Where is She?: The tactical importance of Her at the helm

Last month, a report released by the commercial and federal litigation section of the New York State Bar Association confirmed what I had felt to be anecdotally true for years: women attorneys make up only twenty-five percent of the leading counsel roles.  Despite my feelings of “well yeah… that’s about what I thought…” there were those who seemed shocked by this fresh evidence of imbalance. This study led several legal scholars and notable personalities to discuss the absence of women in leading or speaking roles and examine the potential steps to curb the disparity.

Diversity is a key theme in employee trainings, corporate handbooks, and HR guides. Companies in all sectors spotlight commitments to diversity in hiring practices, ongoing education, and continued support.  The benefits of workplace diversity are well documented for the favorable effect on practices and economic returns. There is no single American Experience; instead our culture is defined by its diversity.  We are a people shaped by race, ethnicity, gender, religion, values, and dreams. The advantage to diversifying the participants in the courtroom is no different and should be pursued, and paying attention to this aspect of your case is more important than ever.

It is well known that we should champion and strive for diversity among our ranks.  Very few people would publicly argue that a team of individuals with all the same characteristics, attributes, and styles would provide a variation in insight and add value to strategic decisions.  Instead, it makes intuitive sense that a pool of individuals with varying perspectives, experiences, and attitudes is far more capable of filling in the holes created by individual blind spots.

As a trial consultant, our clients are often highly concerned with the recruitment of mock jurors.  They want to be certain that our panel is diverse and reflective of the venue in which the case is filed.  They want to verify that we are using the full breadth of demographics to ensure we have responses from all races, ethnicities, genders, professions, and socio-economic classes.  We have never been asked to recruit a singular race or gender believed to have desired traits that would make them a ‘good jury.’  This is because there is an understanding that juries are diverse.  They come to us with individual experiences that flavor their attitudes, perspectives, and beliefs.  During mock deliberations, we see these diverse experiences play out as jurors negotiate issues of infringement, validity, and damages.  Why then, would we believe that we can speak to these individuals in one prescribed voice?

Diversity within a trial team is advantageous as it reflects the diversity among the community in which the case is being tried.  The wide range of perspectives brought by a trial team made up of varying races, ethnicities, genders, and communicative styles is critical for avoiding blind spots, giving voice to underrepresented populations, and adapting to the needs of the empaneled jury.  However, the tactical advantages of diversification continue to be underutilized. So, where is She?

Former U.S. District Judge Shira Scheindlin notes that although women are fifty-percent of the graduating classes in law school, and are receiving offers at large law firms at the same rates as males, they are not getting the same opportunities when it comes to courtroom experience.  Instead, the majority of complex civil cases are headed by male attorneys.

Instead, women are relocated to the preparatory roles, often preparing witnesses and writing the motions.  As Scheindlin (2017) states, there are several strategies to increase diversity in the courtroom.  Judges can work to improve diversity by asking that the attorney who prepared the witness, or wrote the motion, be the one to speak in court.  She also impresses the importance that women advocate for themselves by asking to go to court, take depositions, and argue motions as frequently as the males.

Ten years ago, Chief Justice Barbara Lynn of the U.S. District Court for the Northern District of Texas enacted a voluntary rule in her courtroom that firms sending young attorneys to argue their own briefs and motions hearings would be more likely to be granted an oral argument.  This “young lawyer rule” has resulted in an increased opportunity for women and minorities to gain valuable experience in court. Judge Lynn believes that the rule, while not mandatory, allows large firms to speak to its clients in a way which might be persuasive- “A lawyer can say to a client, ‘Judge Lynn really likes it when young lawyers show up.  We are not going to win or lose because of that, but she is going to appreciate it and it’s a good frame of mind for her to be in.’” Twenty to thirty federal judges have followed this example and enacted similar rules.

In February 2017, the organization Chiefs in Intellectual Property (ChIPs) published a survey of federal court judges across the country who have enacted similar orders.  In each instance, the Justice works to further the experience and opportunities given to young, often minority, attorneys in court.  “Young” should not be conflated with age alone; instead, several of these orders look specifically to an attorney’s time in the field.  Multiple orders “strongly encourage” lead counsel to delegate speaking roles to lawyers who have been out of law school for four or less years.  The order in Judge Alsup’s court (Northern District of California) states, “The Court strongly encourages lead counsel to permit young lawyers to examine witnesses at trial and to have an important role.  It is the way one generation will teach the next to try cases and to maintain our district’s reputation for excellence in trial practice.”

The New York State Bar Association report also highlights the role that clients should play in demanding diversity on their trial teams.  Corporate clients are beginning to directly state that its trial teams must be made up of diverse backgrounds and voices (Greenley & Hirschman, 2012).  Recently, companies such as Hewlett-Packard, Oracle, and Facebook have required that the firms representing them must contain a diverse team of lawyers (Scheindlin, 2017). In house counsel is in an optimal role to continue to push for the demand for diversity.

Judges, attorneys, and trial consultants should continue to look for opportunities to encourage and deploy diversity in the courtroom.  The advantages afforded to a team with wide ranging perspectives and experiences can make all the difference. She does not just write motions, prepare witnesses, and conduct the direct exam of the damage expert. Her words give voice to her authentic experiences and background- let her speak.

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