August 8, 2017

"As a Federal District Court judge in New York, I often encountered this courtroom scene..."

"A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman). After he conferred with her repeatedly, I would ask myself why she wasn’t doing the arguing, since she knew the case cold. In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role — even though women have made up about half of law school graduates since the early 1990s...."

Writes Shira A. Scheindlin in an op-ed in the NYT.

81 comments:

Sebastian said...

"Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role — even though women have made up about half of law school graduates since the early 1990s." This is why we have seen many hotshot new firms founded by women, sweeping up all the undervalued female talent, using client preferences for female/minority representation, catering to impartial, non-stereotyping feminist judges who don't have to wonder why senior white man is lording it over poor junior woman.

Etienne said...

Women are biologically different. Irregardless of what Alphabet Inc thinks.

tcrosse said...

No relation to Judge Judy Sheindlin, alas.

traditionalguy said...

Why are they at a Large NYC Law firm since they are so good they can start their own law firm and beat the Good Old Boys. Hint: they are easy to beat, except for when the Judges owned by the Big Money Establishment.

How about that, Mr Judge.

Matthew Sablan said...

How often did those senior white male partners let junior white male partners argue cases, comparatively?

bagoh20 said...

They want to win. Information is just one part of it. Presentation, emphasis, etc are even more important. The O.J. trail was a perfect example. The prosecution had superior facts, but a convincing defense full of well presented bullshit won out.

I usually ask my subordinates for input before deciding things or presenting them, becuase although they often have more facts than I do, but they lack the experience, the broader view, and yes. wisdom to put it in proper perspective or present it properly. Young people can be very smart, but it's experience and knowing all the competing interests involved that prevents using that knowledge in a way that backfires. Young guns are often overly convinced of the first epiphany that hits them. Experience tends to cool that enough to consider the rest of the story, and to realize your view of things is not the only one.

James Pawlak said...

1. We should be happy that this sexist is no longer on the bench.
2. Perhaps, we should recall that some judicial systems separate those who prepare legal arguments (Solicitors) from those skilled in presenting/arguing cases in the courts (Barristers)---This division was recommended for the USA in the book "The Art Of Advocacy" (By John Stryker???).

Rick said...

I remember a similar conversation from college. An older returning ED student claimed men running small businesses didn't know anything and their female secretaries / internal managers were the talent. It's interesting how people who claim to hate stereotypes and bias so routinely engage in them.

Susan said...

I am no lawyer so forgive me for wondering if knowing "the facts of the case cold" is the exact same skill set as making the argument in the court room or that years of practice on lesser cases or sitting at the table watching how it's done until you've paid your dues helps in any way.

Fernandinande said...

"In the 22 years ... not much changed when it came to listening to lawyers."

As Sailer says, "It's almost as if it were genetic or something."

David said...

Must be a New York thing. I sure as hell didn't see this in my large Midwestern based firm, and I have not practiced since 1997. Women have chaired our litigation group and many subgroups, and are in great demand in the courtroom both within and without the firm.

brylun said...

Both Shira and Ann are Michigan grads.

Lucien said...

I once dropped off a contract with one of the senior attorneys at our company (an older white guy FWIW). Fifteen minutes later he brought it back to me fully marked up - make those changes and it's ready to go, he told me. I was amazed he'd managed to mark up this contract he'd never seen in just fifteen minutes and told him so.

"Twenty-five years and fifteen minutes," he replied.

Needless to say, I have little sympathy for this editorial. I'm sure the junior counsel knew the facts of the case cold. I suspect the senior attorney knew everything else cold - principles, arguments, logic, rationales, etc.

Dust Bunny Queen said...

Susan said "....... wondering if knowing "the facts of the case cold" is the exact same skill set as making the argument in the court room or that years of practice on lesser cases or sitting at the table watching how it's done until you've paid your dues helps in any way.

Exactly. The skill set is completely different. This is true in many occupations that require persuasion.

