recent trial in Milwaukee. Several jury members frequently wore sweatshirts for the Green Bay Packers, and Nicklin’s opposing counsel began his remarks each day with a comment on the NFL. Nicklin responded with game commentary of her own a few times. It wasn’t until a younger male colleague wryly observed that Nicklin didn’t belong at the sports desk that she shifted to a more natural gear for her-jokes about her kids. “I still wrestle with it,” she explains. Then there’s the work-home balancing act. Five days a week, Debevoise & Plimpton partner Mary Beth Hogan arrives at the office at 8:30 a.m.The 43-year-old partner has a diverse practice, which means she might spend her morning on an internal investigation for a financial services company, her afternoon on product liability defense for manufacturer Owens Corning, and her early evening on a breach of contract action for media company Discovery Communication, Inc. The mother of three children ages 10 and under, Hogan tries to get home to her New York apartment by 6:30 p.m. Most nights, Hogan spends a few hours in the late evening finishing work after her kids are asleep. The schedule will sound familiar to many corporate litigators-but Hogan (technically) works part-time. “In the rest of the real world, I would probably be considered full-time,” she concedes. Hogan tried working only four days a week earlier in her career, but she felt like she spent the first day back just catching up. Hogan may be considered a superstar by her firm-she was the first litigator at Debevoise to become partner while working part-time, and she is the youngest member on the firm’s eight-person management committee-but the juggling act isn’t unusual. For women struggling to balance the demands of work and family, litigation presents many challenges. By definition, litigators work on companies’ most pressing matters. Clients want to reach them 24/7, and it’s hard to lobby for the largest cases if you try to draw hard lines on your personal and family time. Plus, travel is routine, and shifting court schedules guarantee unpredictable hours. It’s a schedule that doesn’t mix well with family or a life outside the office. Of course, litigators who are fathers also struggle with finding this balance. But the burden of family responsibilities still falls disproportionately on women, many say. And the years leading up to the brass ring of partnership often converge with women’s prime childbearing years. The upshot is that many successful female litigators maintain superhuman schedules. Take Covington & Burling partner Nancy Kestenbaum’s week late last October. After working all day Monday, the 43-year-old white-collar defense lawyer hopped on a 7 p.m. flight to Indianapolis for a client pitch. She stayed up until midnight preparing for the presentation. Following a three-hour meeting Tuesday morning, she raced to catch a flight back to New York so she could take her two children, ages 10 and 7, trick-or-treating. The next three days were a blur of 7 a.m. client meetings, dashing home in the evenings to spend an hour or two with her kids, and working late into the night from home. On Sunday, she wrapped up her week with an 8 a.m. board meeting. “I have to think that weeks like this, which are not uncommon, are part of the reason that you don’t see women proportionally represented in the senior ranks,” says Kestenbaum. The grinding schedule isn’t the only hurdle. Female litigators with families must battle still-pervasive stereotypes about the “mommy track.” Those with children say they feel pressure to outdo their male colleagues to prove their dedication to the job. “I think I do have to work harder [as a woman and mother] than perhaps my male counterparts to persuade clients, adversaries, and others that I’m tenacious and devoted. That’s part of the reason I work so hard,” says Kestenbaum. This self-consciousness and pressure to overcompensate can be especially intense among those who attempt less traditional schedules. Like Debevoise’s Hogan, Catherine Stetson, a Hogan & Hartson appellate lawyer, became an equity partner while working on a reduced hours schedule-that often ends up looking like full-time or worse. Last winter, for example, the 37-year-old argued four appeals in 59 days. And yet Stetson is reluctant to advertise her four-day-a-week schedule. “It tends to carry a certain stigma with some clients and lawyers,” she says. Litigators aren’t just balancing the demands of their own clients; they must also devote time to finding new ones. Most firms today demand that partners generate significant business. But the traditional modes of winning business from the male-dominated corporate boardrooms-dinners, weekend social outings, rounds of golf-are additional demands on time that are hard for those with families to meet. Of course, some women will make it work. They will balance family with a top-notch practice and deep client relationships. And they might be rewarded for their herculean efforts. They might receive large bonuses, or, in Hogan’s case this year, be counted as full-time partners because of a particularly heavy caseload. But the bar is extremely high. The low number of senior women in litigation sends