Brooklyn Supreme Court. Photo: Rick Kopstein

Why do women lawyers still speak in court far less frequently than their male counterparts? I promise to provide my answer here. But first, a quick look back.

Three years ago, a committee of the New York State Bar Association conducted the first-ever observational survey asking judges throughout New York state to track the gender of lawyers speaking at proceedings in their courtrooms. The evidence gathered at that time was not encouraging, but it was widely reported, including in an opinion piece I wrote. (See "Female Lawyers Can Talk, Too," The New York Times, Aug. 8, 2017.)

Three years ago, women had lead roles in court only 25% of the time, despite making up half of law school graduating classes for three decades. A major finding of the survey was that women attorneys in the public sector appeared in lead roles in the courtroom twice as often as women attorneys in the private sector.

The committee that wrote the report decided to repeat the survey three years later. That report was just released. Unfortunately, it doesn't show much improvement. Women now appear in court only 26.7% of the time, a meager 1.5 percentage point improvement over three years ago.

And, once again, the public/private divide remains almost precisely the same.

Again I ask: Why are women attorneys in lead roles acceptable to the city, state and federal government, but not to corporate America?

A Look at the Data

Other notable findings include the dearth of women representing parties in contract disputes versus family law matters; the decreasing percentage of women attorneys in lead roles as the amount in dispute increases; the fewer women in lead roles depending on the complexity of the case, measured by the number of parties in a dispute; and the lower number of appearances by women attorneys as the courts increase in rank—with the U.S. Supreme Court at the top.

Nonetheless, the data collected from more than 5,000 court appearances throughout New York did reveal some bright spots.

While women's appearances as lead counsel saw only a miniscule increase, their appearances in court in non-speaking roles grew by one-third—from 27% to 36% of all such appearances by attorneys in supporting roles. This means that younger (junior) female attorneys are appearing in court far more often than three years ago, albeit not as lead counsel. And that means that they will likely one day be lead counsel.

The report also detailed recent metrics provided by dispute resolution services. ADR has been a presence in the legal community for decades, but now it will be used more than ever before.

Because courts are inundated with lawsuits, it often takes a long time for a case to be resolved. This has been exacerbated by the nearly three-month closure of the courts due to the COVID-19 pandemic.

As courts reopen they will need to address urgent matters first. Criminal matters will always take precedence, followed by matters that are urgent, such as domestic violence that will often require an immediate hearing on orders of protection, dangerous housing conditions and custody disputes, to name just a few.

Because ADR will undoubtedly be used more frequently in this environment, the report reveals that women neutrals are selected at significantly lower rates than their male counterparts. Once again, this varies significantly by subject matter, with women selected more often in family and employment disputes and less often in commercial disputes.

Steps Toward Equality

The report concludes with recommendations for what law firms, corporate legal departments and the judiciary can do to ensure that women gain equal opportunities in the courtroom sooner rather than later.

Firms must transition business from retiring senior partners to women as well as to men. They must track the assignments doled out to junior attorneys to be sure women are getting the same quality of assignments as their male counterparts. Corporate departments should demand that their outside counsel provide them with diverse teams and keep track of who is working on their cases.

If women are not getting equal work, the corporate legal departments should place their work elsewhere. The judiciary should encourage junior attorneys to speak in court and should be sure that any appointments made by the court, such as guardianships, referees or special masters, are made equally to men and women. Finally, the dispute resolution providers should be sure that their rosters have equal representation of male and female neutrals and that the lists from which counsel select a neutral are also diverse.

Seeking Answers

And now I turn to the question I raised at the outset. Why? The answer cannot be found in the data collected by the study. Rather, it is based on my more than 40 years of experience as a practicing attorney, a judge and now an arbitrator, mediator and special master.

The answer is lack of trust.

I reach this conclusion based primarily on the great disparity between women attorneys in the public and private sectors.

When a business is confronted with a complex legal problem—potentially a bet-the-company case—it just feels safer with the traditional image of a lawyer, which, based on years of movie and television portrayals, is a middle-aged to elderly white male. The iconic Perry Mason springs to mind.

Just as the titles "president," "pope" or "prime minister" generally evoke the image of a white male, so does the moniker "trial lawyer." The deans of the Supreme Court bar, all former solicitors general, are nearly all white males.

Women have long been struggling to obtain parity in the courtroom, but it has not yet been achieved. Perhaps it will still happen if the will to make it a reality is shared by leaders of the bar, corporate counsel and the judiciary.

Shira A. Scheindlin is a former U.S. district judge in the Southern District of New York, now a mediator and arbitrator and of counsel at Stroock & Stroock & Lavan.