The Trials and Tribulations of Women Litigators

• Author: Roberta D. Liebenberg
• Pages: 31-36

31VOL 46 | NO 3 | SPRI NG 2020

The Trials

and Tribulations of

Women Litigators

ROBERTA D. LIEBENBERG

The author is a senior partner with Fine, Kaplan and Black, RPC, in Philadelphia.

As a prelude to this article, I would like you to participate in a quick

thought exercise. First, take a moment to think of three or four fa-

mous lawyers. Now visualize three or four fictitious lawyers from

TV, movies, or literature. Odds are that all of the real and fictitious

lawyers who came to mind were trial lawyers and all were men.

I have been a litigator for over 40 years, and thus I am acutely

aware that litigation has long been, and still remains, a male-dom-

inated field. This is particularly true in antitrust cases and class

actions, which are the focus of my practice. Year after year, in

case after case, I have found myself to be either the only woman

or one of very few women in the courtroom, in depositions, and

in meetings of counsel. And in the cases in which other women

were in the courtroom along with me, they were often serving in

a second- or even third-chair capacity, rather than as lead counsel.

My anecdotal belief that women are grossly underrepresented

in first-chair roles in litigation has been shared by many others,

including my friend and colleague Stephanie Scharf, an experi-

enced and highly accomplished litigator from Chicago who serves

as chair of the ABA Commission on Women in the Profession.

Several years ago, we decided that the best way to shine a much-

needed spotlight on this long-standing problem was to conduct an

empirical study of the participation of women in lead counsel roles

in civil and criminal litigation. Such a study had not previously

been conducted, and we believed that it was important to obtain

statistical data to determine the extent of the gender gap in first-

chair roles generally, and also in the specific context of different

types of cases, subject areas, and clients.

The research for our first-of-its-kind study was cosponsored

by the ABA Commission on Women in the Profession and the

American Bar Foundation. We used a random sample of all of

the cases filed in 2013 in the U.S. District Court for the Northern

District of Illinois. That district is large and diverse; its cases cover

a wide range of subject areas; and the law firms that handle cases

there are diverse in terms of size, their gender composition, and

their types of cases and clients. In the appearance forms in that

district, the lawyers are asked to designate whether or not they

are serving as “lead counsel” and/or “trial attorney.” Using the

PACER system, we randomly selected 558 civil cases, involving

2,076 lawyers, filed in 2013. We also randomly selected 50 criminal

cases, in which 135 lawyers appeared.

First Chairs Study

Our study, First Chairs at Trial—More Women Need Seats at the

Table, was published in July 2015. The results of our study were

eye-opening and distressing. We found that men were three times