Shira Scheindlin, retired U.S. District Judge from the Southern District of New York, wrote a compelling and frustrating op-ed essay on The New York Times‘ Opinion Pages on August 8.
Her essay, “Female Lawyers Can Talk, Too“, reveals the results of a New York State Bar Association’s commercial and federal litigation section study, where judges were asked to “note the genders of the lawyers who primarily spoke in court in every case they heard over four months.”
“They collected and analyzed 2,800 responses,” Scheindlin said. “The results demonstrate that women have not made nearly enough progress in the legal profession,” wrote Scheindlin, who now is Of Counsel in the New York office of Stroock & Stroock & Lavan and an arbitrator/mediator with JAMS. The study revealed “that women were the lead lawyers for private parties barely 20% of the time” among the federal and state courts at the trial and appellate levels.
The Justice Ecosystem asked Judge Scheindlin how this situation could be ameliorated.
Q. How can Big Law firms motivate male litigators to recognize when to plan, ask or invite women litigators to speak?
Scheindlin: Tell them it will be a part of their performance review! For example, if they brought women onto a litigation team they get points; if they didn’t they get negative points. If a woman argued a motion in their case, they get points; if no woman argued they get negative points. If they introduced a woman to a client they get points; if they didn’t they get negative points. I think you get the point — no pun intended.
Q. How can women “take” the microphone without alienating the men?
Scheindlin: They can’t just “take” the microphone. Maybe the judge will suggest they argue the motion; maybe the client will suggest they take a deposition; maybe a senior or managing partner will insist that a junior associate defend a deposition; or maybe the junior female attorney will ask her supervisor if she could take one witness at trial or argue one part of the motion.
Q. How can judges influence litigators so that women get heard?
Scheindlin: A number of judges now have individual rules that state they would be more likely to grant a request for oral argument if a junior attorney argues the motion. Or the judge might state that he or she will allow two attorneys to argue for one side — with each taking a separate point in the argument — and encourage the senior lawyer to partner with a junior lawyer in making the argument.
The judge can consider the diversity of a team proposed to act as lead counsel in a class action and state that this will be one factor to consider in making such an appointment.
Q. How can clients push to be sure women (and other non-white, non-heterosexual lawyers) are equal in the litigation?
Scheindlin: Clients hold the purse strings, so this should be easy. The client can insist that it will not give its business to a firm that pitches an all-white-male team. It might insist that at least one relationship partner be a woman and/or a minority. It might reduce its bill by 10% or more if there is no woman or minority on the billing. It can ask for a report on how its last case was staffed and use this as a consideration in future retention. If the client demonstrates that it is serious about diversity, the law firms will listen!
Q. How can senior lawyers mentor younger lawyers (both men and women)?
Scheindlin: Our task force report distinguishes mentoring and sponsorship. Mentoring is teaching — by working together, by supervising, by teaching, by demonstrating. Sponsorship is seeking out opportunities for the lawyer being sponsored to meet clients, obtain speaking roles and obtain pay increases and promotion. A sponsor advocates on behalf of the lawyer being sponsored and helps make the case for that lawyer’s advancement in the firm.
Q. What can the courts and bar associations do to pressure the men that are dominating the talking?
Scheindlin: Courts might consider adopting individual rules or local rules as described earlier. Bar associations can write reports like the one just issued by the Task Force. They can also hold roundtables to discuss the issue; and they can provide committee assignments (including chairs) and/or speaking opportunities to non-white non-male lawyers.
Whenever I am asked to speak, I insist on a diverse panel. If there are no other women — forget it! Women need to be at the table — not just in the courtroom but also in bar associations and panels sponsored by private companies.