Promoting women as lead counsel: the role of the bench, in-house counsel, and the media

We know, and it is increasingly well-accepted, that diversity enhances advocacy and litigation outcomes - and that juries expect to see women in active roles at trial. Yet the historically dismal statistics on women in lead counsel roles remain on display in courtrooms across the country on any given day. While strides have been made, we have a long way to go to achieve equality for women lawyers in these roles. Together with internal support from women lawyers' stakeholder colleagues, the bench, in-house counsel, and the media all have a role to play in accelerating progress toward this goal.

So what progress has been made? A 2017 New York Bar Association Report revealed that female attorneys comprised only about 25% of lawyers in lead counsel roles throughout New York. This figure tracks statistics from a 2015 American Bar Foundation Report which analyzed cases filed in the Northern District of Illinois and found only 33% and 21% of women, respectively, in lead counsel roles for the civil and criminal cases studied. Three years later, a 2020 New York Bar Association Report repeated the same study and found a disappointing increase of only a fraction of a percentage point for women in lead counsel roles - 25.3% up from 25% in 2017. At the same time, the Report found that women comprised 36.4% of additional counsel roles, a stronger increase of 9 percentage points from the 2017 findings. This meant that more women attorneys were appearing in court, although not in lead roles.

Given this record, what more can be done? For starters, the judiciary and corporate clients have a major role to play in the effort. When courts and in-house counsel speak, the traditional power structure listens.

Increasingly, courts have taken affirmative steps to promote, and even require, diversity. One approach has been to encourage junior attorneys to take speaking roles. For instance, in 2017, a survey in the New York Law Journal reported that 19 federal judges had issued standing orders encouraging law firms to give younger lawyers increased courtroom responsibilities - a number that has doubtless grown. Here in the Central District of California, for example, U.S. District Judge André Birotte's Standing Order incentivizes counsel by advising that "[t]he Court is more likely to hear oral argument if any party files a notice at least 7 days before a scheduled hearing stating that junior counsel will conduct the argument, or at least the lion's share." And in the District of Massachusetts, U.S. District Judge Indira Talwani's Standing Order states that she "[s]trongly encourages the participation of relatively inexperienced attorneys in all court proceedings."

Courts have also begun to demand diversity in leadership rosters in class actions and multidistrict litigations, which have long been dominated by white male counsel. For example, U.S. District Judge James Donato rejected an all-male leadership team in a consolidated class action over Robinhood, directing counsel to return with a team reflecting "the diversity of the proposed national class." U.S. District Judge Robin Rosenberg hand-selected a team to lead a multidistrict litigation, noting that diversity was a key factor in her decision-making. And U.S. District Judge Manish Shah told counsel that he would be looking for details on team diversity and the potential for "substantive work for junior attorneys" in lead counsel applications.

In-house counsel - where gains in the numbers of women leaders have far outpaced those at private law firms - also increasingly have mandated diversity in their outside counsel teams. According to the Global Legal Post, the gender balance of general counsel appointments at U.S. Fortune 500 companies reached near parity for the first time in 2021, when 49% of the new General Counsel announced were women. That nearly equal gender balance reflected dramatic strides from years prior - up from to 42% of the 2020 appointments being female and just 28% in 2019. By contrast, law firms serving as counsel to these companies have lagged far behind. A 2022 American Bar Association report found that only about 22% of all equity partners in 2020 were female, though more than half of all law school graduates are women. Yet, as in-house counsel have become more diverse, these clients have mandated change. They are actively seeking out female counsel for lead roles, dispensing with the default to the senior relationship partner, and requiring concrete plans from outside counsel for diversifying their teams in order for firms to retain the engagement.

As courts and clients take bold affirmative steps to promote equality for women lawyers in the courtroom, the media can make a meaningful contribution too - including by publicizing the roles of women in courtrooms and highlighting their advocacy and litigation outcomes in the press.

Together, these collective efforts are sure to pay dividends - sooner rather than later, if luck is on our side.

Koren (Kori) Bell is a partner at Willkie Farr & Gallagher LLP.