Gender Bias And Legal Careers

Studies show that although women have been entering the law in equal numbers to men for more than a decade, they make up just 23 percent of partners and 19 percent of equity partners. Why do so many women  leave the legal profession at what should be the height of their careers? Last month, more than 160 lawyers gathered at Harvard Law School in November for the ABA National Summit on Achieving Long-Term Careers for Women in Law to identify answers and plot a course to change the trends.

Sharon Rowen, a lawyer from Atlanta,  said her research showed three reasons women leave the practice of law: work/life balance, unconscious bias, and the pay gap. I wish I could have attended the discussion. I hope someone pointed out that seeking work/life balance is the major reason for the pay gap, and that it is not unreasonable to view that as a trade-off that is both fair and reasonable.  Rowan’s list also leaves off conscious bias that pervades society and clients regarding female lawyers, as well as law firm partners.

Iris Bohnet, professor of public policy at Harvard Kennedy School, said some women suffer from “success fatigue,” and leave “because of a work culture that forces them to minimize important parts of their lives.” They ask themselves, “Can I bring my whole self to work?” and “Is this a place where I can thrive?” What she is saying is that a lot of women don’t find the law enjoyable, and that its stresses, patterns and requirements are more accommodating to men than women. In other words, law isn’t fun for a lot of women, while men, because of the nature of males, are more tolerant of it than women tend to be. I wonder if any panelist had the guts to come right out and say that? I doubt it. I bet most of them would deny it, because it’s politically incorrect to admit any gender differences, unless they involve female superiority.

I know a lot of lawyers. Most of my friends are lawyers, if they aren’t actors. It is fair to say that very, very few of them enjoy practicing law. They have to work too hard; they don’t see enough of their families, they don’t like their clients; they feels their values are compromised. They have been disillusioned by the realities of the profession and its failure to meet the idealized vision they perceived in law school. They realize most Americans who aren’t lawyers dislike and distrust them and their colleagues. They stay in the profession, most of them, as long as they do because of the money.

I also know a lot of lawyers who married lawyers, and most of those couples are now divorced. Some of the lawyers who married non-lawyers are also divorced, but nowhere near as many. I also know several couples where both partners hated what practicing law was doing to them, and agreed that one would cut back substantially or completely on legal work. Usually that partner was the female, and she was happy to do it.

Thus I would add “A lot of women hate being lawyers even more than men do, and get out of law because they can.”  I doubt this was mentioned in the ABA conference either.

There is a reason why women gravitate to certain practice areas, leaving other areas almost entirely male. They choose to. Unfortunately, some of those practice areas that women feel are more rewarding or accommodating to their needs are also less lucrative, such as domestic relations or family law. The fact of the profession is that the big bucks comes from combat, meaning litigation and trial lawyering.  Some women enjoy this, and are good at it. Most women lawyers don’t enjoy it, and there is one of those basic human biases blocking the path of those who do. People see men as the warriors. This is hardly surprising. They are bigger, in general, more aggressive, and have stronger voices…and they have, up until very recently, handled all of society’s roles requiring adversarial combat.  Thus clients with a lot on the line that must be fought out in court tend to prefer that their champion look like this…

than this…

Popular culture has done all it can to change this stereotype. “Law and Order” cast at least 50% of its defense attorneys as female. “Bull” is doing the same now. It’s a misrepresentation of reality, though a benign one. The stereotype still holds, and there are reasons it holds. (It didn’t help that the most high profile case prosecuted by a woman, Marcia Clark, showed her losing on national TV when it was obvious that the defendant, O.J. Simpson, was guilty.)  I worked for many years with the Association of Trial Lawyers of America. I could name the prominent and successful female members who were not in the Family Law Section: there were about ten of them. All of the other were men, and that hasn’t changed significantly in the twenty years since I worked there. Quick: name two prominent female trial lawyers. I can name one: Leslie Abramson, who represented the Menendez bothers. The fact is that the large and lucrative area of trial law and litigation is under-represented among women because 1) clients prefer men and 2) women tend to prefer other kinds of practice.  This extends to arguing before the Supreme Court too.

