Even as Google atones for its "diversity" sins by firing its one employee willing to speak honestly about the subject, we have a very similar morality play going on here in the New York legal profession. We have just learned that New York lawyers or their clients or the judges or somebody have for decades been secretly conspiring to keep women from advancing professionally in the litigation sector. Something must be done!
In July something called the Commercial & Federal Litigation Section of the New York State Bar Association, through a Task Force on Women's Initiatives, put out a big Report titled "Achieving Equality For Women Attorneys in the Courtroom and in ADR." The members of the Task Force are all women, headed by one Shira Scheindlin.
Have you heard of Judge Shira Scheindlin? Probably you have, but then, you probably also confuse her with Judge Judy Sheindlin, of TV fame, who is no relation. Shira Scheindlin was a federal judge on the Southern District of New York from 1994 (appointed by Clinton) until last year, when she retired to go to a private law firm. All federal litigators in New York heaved a collective sigh of relief. She seemed to have been born angry. There was no more unpleasant or difficult judge to appear before. Her biggest claim to fame as a judge was her series of decisions in a case called Zubulake, in which she singlehandedly multiplied the cost of civil discovery nationwide by setting rules making it impossible to put any reasonable limits on retaining and reviewing thousands (sometimes millions) of emails. She also regularly made highly ideological decisions that got herself reversed by the Second Circuit. In one notorious opinion, in 2013 she declared the so-called "stop and frisk" program of the New York Police Department to be unconstitutional. The Second Circuit reversed in a critical decision and, in an unusual move, removed her from the case. She was unrepentant.
So in her newfound retirement, Ms. Scheindlin turns her hand to excoriating the New York litigation community for its alleged sins of lack of "diversity," particularly as it concerns women. The Report collects statistics, both in New York and nationwide, on the under-representation of women as lead litigators appearing in court in trials and appeals. Examples:
The results of the survey are striking: Female attorneys represented just 25.2% of the attorneys appearing in commercial and criminal cases in courtrooms across New York; female attorneys accounted for 24.9% of lead counsel roles and 27.6% of additional counsel roles; the most striking disparity in women’s participation appeared in complex commercial cases: women’s representation as lead counsel shrank from 31.6% in one-party cases to 26.4% in two-party cases to 24.8% in three- to-four-party cases and to 19.5% in cases involving five or more parties. In short, the more complex the case, the less likely that a woman appeared as lead counsel. The percentage of female attorneys appearing in court was nearly identical at the trial level (24.7%) to at the appellate level (25.2%). The problem is slightly worse downstate (24.8%) than upstate (26.2%).
Notice the casual insertion into the statistics of value judgments about the results, tossed out without explanation and with the pervasive assumption that no reasonable person could possibly disagree. The under-representation (presumably meaning anything less than 50%) of women in these roles is a "problem." There is a need for "solutions." Any lower representation is "worse." Any somewhat higher representation is a "bright spot." And so on.
Meanwhile, do you notice that the percentage of women in these lead litigation roles in court in New York seems to be right in the same range as the percentage of women in technical jobs at Google? Check the stats at my post yesterday. But there is this difference: Google is one company. Everybody reports to the same top management. Therefore, it is at least a plausible hypothesis that a systematic under-representation of women in Google's ranks could be the result of centrally-directed discriminatory intent.
Now try applying the analogy to the legal profession. There are hundreds upon hundreds of law firms, and in New York City there are many dozens of quite large law firms (100 lawyers and up). Could they really all be systematically discriminating against women? Go to any of the large ones, and you will find that without exception they have some kind of internal "diversity" initiative dedicated to advancing women and various other minority groups within the firm. Are all of those diversity initiatives in hundreds of firms simultaneously just a hoax to fool outsiders while systematic discrimination continues? Moreover, clients don't typically hire the firm by brand name and then accept the lawyer that the firm happens to assign them. Rather, clients pick the individual lawyer that they want to represent them as lead counsel. Collectively, the number of clients in any given year is in the tens or hundreds of thousands. Literally all of them -- and certainly every single one of the corporate law departments -- will say if asked that they do not discriminate in choice of counsel, and are doing everything they can to increase "diversity." Could it really all be a sham?
Remarkably, among the large law firms, essentially all of them have gender diversity statistics that are nearly identical, or within a very narrow range. All hire approximately 50% women and 50% men at the entry level. All have about 30 to 40% women in the overall ranks. And all have about 20% women in the partnership. Within the partnership, almost always there will be more women in certain fields (e.g., trusts and estates, pension law, employment law) and fewer in other fields (e.g, corporate mergers and acquisitions, litigation).
Can you view these statistics and still believe that the cause of universal under-representation of women in certain areas is some kind of pervasive concealed bias, let alone a grand conspiracy? Judge Scheindlin does not say in her Report, but she gave an interview that appeared in the New York Law Journal on August 10. Excerpt:
Women are 50 percent of the graduating class at law school. They're getting offers at the big firms at the same rate as men, but then come the problems: Women are not getting the same opportunities to actually talk on their feet, to appear at courtrooms, to take or defend depositions. Something goes wrong once women arrive at law firms, and it's probably because the higher-ranking positions at firms are held by men and people tend to, unconsciously, work with people who look like them. Young men don't have to be more active or progressive. But for young women that isn't the case. Unless law firms make a conscious effort to bring them in and meet clients, go to court, take depositions, promote them and eventually make them partner, the gap is going to be hard to change.
Somehow, she seems to be unaware that those "conscious efforts" she talks about have been going on for decades.
For myself, I don't claim to have perfect knowledge of all the causes of "gender disparity" in the legal profession. However, as a long time law firm partner, I did have the experience of working with many dozens of female associates (as well as an equivalent number of male associates) over the course of three decades. It would have been hard not to notice the higher attrition rate among women over the years from the higher-pressure and longer-hour areas of the practice, of which litigation is one. More than anything else, this attrition for women was associated with having children. I have spent many, many fruitless hours in my life trying hopelessly to convince highly talented female associates that they really wanted to come back from maternity leave to the 12 hour days and over-the-weekend injunction motions and four weeks on trial in Kansas and leave their little kids at home with a babysitter. It never worked once. The number of women with children who stick with the high-end litigation business for a long term career is very few. What I don't understand is why anybody feels guilty about that or thinks that it is important to change.