You can be a fact maven, know your statistics inside and out, be the best person at analyzing stocks, assembling a portfolio that would soar above the market!!! You can't necessarily be the person who can persuade (sell) the concept to the client. That requires being able to brings the soaring, fact filled, number crunching concept down to a level that your customer can relate to.

Most people who are technical analysts or in this case absorbed with the legal factoids are not the kind of people who can 'sell' or persuade the jury.

There may be the occasional rare person who can overlap both skill sets. However, as Bago indicates, they want to win/persuade/sell so you compartmentalize and go with what is going to work.

Ignorance is Bliss said...

Well obviously if one person is senior, and the other is young, you would expect the senior one to be in charge. So the only question here is why are there few senior women in the courtroom. Maybe that is based on discrimination, maybe not. For that, you would need to look at how many hours the women were putting in, compared to men ( as well as productivity/success during those hours. ) If the women are putting in the same hours, and having the same success, and still not getting the same partnership offers, then that is likely due to discrimination. If not, then not.

Anonymous said...

I was magna cum laude and Order of the Coif at a top 15-ranked law school. I was an editor on the Law Review. I clerked for two federal judges, including a 7th Circuit judge. I worked at a major litigation firm in one of America's largest cities. I worked on big cases and with some of the firm's most important partners. I made over $200,000 per year, before bonus. And when I had my first child, I walked away to be a stay-at-home mom with zero regrets. I was asked by several people at the firm what the firm could have done better to make me stay. I told them there was nothing the institution could have done -- I just didn't see anyone's life that I wanted there.

There are so many stories out there that imply women are being "kept from" important professional roles and opportunities. But there is little acknowledgment (and wilful blindness to the fact) that many many women do not want those roles and choose not take those opportunities. They don't want those roles because those roles -- and the backbreaking, family-ruining work they require --make you miserable.
--Jessica

exhelodrvr1 said...

Fire all those lawyers!!

Wilbur said...

And too, the client is hiring the senior partner (at the senior partner's billing rates) and expects the senior partner to do the talking in court.

That said, methinks the judge may be a wee too sensitive to perceived gender slights. I've litigated against and dealt with many women attorneys, and they run the gamut of top notch to execrable. Just like men, or any other gender you may suggest.

Ambrose said...

A smart law firm would have had a female attorney arguing in front of Judge Shira - even if the male knew the case cold.

mockturtle said...

Must be very different in New York. You don't see that where I've lived.

JAORE said...

Hillary knew the "facts... cold" on a host of issues.

Trump knew how to persuade.

CWJ said...

Consider the source as well as the story. If this lady judge is sensitive to the issue, it may influence how much she "sees" it. The famous line from "The Boxer" comes to mind.

traditionalguy said...

Seriously, the Law Firms that are connected to political power and men of immense wealth are set up with the older Senior Lawyers who are connected to a client base from generations of intimate services, for which they levy a heavy tax in their fees. Five or ten of those guys will call upon one court room specialist trial lawyer who is in the courtrooms every day and knows the judges local tribal customs. That works.

The paired teams are a routine way to service their clients. Why this old judge wants to spin that as wronging the expert trial lawyers of both sexes is the mystery here.

In Atlanta, King and Spalding,that recently gave us Wray as Director of the FBI , is one such Firm. But my family has always used Southerland, Asbill and Brennan from long time connections and because of their experts in Corporate services and IRS tax cases. But those firms are too expensive for routine legal services.

Lucien said...

Ambrose makes a good point - if the firm knew that Judge Shira was as sexist as she apparently is, they should have put a female attorney up to make the arguments, knowing that might be enough to sway the decision in their favour. Maybe Judge Shira hid her sexism better before she retired?

Professional lady said...

I've seen many women litigators in the lead role doing a great job. Not everyone wants to take that role however. Litigation is extremely stressful and some attorneys, even though they are capable, just don't want to do it. However, they can be very valuable in a support role.

Laslo Spatula said...