No question about it, anti-female biases make practicing law especially miserable for women. My tough and brilliant sister, now retired and happier not practicing law than she ever was while practicing it, was by all accounts a terrific trial lawyer and litigator, mostly for the government.  She was also ostracized for being as aggressive and effective as any man, called a “bitch” and “abrasive'” by some of her adversaries. My sister also was more devoted to her two children, one (her son) a lawyer and one (her daughter) on the way to being one, than she was to the law. As a result, she insisted on flex time and pert-time arrangements, which naturally contributed to the “gender pay gap” when she worked for a BigLaw firm.

I certainly believe that the special problems faced by women in the traditionally and still male-dominated profession of the law is a legitimate area for study and analysis, and that there are factors involved that can be mitigated. I am dubious that the law will ever be gender neutral in all respects, however, for the same reasons I doubt that martial arts competitions will be gender neutral.

I also see disturbing signs that the feminist approach to the fact that women might just not want to give their heart and soul over to legal practice and make reasonable trade-offs as a result is to label this a problem rather than a reasonable fact of life. I wrote about this recently here, when a Times feature by a Harvard Law professor (a lot of female lawyers prefer teaching to practice too)  about the gender pay gap concluded

In sum, the gap is mainly the upshot of two separate but related forces: workplaces that pay more per hour to those who work longer and more uncertain hours, and households in which women have assumed disproportionately large responsibilities. Equality on this court requires a level playing field at home and in the market. There are many battles ahead. Unfortunately, they need to be fought at several levels.

I wrote, “In other words, society and human nature must be upended, forcibly if necessary, because absolute gender equality in pay and the elimination of all disparities in gender-based behavior must be achieved at all costs…and the costs include making people miserable.”

If more women are miserable in law firms and don’t want to make trade-offs that men are more willing to make, there is nothing wrong with that. After all, I made that same trade-off, and am glad I did, even if the bank account gets a bit thin this time of year.


Pointer: Still Spartan, who wrote, when sending me the links, “I’m sure you’ll butcher it in your analysis, but I’m convinced that unconscious bias is the real and major reason women flee private law firms.”


54 thoughts on “Gender Bias And Legal Careers

  1. Interesting topic.

    In my own work with the TQ Trust Quotient assessment tool – something I created on the basis of the Trust Equation (Credibility + Reliability + Intimacy / Self-orientation), it turns out that the most powerful of the four factor is Intimacy. (That is a statistical claim: highest coefficient in a regression analysis).

    Now here’s what’s interesting, based on 70,000 takers of the TQ:

    – women score higher than men, in a statistically significant manner
    – the main reason is their higher scores on Intimacy
    – independent surveys of trustworthy professions (Gallup, Yankelovich) consistently show lawyers and politicians at the bottom of the list.

    And guess what skill lawyers are worst at? Based on our study, it’s Intimacy.

    It all adds up: the practice of law is very male-oriented, and anti-female-sensibility.

    This is an average, overall, viewpoint: you can never apply it to any one individual, that’s discriminatory, but I think you can make valid overall conclusions, and this is definnitely one.

      • (It really is very interesting). The question then becomes a chicken and egg one, right? Is the law as a profession innately unpalatable to more women than men, or has it been made that way because it’s been dominated by men for so long?

        • “The question then becomes a chicken and egg one, right? Is the law as a profession innately unpalatable to more women than men, or has it been made that way because it’s been dominated by men for so long?”

          StillSpartan (below) makes an excellent case for the chicken, at least in many cases. I totally buy that, but would raise her one and say it’s also the egg.

          The bottom line of legal ethics in the US is client service: you are there to serve the best interests of the client. In the UK, it’s different: the root of legal ethics is that you are supposed to serve justice.

          Nothing per se wrong with either system, but note that the adversarial system is intrinsically competitive; less so in the UK’s system. An adversarial system appeals much more to “male” characteristics.

          Since children, little girls seem generally to exhibit more of a focus on relationships, and little boys on things and transactions. The practice of law provides ample room for anyone who wants to lose themselves in the transactional way of life – a very “male” approach. (Though ironically, both client relationships and business development are much better done through the “female” traits of relationships, closely correlated to the Intimacy factor in the trust equation).

          I’d hazard a guess that your average litigator – an extremely competitive, aggressive and transactional role – tends to be male. And I know for a fact that in the field of legal mediation – where a more “female” set of skills is required – tends to be, relatively speaking, more peopled by women.

          None of this should be surprising. Estrogen and testosterone wreak their effects on all of us, in varying and competing degrees. I’m using quote marks to talk about generic traits, rather than specific gender instantiations.