the message that only those who do overcompensate, who work harder than their male counterparts, will succeed. There are a few prescriptions for change. Role models and mentors are critical to a lawyer’s success, but female litigators are in special need. Although women can and do turn to senior men for mentoring, they benefit from seeing other women forge their own path. “When you see women senior to you, presenting in court, leading a jury trial, and able to have balance and a family life, you think, ‘Well, I could do that, too-there’s a spot for me here,’ ” says Simpson Thacher & Bartlett partner Lynn Neuner. Simpson litigators Mary Kay Vyskocil and Mary Elizabeth “ Libby” McGarry both became partners a decade before Neuner, and both provided the younger lawyer with invaluable support and guidance, she says. Senior women can be more than just role models; they can also be strong advocates. Take DLA Piper litigation partners Amy Schulman and Mary Gately. Gately has been at the firm for 18 years and a partner for eight, but after she started a part-time schedule in 2000, she found herself marginalized from important litigation matters. Some colleagues doubted her commitment, and one male partner refused to share credit with her. But in 2004, Schulman, one of the firm’s biggest rainmakers, asked Gately to help her on witness preparation and document review for Wyeth’s Prempro mass tort litigation. The lawyers at Wyeth now “adore” Gately, says Schulman. Gately has won additional Wyeth assignments for the firm. And Schulman makes a point of regularly updating DLA’s chairmen and department leaders by e-mail of Gately’s good work. Schulman’s support radically changed Gately’s experience at the firm, opening up opportunities for other matters. “Now that I’m doing Amy’s work, I’m a hot commodity,” says Gately. But both Schulman and Gately acknowledge that such advocacy is uncommon. “I went out of my way to work with her,” says Schulman. “I’m not sure all of my male partners would do that [however well-intentioned]. I’m very self-conscious about my willingness to give women a chance.” But others are also pushing for change. Firms such as Sonnenschein Nath & Rosenthal organize retreats, client development events, and training sessions on business-generation skills exclusively for women. Wilmer Cutler Pickering Hale and Dorr has a 32-member work-life balance committee that has pushed senior lawyers to improve team communication so junior lawyers can balance workloads with family obligations. Instead of surprising associates and junior partners with last-minute work requests, senior partners are encouraged to communicate regularly about the schedule and priorities of a case. There is an “old girls network” of former U.S. attorneys who regularly refer work and clients to each other. And many female litigators admit they pass business to other women when possible. Savvy clients realize that litigation today calls for a range of styles, some of which favor women. Characteristics labeled as traditionally female, such as good listening skills, the desire to resolve conflicts, and even simple courtesy, can serve clients well in high-stakes litigation. “As the woman on the team, I am constantly the settlement lawyer,” says Sullivan & Cromwell’s Nelles about the Microsoft litigation. Most recently, Nelles headed off a tense confrontation between her colleagues on the defense side and the lead plaintiffs counsel, Roxanne Conlin. After more than six years of legal battles, the relationship between the two sides was strained, so much so that when defense counselors demanded via e-mail that Conlin identify new names on her witness list, she refused. A series of tense e-mails followed until Nelles called Conlin directly and asked her nicely. “She said, ‘I’ll tell you, but do you have to tell the other people you work with?’ ” Nelles recalls. The two women ended up sharing stories of their kids and made a deal to limit confrontations. Nelles believes that the shared gender of the two litigators in part fostered a degree of mutual understanding and respect. Similarly, women who define client development on their own terms can find great success. Just ask the clients of Lynn Neuner. When asked to describe the 39-year-old litigator, they’ll give you the requisite reports of her legal talent, but you’ll also hear a lot about her emotional intelligence. That’s because Neuner isn’t afraid to get personal. She asks questions about clients’ spouses, families, and weddings. And she remembers the answers. “She’s got a great human touch,” says John “J.D.” Moore, associate general counsel in the special liability group of The St. Paul Travelers Companies, Inc. “She takes the time to get to know people, and she understands that it’s a people business,” he says. Neuner even hosts a post-Thanksgiving get-together for a few of the insurance company’s in-house lawyers and their families. “[Women] tend to approach the client as a full person,” she says. “Men tend to focus just on the business issues, but to me, this is another good way of building ties.” It might even be better than offering cookies. E-mail: [email protected].

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