Sorry, but most female lawyers just aren't up to the standards of, say, Jill Hennessy, Carey Lowell, Elisabeth Rohm, or Angie Harmon.

I am Laslo.

EDH said...

Couldn't you say pretty much the same thing about judges and their "clerks"?

And isn't the institutionalize term "clerk" itself wildly dismissive of the judge's subordinate attorney?

Michael K said...

"if the firm knew that Judge Shira was as sexist as she apparently is, they should have put a female attorney up to make the arguments,"

The best comment at that article says that law firms assign male advocates if the judge has previously favored those advocates. Since male lawyers were usually arguing in front of her, they must have noticed her history of favoring those male advocates.

Sebastian said...

"if the firm knew that Judge Shira was as sexist as she apparently is" If? Firms didn't know this? If so, losing parties before this "judge" should look into malpractice compensation.

Of course, judging the judge is job 1. Gotta smoke out the progs, and the we'll-make-up anything-we-like Posners, and proceed accordingly.

Sebastian said...

"law firms assign male advocates if the judge has previously favored those advocates. Since male lawyers were usually arguing in front of her, they must have noticed her history of favoring those male advocates." Entirely possible, of course. The judge could be doing a bit of CYA after the fact.

brylun said...

Jessica's comment above strikes a resonant chord with me. My wife and 2 daughters are all lawyers, and all raised (or are raising) children. I don't think my daughters would have been as well prepared for a career without my wife's great sacrifices - she didn't work full-time until the youngest child was 5. One daughter with 2 children 6 and 3 works 3 days a week now in a firm doing creditor practice. The other daughter with a one-year old is full-time but works with an insurance company, having turned down a med-mal defense firm's offer because of the billable hours required. My 3 grandchildren are in extremely capable hands!

Scientific Socialist said...

Shira Scheindlin's greatest contribution to the federal bench was her retirement after a 22-year tenure marked by unbridled hostility towards law enforcement and a judicial philosophy paralleling that of the NYT Editorial Board.

Chuck said...

Oh what a stupid comment by an historically stupid, and oft-reversed, District Judge.

I am going to try to keep this simple so that lawyers and non-lawyers alike can get it.

The scenario that Judge Scheindlin describes is correct only in the surface appearance. I've seen it a hundred times, and so has Althouse. A senior partner (often a male, because of the era in which Scheindlin practiced and sat on the bench) is arguing an important motion. He is doing it, because there is real art to arguing a motion, where your time is very limited, and you might get asked broad questions where only someone in complete authority for the client can speak.

I presume that Scheindlin is mistaken in her characterization about asking a "hard" question of the senior partner arguing the motion. I presume that she means asking a "technical" question. Or a specific question, about a particular statute or case. And frequently, it will have been the young associate who did the legwork in compiling and researching the cases, statutes, etc.

The big, hard questions ought to be left to the senior partner. (And in time, we will see that about half of them will be women given that law school graduations are now around 50% women.)

Sometimes, in oral arguments, judges will ask great questions. Sometimes they ask stupid, arcane questions. The thought that Judge Scheindlin asked stupid and arcane questions is easily accepted by me; she was the judge who had the NYC "stop-and-frisk" legal challenge, and she was reversed by the Court of Appeals with such vehemence that they ordered her removed from the case. Rarely-granted relief.

brylun said...

I completely agree with Chuck!

cubanbob said...

Large firm.....senior partner.....big billings.....the judge apparently isn't too swift.

Kevin said...

Sometimes, in oral arguments, judges will ask great questions. Sometimes they ask stupid, arcane questions.

That has been my experience as well.

Sometimes the Senior Partner has to take a minute to confer with the associate to deal with their incredulity.

AllenS said...

Maybe the older white man lawyer is saying to the young upstart girl: "Hold my brief, and watch this!"

Hammond X. Gritzkofe said...