          The trick is to separate the particular from the general. It may be that StillSpartan and Dr. Phil are not the average – but we never run into an “average” person, we only deal with particulars. It is possible to say that some professions are “male” or “female,” and yet insist that each person be treated as an individual.

          In fact, I’d argue that’s the ethical imperative. To not be blind to gender differences (the absurd mistakes made by the cultural left), but neither to be ignore systemic prejudice and patterns of discrimination (the willful blindness of too many on the right) – that is the ethical challenge.

    • Charles, could the intimacy gap be the reason why women find trial combat unfulfilling? As a non-lawyer, I would think that losing in court would more greatly be affected psychologically to those who value intimacy and see losing as a blow to the attorney-client relationship, whereas a male lawyer simply chalks it up to just another case and moves on. If that is the case, Jacks analysis seems correct.

      I would suggest that clients facing personal loss of liberty will be inclined to hire and thus pay higher fees to percieved warrior bulldogs in court.

      Perhaps one way to change perceptions about women as warriors would be to change selective service requirements to mandate women to register for the draft. Having all female infantry divisions could helps alter perceptions of female warrior capabilities. I know that seems to be unrelated but to Jack’s point women are socialized to have the choice of a professional career or raise children while men are often seen as unambitious louts if they choose a more family oriented life. In times of war we as a society only demand conscription of men while women have no such legal or social demand. This is not to disparage the many women who serve in forward combat roles by choice. However, the relative few who do may not change social perceptions of male / female roles as fast. Furthermore, if we want to move toward full equality both genders must have equal demands placed upon them.

      • The recent mini-series on the Mendendez brothers murder trial certainly backs that theory. Jacobson was completely emotionally invested in the two brothers, which is inadvisable, and definitely not accepted best practice. Clarence Darrow was terrific at seeming emotionally invested, but in fact he was cold as ice. If Leopold and Loeb had been executed, he would have felt bad that his record was marred, and that he lost, but I doubt that he would have shed any tears for the killers.

  2. Whenever anyone asks me whether they should go to law school, I tell them there is a different type of school that does a much better job teaching you how to make money: business school.

    Attend a big closing some day. The attorneys’ fees, compared to what the investment bankers make and what the principals are getting, are merely the crumbs that fall off the table.

    There’s a high correlation (100%?) between successful lawyers and assholes. As soon as there are more women assholes, there will be more successful lawyers.

      • Great parties! Then again, they fired me after I set up the most lucrative and useful part of their association for the non-filthy rich members (the majority), because the rich members wanted to put more money into lobbying.

        • It’s a never ending, noble battle fighting off villainous tortfeasers on behalf of the unwashed. Well, that and making sure Congress doesn’t do anything to derail the damages gravy train.

    • I read that. Based on the info the son only got 67% of what he spent on his daughter’s 15th birthday/coming out party. How discriminatory?

  3. If the female lawyers are not good at/don’t care for the Perry-anything-for-the-client-24/7-Mason schtick, would it be correct to assume that they wouldn’t be very good teachers in that area either? Or are they able to teach what they are not experienced doing?

    • Basic technical competence is readily teachable by anyone. Being a hired asshole is a different skill set and probably more genetic or environmental than is technical competence.

        • I’ve always wondered whether law schools have any ethical obligation to warn students what practice, particularly in a large private firm, is like. There’s course or seminar or even lunch time lecture I’d love to give.

          • We don’t even teach how to balance a checkbook in High School, at an age when many kids first have access to an account. (Okay, a bit dated, but the concept is useful even in today’s bank app world.)

            We do not teach the vast majority of college kids the time value of money, and how compound interest works (I had to catch it in a Civil Engineering class, as a budding engineer.) This alone would teach intelligent students to avoid the credit card/student loan trap so many fall prey to during those years, often scarring their financial lives for decades. (I know for a fact that colleges are discouraged from making such concepts known by donations from companies who hawk their financial products at every student event all year.)

            No, giving kids the true facts about how their lives will be hell because they pursued law education at your school is definitely NOT a core curriculum item, I suspect.

            • Like so many, many things, balancing a checkbook and time value of money need to be learned at home. Lots of second and third generation lawyers do much, much better in big firms and the practice of law generally. I don’t think they suffer from the delusions about lawyering and partnerships that flourish among first generation lawyers.

