All the women’s initiatives and committees at large law firms in New York can’t mask the figures in a study announced this month showing a lack of women as lead counsel in courtrooms across the state.
Among the recommendations in the study’s report: Law firms, and judges, can do more to help. The report outlines concrete steps they can take, such as firms regularly monitoring how often women are lead counsel and for judges to regularly call on associates seated next to senior partners.
Although the figures are lopsided, they were not that surprising for the study’s authors: Female attorneys accounted for only a quarter of lead counsel in New York while the percentage of women lead counsel drops off as cases become more complex.
And while women appear more frequently when they are representing a public entity, they only accounted for 19.4 percent of lead counsel in private sector representation.
Disparity was clear in the U.S. Court of Appeals for the Second Circuit: Only 20.6 percent of attorneys who appeared before the court were female.
The report was issued by the commercial and federal litigation section of the New York State Bar Association, based on a study of about 2,800 questionnaires issued by judges in state and federal courts across New York, including trial and appellate courts, last year.
Law firms are partly responsible for the lack of women lead counsel, said Shira Scheindlin, a former Southern District judge who helped initiate the study and is now of counsel at Stroock & Stroock & Lavan. “Law firms are responsible for changing the culture,” she said.
“The statistics confirmed what I saw over those years, namely that in civil litigation, in commercial cases, we saw a shockingly low percentage of women,” she said.
To measure progress, the report suggests firms closely monitor how much women are involved in litigation, tracking on a monthly or quarterly basis the gender of attorneys who have taken or defended a deposition, argued a motion, or conducted a hearing or a trial during that period.
“If they really track what all their associates are doing,” whether in depositions, client meetings or court appearances, Scheindlin said, “they then would force themselves to see the truth.”
• Law firm leaders, whether male or female, should mentor female attorneys on how they can get courtroom experience and can help provide hands-on experience by assigning them to work with a partner who will see that they participate in the courtroom proceedings.
“It is not enough simply to bring an associate to court and have her sit at counsel table while the partner argues the matter. Female associates need opportunities to argue the motion under the supervision of the partner,” the report said.
• Management and litigation department heads should ensure women are part of a litigation team and that women on the team are given responsibilities that allow them to appear and speak in court.
• The report also suggests internal educational and training programs and assigning female litigators to speaking opportunities, such as at CLEs and bar associations or industry group events, to practice public speaking and gain contacts and confidence.
• The report encourages law firms to have sponsors to connect young litigators with the firm’s senior leaders. The sponsors can promote their visibility in the firm, connect them to advancement opportunities and facilitate external contacts.
While she said she isn’t placing blame on law firms, Carrie Cohen, a Morrison & Foerster partner and a member of the task force behind the report, said “there are things that they [firms] can do differently.”
Cohen and task force member Sharon Porcellio, a partner at Bond, Schoeneck & King, said they will distribute the report internally at their own firms for consideration.
Judges often recount instances in which senior lawyers will be arguing a case but may give a blank look in response to a pointed question, only to lean down and whisper to a junior associate.
When a judge notices that a female associate who has prepared the papers and is most familiar with the case is not arguing the motion, the judge should consider addressing questions to the associate, the report suggests, which may encourage senior partners to provide opportunities to female associates.
The report also suggests judges appoint more women as lead counsel in class actions and as special masters, referees, receivers or mediators.
“Some judges have insisted that they will not appoint a firm to a plaintiffs’ management committee unless there is at least one woman on the team,” the report also said.
Other judges have issued orders that if a female, minority, or junior associate is likely to argue a motion, the court may be more likely to grant a request for oral argument, according to the report.
And some judges are willing to permit two lawyers to argue for one party.
Justice Henry Nowak in Erie County Supreme Court already implemented this year some changes in his courtroom rules, including permitting multiple attorneys to argue different points for each party.
“Such practice is encouraged when multiple attorneys researched and briefed various issues,” his courtroom rules say.
Scheindlin said the report will be widely sent to judges across New York and she is hopeful to have a follow-up study in two years to measure any progress.
“Does it have an impact?” she asks. “Will it be a wake-up call?”