Well, yeah. Shira A. Scheindlin is female. She is likely to be subliminally swayed by the deeper, more authoritarian sounding voice of a male speaker. If the judge is male, you put up the young female lawyer with three buttons open on the blouse.

Scheindlin says "The results demonstrate that women have not made nearly enough progress in the legal profession."

Women have not made nearly enough progress in the refuse handling and hauling profession as well. What does Scheindlin propose to achieve sex parity in trash bin tippers?

Joe Schmoe said...

Once I got to the point in the article where the author said something to the effect of "I don't know the reasons why, but I can speculate", then I was done. I suspect many progressive fallacies and talking points ensued.

Joe Schmoe said...

Let me guess: Wage gap! Diversity needs to be enforced from the outside through regulation or some such nonsense!

mockturtle said...

Allen S says: Maybe the older white man lawyer is saying to the young upstart girl: "Hold my brief, and watch this!"

:-D

mockturtle said...

"I often encountered this courtroom scene"

How 'often'? Most of the time? Half of the time? Once in a while? Like using the term 'many', she is being deliberately vague but wanting to give the impression that it's common. Maybe she should get a job with the NYT!

dda6ga dda6ga said...

Was the Judge listening to the arguments or just making a list of the women, minorities and persons with disabilities in the courtroom?

Curious George said...

"Laslo Spatula said...
Sorry, but most female lawyers just aren't up to the standards of, say, Jill Hennessy, Carey Lowell, Elisabeth Rohm, or Angie Harmon. "

Veronica Hamel omitted? Sad!

readering said...

Some things courts could do. Don't require lead lawyer to appear for hearing. Don't rule on papers so much. Don't issue tentative in advance. Let it be known, as some judges do, that you encourage appearances by junior lawyers.

penelope said...

“Veronica Hamel omitted? Sad!”

Not the same TV show.

Hey Skipper said...

I hope this isn't OT.

I'm an airline Captain. When decisions need making, no one, and I do mean no one, is looking at the First Officer.

Even -- and I know this is shocking to those with delicate sensibilities -- if the FO is a xhe.

Michael K said...

When I first began to observe female surgeons, I assumed they would have superior fine motor skills. Sewing and so forth.

I was shocked to find that most were rough with tissue.

I don't know if that has improved as female surgeons became less determined to be aggressive.

etbass said...

"I was shocked to find that most were rough with tissue."

On a more mundane level, my barbershop has one woman barber and several male barbers. I never go to the female barber because she treats my head like an ice hockey rink. The male barbers are much more gentle.

Amadeus 48 said...

Some of the best attorneys I worked with were women--analytical, thorough, creative.
I think Judge Scheindlin is perceiving the interplay of client demands, attorney egos, law firm pecking orders, apprentice/journeyman/master-craftsman dynamics, and team roles, but calling it sexism. Booooo!

Chuck said...

brylun said...
I completely agree with Chuck!

May God have mercy on you.

Amadeus 48 said...

Chuck said it better than I did.

HoodlumDoodlum said...

Specialization--how does it work??
Maybe the jr. counsel focuses on the facts of this case and the sr. counsel focuses on good legal arguments generally, or the details of the law or statue at issue, something like that?
I mean, that was a total guess, I have no idea; is it as good of a guess as "it can only be because of sexism"? I dunno.

Let's look at the empirical evidence. The author's argument seems to be that she's seen a few decades worth of proof that women are undervalued in the legal field. Let's say they're undervalued by 20%--they aren't promoted to senior-enough positions and they're paid less than they're worth.
What an opportunity! A savvy lawyer would look at that situation and conclude they could easily make a fortune. If female lawyers are undervalued by 20% then one could easily start a firm and get the most-talented female lawyers by offering salaries and positions equivalent to undervaluing them by only 10%--the female lawyers would get more money and the firm's owner would have the best legal talent around at a significant labor cost advantage, so there'd be no stopping the firm's profitability!

So: has that happened? Are there any all-women, or women-dominated law firms like that? If not why not? Is there some legal impediment, equivalent to Jim Crow laws, preventing such a firm from existing?