              • If the parents don’t know these concepts, how will they teach the kids? We educate so kids learn the state capitols, and this is far easier.

                And these are so simple to demonstrate. My kids get it, and the lessons continue at every teachable moment.

                • It’s a long term problem, sw. Parents not knowing these things or not being around to teach them to their kids if they do is a problem. You tell me what government program will take the place of competent parents. Reminds me of a discussion I had with my earnest cousin who considered becoming an Anglican priest when he was younger. I was saying life is complicated and not everyone can be as successful as everyone else. To which he responded, “We were lucky. We got our smarts from our parents.” To which I responded, “And what government program is going to address that issue?”

                  • Not asking big brother to take over parenting, just commenting that public schools could spend two hours teaching a few basic concepts that would make many student’s lives tangibly better.

                • That’s essentially my life’s work: identifying all the thinking skills that people need to be mature, responsible, and independent, and figuring out how to teach them in a reliable fashion. Identifying the skills is more or less complete. Designing and testing a teaching method is going to be trickier, not to mention drawing enough attention to it. However, I’m convinced that it’s the single most important thing I could be doing (since without capable people the world will slowly collapse) and that I’m reasonably capable of developing the skills to inspire people to contribute to the plan.

          • That was a response – herewith adding the ‘thank you’ to OB and Jack for answering my question – that was supposed to follow Jack’s 12/13 1:55pm comment. It’s past my bedtime.

          • Going on the bench, particularly the Federal benches, is a way for pretty darned competent lawyers to get out of the business. And many of the Federal jobs pay very well … FOR LIFE.

  4. Point of order — it is unethical to quote a private conversation between friends without asking permission. I expect an apology. Now, I will read your analysis.

    • Wait—what good are fake names if you are going to pretend they don’t matter? If I said, “the reader who sent me this said…”, would that be any different, since only you and I know who I’m talking about? I regard Still Spartan as one entity I have never met, and the real life friend who uses that handle as someone else. I attributed the conversation to the imaginary entity, not the friend.

      But I’ll apologize if you are serious about thinking that was a breach. I didn’t think it was, and still don’t, but I wouldn’t have quoted Clark Kent if I thought Superman would object. So I’m sorry.

      Note: many, many, MANY times I quoted comments from my “Ethics Topic Scout Fred” about a topic in the personal e-mails he sent me with links. Never asked permission, and Fred was, in fact, the name he commented under. He never objected, and I assumed that if the comment related to the topic, he wouldn’t.

      But then, you’re not Fred. OR ARE YOU???

  5. Okay, here is where I have major beef with your analysis.

    “I also see disturbing signs that the feminist approach to the fact that women might just not want to give their heart and soul over to legal practice and make reasonable trade-offs as a result is to label this a problem rather than a reasonable fact of life.”

    I worked in Big Law at a top 100 law firm for a decade. I was well liked by my (male) partnership and could have spent my entire career there — although I doubt I would have risen above senior counsel.

    The main reason I — and other female attorneys at my firm — left was not because we weren’t giving our “hearts and souls” to our practice groups, it was because no one cared that we did. We were seen as females first, and lawyers second. If the opportunities for advancement are going to men, why should I continue to bill over 200 hours each month on work below my skill level when “equivalent male associate” gets to work on prepping witnesses for trial? I can’t tell you how many times I was asked if I was going to get pregnant, if so when, how much time would I take off, etc., etc., It was always on the mind of the rainmakers — “it is better to assign male associate to this bet-the-farm case that will last 3-4 years because there is no chance that he will take 3 months off to have a baby.”

    Because of this, women fall generally into 4 categories: 1) Those who vociferously declare that they won’t have children and demand to be put on the case. (There is some danger there — HR concerns plus the risk of being labeled a bitch); 2) government work — far less lucrative but more accepting of women; 3) in-house work (this requires cooperation on your firm’s part or connections); or 4) well, why not ask for part-time work so I can concentrate on family (or start a family) since I am being pigeon-holed into this category anyway?

    The problem starts with the unconscious bias. Fix that, and you will have far less female flight from firms.

    • Why do you call that an unconscious bias? isn’t that a realistic and valid consideration based on known and real factors?

      I remember once interviewing lawyers for an essential project at one of the associations I worked for. I told all of the applicants that the project was time sensitive and would require a lot of overtime work almost immediately for the first year. Naturally, I couldn’t inquire about family plans. The stand-out applicants were a male and a female lawyer, both married, about the same age. Both pledged that they were eager and ready to do what the job required. I chose the woman; the salary and benefits were the budgeted ones for the job. She accepted.

