It was like winning the lottery when your case was wheeled out to Judge Shira Scheindlin in the Southern District of New York. It wasn’t that getting Judge Scheindlin meant a win, and, in fact, she could be a bit testy. But she listened to the defense argument and, unlike some other judges, might actually rule in your favor. If you’ve never tried a federal criminal case, you have no idea how huge that was.
But Judge Scheindlin has since retired and moved on to other concerns, one of which appears in her op-ed in the New York Times. It’s a curious concern, given that she was female and a federal judge, which means that she must have been sufficiently recognized as a lawyer to get the wink. But then, not every women enjoys that level of recognition.
As a Federal District Court judge in New York, I often encountered this courtroom scene: A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman). After he conferred with her repeatedly, I would ask myself why she wasn’t doing the arguing, since she knew the case cold.
In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role — even though women have made up about half of law school graduates since the early 1990s.
As this anecdote refers to Biglaw, it’s likely Judge Scheindlin knows that answer, even if it doesn’t appear that way from its telling. But buried in the story is a detail worthy of note. The judge writes that “often” the younger lawyer next to the senior partner was a woman. Knowing Judge Scheindlin’s precise use of language, her choice of “often” is meant to fudge a line.
If women are “often” seated next to the senior partner, then they’re “often” in the employ of Biglaw, ‘often’ getting paid big bucks to be sitting there, ‘often’ a few years away from being the senior lawyer.
As for why the “white male” gets to argue while the “younger woman” (pigment unknown) feeds him details, it’s the standard hierarchy. It’s the prerogative of the elder lawyer to get the face time in court, while it’s the responsibility of the younger to do the prep and background. If the genders were reversed, the senior woman would be asking the junior male for the requisite details. If they were both male, the senior lawyer would still be standing.
But it’s not just Biglaw, and not just federal courts.
I worked on a recent report by the New York State Bar Association’s commercial and federal litigation section based on the first-ever observational study of women speaking in court. We asked judges to note the genders of the lawyers who primarily spoke in court in every case they heard over four months, and collected and analyzed 2,800 responses. The results demonstrate that women have not made nearly enough progress in the legal profession.
But the overall number was dismal: 25 percent in commercial and criminal cases in courtrooms across New York.
Why has the private sector failed so badly?
There is a gap in reasoning here that Judge Scheindlin recognizes, but skips over in her recounting of the “dismal” numbers.
In private sector cases, the client, rather than the government or the court, picks the lawyer. The survey definitively showed that when there was a big, “bet the company” civil case, few clients were prepared to put their business’s fate in the hands of a woman. The more complex the case, the less likely that a woman was lead counsel. The same was true when a criminal defendant retained private counsel.
What can be done? Judges, clients and law firms all have a chance to improve this bleak picture.
There is someone, some group, missing entirely from the fickle finger of blame. Women.
In Biglaw, young lawyers are employees, subject to the hierarchical structure of the firms and subject to the dictates of their superiors. But Biglaw is a small slice of lawyers, even though one would assume that almost all lawyers are working in megafirms based on the degree of focus they receive. The vast majority of lawyers, however, work solo or small firm
This is where the argument collapses. There are small firms started by females. There are women who open their own ship. When they argue in court, they don’t grab a random guy off the street to front for them. They stand. They argue. They win or lose, but it’s all them.
If there aren’t enough women in the well, then why aren’t women starting their own firms? Why aren’t women hanging their own shingle. If they did, no one could stop them from arguing, so where are they?
It may not be easy to start up a gal’s Google, but it’s easy-peasy to start up Shea and Gould, with first names of Sally and Gertrude. I did it. People do it all the time. Why not women?
The fact is that there are women who do so, and some are brilliant lawyers who are at the top of the law game. Why doesn’t anybody recognize their accomplishments? Well, some do, which is why they get to be state and federal judges to cap off a brilliant legal career. But not all. Not all guys get to be judges either, but nobody cares much about that.
If law firms are sexist and oppress women lawyers, then the solution is at hand. Start your own firm. Or is the point that it’s too much to expect women to take the risks of hanging a shingle, getting clients, working their butts off, staring at the phone when it doesn’t ring, or dividing their time between being there for clients and things they would rather be doing?
Judges have no business sticking their nose into counsel’s choice of who gets to stand. Clients get to pick their lawyers, and that’s their right. Law firms get to allocate their personnel as they see fit. But women lawyers? They can do any damn thing they please. If they want to be the lawyer arguing the cause, all they need to do is take charge of their own careers. Problem solved.