Push for Diversity

in Lead Counsel
Gains Momentum

With new research proving a disappointingly low level of gender diversity

in lead counsel positions, legal leaders
are intensifying their push for change.
The study was very conclusive,
says Chief Judge Ruben Castillo of the
U.S. District Court for the Northern
District of Illinois in Chicago. It raises
what I consider to be a very serious
issue of the profession. It cant just be
a report that comes out, gets a little bit
of sunshine, and then gets shelved on
somebodys bookcase.
Thats why Castillo is among those
seeking change. From efforts and
initiatives sponsored by court and professional organizations to academic
research and individual lawyer mentoring, the issue has gained traction. Now
its proponents are seeking critical mass
to accomplish sustainable gains.

Facts Paint Frustrating Picture

The study Castillo is referring to

funded by the ABA Commission on
Women in the Profession (CWP)
and the ABA Foundationtracked
information on appearance forms in
a random sample of about 600 civil
and criminal cases filed in 2013 in
the Northern District court. At issue:
How many women appeared as lead
or a trial lawyer for plaintiffs and
defendants?
The findings were reported by
8

Perspectives

New Report Serves as

Catalyst for Growing
Efforts to Provide Women
with More Opportunities
to Lead Litigation
By G.M. Filisko
authors Stephanie Scharf, a founding
partner of Scharf Banks Marmor LLC
in Chicago, and Roberta D. Liebenberg, a senior partner at Fine, Kaplan
and Black, R.P.C., in Philadelphia,
in this years First Chairs at Trial: More
Women Need Seats at the Table. Among
the results are these sobering facts:
In civil cases, men are three
times more likely to appear in
lead roles than women. Thats
a marked departure from what
we expected based on the distribution of men and women
appearing generally in federal
litigation (a roughly 2 to 1 ratio)
and the distribution of men and
women in the legal profession
(again, a roughly 2 to 1 ratio),
the authors wrote.
In 59 percent of civil cases, lead
counsel are all men; in 13 percent, all lead counsel are women.
Class actions are dominated
by males, with 68 percent of
appearances filed by men; men
made up 87 percent of all the
lawyers who designated themselves as lead counsel in class
actions.
The study has triggered further
research. Jaya Ramji-Nogales, a professor at Temple University, Beasley
School of Law in Philadelphia, has just
begun a one-year follow-up research

project intended to be a quantitative

and qualitative study on gender equity
in leadership in multidistrict litigation
nationwide. Ramji-Nogales has a oneyear funding commitment she hopes
will be extended if her results warrant
further exploration.
Its a nice complement to the ABA
study, Ramji-Nogales says. We plan
to go back as far as we can, to the early
1990s, and pull the dockets to see what
we can find. Well supplement that
with interviews asking about the patterns we see in the data and talking
to people about whats actually going
on. I think theres going to be gender
inequity, and I think therell be racial
inequality, too. The question is why.
While Ramji-Nogales focuses on
the why, Liebenberg and others are
implementing initiatives now. Whats
really helpful about this study is that it
sets forth specific strategies to address
the problem, says Liebenberg, who has
also served on the ABA Gender Equity
Task Force. But there are no quick
fixes. This is a problem we need to
really take on.
Judges Heed That Call

Answering Liebenbergs call early

has been the ABA CWP. It sponsored
a continuing legal education program
at the ABA Annual Meeting in August
2015 on what women can do to forge a

Published in Perspectives, Volume 24, Number 2, Fall 2015/Winter 2016. 2016 American Bar Association. Reproduced with permission. All rights
reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.

path to lead counsel positions (available

for purchase to view online; see page
15 of this issue). Castillo was among the
panelists, and his court is further pressing the issue by cohosting with the
Chicago Bar Association an April 21,
2016, conference on the topic, which
will offer participants CLE credit.
Were inviting most of the general
counsel of top companies to discuss
the issue, Castillo explains. We also
plan to have judges participate because
I think judges are part of the solution in how they handle the selection
of counsel for large, multidistrict cases
and the appointment of counsel in
pro bono cases, which were currently
reevaluating. We hope to not only
have a dialogue but to come up with
an action plan customized to our districtwhich is the third largest in the
countrythat can be a model for the
other 93 federal judicial districts.
On the agenda will be the trend
of women dominating jury pools and
whats already happening in terms of
gender equity in the U.S. Court of
Appeals for the Seventh Circuit and
the Northern District of Illinois, courts
that Castillo says are among the most
diverse in the country. Im talking
about things like Judge Diane Wood
now being chief judge in the Seventh Circuit, that key members of my
court are females, and that key members of the management committee in
my courtwe dont release names
are more diverse than ever. If you just
look at the seniority of my court, we
have more senior female judges than
ever before. Those are the leaders of
our court by definition, and theyre
also judges who have their fair share of
complex, heavy-duty litigation.
Liebenberg is likewise focusing on
the gains judges can make. Were continuing to work with the National
Association of Women Judges, the
National Association of Women Lawyers, and the Center for Women in
Law (CWL) to educate judges and
lawyers about the report and the steps
that can be taken to address this longstanding disparity our statistics and
findings from the report demonstrated.

