Look, I would rather work with women lawyers than men lawyers because I think women lawyers, for whatever reason, are generally on balance better planners, thinkers and practitioners, and better with clients, than are men. But who gets to be lead counsel in litigation is ultimately determined by both merit and the client.
When are we going to stop treating women lawyers and other female professionals like ne’er-do-wells and screw-ups who need special treatment to succeed? There’s actually a discussion out there on why more women are not lead trial counsel. See this August 1 ABA piece entitled “Why aren’t more women lead counsel?” The article grows out of a panel this summer at the ABA Annual Meeting, which in turn had grown out of an American Bar Foundation study. The ABF study among other things found that, unsurprisingly, men were disproportionately appearing as lead counsel in civil cases (based on 558 cases in the Illinois Northern federal district) by 76% to 24%. The study’s conclusion is below. Brackets and italics are mine. The italics highlight phrases which I think would be insulting in the extreme to talented women in any profession; the implication in the italics is that women lawyers are ne’er-do-wells, screw-ups and/or congenitally handicapped:
Fostering the success of women litigators redounds to the benefit of clients, who obtain top-notch representation in their cases [Huh? Why does it help clients? More choiceable to realize their full potential and advance in their careers. We believe it is imperative for all concerned that women are encouraged and supported in their pursuit of a career in the courtroom and the role of lead counsel at trial.
We hope that this study will heighten awareness about the existence of significant gender disparities in the ranks of lead trial lawyers. We want to spur a dialogue that will result in concrete and effective actions to increase the numbers of women lead trial counsel. These recommended best practices will help women litigators develop their skills and obtain the same opportunities for leadership roles and success in the courtroom as their male colleagues.
Me personally? And professionally? Look, I would rather work with women lawyers generally than with male lawyers because I think women lawyers, for whatever reason, are generally on balance better planners, thinkers and practitioners, and better with clients, than are men. They tend to write better. Much better with deadlines, frankly. They’re feisty. Many are as mean as snakes. But who gets to be lead counsel in litigation is ultimately determined by both merit and the client.
For trial work both women and men should be lead counsel (or first chair) if (a) they deserve it based on skills and (b) clients want it. Plenty of women certainly do deserve to be lead counsel based on merit. Lots. They are legion. Are there stats on this? Of course not. Qualitatively, can we say there is currently as much female as there is male first-chair talent? Actually some kind of parity in terms of skill? Are they roughly equal in numbers? It’s a hard thing to measure but, no. Probably not.
Litigation is still way overpriced, insane, male-oriented, overly-testosterone-driven and inefficient; I’ve no numbers (if you do, show me) but my sense is that women over the past two or three decades in private practice, and certainly in larger firms, have had the good sense to chose transactional work and more efficient forms of litigation (e.g., administrative, regulatory, ADR) than state and federal trial court forums where machismo, sporadic irrationality and other forms of male insanity are well-tolerated whether these modalities are working or not. That may change. I see women choosing both conventional trial and appellate work more and more, and getting as good at it as male lawyers or even better. In the meantime, we can assume that no one will be insane enough to suggest that the imbalance between male and female lead counsel be rectified (read: contrived) by a quota system. Right?
More important is the problem of women who want and deserve on the basis of merit to be lead counsel–but really are thwarted or held back by gender-bias. What then? It’s a tough question. Here’s the tough answer. Right or wrong, clients–not notions of political correctness and private enterprise-side affirmative action–should drive who serves as lead counsel. Law firms are already under tremendous pressures to embrace mediocrity and settle for something less than clients want and deserve. Firms are under no obligation to force clients to “evolve” so that women in litigation are first chairs–even when they merit lead counsel spots on defense or plaintiff teams in the finest litigation shops. Nor should they be. Granted, it’s not a fair answer. But it’s a client’s call.
The ABA article–which makes some good points about former women prosecutors going to law firms before silly notions of “parity” creep into it and the wheels fall off–is here:
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.