As an increasingly number of women make inroads on the bench,1 similarly, the litigators they see are more often likely to be female as well. Civil litigation — one of the most high stakes and elite areas of law — is commonly pictured as the domain of male warriors. But today, both in firms and in-house, women litigators are a hot commodity.
The reasons are many: As more women enter and graduate from law schools, their sheer numbers have broken down barriers to partnerships, the bench, and to leadership roles at law firms and legal departments. In addition, the pioneering women litigators who adapted to the overwhelmingly male law firm culture 20 and 30 years ago are earning respect for their dedication and impressive track records by debunking the stereotype that the toughest advocates must be men.
Finally, as several female litigators working in tension-filled court battles attest, women have brought new strengths to the litigation setting, from finely-tuned negotiation skills to a deeper connection with a jury pool that is generally far more diverse than many firms' litigation departments.
MCCA® recently asked its corporate members to nominate women litigators who are on the rise in practice today at firms. In this article, what you'll learn is that their trials and triumphs show that the fight in the courtroom often starts outside of it.
A Changing of the Guard
Many female litigators became stars by taking several small steps forward. Barbara S. Steiner, a litigator since 1974 who handles high profile insurance, patent infringement, antitrust, and technology law cases at Jenner & Block in Chicago, recalls leading a client meeting in Japan in the 1980s where, she says, she was the only woman present "who wasn't serving tea." On the airplane ride home, her male law partner commented that the meeting had gone better than expected, considering that the others there had never encountered a woman lawyer.
It never occurred to Steiner that her role would be a problem. In other words, she overcame the gender gap largely by ignoring it. Her advice to young litigators: "Treat every case as if you were the first chair because if you do, you'll find that you'll get responsibility quicker. And, just because you haven't done it before doesn't mean you can't do it — you might just need to prepare more, and need to take risks to get into the courtroom," says Steiner.
Others describe the conundrum that makes progress seem so slow at times. Women gain more acceptance as litigators by proving themselves in battle, but they can only prove themselves by grabbing the available opportunities. Jenner & Block's Linda L. Listrom stresses the importance of being proactive about getting significant trial experience. Listrom, who is accustomed to heavy lifting when it comes to large, commercial cases, says, "You have to seek out opportunities that will give you what you want."
These opportunities are also open to women of color. Joan M. Haratani, a commercial litigator at the San Francisco office of Shook, Hardy & Bacon, says she has found it an asset to be a woman and a minority as a trial lawyer." Haratani, who is Asian-American, says, "I think I reach a growing demographic aspect of the jury pool. I find it very comfortable to talk to a jury that might be different than the dominant majority, and I think clients recognize that this is a very valuable skill set."
Insiders say that litigation, at times, seems to be an area where outdated perceptions and expectations persist among both practitioners and clients.
"The biggest challenge I face is getting clients to understand that my approach can be extremely effective, even though it is not necessarily bravado," says Barbara L. Johnson, who specializes in management-side employment litigation at the Washington, D.C. office of Paul, Hastings, Janofsky & Walker. Johnson has practiced for 14 years in the hard-edged employment area, where corporate clients routinely face high-stakes jury trials in sex, age, and race discrimination cases, as well as complex clashes with unions.
"You don't have to emulate men. Women litigators bring a lot to the table because often women are very intuitive," says Johnson.
Stylistically, Johnson says, the difference between male and female litigators is often "like the difference between shooting someone with a cannon or cutting them in a way that they don't even know that they are bleeding."
How women communicate in a litigation setting also sets them apart from men. "It still surprises me that I am often the only woman in a largely male environment," says Amy W. Schulman of Piper Rudnick in New York, who has built her reputation representing clients in drug and medical device litigation. Schulman says, "Because women are good listeners, we make effective communicators, and know how to respond and calibrate our messages to different audiences."
Many litigators point out that some clients are not looking for someone to slay their foes; instead, they are usually seeking a winning solution to a problem that threatens their bottom line or core corporate business. These successful women employ tactics of litigation and the environment to shape corporate behavior to solve problems before they ripen into the courtroom.
Developing an effective litigation style from the onset is fundamental to litigators like Charisse R. Lillie, a labor and employment litigator at Ballard Spahr Andrews & Ingersoll in Philadelphia. Lillie, who defends banks, hospitals, and universities, relishes trial work, and describes her style as "aggressive, but not obnoxious." She says being aggressive doesn't require a scorched earth approach, but opposing counsel always will test how hard they can push you. "You have to be willing to stand up for your client."
One challenge is finding a style that works for you says Lisa Ellen Chang, who handles employment class actions at Jones Day in Atlanta. "Litigation fundamentally involves conflict, and a lot of the models out there are screaming and yelling at each other," says Chang.