Were creating a series of programs

about the report, and well continue to
present them, she continues. Theres
also a working group set up by the
CWL to talk about next steps and put
together program materials that bar
associations, courts, and law firms can
use to understand the steps that can be
taken to ameliorate the problem.
Judges have wide discretionary
appointment authority for special master positions, guardians ad litem, and
the lead or liaison counsel in complex commercial class action cases,
Liebenberg notes. Judges have a lot
of opportunities to appoint lawyers
to things like signature committees to
help raise the profile and visibility of
those lawyers, she says. For women
lawyers, thats helpful to shownot
only in their law firm but also in their
communitythat theyre leaders.
Clients Can Push Firms

Another route for making headway is through intensified efforts from

clients, says Paula Hinton, a litigation
partner at Winston & Strawn in Houston, who participated in the August
panel discussion.
If this is ever going to work, two
things have to happen, Hinton contends. One, clients have to really
be serious and enforce their programs where they say they want to see
diverse teams in their outside counsel. Some companies do that and do a
very good job of it. There are others
that have the policies and arent implementing them in a way that will effect
change. They need to devote the time
and resources to meet with the law
firms and then track the use of women
and minority attorneys at all stages to
be sure their policies are implemented.
It cant be done in a once-a-year client
review. It has to be more systematic.
Castillo agrees and expects that once
general counsel who attend the April
conference see the big picture, theyll
respond. I think theres a tendency
on the part of general counsel of large
companies to go back to the same well
when they get large cases they think
are significant, career-defining cases, he

notes. Sometimes you have to get people out of their natural comfort zone
to learn there are other options in representation and to learn whats going
on in actual courthouses in the United
States. Once they hear more, I think its
going to impact that easy route of just
going to the Rolodex and calling up the
same counsel, who tend to be males.
Be the Boss of Your Career

The second change Hinton advocates is from women themselves.

Remember youre the boss of you,
and youre responsible for your future,
she asserts. You will not sit in your
office and things will come for you.
That doesnt happen for anybody.
Were use to being rewarded if we did
our homework and got good grades.
Were in the working world now.
Womens work on this front
includes how you present yourself,
not being afraid to be relentless, and
establishing your presence, contends
Presiding Judge Sophia H. Hall of the
Circuit Court of Cook County in
Chicago. Hall has been assigned to the
Chancery Division overseeing business and equity cases, along with class
action litigation, for 15 years; in the
late 1980s, she served as president of
the National Association of Women
Judges.
Its very disturbing in a way, but
if Hillary Clinton were talking the
way Donald Trump is talking, do you
think shed be taken as half as seriously
as he has been? she asks. Its about
how women and men are seen as projecting voices. Theres still a difference
between the way a man says something
and a woman says it. Also, stick to
your guns, and be bright about coming up with a theory of your case and
about articulating that theory. The last
thing is an intangibleits a presence.
You need to claim the space as though
its yours, and you cant be apologetic
about being there.
All that doesnt mean you cant
have a sense of humor, Hall cautions.
You have to. Be careful where you
(Continued on page 14)

Published in Perspectives, Volume 24, Number 2, Fall 2015/Winter 2016. 2016 American Bar Association. Reproduced with permission. All rights
reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.

