Article New York Law Journal

Counsel's Table Should Mirror Real-Life Diversity

Lauren O. Casazza and Madelyn A. Morris of Kirkland & Ellis write: Counsel's table should mirror the diversity of the client organization, the jury box, and the bench. That is the best way to maximize the talent and diversity of thought needed to win the big cases. That is "the look" of an effective trial team.

When Donald Trump said Hillary Clinton did not have "the look" to be president, he hit on something that studies show continues to lurk in the minds of men and women alike: When asked to conjure up an image of a particular leader in a profession, we often picture men.

For women who are (or who are aspiring to be) trial attorneys, the notion that a trial lawyer should look a certain way (i.e., like a man) can be discouraging. And the latest statistics regarding diversity in our courtrooms do not paint a pretty picture.

State of the Union

Despite the fact that they account for nearly half of law students, enter private practice at the same rate, and clients report similar levels of satisfaction with their talent, women have not advanced to the highest levels of the legal profession at the same rate as men. Studies show that women account for only 17 percent of equity partners and 4 percent of managing partners at the nation's 200 largest law firms. The New York City Bar 2015 Diversity Benchmarking Report, surveying 75 leading New York law firms, revealed that one in four firms have no women on the management committee and one in eight firms have no women practice group heads.

As bleak as these statistics continue to be, women's representation in the courtroom is even bleaker. A 2015 study by Stephanie A. Scharf and Roberta F. Liebenberg published by the ABA revealed that men are three times more likely than women to appear as lead counsel at trial and more than twice as likely to appear as attorneys on the trial team at all.

Why is this happening? The 2015 study offers a few explanations. Women are more likely than men to leave private practice, less likely to be promoted and generally earn less than men—on average, 44 percent less at the partnership level according to a recent 2016 survey. And senior lawyers who choose their trial teams are overwhelmingly male and may be more likely to pick someone like themselves. Taken together, these disparities, stemming from factors that may be outside a woman's control—like implicit bias—can affect the ability of women to gain lead roles in the courtroom.

The 'Everywoman' Is Everywhere

But the legal world is changing in important ways. Today women make up 35 percent of federal appellate judges, 32 percent of federal district judges, 34 percent of state appellate judges, and 29 percent of all state judges. And women often comprise half or more of the jury pool.

Diverse juries expect to see and react well to diverse trial teams. A 2010 DecisionQuest study revealed that 97 percent of jurors believed female attorneys were no more or less qualified than male attorneys (with the other 3 percent believing female attorneys to be more qualified). Jurors also report finding women attorneys to be more believable than their male counterparts.

"Anyone who walks into a courtroom today and looks at a jury cannot possibly believe they do not need female trial attorneys on their case," noted Stephanie Scharf, a trial lawyer for over 30 years and co-author of the 2015 ABA study. "It is hard to imagine that a lead trial lawyer would not consider diversity to be critical to his or her (and more likely his) team from the start."

The landscape is evolving among firm clients as well. Approximately 19 percent of S&P 200 boards are women and women account for 23 percent of Fortune 500 general counsel, a number that has grown by 10 percent this past year.

What Clients Can Do For Their Country

Putting all this together, we see that the majority of firms selling their legal services are not keeping pace with the demographics and demands of their buyers.

More and more in-house counsel are asking for diverse teams in pitches. And encouragingly, companies are taking a continued interest in monitoring what roles women and diverse attorneys play as the case proceeds. The key is in the follow-up.

Ann Cathcart Chaplin, Deputy General Counsel for Litigation at General Motors finds that these efforts are critical to improving diversity, but also in improving the odds of winning. "If we don't field a diverse team during trial prep and in the courtroom, we could miss the important connections and insights that come from shared experiences and common perspectives," Cathcart Chaplin said. "At GM, we assess our progress through tracking hours billed to our litigation matters in terms of gender and racial diversity. By selecting diverse teams from the outset, and tracking who is billing time, we can ensure diverse representation."

Michele Coleman Mayes, General Counsel of the New York Public Library and Chair of the ABA's Commission on Women in the Profession, believes that clients have the inherent power and responsibility to truly effect change. In 2008, the Commission began to focus on this opportunity and, together with the ABA Task Force on Gender Equity, expanded this effort with its "Power of the Purse" publication and various summits, roundtables and other programs, providing concrete proposals about the role corporations can play in ensuring that women outside counsel receive appropriate credit, compensation, and opportunities.

A Woman's Place Is in the Courtroom

Giving women leadership roles at trial matters not only to the success of a case, but also because study after study shows the business case for diversity and its ability to transform organizations and the experience of employees, both male and female, at all levels.

Recognition of the problem is just a start. Real change must come from clients and leading law firms that are focused on diversity and retention, and remain ever-mindful of staffing choices. As Cathcart Chaplin notes, "It takes time, energy and commitment to do business this way, but it invariably leads to greater success in and out of the courtroom."

Counsel's table should mirror the diversity of the client organization, the jury box, and the bench. That is the best way to maximize the talent and diversity of thought needed to win the big cases. That is "the look" of an effective trial team.