When Chang has sparred with male opponents and witnesses in construction cases she has used preconceptions she encountered to her advantage. "They assumed I didn't know what was going on, and they thought they were talking over my head," she says, "and I let them think that and then I'd come back and zing them with all the information they had given me." She also notes particular challenges to being an Asian-American litigator. "There is the perception that you are either quiet or demure, or you are a dragon lady. It's sometimes hard to be perceived in the middle, as a balanced, serious litigator," says Chang.
Not for Everyone
Every woman interviewed for this article acknowledged that it takes a unique personality to be a successful litigator. Debra E. Pole tackles class action suits, including high-profile silicone breast implant and diet drug cases at Sidley Austin Brown & Wood in Los Angeles. A trial lawyer since the 1980s, Pole says, "Trial work is not for everybody, it is stressful. You have to think on your feet, and be available on a minute's notice; some people don't like that type of lifestyle." She also points out that preparation for trial is just as grueling at times. "I work extremely hard. A lot of people see the end result and see it as seamless," says Pole. "What they don't know is how long I've spent preparing a witness, or an argument or strategy," added Pole.
Schulman agrees, and is particularly interested in mentoring other women, so "I'm not the only woman in the room." But Schulman cautions: "The life I lead is not for everyone. It's only because I love it so much and it doesn't feel like work to me that I don't mind working this hard."
Striking a Balance
Several of the women interviewed for this article addressed the exhausting litigator's life and the toll it can take on their families. Most indicated that a rewarding balance is within grasp, but women must make careful and difficult choices along the way.
Law firm demands on time, particularly for litigators who have to go into overdrive for months on end, can take its toll. "The job of trial lawyer is extremely demanding and really requires that you give up a lot in order to be good," says Donna D. Melby of Sonnenschein Nath & Rosenthal. "It requires giving up, in many cases, parts of your personal life and time with family. And if you are trying to be a litigator and trial lawyer, you have to be prepared to see those children less, and that's the ultimate sacrifice. It's beyond a difficult balance. It is excruciatingly difficult sometimes. Anyone who tells you [that you] can be a one hundred percent trial lawyer, a hundred percent spouse, and a hundred percent mother, that is a fantasy. Something has to give a little bit. By the time my son was five years old, he knew what it meant that I was in trial, and he would ask me, ‘When will the trial be over?'"
The temptation to find a family-friendly practice is always looming. Jackie Redin Klein, who handles labor and employment litigation at Lord, Bissell & Brook in Los Angeles, says, "I see so many more women litigators than I did 13 years ago. Unfortunately, I also still see many women leaving the practice. It's a hard career, but I think if women continue to stick with it change will follow, making it easier for those who come after us."
Others like Stephanie A. Scharf, a litigator at Jenner & Block in Chicago, manage their careers and lifestyles with a different approach. "I never missed a school play or an event that was important to my children, and I don't travel five days a week." Scharf counsels young women to take charge of managing their lives and careers. "That doesn't mean sacrificing yourself to the firm. Pick a firm whose culture fits how you want to practice, and that may take some effort," she says.
Some like Leslie M. Smith, whose litigation practice encompasses antitrust, pharmaceuticals, telecommunications, consumer fraud, and contract law at the Chicago office of Kirkland & Ellis, work around her family's schedule. "I'm the type of person who doesn't need a lot of sleep, so I wake up early and work before my kids get up. And then, at the back end of the day, repeat that by spending time with them and my husband and returning to my work after they go to sleep," says Smith.
Clearly, the challenges of a litigation practice can be daunting. Corporate litigators travel extensively, face enormous deadline pressure, and are often handling bet-the-company matters that can be all-consuming.
Cathy Bissoon of Reed Smith's Pittsburgh office has worked in the arena for several years, and says that women are making undeniable inroads into the world of litigation. But there is still some distance to travel.
Bissoon is quick to point out that many male lawyers are very respectful and worthy opponents. But, she says, there are instances when male lawyers chose not to treat women lawyers as seriously as they should. "I very often come up against men who are opposing counsel, and I think there is a tendency to underestimate me, which sometimes works to my advantage," says Bissoon. ""There are a whole host of them who see fit to use intimidation tactics that they think will win their case."
Bissoon, who is small in stature, says a male client recently remarked, "You're little, but you sure are tough." She encourages other women to specialize in litigation. "There's room for women here, we need women here, women bring a style that is unique to the practice, and it is a style that is successful on both the plaintiff and defense side of the bar," says Bissoon.
Elisabeth Frater is an attorney and freelance journalist based in Napa, California.
- See the article "Women Judges: The Path to the Bench" in this issue of Diversity & the Bar® on page 10.
From the March/April 2004 issue of Diversity & The Bar®