The trial pitting Uber against rival Waymo in a high-stakes trade secrets dispute over self-driving car technology brought one of Uber’s attorneys, Karen Dunn, to the forefront publicly at a time when such complex commercial cases still have few female attorneys in top roles.
Dunn, an experienced litigator who has represented high-tech companies, questioned Uber founder Travis Kalanick during the trial. She is the lead attorney for the Uber legal team from Boies, Schiller & Flexner, which helped defend the start-up against Waymo’s accusations that it tried to steal driverless technology.
The trial ended abruptly Feb. 9 when Uber settled, but not before Dunn led Kalanick through questions laying the groundwork for Uber’s early interest in technology to help driverless cars see what’s around them.
Uber apparently decided that wasn’t enough to secure a win, but the exchanges between Kalanick and Dunn were unusual because they were among the few times when a woman attorney had a prominent speaking role in a major commercial case.
Women remain so scarce in such trial roles that coincidentally, and only the day before Kalanick’s court appearance Feb. 6, the American Bar Association took a step to boost the presence of women in top courtroom roles.
The country’s largest lawyer group, reacting to a study that showed meager representation of women in top litigation roles like Dunn’s, voted to adopt a measure urging law firms, judges and clients to step up efforts to provide women lawyers more opportunities to gain experience in trials and arbitration disputes.
Some women, like Dunn, have achieved recognition as voices in prominent legal cases, but data show that women in such lead roles in court lag way behind men. Women attorneys may do research and prepare witnesses, but they seldom examine or cross-examine, according to a new study from the New York State Bar Association.
“The norm is that the lead counsel – the person who leads throughout the trial and the lawyer the judge looks to first – is a man,” said Bernice K. Leber, an attorney at Arent Fox LLP, and a member of the New York State Bar Association task force that spearheaded the resolution encouraging equal opportunities for women lawyers.
Even though more than half the students graduating from law school are women, Leber said women attorneys often don’t have the opportunity to gain sufficient courtroom experience to prepare them for taking lead roles in cases.
There are many reasons why women are not more plentiful in the courtroom, she said, including the comfort level many male lawyers and company heads traditionally have with a male lawyer representing them. Clients need to step up and do more, she said.
“From my own experience as an associate at another firm, it was the client who suggested that I have a chance to take a bigger role in a trial. That led to my examining a key witness on the other side, and really helped my career,” she said.
Commercial and federal litigators as well as retired judge Shira A. Scheindlin, now with Strook & Strook & Lavan, backed a bar association survey to determine the number of female attorneys who appear in speaking roles in federal and state courts in New York – the venue of numerous high-dollar trials.
Women were only 25.2 percent of the lawyers appearing in commercial and criminal cases in New York courtrooms, according to the survey, “If Not Now, When?” that was commissioned by the New York State Bar Association then presented to the ABA.
Women comprised 19.4 percent of attorneys in private commercial cases, the survey carried out between September and December 2016 showed. The percentages were slightly higher when the government was a party, but still accounted for under 20 percent in the most complex cases, according to the report.
Overall, women litigators did slightly better in state courts – with 26.9 percent of all courtroom appearances and 25.3 percent of lead counsel appearances – than in federal court where 24.2 percent of all appearances and 23.1 percent of lead appearances were female attorneys.
Prominent female litigators who have represented clients in major cases include Rita M. Glavin, partner in Seward & Kissel’s litigation group, who won the acquittal on criminal charges brought against the former executive director of law firm Dewey & LeBoeuf; Roberta A. Kaplan, founding partner of Kaplan & Co., who successfully argued the Supreme Court challenge to the federal law requiring federal government recognition of same-sex marriages; and Lynne Hermle, of Orrick, Herrington & Sutcliffe, who prevailed on behalf of her venture capital firm client, Kleiner Perkins Caufield & Byers, against gender discrimination claims brought by former employee Ellen Pao.
Dunn, a former federal prosecutor, Supreme Court clerk and presidential adviser, also has previous wins for high tech companies, including high-dollar jury verdicts for clients including Apple Inc. and Oracle Corp. She is a partner at Boies Schiller at a time when the litigation firm has appointed new executive committee members, including herself and two other women. In recent months, the firm has been in the media glare in connection with former client, movie producer Harvey Weinstein. A civil racketeering lawsuit filed in November by six female accusers said Weinstein had the “aid of other firms and individuals to facilitate and conceal his pattern of unwanted sexual conduct,” and named Boies Schiller, but did not sue the firm.
There’s been little change over the past three decades, starting in 1987 when the ABA Commission on Women in the Profession was founded to, among other goals, identify barriers to women’s achievement as attorneys.
When the goal was revisited in 2015, the commission found that in civil cases “men are three times more likely than women to appear as lead counsel.”
Slow progress in expanding courtroom opportunities for women, according to the New York State Bar Association, contributes to the high percentage of women leaving the profession.
It is not only law firms that need to step up opportunities for women, said Leber, but also judges because they control the rules in the courtroom, and corporate clients, who increasingly are insisting on having a say in the composition of members of their outside teams dealing with a legal matter.
“In my experience, corporations can influence who is on a legal team and can insist that the team look like we do in America,” said Leber.
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CORRECTED: A previous version of this story reported that Boies Schiller faced a civil racketeering lawsuit in connection with its representation of Harvey Weinstein. Boies Schiller was named in the lawsuit, but was not a defendant.