The Legal Advocate

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August 2017 Executive Director’s Letter: Speaking of Women . . .

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Lockwood_KarenThis is a letter of fact, history, and call-to-action.

We have spoken of women before . . .

In 2005-06, I served as President of the Women’s Bar Association of DC, the oldest continuous women’s bar in the US. We courageously led an “Initiative” on women in the law. The title was carefully chosen to achieve our goal, and it connotes volumes:

  • Men are a critical part of the will to act to advance women in the law.
  • Talk alone is not productive, but discourse is a precondition to the will to act.
  • The Profession must commit to take the initiative if we are to change.
  • Competition to achieve agreed goals keeps men and women lawyers alike focused on the task.
  • Good will between advocates and doubters is essential to the discourse required to attack the factors at play – social “norms,” bias that ignores and sustains “norms,” stereotypes that disclose biases, blindness to factors at play, lazy thinking, unexamined business practices, and – ultimately — business systems and structures that perpetuate all of this in the profession.

The entire DC legal community stepped up to the Initiative – 220 men and women – from all sectors of practice. We got them to exchange problems and diagnose causes over 16 hours of structured dialogue. We took it in stages — reducing ignorance, talking frankly, examining current measures to advance women, and admitting that those measures are not enough. Inclusive community discussions would be of even greater value today than in 2005.

Then we wrote up a host of measures to improve the advancement and retention of women in the law. What we wrote was what the DC legal community discerned, deplored, and developed in those 16 hours. You should read it. WBA-DC Initiative Report 2006. (See also WBA-DC reports 2007-10.) What was left is the doing.

I then placed with the New York Times – with great luck and the wonderful journalist Tim O’Brien – the framework for what became the Times’ extensive Sunday Lead Feature article on this subject – page one, above the centerfold. Up The Down Staircase (NYT Mar 19, 2006). I referred him to key leaders to interview, he found more, and the Times sent photographers around to shoot us on location. It was a big thing. It was important. And Tim O’Brien got it right.

Tim asked me this important question during the series of calls we had (to paraphrase): “So the profession of law, charged with doing justice and upholding the laws against discrimination, is discriminating? ” My answer: “No. Law firms are way beyond discrimination — this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination.” This is bigger, squishier, and harder to attack. This is about changing how the profession grows and matures its future leaders – how it gains the will to keep the 50% of law grads who are women, a population bleeding out the talent base when they quit. And of course the obstacles are compounded for women of color and others who don’t seem to look like the classic male U.S. lawyer of the past.

I set my alarm for 5 am that Sunday to hit the drug store for my copy of the Sunday Times. We had set a path forward for open dialogue and productive change – and the nation knew now.

We are repeating ourselves still . . .

Eleven years later, are we still arguing about this?

NITA takes action through even-handed coaching of every lawyer who wishes to improve trial skills. We routinely have many women along with men in our trial advocacy sessions. We see no distinction between the genders in the trial skills they bring with them, or the great gains they make with us. They exhibit ambitious, use drive, and blossom under the individual attention and coaching at NITA.

But courtrooms remain skewed. In the August 8 New York Times Op-Ed piece, Females Can Talk, Too, recently retired Judge Shira K. Scheindlin (SDNY) related a courtroom scene, still so common, of a lead trial lawyer (most often male) turning to his co-counsel (a woman lawyer) to learn how to answer the judge’s question. She knows the case and its nuances. The Judge’s judicial group recently tallied how many New York courtroom appearances in a 4-month period featured women as the primary speaker in open court. In the 2800 court appearances noted, only 20% of those for cases between private parties featured women lawyers. Among all the cases (thus including public sector and public interest practices), only 25% were led by women. See also this Law360 follow-up article.

The readers’ comments to Judge Scheindlin’s piece included many reflecting a rush to judgment – even intemperate — with facile “values”-based assertions. Among others, those that attack the talent and capabilities of women as a gender to practice trial law are wrong, as I have said above. Those that ponder the societal pressures on family raise a real issue that our DC Initiative pondered too; and yet the balance between satisfaction at one’s career weighed against the satisfaction at having singular childcare responsibilities is often unfairly skewed because of negative stereotypes and forestalled opportunities at work. See The Difference Difference Makes (Deborah L. Rhode for the ABA 2003). There is no reason why females as opposed to males should be predominantly downsizing their career ambition – including women trial lawyers.

The call to action . . .

Let’s stop doubting . We have lot of work already written on diversity in the law and women’s advancement. I have cited just some of the older articles in this post in order to make that point – this is not new knowledge.

Let’s stop attacking the messengers. Learn, share, integrate it into your reality, pass it on, and continuously pursue new better ways.

In offices and bar groups around the country, take up the problem of how the profession represses our promise, capacity, reach and influence by losing diverse talent.

Recognize that this will take time and real work. Our efforts must not cease if numbers don’t seem to change in a New York minute (or to modernize it, in an Online essay). Rather, we must work together to discern the implicit bias, resist its influence, and uproot its patterns, firm-by-firm.

Everyone likes a list; here is my start —

  • Stereotypes are relatively easy to list out. Make lists with your practice colleagues.
  • Implicit biases underlie those stereotypes. Fereet them out through discussion with your practice colleagues; list them.
  • Jealously attack the business systems and accidental processes in your law office – all of them. They threaten to rob you of your best intentions.
  • Talk about this individually to every one of the lawyers you work with. Talk objectively and listen sharply, regardless of your secret impression of them.
  • Decide what initiative to take this year.
  • Measure and report – to all of the lawyers in your office.
  • Decide what initiative to take next year.
  • Ditto.
  • Keep it up. (Embedding change to conquer bias takes time.)
  • Get your corporate client’s help. Ask for it.

If you have trouble imagining initiatives, let me know. For example, put women in court no matter how much you yearn to stand up yourself. Be there with her – so she too has someone to consult during her argument and to pull her documents. So she can emerge proud that she did well AND that you saw her do so!

While you are taking that course of action —

  • Google past articles and sources on implicit bias, women in the law, and racial and ethnic diversity in the law. Look in journals like Harvard Business Review, and bar association reports. Buy the numerous superb concise books written by the women lawyers who consult in this field. Our armed services are quite good at this, and they share through the internet. Seek out the theory and the research; go deeper than the popular literature.
  • Read it all.
  • Demand open and critical thinking of yourself.
  • Discuss, opening dialogue in your office, your city, and beyond.

Your implicit biases are your own personal set, and you won’t ever be rid of them. But you can learn to recognize the “bias moments” that seem to cue a harmful bias in you. If you can see that, you can refuse to be sullied by it. I know; I work every day to find and counteract mine.

Tell me what you are doing. This is core to NITA’s mission to extend justice to all populations, through training of a profession across all sectors. By teaching the art of advocacy to every type of advocate.

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

About Karen M. Lockwood

Karen is the Executive Director at the National Institute for Trial Advocacy. Karen brings the insights and creativity rooted in serving corporate and business clients, first-chairing numerous jury and bench trials, and arguing appeals. Her specialty areas have included construction litigation, large disaster cases, multi-party commercial disputes involving all types of contracts, antitrust, trademark and copyright, and ADR.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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