This article about a 96 year old judge making a rule to help encourage women attorneys to speak up more often in court is making the rounds. It’s a great piece and great example of how people in power can use their position to make a difference. Lost in the discussion (maybe ironically) is that the catalyst for this was a mentor/friend of the Judge’s; retired judge, Shira Scheindlin. Judge Scheindlin wrote an Op-Ed earlier this month about just this issue: the dismal percentage of women litigators speaking before the court. Judge Scheindlin discusses a study she conducted in New York that asked judges to observe when and how often women litigators actually spoke on the record. The results weren’t great. Women in private practice spoke barely 20% of the time. Of course, people who don’t like to blame systems will say that this is the nature of Big Law. Partners speak and everyone else does the grunt work. Ok sure, but then that ignores the fact that there’s still huge obstacles and barriers keeping women from becoming partners. So either way, women are doing the work and maybe even being presented as part of a “diverse” team, but are not allowed to put their skills to use.
Judge Scheindlin then does a beautiful job of encouraging the people with power on things to do to actually create change. Judges can create local rules, clients can demand diverse representation from their firms, and firms can form ways to make participation more accessible for their associates. I am like waving a tambourine over here based on the fact that she gives great examples of things that make real differences and isn’t letting those with the ability to make change just shrug their shoulders at the unfairness of it all.
I am here for this because the system cannot change without those in power making changes. But of course, these types of changes take time and in the here and now, you want to have a fruitful career. And if you’re a litigator that means getting to actually litigate! So knowing how bad the numbers are, knowing perhaps how low your chances may be to participate, what can you do to get yourself closer to your goal of appearing in court on the record?
One. Be realistic. I don’t mean to dissuade anyone from any area of practice and this study was small, confined to NY, but the truth is that in Big Law you may not get those chances as often as you would in smaller firms, legal aid, going solo, or in government work. But at the same time big law comes with big rewards, so don’t cut yourself off from this path immediately, just understand that to experience those career milestones (your first trial, dep, etc) may take longer than expected.
Two. Be the most prepared. Unfair, a burden, and not always enough, but when you come in prepped and ready to go, if something happens at a moment’s notice you’ll be ready and the next time there’s a chance for you to appear in court your boss won’t be as hesitant to trust you.
Three. Hone your skills. Work your goals into your day to day work. Ask to observe deps when you can; get into court early or stay a little longer to watch other attorneys and how they litigate. If you want to be an ultra-nerd (and who could even judge you for it?)—you can listen to appellate arguments online! Listen to how they respond to questions, to arguments, how they think on their feet. This seems like an odd way to train, but if you’re serious about your craft—hone it.
Four. Jump at chances. There will never be a perfect time for you to speak on the record. The first time I was able to speak in federal court, I was nervous because it wasn’t the “right time.” I hadn’t had a chance to observe and even though it was super simple status hearing, I was really nervous to say something wrong on the record. I wanted more time so that I could be better. But there is no perfect time and really if I’m honest, I was trying to delay the inevitable because I was scared of looking foolish. But bless my former coworker (my homie for life)/ co-counsel who told me to do it. He pushed me to get this experience and I came out of it just fine. It wasn’t perfect, but next time I’ll do better. And that fear is gone. I share this because we often are concerned about being the most prepared (which I obviously just recommended) that when we don’t feel 100% certain of ourselves, we hesitate to act. But when it comes to these chances that we now know are few and far between—don’t hesitate, act. Remind yourself that there are already plenty of people and systems blocking your way, you shouldn’t be one of them.