By Gina Passarella, From The Legal Intelligencer

Women comprise a disproportionately low percentage of lead trial counsel compared to their representation in the overall legal profession, a study for the American Bar Association’s Commission on Women in the Profession has found.

While women make up at least 36 percent of the profession, according to the study, they comprise 24 percent of first-chair roles in civil cases. And those numbers are lower when looking at tort cases or the representation of businesses and individuals. Women are more highly represented in lead counsel roles on behalf of government entities or by working as prosecutors, the study found.

The study was performed by former commission chair Roberta Liebenberg of Fine, Kaplan and Black in Philadelphia and current commissioner Stephanie Scharf of Scharf Banks Marmor in Chicago. The two litigators based their survey on data from case filings in 2013 in the U.S. District Court for the Northern District of Illinois in an effort to capture a large district with a diverse caseload.

While the number of women appearing generally in federal litigation mirrored figures for the overall profession of about one woman for every two men, the ratio moved to 3-to-1 when looking at women in lead trial roles.

“So when [about] 40 percent [of the profession] are women and only 25 percent are [first-chairs], we think that is a discrepancy that should not exist,” Scharf said.

The percentage of women in lead trial roles varies when broken down by case type. The most marked example was in class actions. The number of women attorneys entering an appearance in class action cases was 32 percent, but the number who served as lead counsel was 13 percent.

Women more often served as lead counsel in real property cases (41 percent), prisoner rights cases (38 percent), Social Security matters (34 percent) and civil rights cases (32 percent). Women comprised only 15 percent of lead counsel positions in contract cases, 21 percent of tort cases, 22 percent of labor cases and 23 percent of intellectual property matters, the study found.

Major-client cases are male-dominated, Scharf said.

That is something Paul, Weiss, Rifkind, Wharton & Garrison partner Beth Wilkinson has seen firsthand—over and over again.

She has served as the lead trial lawyer in every case she has handled in the last 15 years and, sadly, Wilkinson said, she rarely sees other women in similar roles.

Wilkinson said she was helped by her career path of starting in the Army and then becoming an assistant U.S. attorney where she handled the high-profile prosecution of Oklahoma City bomber Timothy McVeigh. Now her caseload consists of antitrust cases for clients such as Georgia-Pacific or products liability trials for clients like Pfizer.

The most startling statistics from the study is that men account for about 80 percent of lead counsel in major business cases, Wilkinson said.

“Those are the biggest-dollar cases,” she said.

Serving as lead counsel for the government was what a lot of men did decades ago as a way to get experience and transition into private practice. Wilkinson said women aren’t making that same transition out of government work.

“The progress has been horrible,” she said. “Big firms are not accommodating. There is a lot of sexism in the way business is passed down,” though it is not always intentional. “I’ve been lucky to be in the right place at the right time and combat that by winning a lot.”

Liebenberg said the trial numbers highlight the same problems women have advancing in law firms, where 17 percent are able to rise to the level of equity partners. She said the low number of women first-chairs is representative of a pipeline problem. Women need to get the experience necessary to move up and be able to take on the lead counsel roles, Liebenberg said.

Luckily, Liebenberg and Scharf said, clients are helping elevate more women to lead counsel positions.

“Clients are pushing firms and others to make sure the trial bar respects the diversity of the profession,” Scharf said.

After all, many juries are made up of more women than men, she said.

Before she became general counsel of New York Public Library, Michele Coleman Mayes led Allstate’s legal team and focused on implementing concrete methods for improving diversity among the outside attorneys working on the company’s matters.

“You really have to be deliberate and vigilant,” Mayes said. “It just doesn’t happen if you think good thoughts.”

In-house counsel can keep metrics, look at who is being assigned to which type of matter and really hold the firm to it. Mayes said law firms don’t create their client teams in a vacuum. Though they might not like it, firms can hear from their clients on the issue, Mayes said.

“But this means being very focused and unequivocal about it and unapologetic,” she said.

Unapologetic doesn’t necessarily mean handing over the proverbial pink slip.

Mayes said she never fired a firm for not living up to her diversity ideals, but she has held back work.

“Firing someone is pretty drastic in the sense that you have to, in some way, incur some pain yourself,” Mayes said. “It is not victimless. That doesn’t mean that your principles don’t matter, but you’ve also got to take” stock of the entire picture.

And when you sever a relationship, you no longer have influence over that firm, Mayes said.

At Allstate, Mayes and her team would score firms and had firms give themselves a score based on their diversity initiatives. The legal team also brought in diverse secondees from law firms. Mayes said in-house counsel should be sure their list of go-to recommendations for outside counsel is diverse.

More (First) Seats at the Table

The study offered guidance on how various stakeholders could increase the percentage of women in lead counsel roles.

The size of an attorney’s law firm appears to have little to do with whether women are more likely to have lead trial roles. The percentage of women from Am Law 100 firms appearing as lead counsel is 25 percent, the study found. The same was true for solo practices. The percentage of women first-chairs from small, private firms is 20 percent while that figure drops to 16 percent when looking at Am Law 200 firms.

The study warned of implicit biases.

“Senior lawyers who choose their co-counsel in courtrooms are overwhelmingly male, and they may automatically choose someone like themselves,” the study said.

Law firms have to balance client desires for senior attorneys handling trials or key depositions with the fact that women aren’t often among the senior attorney ranks, the study’s report said. Firms have to be resourceful in ensuring all of their lawyers get the trial experience they need. The report suggested firms encourage women lawyers to take pro bono cases or secondments. They should also be given deposition opportunities and oral argument experience during discovery disputes, for example, the report said.

For female lawyers who want to get more trial experience, handling matters that involve government entities is a good place to start, Liebenberg said. Women served as lead counsel in 40 percent of cases involving municipalities, 32 percent involving the state and 31 percent involving the U.S. government, the study found.

When looking at criminal cases, women served as lead counsel 33 percent of the time. Women much more frequently represent the government in criminal cases than the defense, according to the study.

Clients can look to retain more female litigators and require their outside law firms to maintain metrics on how cases are being staffed. Judges can seek to appoint more women as lead or liaison counsel and can use their power for judicial appointments in the areas of special masters or guardians ad litem, the report said.

Law schools can encourage women to become trial lawyers and offer trial advocacy training. The education can specifically address how to deal with the implicit biases women might face in the courtroom, the report said.

“Also, in light of the results of our study, law schools should advise women law students who want to become trial lawyers that, at the current time, government litigation positions will enhance their opportunity to play a lead role and gain first-chair experience,” the report said.

Wilkinson said she recommends attorneys get private-practice experience first and then go into the government for a time.

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