Women as first chairs: Amid successes, work remains

Study finds in civil cases men 3 times more likely to appear as lead counsel

By Kris Olson
The Daily Record Newswire

BOSTON, MA - Even as they stand as stark counterexamples, prominent female trial attorneys in Massachusetts say there is much to heed in a recent report indicating that women are far less likely than men to be found in lead roles in litigation.

"First Chairs at Trial: More Women Need Seats at the Table" is a first-of-its-kind empirical study of the participation of women and men as lead counsel and trial attorneys in civil and criminal litigation, according to authors Stephanie A. Scharf and Roberta D. Liebenberg. Data used came from a random sample of 2013 cases filed in the U.S. District Court for the Northern District of Illinois.

The study found that, in civil cases, men were three times more likely to appear as lead counsel and trial attorneys, a rate significantly higher than the two-to-one distribution of men and women appearing generally - and in the profession as a whole.

Men also were four times more apt than women to appear as trial counsel in criminal cases. Where women did appear, they were far more likely to be found representing the government (69 percent).

Bucking the trend

One firm defying the gender gap is Peabody & Arnold, where 45 percent of the Boston firm's litigation partners - 10 of 22 - are women.

While there may be women-owned law firms where there is a higher percentage of more first-chair trial lawyers, partner Maureen Mulligan believes the rate may be unmatched at firms, like hers, which date to the late 1800s.

And Peabody & Arnold's women are winning. Women have served as first chair in three of the four trials the firm has had in 2016, all victories, and also led the three trials the firm handled in 2015.

Some of Peabody & Arnold's success stories cut their teeth by participating in multi-district litigation. Colleen M. Hennessey has served as trial counsel for Hoffman-LaRoche in three cases in the In Re: Accutane litigation.

Colleague Rebecca J. Wilson, meanwhile, was the only female lead counsel among four defense teams in a six-week trial before U.S. District Court Judge Denise J. Casper in Shervin v. Partners Healthcare, in which a former Massachusetts General Hospital orthopedics resident alleged sex discrimination against a number of entities and individuals. The defense verdicts were affirmed by the 1st U.S. Circuit Court of Appeals last fall.

Wilson had gotten her introduction to multi-district litigation representing A.H. Robins - a client "very interested in having diverse trial teams," she says - in the Dalkon Shield litigation. At one point while working for A.H. Robins, she had been set to be part of an all-woman defense team in a trial in Palm Beach, Florida, before the case settled.

"The multi-district litigation and the national trial teams provide lots of opportunities for women to be part of a trial team and to get to work with lawyers who are experienced litigators from around the country," Wilson says, "and that was sort of the launching point for me."

Wilson, in turn, along with now-managing partner Allen N. David, helped groom Elizabeth A. Houlding, who recently secured a defense victory in a negligence security case after a seven-day jury trial.

"In my view, one of the reasons why we have been able to create a bench of women trial attorneys here is because the women don't have to fight for the best work in the associate ranks," Houlding says.

Houlding also is quick to tout the support offered while she was gaining the experience crucial to having the confidence needed to try cases as the lead.

Ultimately, the clients must have confidence, too. Houlding says the firm deserves credit for "putting female associates in a position that they can gain the client confidence so that it's not about whether it's a woman, ultimately. It's about who they have a relationship with and the skills and advice and experience and talent that they bring to the case."

On their way up, the Peabody & Arnold lawyers say, it was important to have been given a chance to shine in front of clients.

"If the trial lawyer for the team is putting young women on the team, and the lead trial lawyer has confidence in that young woman, the client will have confidence in that young woman," Mulligan says.

Gradually building up experience and skills is one way to make it to the first chair; the other is bringing in business.

"When you have clients, you can take charge - that's very important," Mulligan says.

Support on that front means things like helping make speaking engagements or sponsorships happen that will have business-development benefits.

Then there is the moral support that helps litigators endure the long hours their jobs entail, particularly during times of trial.

Partner Jennifer E. Burke notes that a number of people from the firm, including some with no involvement in the case, showed up to watch parts of her most recent trial in February. Such shows of support happen consistently, not just in Suffolk County, she adds.

Successes, too, are celebrated at Peabody & Arnold with champagne and cupcakes, the attorneys say. At one recent toast, David made it a point to note, with pride, that the firm's winning trial teams had been led by women.

An ongoing challenge

Even as women first-chair litigators thrive at Peabody & Arnold and elsewhere, several attorneys doubt whether the data would have looked much different had Scharf and Liebenberg done their study in Massachusetts instead of Illinois.