Fall 2015/Winter 2016

Push for Diversity in Lead Counsel Gains Momentum

(Continued from page 9)

show it, but do show it because not doing

it means youre not human. Those are
the things you have to bring to be lead
counsel. The rest is the politicswith a
small pof your firm and your clients.
You must make additional affirmative
moves, according to Hinton, starting with
being active in your firm. Step up and
take risks, and take opportunities to work
on matters outside your comfort zone,
she advises. If a partner is headed for
trial, ask: Is there anything I can do?
Hinton also recommends pursuing

pro bono opportunities that allow you

to manage cases that, frankly, make you
nervous. That should never stop, Hinton says. Two years ago, I did a big civil
rights matter, and Im not a civil rights
attorney. But I knew I could learn it, and
it was a case that put me out past my
comfort zone and kept stretching me.
And never underestimate the importance of involvement in professional
organizations. It also includes building
your profile, Hinton notes. Be active in
bar associations. Establish a reputation as

a doer in your local or state organizations.

Build your professional reputation by volunteering to speak, getting on CLE panels,
and writing. One needs to do that to build
a reputation because today very few of us
are down at the courthouse daily.

more than $1.2 million, pulled in more

money for a first-time candidate to Massachusetts state office than any before her.
She inspired people, says Lukey, crediting Healeys fresh ideas and tireless
commitment for attracting donors.
Its not easy to ask for money. But
it gets easier over time, says Lukey, who
first began to fund-raise when her law
school chum, John Kerry, asked her to
cochair financing for his second Senate
run and subsequent races.
The key to fund-raising, she says, is
to have your leadership bring in more and
more fund-raisers. Lukey describes a successful operation as being like a tree with
numerous branches that keep multiplying
and stem out further and further.

fund-raiser, she recently had to choose

between two womenAndrea Zopp and
U.S. Rep. Tammy Duckworthin their
Illinois races for the same U.S. Senate seat.
It was very tough, Bellows says. She
respects both women. But Zopps solid
stance on diversity and equal pay enforcement are two issues that Bellows feels
adamant about. And ultimately, she says, I
choose my candidates on the issues they
support.
Bellows contends that, even if Zopp
loses, her support sends a message to
Duckworth that she needs to be stronger
on Bellows key issues.
Every fund-raiser has strategies for
cajoling people into pulling out their
checkbooks. When Bellows wants her
closest friends to pony up, shell often ask
them to buy one less suit that year and
donate what theyd save.
Ill say, Start at your shoes and work
your way up. Tell me how much you
spent for what youre wearing. Write
me a check. And include your earrings,
please. She chuckles, They laugh and
they write.

G.M. Filisko is a lawyer and an award-winning,

Chicago-based freelance journalist who covers
legal, real estate, business, and personal finance
topics for such publications as the ABA Journal,
Consumers Digest, REALTOR Magazine,
AARP.com, and Bankrate.com.

They Show Us the Money

(Continued from page 11)

Association of Massachusetts in the late

1990s: I said, You dont have to support
these women candidates, but its the only
way were going to have an impact.
Legal Expertise Informs
Fund-Raising

Her legal expertise informs her fundraising in other ways. You understand
how the political process works, says
Boland, who often mentors women
sidling into politics for the first time.
Its number one, she notes, identifying
them, tapping them, encouraging them,
and saying, You can do it.
Among others, Boland helped jumpstart the political career of Katherine
Clark, a lawyer who sprang from school
committee chair to Massachusetts House
of Representatives to Massachusetts State
Senate to U.S. House of Representatives.
I feel very strongly about the candidates who Im supporting, says Boland,
and the impact that we as women
professionals, and women lawyers in particular, can make.
Similarly, Joan Lukey, practice group
leader for the Complex Trial & Appellate Litigation Group of Choate Hall &
Stewart LLP in Boston, recently chaired
the finance committee for Maura Healeys
successful run for Massachusetts attorney general. That operation, which raised
14 Perspectives

Who Are Women Backing?

Its not clear to what extent women

donors show preferential treatment to
women candidates, especially because
women tend to donate under $200, below
the threshold necessary for disclosure. The
Re:Gender report suggests that further
studies are needed on this issue.
There is little question, however, that
Laurel G. Bellows, a former president of
the American Bar Association and principal of Chicago-based The Bellows
LawGroup PC, leans toward the estrogen camp. A seasoned networker and

Ann Farmer is a Brooklyn, New Yorkbased freelance

journalist who covers breaking news for the New York
Times and contributes stories on culture, law, crime,
and other topics to publications including Emmy,
DGA Quarterly, Budget Travel, and others.

Published in Perspectives, Volume 24, Number 2, Fall 2015/Winter 2016. 2016 American Bar Association. Reproduced with permission. All rights
reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.