I am a firm believer in the “less statistics, more action” philosophy. Nevertheless, statistics do make us become aware of where we are and how we need to change, and thus should not be ignored. The American Bar Foundation and the ABA Commission on Women just released a report titled First Chairs at Trial More Women Need Seats at the Table, a research report on the participation of women lawyers as lead counsel and trial counsel in litigation. Almost every woman criminal defense attorney I know can tell you a story about the time they were the only female on the defense side in a multi-defendant case. In my own experience, I remember one time where it was me and seven other men. I felt like Snow White.
This report caught my attention because it is the first time I have seen statistics about women in criminal defense. First, the study reflects on the number of lead counsel attorney appearances by men and women in criminal matters. These numbers were virtually identical; 88% of all men appearing and 89% of all women appearing entered lead counsel notice of appearances. This did not come as a surprise considering that criminal cases “tend not to be layered with different levels of associates and partners.” However, a gender gap presented itself with appearances in general in criminal cases. In the report it says, “among all attorneys appearing in criminal cases, 67% are men. Among attorneys appearing as lead counsel, 67% are men (33% are women), and among attorneys appearing as trial attorney, 79% are men (21% are women).” Additionally, the study found that there is a gender gap between prosecution work and defense work. For example, “men appearing as lead counsel in criminal cases, 34% appear for the government and 66% appear for defendants. Of women appearing as lead counsel in criminal cases, the ratio is reversed: 69% appear for the government and 31% appear for defendants.” This statistics tell me that women excel in the public sector but things shift as they enter the private sector. The study doesn’t distinguish between public defender and private defense work but there is still valuable information to be gained from these statistics.
The report summarized, “[t]he results in criminal cases—where one side is the government and the other a private party, albeit a criminal defendant—show a pattern consistent with the private vs. public sector gender gap we observed in civil cases. Women lead counsel in criminal cases represent the government more than twice as often as they represent criminal defendants. For men, the ratio is reversed: men appear as lead counsel for private defendants twice as often as they appear for the government. Even so, only a minority of attorneys appearing in criminal cases are women.”
The report presents an upside to the criminal field for women because it provides greater opportunity for women to act as lead counsel in cases. However, the same gender gap throughout law still exists in criminal, especially in the private sector. What caught my interest was the fact that women drop from handling 33% of criminal cases as lead counsel, to 21% as trial attorneys. For me, the answer is simple; it is up to all of us to make sure we create more seats for women at the trial table.