Stark Gender Divide Between Private and Public Sector Cases in New York

Female attorneys in New York are nearly twice as likely to represent parties in the public sector than private litigants, a study by the New York Bar has found.

The study found that female lawyers accounted for 38.2 percent of lead counsel in public interest cases, and 19.4 percent of lead counsel in private practice. Similarly, women made up 39.6 percent of the attorneys representing public entities and 18.5 percent of lawyers representing private parties in civil litigation. On average, women make up 25.2 percent of court appearances in commercial and criminal cases.

The study analysed 2,800 questionnaires completed by judges in trial, intermediate and high courts in New York at both the state and federal level. Judges were asked to record their observations of who appeared before them over the course of the last four months of 2016.

Carrie Cohen, a litigator with Morrison & Foerster and one of several co-authors of the study, said she experienced this discrepancy as a prosecutor in the Southern District of New York. Few of the defense attorneys she faced were women, she said.

“I tried at least ten cases as an Assistant U.S. Attorney and I only had one female adversary, and she was teamed up with a man,” said Cohen.

Judge Shira Scheindlin, who presided over cases in New York’s Southern District from 1994 to 2016, spearheaded the bar association’s research project in order to measure what she observed anecdotally as a paucity of women in lead counsel roles.

“I have to be frank, it didn’t surprise me,” Scheindlin said of the findings. “I know what I saw. I’ve always known that we see a lot more diversity in the public sector.”

Nonetheless, Scheindlin, now a senior member of the litigation group at Stroock in New York, said she was troubled by the difference in representation between public interest and private, commercial cases.

The study also found that in complex commercial matters, the more parties were involved in a case, the less likely a woman was to appear as lead counsel. Women’s representation as lead counsel shrank from 31.6 percent in one-party cases down to 19.5 percent in cases involving five or more parties.  

“I suspect that businesses are willing to take a chance on a young lawyer for a smaller case, but if it’s a bet the company case they’re not as willing to take that risk,” said Scheindlin. “They want the big name, the guy they’ve worked with forever, the leading figure in the bar, which tends to be men.”

In the report, Scheindlin and her co-authors made recommendations for how law firms, judges, and in-house counsel can increase the number of women who appear in New York courts. They encouraged law firms to give women more speaking opportunities in and out of the courtroom, and advised clients to push law firms for more diverse litigation teams. Judges, they wrote, can support women in the courtroom by encouraging them to speak if they have prepared the motions being argued and appointing more women as lead counsel.

“The law firms won’t change unless the clients demand it, and the clients won’t change unless they see that it’s beneficial to them,” said Scheindlin. “And it’s beneficial to them if the courts point out that they care.”

Write to the reporter at srussellkraft@gmail.com.

Write to the editor at gabefriedman@outlook.com.