American Bar Association August 1, The Alliance's February Signature Seminar Series Teleconference Thursday, February 18, pm EST/ 10 am PT – 2 pm EST / 11am PT Prepared & Presented by: Roberta Liebenberg, Senior Partner, Fine, Kaplan and Black, R.P.C. Justice Fernande Duffly, Associate Justice, Massachusetts Supreme Judicial Court Beth Kaufman, Partner, Schoeman Updike Kaufman & Stern LLP

33% female 2 1

Women In The Judiciary  35% of Federal Appellate Judges (only 12 of whom are women of color)  33% of Federal District Court Judges  34% of State Appeals Judges  29% of All State Judges 2

 Why do the study?  Why now?  What did we hope to learn? 3

First-ever Empirical Study  Lead counsel  In civil and criminal cases  Parties  Clients  Practice settings 4

First Chair at Trial In Civil Cases: Gender Effect  76% of lead counsel were men  59% of civil cases had men as lead counsel for both plaintiff and defendant  87% of lead counsel in class actions were men (71% of class actions had men as lead counsel for both plaintiff and defendant). 5

Under-representation of Women in Lead Counsel Roles in Important Civil Practice Areas Women lag behind as lead counsel in areas of practice that are the biggest dollar cases. In contrast, women appear more frequently as lead counsel in real property, prisoner rights, social security, civil rights and defense of pro se cases. Percentage of Lead Counsel Who Were Women 6

7 Participation of Women as Lead Counsel Varies By Type of Client in Civil Cases Significantly, women lawyers representing federal, state or local governments were more likely to serve as lead counsel than women representing businesses or individuals. Percentage of Lead Counsel Who Were Women

Criminal Cases Also Show Gender Gap  2/3 of all lawyers appearing as lead counsel (including both prosecutors and defense counsel) are men. Women Lead Counsel in Criminal Cases 69% represent the government 31% represent defendant Men Lead Counsel in Criminal Cases 34% represent the government 66% represent the defendant 8

Courts Are Relying on the Study When Sanctioning Attorneys for Sexist Conduct in Litigation  Claypole v. County of San Mateo, No. 14-cv-2730, 2016 U.S. Dist. LEXIS 4389, at *16 and n.39 (N.D. Cal. Jan. 13, 2016) (Mag. J. Paul S. Grewal) (Court sanctioned lawyer for his comment that opposing counsel’s raising her voice was “not becoming of a woman.” The Court cited the Study, noting that “inappropriate or stereotypical comments towards women attorneys are among the more overt signifiers of the discrimination, both stated and implicit, that contributes to their underrepresentation in the legal field.”)

Continued from slide 10  Cruz-Aponte v. Caribbean Petroleum Corp., No. 09-cv , 2015 WL , at *3 (D.P.R. Aug., 17, 2015) (Judge Francisco Besosa) (Court sanctioned sexist misconduct by an attorney who asked opposing counsel if she was going through menopause after her statement that a deposition room was hot; court cited the Study, stating that “[d]iscriminatory comments like this undoubtedly occur on a daily basis in the legal profession and are routinely swept under the rug…Discriminatory conduct on the part of an attorney is ‘palpably adverse to the goals of justice and the legal profession.’”)

 In both civil and criminal cases, women are consistently under-represented in lead counsel positions.  The best opportunity for women to serve in lead counsel roles in both civil and criminal cases is to represent governmental entities.  This study can serve as a research template for similar studies in other jurisdictions. Big Picture 9

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Where Will Change Come From? Law Firms Lawyers Clients Judges Law Schools 11

More information and questions about the First Chairs at Trial research Roberta D. Liebenberg Stephanie Scharf