Or is the premise itself flawed? Tough call, huh?

HoodlumDoodlum said...

Chuck said... He is doing it, because there is real art to arguing a motion, where your time is very limited, and you might get asked broad questions where only someone in complete authority for the client can speak.

Dictionary.com - broad (definitions)"
"18.
Slang.
Usually Offensive. a term used to refer to a woman.
-a promiscuous woman."

Tsk tsk tsk.

Bay Area Guy said...

Is this federal judge that clueless? Some attorneys are good on their feet, some are good on paper, rarely do you find a good one who can do both.

That the partner arguing in front of Judge Shira doesn't know the details of the case, doesn't lead to the conclusion that the young female associate sitting next to him knows how to articulate said details in a courtroom. Jeez.

Amadeus 48 said...

By the time I retired, large clients were demanding via in-house law departments that service teams include female and minority lawyers in certain percentages. All those race- and gender-studies degrees have to land somewhere! It looks like they have come to roost in Fortune 500 law departments.

Mountain Maven said...

NYT = lying leftist BS.

n.n said...

[class] diversity politics is a progression from deeming select clumps of cells nonviable.

Earnest Prole said...

Men argue cases more often because research shows that women sitting on juries are highly judgmental and resentful toward female lawyers. It may be sexist that women are so hard on fellow women, but (unlike most things) you can hardly blame lawyers for that.

Left Bank of the Charles said...

Let's suppose the young women associates aren't properly prepping the senior male partners for the court appearance. Or perhaps the young women associates lack the ability to quickly feed information to the senior male partners. That might also explain why they aren't becoming senior female partners. But I suspect the best young women associates are running off to places like Wisconsin to take law professorships. Or getting judgeships. It's just a theory, mind you, I only have two data points.

Chuck said...

Earnest Prole said...
Men argue cases more often because research shows that women sitting on juries are highly judgmental and resentful toward female lawyers. It may be sexist that women are so hard on fellow women, but (unlike most things) you can hardly blame lawyers for that.

But Judge Scheindlin was talking about motion practice. No juries.

And really, motion practice is the very place that lots of young lawyers get their feet wet. Unless it is a really big summary judgment motion, or some other dispositive relief. A motion for a new trial; jnov; things like that.

Chuck said...

Further, just think about the client relations aspect.

If you are ABC Inc., and you hire the firm of Dewey Cheatham & Howe, and Charlie Cheatham has been your company's lawyer for 30 years and nobody in town knows your business like Charlie does, and because he's one of the best in the business he bills at $500/hr., but he has a young female associate fresh off her law review who is a whiz at online legal research, and so for a critical summary judgment motion, the law review gal who bills at $225/hr. is doing a bunch of online research (and doing it extremely well) at a price that the client much prefers, and all is good.

So they get to court, and Charlie is arguing the motion. Because if he loses, and he might, Charlie does not want to have to make a call to the client and say, "I sent my law review gal over to argue the motion and she came back to the office and said we lost." If that call needs to be made, Charlie wants to say that he was there.

And during the argument, the judge asks Charlie, "That old case that you cited; the 1978 case that was issued before the statute was amended in 2004; has that case ever been questioned per a Shepard's search?"

That's the kind of question where Charlie would turn to the law review gal and ask her how to answer.

The kind of question that Charlie would best be able to answer is, "Mr. Cheatham, if I were to rule against your client today, how would my ruling affect their business?"

hombre said...

Let's see. What would we expect here: An Ivy League secular liberal Democrat who didn't notice that she was appointed by a white male lawyer or that her own prominence argues against her position in the op-ed piece..

Not all women lawyers are employed by male dominated firms. Where are all those great female trial and appellate advocates?

Yancey Ward said...

"I completely agree with Chuck!"

Me, too, but it is likely we are both white males.

hstad said...