"I've had judges tell me that they see all the time women carrying bags [for male lead counsel]," says Boston Bar Association President Lisa G. Arrowood.

In addition to what may be going on with the internal culture at firms, part of the issue is that women are underrepresented in the C-suites of a firm's clients, says Lynn A. Kappelman, co-chair of the national trial practice group at Seyfarth Shaw in Boston. Such clients may harbor stereotypes that only a man can provide the type of aggressive representation they believe they need in litigation.

Duane Morris partner Bronwyn L. Roberts agrees.

"I have had clients say they don't want a woman representing them in a deposition," Roberts says.

Roberts says that presents a difficult situation for all involved, including the female attorney who might want to gain the experience but not by working with someone who doesn't want to work with her and thus might be prone to second-guessing her work.

Kappelman also notes that women may be continuing to gravitate away from trial work because it "does not lend itself to a flexible, family-friendly schedule." There are intense periods of time commitment during which litigators are required to be away from their families.

"You need to have a partner or spouse who can take care of things while you are completely out of pocket," she says.

According to Boston personal injury lawyer Elizabeth N. Mulvey, to a certain degree, women "self-select" away from trial work because it does not offer such flexibility. The degree to which subtle external pressure also may be influencing those choices can be debated, she says.

The way forward

As far as improving the situation, the study's authors say that law schools, law firms, clients, judges and women lawyers themselves all have roles to play.

Clients are increasingly scrutinizing pitch books to make sure the teams they are retaining meet diversity goals, and then following up by looking at bills to ensure that women and minorities are participating in the work in a meaningful way, Roberts says.

Sometimes, a client's decision will be less about high-minded goals about inclusion and more about availing itself of a tactical advantage, Arrowood says.

A founding partner at Todd & Weld, Arrowood says one of her colleagues there, David E. Meier, once told her that what he feared most while he was chief of the homicide unit in the Suffolk County District Attorney's Office was a top-notch female criminal defense attorney.

"Juries trust us more," she says, citing the classic scenario in which someone accused of sexual harassment puts a woman out in front of his defense, implicitly sending the message that the defendant couldn't possibly be as bad as he is accused of being.

Younger attorneys - particularly younger female attorneys - also may be able to "sneak up" on older male witnesses, Arrowood says.

"They don't see them as dangerous," she says. "They don't think that they can get hurt by that person."

As far as judges helping to foster female trial talent, Roberts says at least two federal judges in Massachusetts, F. Dennis Saylor IV and Casper, have issued standing orders encouraging the participation of inexperienced counsel. The order is written in a gender-neutral way but nonetheless has the effect of helping young female lawyers get the courtroom experience all agree is vital to developing litigation skills.

About a year ago, Roberts walked into U.S. District Court Judge Rya W. Zobel's courtroom with a female associate. Another pair of women was at the opposing counsel table. As she gazed down from the bench, Zobel was moved to remark about it.

On the one hand, Roberts was pleased that she had not noticed anything unusual before Zobel's comments. But she also was glad Zobel pointed it out.

"It was really a special moment," she says.

Roberts echoes the comments in the report that firms should offer training to help all of their lawyers recognize their own implicit biases.

But to a large degree, this is also an issue that women attorneys will have to address proactively themselves.

"I don't expect male attorneys will in any large-scale way challenge the entrenched mindset and put women out front," says Charlotte E. Glinka of Milton's Keches Law Group and a past president of the Massachusetts Academy of Trial Attorneys.

Kappelman says the advice she gives young women all the time is to make themselves "invaluable" by volunteering whenever possible, especially for last-minute weekend or late-night work. Once an attorney has that first trial under her belt, she will begin to be seen as a go-to person for further litigation opportunities, she says.

It is almost never too soon to start honing one's litigation skills if one knows that first chair is a desired future destination, Arrowood says, noting that she had tried three cases through the Harvard Legal Aid clinic before she graduated law school.

"You can't just talk the talk; you also have to walk the walk," Arrowood says. "People say they want to be trial attorneys, but then the email goes out saying that there's a trial in two weeks and they need volunteers, and all those people stick their heads under their desks."

She adds: "Raise your hand no matter how busy you are. These opportunities don't come often enough."

Of course, the key then is to handle whatever tasks come one's way competently.

Burke's goal was always to know the file and the facts better than everyone else in the courtroom.

"That gave me the confidence to feel like I had the right to be at the table," she says.

Published: Fri, Apr 29, 2016