Published on April 3, 2014
Unconscious gender stereotypes affect how women lawyers are perceived, which can translate into missed opportunities. Women and men have an equal interest in fostering change, and our clients will beneﬁt from the effort. By || Kim Dougherty and Sofia Bruera powergender equityof the 34 March 2014 || Trial Posted with permission of Trial (March 2014) Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®) Posted with permission of Trial (March 2014) Copyright American Association for Justice, formerly Association of Trial Lawyers of America (ATLA®)
Trial || March 2014 35CIMMERIAN/GETTY IMAGES GENDER INEQUALITY IS A PERVASIVE issue that affects the legal profession, the adequate and fair representation of our clients, and trial lawyers’ ultimate success. Women and men must do their part, starting with recognizing and rais- ing awareness of the issue. First, we should examine our own beliefs. Ask yourself: Does gender equality in the legal profession make me uncomfortable? Is there some part of me that believes supporting the advancement of women will somehow be to my detriment? Michael Kimmel, a well-known sociologist, explored this issue on a television show entitled “A Black Woman Took My Job,” in which three white men felt they were victims of employment discrimination. Kimmel invited the men to “consider what the word ‘my’ meant in that title: that they felt that the jobs were originally ‘theirs.’ But by what right is that ‘his’ job? Only by his sense of entitlement, which he now perceives as threatened by the movement toward workplace gender equality.”1 Kimmel explains that “gender equalityisnotazero-sumgameinwhich women win only at the expense of men losing. Gender equality is a win-win. When women [win], so too will men.”2 Gender equality does not involve women taking a piece of the metaphor- ical pie, but instead growing it, so that the pie is larger than it would be with- out women. It is well settled that diverse companies with women in management are more proﬁtable.3 Mixed-gender trial teams win more cases, make fewer mis- takes, cause more defense errors, and better represent clients than all-male trial teams.4 Ontheotherhand,whenwomenlaw- yers leave law ﬁrms for lack of advance- ment,opportunities,orﬂexibility,itcosts ﬁrms—up to $1 million per lawyer.5 Gen- der equity also means giving men the opportunity to be more involved with their families. Studies show that when menareinvolvedinhomeandchildcare, they, their spouses, and their children are happier and healthier.6 Examining your law ﬁrm’s data on advancement, retention, compensation, satisfaction, mentoring, and leadership opportunities for women can be infor- mative. Does your ﬁrm fare better than the dreary national statistics? While the profession has made much progress, the numbers are disturbing. Women make up approximately 50 percent of law school graduates but represent only 33 percent of the legal profession.7 While approximately half of law ﬁrm associ- ates are women, only about 20 percent are partners, 15 percent equity partners, and 4 percent managing partners.8 As Bill Gates, the cofounder of Microsoft, once said, “If you are not fully utilizing half the talent, you are not going to get close to the top.” The disparity is even more apparent in trial lawyers, where only 17 percent of Supreme Court arguments were made by women from October 2012 until May 2013 (and only one woman in private practice compared to 10 men during a 2013 session).9 An even a smaller per- centage serve as lead counsel at trial.10 The inequity is not just in leader- ship positions, but also compensation. The average salary of women lawyers ranged from 14 to 30 percent less than men’s over the past decade.11 Exten- sive research documents the so-called Studies showthat female attorneys often lackadequate access to mentoring, networking,and clientdevelopment.