Scheindlin makes Ruth Bader Ginsburg look like Attila the Hun in legal circles - LOL! But no really, this is just par for the course for the Southern District of NY, progressives galore!

BDNYC said...

It's because BigLaw skews towards hiring women as associates. Because diversity. When it comes time to make partner eight or so years later, more men than women get selected. This is especially true in litigation, which is what the judge is talking about. You can imagine the various reasons why this is true. Many women at partnership age (mid-thirties, generally) are also in the mindset of motherhood and work/life balance. Litigation is particularly horrible for work/life balance. Etc.

This is not true across the board, of course, but it is true on average.

Earnest Prole said...

But Judge Scheindlin was talking about motion practice. No juries.

The same dynamic applies here: Female judges tend to be harder on female attorneys; it's a much-remarked-upon (and researched) female-female dynamic.

Real American said...

The clients want the top people arguing their cases. Especially at those prices.

JaimeRoberto said...

In general men are bigger risk-takers. Arguing a case in court is a risk. You might flub your lines, you might freeze, you might not be able to answer a question, you might lose.

Owen said...

Chuck: you are rocking it. Great comments that seem to be based on the School of Hard Knocks,

Renee said...

Whoever researched the case should be in front of the judge speaking.

Narayanan Subramanian said...

Justification for Scott Adams differentiating between goals and system ... Advise to build one's Skill stack.

Tom White said...

Laslo-

Alana de la Garza >>>>>>>>> Elizabeth Röhm

Also, Diane Neal and Stephanie March from SVU, both way better than Röhm.

The Toothless Revolutionary said...

Then maybe the lawyers need to confront bias in their own profession - rather than getting the politicians from among their ranks pushing a hypersensitive, over-corrective agenda against it in everyone else's vocational fields.

EMyrt said...

Earnest Prole said...

Men argue cases more often because research shows that women sitting on juries are highly judgmental and resentful toward female lawyers. It may be sexist that women are so hard on fellow women, but (unlike most things) you can hardly blame lawyers for that.
8/8/17, 12:35 PM

Interesting. I'm in that peculiar Limbo where alternate jurors float until the jury has finished deliberations. The trial judge was a woman, and a very authoritative judge who took the civics education part of the job as seriously as the trial itself. The DA was a woman, also impressive, big blonde Kriemhilde type. One of the defenders was a woman, an Irish nun type, with the most difficult job. She was also impressive. The third attorney was an obese Perry Mason wannabe and he struck me as a grandstanding Bozo. It never occurred to me to think less of the women qua women, and I don't think any of the other women on the jury, including the antitrust lawyer, were any less impressed.

openidname said...

Shira A. Scheindlin, meet James Damore.

Zach said...

A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman).

Judge discovers existence of associates. Film at 11.

I look forward to the next article, where she discovers the existence of judicial clerks.

Unknown said...

The girl is that to inflate billing.

Get enough lawyers in to charge $1K/h or $10K/day for trial.

More if her Daddy's rich, you can do what you like.

Tarrou said...

As almost always, Scott Alexander has the definitive treatment.


In this particular case, what the judge is seeing is a very talented young female lawyer being groomed for great things, before she marries an older, richer man and drops out of the legal game to be the hardest core bake-saler in her children's exclusive primary school.

Skyler said...

Well, let's face it. There are exceptions, of course, but men are better at just about everything except care of young children.

Men invented farming, sewing, music, eh, pretty much everything. The greatest musicians have been men. The greatest tailors have been men. The greatest chefs have been men.

And it barely bears mentioning that the greatest engineers, politicians, soldiers, and lawyers have been men.

So why should a senior partner allow his assistant, who is doing the job the assistant is supposed to do, (i.e., feeds arcane facts to the senior partner), to do what he is best at.

Sheesh. I'm tired of being politically correct.

Char Char Binks said...

A lawyer would actually consult with a lady lawyer before responding to a judge, and ask her advice on an important topic in a case!? Why doesn't he just show up for work in a skirt and heels?