Annual Meeting

Why aren't more women lead counsel? Litigators, judges explain the obstacles and offer solutions

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gender imbalance

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If women want to be trial lawyers, the best place to have first-chair opportunities may be with federal prosecutors, according to a recent ABA study. But considering that many assistant U.S. attorneys eventually join big firms as partners, some wonder why there are few women at big law firms leading trials.

“Most male litigators who serve as federal prosecutors, they get their tickets punched. There’s no absence of female lead prosecutors, and they also get gobbled up by big firms. But what happens to them, and why aren’t they serving as lead counsel?” asked Ruben Castillo, chief judge of the Northern District of Illinois U.S. district court.

Castillo spoke on a Saturday panel at the ABA Annual Meeting—“Women as Lead Counsel at Trial: What You Can Do to Take the Lead,” sponsored by the ABA’s Commission on Women in the Profession—that discussed the lack of women serving as lead counsel. He noted that the event had very few men in the audience.

“I’ve been on the bench 21 years, and I would say I’ve had about 14 or 15 cases where the women before me were lead counsel,” Castillo said, adding that he plans to have some sort of conference on the issue in the future.

The panelists focused on a recent study by the American Bar Foundation and the Commission on Women in the Profession titled First Chairs at Trial: More Women Need Seats at the Table (PDF). The study reviewed 600 Northern District of Illinois cases filed in 2013. Out of the 558 civil cases, 76 percent of the lead counsel were men. For the 50 criminal cases, 67 percent of the lead counsel were men. Out of the 50 criminal cases that went to trial, 79 percent of the lawyers serving as lead counsel were men.

Another panelist, Sandra Phillips, noted that she recently hired two women of color to lead two significant class action cases against her employer, Toyota Motors North America.

Phillips, the holding company’s general counsel and chief legal officer, says that she actively seeks female outside counsel, and occasionally gets pushback from law firms. Often, she added, the firms respond that older white males have the most experience and knowledge about her employer, and it would be unfair to assign the work to someone else. “If we’re going to move the needle on this, we need to dispense with this notion of fairness. It’s not fair that 79 percent of the people who are taking the lead in the courtroom are men,” said Phillips, who is based in Torrance, California.

“Who really wins cases?” Phillips added. “Lawyers who have been around for 40 years and know the company well, or lawyers who can tell a good story in the courtroom, who are collaborative, competitive and solution-oriented?”

Paula Hinton, a Winston & Strawn litigation partner based in Houston, says that she does sometimes encounter implicit bias, usually from clients.

“They tend to go with what they think is the safe choice of a white male for their lead lawyer who has an established reputation,” she said. “But at trial time, if the case is in a ditch, I get parachuted in. What happens is it’s not going well with what they thought was a safe choice.”

A potential solution mentioned to improve first-chair gender numbers was letting lawyers who write briefs argue them, recognizing that the writing is often done by female associates or junior partners.

“Sometimes when a male senior partner is in front of me arguing, I can see the female associate next to them flinching, as the beautifully written brief they wrote is ruined,” said Sophia Hall, a Cook County, Illinois, circuit court judge.

When judges notice that a first-chair lawyer seems to be having problems making his or her argument, they can ask the lawyer seated next to him or her for further explanation, panelists said. If the associate can do a good job answering the court’s questions, it’s often a sign that he or she will be a good trial lawyer.

“In larger cases where there’s a courtroom full of suited lawyers, I’m looking for someone who is going to help me understand,” added Hall, mentioning one complex case where a “woman piped up, ‘I have a chart.’ “

Hall said: “That got my attention. You can call attention to yourself by having not only a sense of the law but also the context, and present it in a way that’s understandable.

“The other important thing is that a lawyer leading the case can work with personalities. With male lawyers, sometimes you go through testosterone pyrotechnics, and females can sit back and cut to the chase. As judges, we’re looking for a voice of reason that’s calm and intelligent. If you can do that, it will allow you to look really good.”

The issue of calling attention to yourself was also addressed.

“You need to have a reputation that precedes you. You don’t get the reputation by just sitting in your office,” said Stephanie A. Scharf. A litigation partner with Chicago’s Scharf Banks Marmor who co-authored First Chairs at Trial with Roberta D. Liebenberg, a senior litigation partner with Philadelphia’s Fine, Kaplan and Black.

“Nothing is better than trying a case,” said Liebenberg when asked why she never abandoned litigation as a career. “There’s nothing more exhausting, but there’s nothing better.”

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