36 March 2014 || Trial Gender Equity in the Law || The Power of Gender Equity “motherhood penalty” applied to wages and evaluations. And the “pay gap between mothers and nonmothers is larger than the pay gap between men and women.”12 Studies show that moth- ers and pregnant women were judged as less competent, “less committed to their jobs, less dependable, and less authorita- tive, but warmer, more emotional, and more irrational” than equally qualiﬁed childless women.13 Clearing the Hurdles There has been a traditional notion that “if women are underrepresented, the most psychologically convenient explanation is that they lack the neces- sary qualiﬁcations and commitment.”14 But the truth is that women encounter signiﬁcant hurdles in obtaining equal opportunities in the workplace. One of the main issues impeding equality is the unconscious stereotype engrained in the culture of many law ﬁrms. It shows itself in the dreaded dou- ble standard women face when they risk being branded as aggressive or abrasive while the same behaviors in their male counterparts are applauded as ambi- tious or conﬁdent. At times, women are forced to play “Goldilocks” to prevent the perception that they are too “soft” or “overly emotional” while avoiding any appearance of being vociferous or too forceful. Achievements are often associated with external factors such as luck and physical attributes when men’s similar achievements are attributed to their internal capabilities.15 Working mothers are often consid- ered less committed to their jobs than their male counterparts.16 When this cognitive bias is in effect, employers are more likely to recall information that conﬁrmstheirassumptions.Anemployer who believes a working mother is less committed to her work will recall the times she arrived late or left early, but not the times she stayed late or worked at home at night. Moreover, the work- ing mother’s assignments may be guided by an assumption that her family obli- gations will render her less committed and thereby less competent to perform importanttasksinhigh-proﬁlelitigation. This, in turn, affects her compensation and ignores her dedication to finding ways to get the job done. Studies also show that female attor- neys often lack adequate access to men- toring, networking, and client develop- ment. The stereotype that women aren’t as committed to networking or client development results in their exclusion from social events that may provide these opportunities.17 This exclusion makes it more difficult for women to establish mentoring relationships with attorneys who have similar backgrounds and experience. Similarly, professional development opportunities often are not provided to married female attorneys because partners are reluctant to spend time mentoring women whom they per- ceive as leaving once they have children, essentially setting up these women for departure.18 Yet another hurdle is inﬂexible work- place structures. For example, few law ﬁrms provide days for attorneys to work from home or part-time.19 Parents may feel that approaching partners about reduced work hours or a more ﬂexible work schedule (such as working from home) would endanger their position at the ﬁrm.20 And unmarried associates often end up having a disproportionate amount of work because they are seen as havingnoreasontorefuseit.Yetreduced hours or a ﬂexible schedule does not sig- nify reduced commitment to the ﬁrm.21 Research has shown that many “part time employees are more productive than their full time counterparts.”22 What Women Can Do These obstacles paint a grim picture of the current state of gender equity in the legal profession, but there are many things women can do to mitigate the situation. It is vital for female lawyers to have a mindset for success and to learn resilience in the face of adversity. Many female attorneys have encoun- tered a situation in which their gender has been a setback to reaching a goal. Rather than harboring resentment, it is important to learn from those situations and to continue to strive for success. One of the ways to foster this conﬁdence is to ﬁnd a mentor. When female lawyers mentor other female lawyers, we cre- ate a community that will support each other inside and outside the court- room.23 Whether reading and editing When female lawyers mentor other female lawyers, we create a community that will supporteachother inside and outside the courtroom.
