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Judge Shira A. Scheindlin developed some tricks over the years for getting women some time at the lectern when they were the experts on a case.
Scheindlin experienced numerous occasions when a male attorney would be arguing a motion but needed to take a moment to confer with a female associate.
Then, “I’d ask a tough question, he’d ask for ‘a moment,’ and lean over again” to talk with his associate, she said.
Finally Scheindlin would say, “You know Mr. Smith, maybe you should let Ms. Jones argue this because you seem to be turning to her constantly and she must know this stuff really well. Maybe you’d like to give her a chance to finish up the point?”
What could he say then but, “Of course, your honor,” Scheindlin said.
These types of experiences led her and others in the New York State Bar Association put together a survey about women’s participation in New York courtrooms.
Scheindlin sat down with Bloomberg BNA to discuss her reaction to the report based on the survey’s results as well as possible solutions. The report, “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and ADR,” was published by the New York State Bar Association in July.
It surveyed New York state and federal judges and ADR providers about the presence of speaking counsel by gender in all proceedings over a four-month period in 2016.
Among the results, it found that women are twice as likely to have lead roles in the courtroom in the public sector as in private practice.
Scheindlin stepped down from the bench in 2016 to join Stroock & Stroock & Lavan LLP ‘s litigation group.
She served as a federal district judge for the U.S. District Court for the Southern District of New York for 22 years, during which time she helped pioneer case law for electronic case management.
Now Scheindlin also serves as an arbitrator/mediator under the auspices of JAMS and is an adjunct professor at Brooklyn and Cardozo Law Schools.
She spoke with Bloomberg BNA about her experiences on the bench that inspired the report and about the best solutions for achieving equality for women attorneys in the courtroom and in alternative dispute resolution.
Many of the cases that Scheindlin oversaw during her time on the bench involved representation that was “overwhelmingly male,” Scheindlin said.
These cases included commercial, product liability, environmental, intellectual property, and securities law cases, she said. Women served as counsel in the courtroom more frequently in cases involving the government or as appointed counsel in criminal cases, she said.
Scheindlin says she’s “stunned” that the numbers didn’t change “at all” during her time on the bench.
The NYSBA report numbers confirm her observations, she said, but what it doesn’t do is answer why the numbers are stuck where they are.
“I remain somewhat mystified” as to why the numbers are so disparate, Scheindlin said.
Women have represented almost half of law school graduates for nearly 20 years but just 18.5 percent of lawyers representing private parties and 19.4 percent of lead counsel in civil litigation are women, according to the survey.
Women fare much better in the public sector where they make up 39.6 percent of attorneys speaking in the courtroom.
The message to women is that if you want to get into the courtroom and speak, “you’d better get a public sector job,” Scheindlin said.
Scheindlin had several ideas about why there are more women attorneys representing parties in the courtroom in the public sector.
They may realize that the opportunities to get into court are better, she said.
“I’ve had about 50 clerks by now and I’ve talked to them and they realize that if they’re going to get a chance to learn courtroom skills, that’s the way to go,” Scheindlin said.
She also believes that the lifestyle is a little better for women at a public sector job than at a private firm and that for women who have primary childcare responsibility, public sector jobs offer more flexibility.
Finally, the atmosphere in the public sector might be more “collegial” for women because there are more of them.
“I had one clerk go to a relatively small firm where she was the only woman and she said it was a boys’ club and she left,” Scheindlin said.
Despite the better numbers, things may not be perfect in the public sector, either, she warned.
Scheindlin heard “grumblings off the record that the men were getting the plum, high-profile cases.”
Judges can play a role in making sure female attorneys get equal opportunities to participate, the report said.
It proposes that judges consider addressing questions to a female associate when they notice she is most familiar with the case but isn’t arguing it.
Scheindlin said she “got quite a kick out” of helping when she could.
Scheindlin also believes it would be effective for firms to track the work attorneys do by gender.
“I think firms are blind,” she said.
“They think they’re doing it right because they hire, for example, 50 percent women, but then they drop off,” Scheindlin said.
If they really tracked the numbers, they’d notice that these women are doing only 25 percent of the depositions, she said.
One way to do so would be to track on a quarterly basis the gender of the attorneys who took depositions, argued motions, and conducted a hearing or trial during that period, the report said.
If the numbers aren’t proportional to the firm’s male/female ratio, the firm must then reassign the next quarter’s work, Scheindlin said.
Alternative Dispute Resolution is another area where women aren’t doing as well as men.
They aren’t getting selected as the neutrals in arbitration. Scheindlin believes it’s due to the process.
In a dispute, the parties select their own mediators and arbitrators. But because the clients don’t know the candidates, they cede the task of selection to their outside counsel, Scheindlin said.
These are usually senior white males who keep choosing senior white males, she said.
The study found that women were selected as arbitrators 26.8 percent of the time, a number that “underrates their ranks in the field,” Scheindlin said.
Women who have been practicing lawyers for a very long time are getting very few cases, she said.
“It’s an uphill battle,” Scheindlin said.
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