By now, I am sure many of you may have seen the recent report issued by the Commercial and Federal Litigation Section of the New York State Bar Association (NYSBA) titled “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR.” Published in July, the study documents the work of the Section’s Task Force on Women’s Initiatives. The task force devised and distributed a survey to state and federal judges throughout New York and then compiled the results. Unfortunately, the task force found a continued disparity and gender imbalance in the courtroom and in ADR.
The first questionnaire the task force developed was sent to federal and state judges; it assessed proceedings at each level of court system including trial, intermediate and court of last resort in both state and federal courts. The task force received 2,800 completed questionnaires back from the bench, which included astonishing results.
In summary, it was reported that female attorneys represented only 25.2 percent of the attorneys appearing in commercial and criminal cases in courtrooms across New York State. With respect to lead counsel roles, only 24.9 percent of women comprised such a role in state courtrooms. The study also revealed that with respect to complex commercial cases, a woman’s role as lead counsel diminished in relation to the number of parties. For example, in one-party cases, women were lead counsel 31.6 percent of the time; however, in three- to four-party cases, that number dwindled to 19.5 percent. On a positive note—at least for women practicing in Rochester and other upstate areas—the numbers appear to be worse in downstate New York.
The study revealed that public interest had the best numbers associated with women in lead counsel roles (30.9 percent), with private practice being at the bottom: 19.4 percent of women were in lead counsel roles in both civil and criminal matters. Regardless of the practice area, the low percentage of women attorneys appearing in speaking roles in courts was found in every court level, every court type and every practice area.
From my own experience as a young female litigator, too often are we charged with the responsibility of researching and preparing a detailed summary judgment motion or a motion to dismiss in a complex case. The first sense of accomplishment as a young associate was to finalize the motion and get the OK from the powers that be that you could in fact sign your name on the dotted line as counsel for your client. From that point, you monitor the motion return date, review the opposition and are most likely asked to prepare the reply.
The next step was looking forward to the motion return date and bringing the arguments you wrote (and know the best) to life in the courtroom. Isn’t that what we all practiced in the same moot court programs in law school? Even so, when it came time to appear on the motion return date for oral argument, sadly it was not a shock to learn that you would not be the one arguing the motion. While sometimes there were legitimate reasons given for such decision (i.e., at the client’s request), too often there were not.
As I made more and more appearances in court and had more interaction with the bench, it was evident that some judges were not naïve to our plight. I am thankful to the judges that I appeared before in my early days of practicing law who took notice of the fact that the name on the motion papers was not the person who stood before the court to argue the motion and were vocal about it. A good read in that regard is a recent New York Times article by Shira A. Scheindlin, dated Aug. 8, 2017, titled “Female Lawyers Can Talk, Too.”
While that is just one small example of my personal experience, I am confident that many of you could think of an instance where a similar situation happened to you or you observed something similar. It is reassuring to know that with the efforts of Chief Judge Janet DiFiore and past Chief Judge Judith S. Kaye, great strides have been made (specifically at the Court of Appeals level) with respect to women and their role in the courtroom.
In addition, Judge Elizabeth A. Wolford has made recent changes to her courtroom rules in an attempt to address some of the concerns raised in the study. While this column will run after our event, Judge Wolford graciously agreed to speak at GRAWA’s New Membership Reception on Sept.13 about the NYSBA study and improvements that are being made to address the disparities that continue to follow women in the legal profession. I look forward to hearing Judge Wolford’s thoughts on the study and hope others will follow in her footsteps. The NYSBA study includes a summary of recommendations that I encourage law firms and the judiciary to review and consider implementing.
When reviewing the results of the NYSBA survey, it appears that while we have heard more and more about the importance of diversity in our profession and having a “diverse legal team,” such terms remain mere labels and get thrown around a conference room table for the sake of being politically correct.
To those employers of legal professionals who have clear diversity and Women’s Initiative programs in place, I applaud you as your actions have spoken louder than words. While it appears you remain the minority, with the help of our judges and bar and business leaders, I am optimistic that the road to change is being paved and the barriers women face will be overcome. I can only hope that I am still practicing law by the time it happens.
Jodie Ryan is of counsel in the Rochester office of McElroy, Deutsch, Mulvaney & Carpenter, LLP, and president of the Greater Rochester Association for Women Attorneys.