Trial || March 2014 37 briefs, practicing oral arguments, pro- viding feedback on deposition outlines, or openly discussing gender challenges, mentoring can give women support for professional success. ENetwork, network, network. Mentoring may be limited at small law ﬁrms or overlooked at ﬁrms with few female lawyers. Yet networking with colleagues outside your law firm can provide potential mentors and valuable referral sources.24 If networking after work is difficult, you can make new contacts by attending continuing legal education(CLE)seminarsatlunchorfor a day. You can also make connections by attending American Association for Jus- tice, Mass Torts Made Perfect, National Institute for Trial Advocacy, or local bar organization events. To maximize your time, review the schedule ahead of time and organize meetings with those you would like to meet to build referral net- works. The ability to provide a source of referral cases to your law ﬁrm is vital for success in any law ﬁrm and enhances your value to the ﬁrm. ELearn, study, master. Obtain extensive knowledge about the litigation on which you work, and ﬁne-tune your brief writing and oratory skills. Men- toring and networking can aid in this endeavor, but you also need to be aware of new cases, literature, and practice methods to sharpen your skills. Establishing a niche can make you indispensable to your ﬁrm. Whether it is becoming an expert on the science in a personal injury case, ﬁnding key liability documents, or drafting crucial discovery documents, demonstrating your knowl- edge of a case can deﬁne you as a leader. In addition to educating yourself, ensure that you speak at CLE events to estab- lish name recognition—for both you and your law ﬁrm. Participating as a speaker can also lead to leadership opportuni- ties in trial and state bar organizations, as well as litigation committees. MILLION DOLLAR ADVOCATES FORUM
38 March 2014 || Trial Gender Equity in the Law || The Power of Gender Equity EAnalyze your performance. Women have a role in debunking ste- reotypes that impede how they are perceived by their law firms, defense counsel, judges, and jurors. Reviewing yourowndepositiontranscripts,hearing transcripts,speeches,andbriefscangen- erate self-awareness about how others perceive you. Establish your own style andwhatworksbestforyourpersonality. Having mentors examine transcripts or briefs to provide constructive criticism can help break bad habits and reinforce positive skills. What Men Can Do Women cannot achieve gender equal- ity alone. Sometimes men’s role in sup- porting gender equity is neglected, but men should help level the playing ﬁeld by encouraging, supporting, and men- toring female lawyers just as they do for male lawyers. Men: Ask women their opinions on important issues and case strategy and then genuinely weigh their input. You should assign women high-proﬁle cases to provide visibility in the legal commu- nityandgivethemcreditfortheiraccom- plishments, along with constructive feedback.25 If you are unable to mentor femalelawyersintheﬁrmdirectly,intro- duce them to other attorneys who can. Oneofthebestwaystodothisisthrough networking and educational events con- ducted by members of trial lawyer orga- nizations. Supporting women to take leadership roles in these organizations can also broaden your professional con- nections and the ﬁrm’s recognition. Bring women along to case develop- ment meetings and networking events. Women not only add unique and inter- esting perspectives, but they also may be well educated on the litigation they han- dle and able to develop referrals. Intro- ducethemtocontactstohelpthemcreate relationshipsandteachthemaboutclient generation.Encouragewomentomarket themselves and the law ﬁrm by speaking at CLE seminars, luncheons, and other events. Supporting a female attorney’s professional development ensures a future return on the ﬁrm’s investment. Politics are a part of the legal profes- sion;besuretokeepfemalelawyersinthe loop. Help women lawyers understand the unwritten rules, power structures, and alliances to which they may not be privy.Beanallytowomenwithintheﬁrm and on boards and committees; support their advancement and leadership. Women have an enormous amount to contribute to the practice of law. Increasing diversity in your practice leads to favorable verdicts and greater proﬁts. The ﬁrst step is acknowledging theobstaclestogenderequalityandthen creating organizational and procedural vehicles to remedy it. As Hillary Clinton noted, “[T]ime alone is unlikely to alter significantly the underrepresentation of women in law ﬁrm partnerships.”26 We all need to embrace a sense of responsibility, not simply because it is the right thing to do, but because it is in our clients’ best interest and because it furthers our suc- cess as trial lawyers. Together, women and men can create a climate of equal opportunity, compensation, advance- ment, and responsibility. Kim Dougherty is the managing attorney of Janet, Jenner & Suggs in Boston. She can be reached at KDougherty@myadvocates.com. Soﬁa Bruera is an associate with Blizzard & Nabers in Houston. She can be reached at SBruera@blizzardlaw.com. Notes 1. Michael Kimmel, A Black Woman Took My Job, in Understanding Inequality: The Intersection of Race/Ethnicity, Class, and Gender 103, 104 (Barbara A. Arrighi ed., 2d ed., Rowman & Littleﬁeld Publishers 2007). 2. Michael Kimmel, Men Advocating Real Change, Why Men Should Support Gender Equality, http://onthemarc.org/blogs/22/97 (June 6, 2012). 3. See Credit Suisse Research Inst.,Gender Diversity and Corporate Performance 3 (Aug. 2012), https://www.credit-suisse. com/newsletter/doc/gender_diversity.pdf (study of the performance of 2,360 companies over six years found that “companies with one or more women on the board [of directors] have delivered higher average returns on equity, lower gearing, better average growth and higher price/book value multiples.”). 4. Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients 81 tbls. 3.14 & 3.15 (Springer 2010). 5. Lorelie S. Masters, What Women (Lawyers) Want—and Need, 27 Leg. Times (Apr. 26, 2004), http://jenner.com/system/assets/ assets/5680/original/masters_legaltimes_ Menshould help level the playing ﬁeld by encouraging, supporting,andmentoring female lawyers just as they do for male lawyers.
