Gender Disparity in New York Courtrooms Persists Three Years After Landmark State Bar Association Report Decrying Inequity

Gender Disparity in New York Courtrooms Persists Three Years After Landmark State Bar Association Report Decrying Inequity

5.28.2020

By Susan DeSantis

Three years after a landmark report issued by the New York State Bar Association (NYSBA) outlined the significant underrepresentation of women attorneys in courtrooms across the state, a new study reveals that little progress has been made to change that disparity.

The new study, “The Time is Now: Achieving Equality for Women Attorneys in the Courtroom and in ADR” is released today. Both reports were prepared by NYSBA’s Commercial & Federal Litigation Section Task Force on Women’s Initiatives.

The 2017 report found that women comprised about 24.7% of attorneys in lead counsel roles in New York courtrooms, though those in the public sector fared better than their private sector counterparts. That report — “If Not Now, When? Achieving Equality for Women Attorneys in the Courtroom and in ADR” – did spur some positive changes.

However, the 2020 task force members – a majority of whom worked on the original study – found in a recently conducted update that improvements in the numbers were disappointingly minimal. Women now comprise 25.3% of attorneys in lead counsel roles – a limited increase from the 24.7% found three years ago.

“It is unacceptable and disturbing that more has not been done to improve representation of women attorneys in New York courtrooms when the task force’s 2017 report not only highlighted a significant disparity but outlined a road map for addressing it,” said NYSBA President Henry M. Greenberg.

“I was proud at the beginning of my term as president to launch an initiative that required all 59 NYSBA committees, task forces and working groups to be chaired, co-chaired or vice-chaired by women or other diverse individuals,” Greenberg continued. “Now, as I come to the end of my year-long tenure as president, it feels fitting to release this updated report, which underscores the need for us to remain vigilant to improve diversity across the legal profession.”

Retired U.S. District Court Judge Shira Scheindlin of New York City, who is of counsel to Stroock & Stroock & Lavan and principal author of the updated report, sounded a hopeful note while recognizing there is much more work ahead.

“The Women’s Initiative Task Force has again issued a groundbreaking report finding that women are now appearing in court more often than three years ago both in speaking roles and otherwise. We are pleased by this progress but recognize that there is still much room for improvement,” Scheindlin said. “The report makes many recommendations that we believe will increase the presence of women in both the courtroom and in ADR. Now is the time to implement these recommendations.”

Key findings of the 2020 updated report include:

• While women accounted for only 25.3 percent of lead counsel roles, they accounted for 36.4 percent of additional counsel roles.
• Women appeared with slightly greater frequency in trial courts than in appellate courts. In 2017, women made up 24.7% of appearances in trial courts but now the figure is 26.3% – an increase of nearly 2 percentage points. However, appellate court appearances for women were nearly unchanged at roughly 25%.
• The large gap between the public and private sector revealed in the 2017 study remains. In 2020, women made up 35.1% of public sector lead attorneys but just 20.8% of private practice lead attorneys. In 2017, the public sector number was 38.2%, compared to 19.4% in private practice.

The 2020 report makes a number of recommendations to improve gender equity across the legal profession, including the establishment of concrete programs to support, train and advance female attorneys in private firms with an emphasis on sponsorship; continued focus on diversity in outside counsel by inhouse corporate legal departments; and ongoing efforts by the judiciary to encourage more women in leadership roles in the courtroom.

The task force recognizes this year’s report is being released in the midst of the COVID-19 pandemic, which presents significant challenges to the legal community.

However, task force members noted in the report that they “remain resolute in continuing the forward momentum toward providing greater opportunities for women and minorities” and hope their recommendations “further those efforts both during and after the current global health crisis.”

Carrie H. Cohen, a partner at Morrison & Foerster and a co-author of the report, said despite the disappointing results of the survey, there still are a few bright spots in the latest findings. She pointed specifically to progress made by judges who took up the mantle and instituted broad-based changes to their individual rules of practice, increased focus on diversity by in-house corporate legal departments, and establishment of multi-faceted diversity initiatives by many law firms, which indicates that bar leaders are indeed committed to moving the needle.

“The legal community should view this report as a call to action – the time certainly is now to push forward on diversity and inclusion efforts,” Cohen said. “It is critical during this unprecedented public health pandemic that we double-down and increase focus on diversity efforts to ensure that the limited progress that has been made for women and minority attorneys is not lost, especially as women and diverse attorneys too often are disproportionately impacted by crises.”

Laurel Kretzing, chair of the Commercial & Federal Litigation Section, thanked her fellow members of the task force who so diligently compiled the research and wrote the report. She acknowledged the important contributions to the ADR portion of the report by Deborah Masucci and Theo Cheng of the Dispute Resolution Section.The task force members, all of whom were co-authors of the report and chairs of the Commercial and Federal Litigation Section, are:

• Shira A. Scheindlin (ret.), of counsel, Stroock & Stroock & Lavan
• Carrie H. Cohen, partner, Morrison & Foerster
• Tracee E. Davis, partner, Seyfarth Shaw
• Laurel R. Kretzing, bureau chief, Litigation and Appeals, Nassau County Attorney’s Office
• Bernice K. Leber, past president of the New York State Bar Association and partner, Arent Fox
• Sharon M. Porcellio, member, Bond Schoeneck & King
• Lauren J. Wachtler, partner, Barclay Damon

“It’s because of all of our work together that I’m optimistic that our report will lead to the better representation of women in courtrooms and ADR proceedings across New York,” Kretzing added.

Despite the disappointing representation of women found in the report, Cohen pointed out that Kretzing is the ninth woman to chair the Commercial & Federal Litigation Section. She called that record impressive especially when compared to the low percentage of women appearing as lead in complex commercial cases as demonstrated in both the 2017 and 2020 reports.

Sharon Porcellio noted the increased participation of the judges upstate and the increased roles of women as lead counsel in Erie County and in the Western District of New York as bright spots in the data.

The 2017 report was the first-ever observational study of the gender of lawyers who regularly had leadership and speaking roles in courtrooms.

For four months leading up to the 2017 report’s release, state and federal judges across New York filled out questionnaires that documented the types of cases and gender of the lawyers who appeared in – and, most importantly, spoke in – their courtrooms.

For the 2020 update, the task force employed similar methodology, though the results summarized in the updated report are based on more than 5,000 responses compared to approximately 2,800 in 2017.

The Commercial & Federal Litigation Section thanks DOAR, which provided analysis and technical support for the report.

About the New York State Bar Association

The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Susan Desantis
201-575-5756
[email protected]