Women aren't lead counsel as often as men - it's gotta be bias!

"I like it when the judge calls me 'honey' - that means he's going to grant my motion." -- Quote from real female attorney I know, circa 1990.

Does the court system discriminate against women lawyers? Could be!!!!

Anyway, that's what a couple of women litigators assume, based on their study showing that men were lead counsel in a sampling of federal cases in northern Illinois from 2013 more often than women were.

Barbie Suit.flickrCC.RomitaGirl67
"She can argue a case in court! Isn't that cute?"

According to the study, based on information gained through the PACER federal court electronic filing system, 68 percent of all lawyers appearing in the 2013 civil cases were men, and 32 percent were women. But 76 percent of lead counsel were men, while only 24 percent were women. Men were lead counsel in 78 percent of labor-related lawsuits, and women were leads in only 22 percent.

I get that, I believe that, and it doesn't surprise me that fewer women than men are lead counsel.

Even though women nowadays graduate from law school at about the same rates as men, we still have a lot of lawyers in the profession who came up during the old days when female attorneys were unusual. Of course, that means that, even today, the lawyers with many years of experience will disproportionately be male.

And those super-experienced males are going to tend to be asked to take the lead on big cases. That has nothing to do with "maleness" and a lot to do with experience, reputation, and connections.

Barbie Astronaut.flickrCC.MarcinWichary
"Astronaut? Yes! Lawyer? No way!"

Also, in my own unstatistical, purely anecdotal experience, a lot of women find the life of a litigator to be nasty, brutish, and never-ending, not always family-friendly, and who needs it when I can spend time with my kids and make a nice home for my family and work out every day and anyway my husband makes enough money and we don't need a second income?

(And, no, there is nothing wrong with that.)

Even if a woman chooses to stay active in the legal profession, a disproportionate number do not seem to care for the life of a trial lawyer. I know a lot of female lawyers who started out in litigation and transitioned into non-litigation-related areas in the profession (doing very well, I might add). I don't know many guys who have done the same. The women weren't encouraged by their male bosses to move out - in fact, their bosses wanted them to stay - and they didn't leave because judges or opposing counsel called them "honey." According to what they said to me, they left because they didn't like being in "adversarial mode" all the time. Or because they had a better opportunity - for example, an in-house position.

Maybe it's different with younger women coming out of law school (I don't know), but even if so, those younger women are too inexperienced right now to be lead counsel on much of anything other than an unemployment claim.

Some of the steps recommended at the end of the study seem to be good ideas - encouraging new attorneys to take pro bono cases, learn to develop the "grit" necessary to handle defeats and use them as learning experiences, learn to present themselves well in a courtroom setting. But it annoys the heck out of me when people immediately assume, without any evidence apart from the disparity, that gender disparities are a result of bias.

"Disparity" does not necessarily equal "discrimination."

Image Credits: Flickr, Creative Commons license: Businesslike Barbie by RomitaGirl 67, Astronaut Barbie by Marcin Wichary.

Details of the study are below the jump.

The study was based on a review of names (and, where names were ambiguous, web bios) of counsel of record in a sampling of civil and criminal cases filed in 2013 with the U.S. District Court for the Northern District of Illinois. The study was led by attorneys Stephanie Scharf and Bobbi Liebenberg, and was sponsored by the American Bar Foundation and the Commission on Women in the Profession of the American Bar Association. (Thanks to Bloomberg BNA for providing a link to the study.) Although the study analyzed the numbers, it did not attempt to empirically determine why the disparity existed. The discussion in the study about implicit bias against women trial lawyers appeared to be nothing more than the opinions of the authors based, presumably, on their own anecdotal experience and what they'd been told by others.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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