Trial || March 2014 39 MORE ON GENDER EQUITY Visit the Web pages below for additional information. AAJ SECTION Civil Rights www.justice.org/sections AAJ EDUCATION PROGRAM 2013 Annual Convention: Civil Rights Section CLE www.PlaybackAAJ.com 42604.pdf?1324410807. 6. See Kimmel, supra n. 2. 7. ABA Commn. on Women in the Profession, A Current Glance at Women in the Law 2, 4 (Feb. 2013), www.americanbar.org/content/ dam/aba/marketing/women/current_ glance_statistics_feb2013.authcheckdam. pdf. 8. Id. at 2. 9. Debra Cassens Weiss, Few Minorities and Women Argued Supreme Court Cases This Term, ABA J. (May 14, 2013), www.aba journal.com/news/article/few_minorities_ and_women_argued_supreme_court_cases_ this_term. 10. Claire Zillman, The Careerist, Where Are the Women Litigators?, http://thecareerist. typepad.com/thecareerist/2011/03/ the-absence-of-women-litigators.html (Mar. 3, 2011). 11. See ABA Commn. on Women in the Profession, supra n. 7, at 6. 12. Shelley J. Correll et al., Getting a Job: Is There a Motherhood Penalty?, 112 Am. J. Sociology 1297, 1297 (Mar. 2007) (citing Ann Crittenden, The Price of Motherhood: Why the Most Important Job in the World Is Still the Least Valued (Metropolitan Books 2001). 13. Id. at 1298 (citing Sara J. Corse, Pregnant Managers and Their Subordinates: The Effects of Gender Expectations on Hierarchi- cal Relationships, 26 J. Applied Behavioral Sci. 26, 25 (1990) & Jane A. Halpert et al., Pregnancy as a Source of Bias in Perfor- mance Appraisals, 14 J. Organizational Behavior 649 (1993)). 14. Deborah L. Rhode, ABA Commn. on Women in the Profession, The Unﬁnished Agenda: Women and the Legal Profession 6 (ABA 2001). 15. Deborah L. Rhode, From Platitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Geo. J. Leg. Ethics 1041 (2011). 16. Id. at 1048. 17. Id. 18. Id. at 1071. 19. See Rhode, supra n. 14, at 7. 20. Id.; Def. Research Inst., Women in the Courtroom: Best Practices Guide 8 (Def. Research Inst. 2007) (“In exit interviews with female litigators who leave law ﬁrms, the oft-cited reason is that although ﬁrms claim to provide ﬂexible schedules, the stigma, both spoken and unspoken, is too great to bear.”). 21. Rhode, supra n. 14, at 7. 22. Id. 23. Rhode, supra n. 15, at 1070. 24. Id. at 1071. 25. Def. Research Inst., supra n. 20, at 12 (One of the initiatives for developing female rainmakers includes “ensuring client contact by female attorneys for each ﬁle on which the female associate is handling client communications and is responsible for development of the client relationship.”). 26. Rhode, supra n. 14, at 13.