N.Y. Bar Reports Tiny Increase in Women Leading Court Arguments

Women have made only minute progress since 2017 in winning the coveted lead role in legal matters in courtrooms across New York State, according to a new report by the state bar.

The percentage of women rose .4%, to 25.3%, in the three years since the lawyers’ group issued its last study.

The original study was prompted by the scarcity of women lawyers who had lead roles in courtroom cases, and in arbitration matters, despite their growing numbers in lawyer ranks as a whole. Slightly more than 50 percent of new law school graduates nationally are women, according to the American Bar Association, but male lawyers typically enjoy the professional recognition and compensation that come with leading litigation matters.

The disparity was highlighted again in the new study prepared by the NYSBA’s Commercial & Federal Litigation Section Task Force on Women’s Initiatives. The task force also issued the 2017 study that found few women had the prime speaking role for lawyers at every level and every type of court, including criminal and civil and trial and appellate in New York State. That was based on reports by judges throughout the court system on both state and federal levels, who kept a record of female counsel appearances. The study examined about 5,000 responses between September and December 2019.

A similar dynamic of women’s exclusion from arguments was also recently noted in a study of lawyers appearing before the U.S. Court of Appeals for the Federal Circuit and has reported again and again at the U.S. Supreme Court.

According to the just released New York State Bar study, female attorneys fared somewhat better getting lead roles in representing public entities than they did in representing private companies.

“My personal view is that public entities don’t discriminate between men and women in lead roles, but when a company has a serious case worth millions of dollars, they default to an image of a white male,” said Shira Scheindlin, a retired U.S. district court judge who is a principal author of the report.

Holding the top role is key for a woman lawyer, said Scheindlin, who is of counsel to Stroock & Stroock & Lavan.

“It affects her future in the law because she gets the billing credit and promotion to partner,” said Scheindlin. “Never getting those fees means not becoming a partner or equity partner. More women are becoming partners, but not equity partners.”

“It’s an intrinsic issue of fairness,” agreed Neal Katyal, a partner at Hogan Lovells. “It’s dismaying to see how little progress there has been on this.”

He said it was not unusual to meet with lawyer teams representing financial institutions “and not find any diversity in the room.”

The bar association report urges law firms set up programs to support, train and advance female attorneys in private firms.

Carrie H. Cohen, a partner at Morrison & Foerster, and co-author of the report, said firms should push ahead on diversity and inclusion efforts despite the turmoil caused by coronavirus.

“It is critical during this unprecedented public health pandemic that we double down and increase focus on diversity efforts to ensure that the limited progress that has been made for women and minority attorneys is not lost, especially as women and diverse attorneys too often are disproportionately impacted by crises,” she said.

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