      A week later, she informed me she was pregnant. She was when she interviewed, of course. It was a difficult pregnancy, and I had to beg and plead to get money to hire essentially a back-up for her. The project ran late, and I remember that MY salary was hit later when I didn’t get the maximum raise because of my failure to keep the project on budget. Yes, I hired a male lawyer to back the woman up. Damn right I did. If I had been conned the same way twice, I would have been fired.

      Oh—she had her kid, was part time for a few months, and then quit to be a full time mom for about a decade. I wonder if she went to that conference at Harvard….

      • Sparty. You’re forgetting one thing. If you want to be in a mega firm, start one yourself. Hang out a shingle. Be your own Edward Bennett Williams. Nobody’s stopping you. Be your own boss. Then see how many young lawyers you owe a partnership to once you’re successful. Eating what you kill can be daunting but also satisfying and even remunerative. I did it for a while.

      • There’s both conscious and unconscious bias going on in law firms. Typically, women leave because they are not getting growth opportunities. The ones that stay don’t nececessarily get the same experience as male attorneys, so they are passed over at promotion time. Added to this is the subjective factor, men tend to hang out with other men — so it’s more natural for them to promote men. I get it. I don’t need any fingers to count the men in my book club (which is made up entirely of women in law). But employers don’t get to discriminate (even if it’s just disparate impact). Women need to be given the right opportunities and be promoted.

    • It occurs to me that a major source of the issues arises due to the legal industry involving much more human overclocking than I suspect it needs to. I conjecture that any sufficiently cutthroat industry that is mainly focused on inanimate structures is susceptible to becoming populated mostly by males.

      That train of thought leads me to what may be a stupid question: have there ever been lawyers’ unions? Have they bargained for limits on hours and workloads? Or does the mentality of individual ambition at the expense of life balance, which is anathema to the very purpose of unions, sufficiently dominate the legal profession so as to prevent their formation?

      • It’s not the hours — it’s the quality of hours. Any decent attorney at Big Law can bill well over 2000 hours doing memos, basic legal research, document review (although that area is shrinking), motions, etc. But, in order to get promoted, you need to: go to trial or arbitration (if you’re a litigator) AND bring in business. Absent family connections, it is virtually impossible to bring in significant corporate business if you don’t have trial/arbitration experience, so lawyers (male or female) have to be groomed for the right opportunities first. This entirely is a subjective exercise at firms. Partners are allowed to pick who is assigned to their cases — as well as who will be doing what work on their cases.

        I was very lucky while at Big Law because I was part of a busy team that liked my work. I never had a problem exceeding billable hours. I also had plenty of opportunities for deposition and motion practice. But, I wasn’t being groomed for partnership. My group — at the time — had all male partners. That has changed now, but 76% of the partners at my old firm are male. That’s too high given that the entry classes have been equal for the past 30 years.

  6. And what about all the guys (like the undersigned) who bail out of big firms because it’s a miserable life and I decided I’d rather stay married to my wife and be a father to my children than make partner and marry a young secretary or paralegal and drink? What about the bias I experienced?

    • And of course there’s another possible explanation: Maybe I just wasn’t bright enough or savvy enough or cagey enough or energetic enough or greedy enough to make partner. Maybe I just didn’t have it. Who knows? But to borrow the jack McCoy line, “I can live with that.”

  7. I was once told by an attorney that I needed to be a lawyer—after I had explained why I felt like I could argue for a legal secession of Texas from the Union. His comment was “You have the kind of twisted thinking that makes a good lawyer”. My belief, not necessarily reasonable, is that women think logically, with a linear approach, and reach conclusions based on that logic. Men, not so much. Thus, more men in law.

  8. My profession’s magazine (actuaries) tells me females on average retire 13 years earlier from the profession than do males. I see from the local paper that there are far more women than men playing mid week comp tennis. I also see from the stats that women are continuing to live longer than men. If all this indicates a big social problem ( I don’t think so ) might it not be the males who are being disadvantaged?

  9. I can’t speak how this applies in terms of the law, but I can talk about how it relates to moral development. There is an overwhelming amount of research that shows that women tend to be more sympathetic and empathetic while men tend to be more prosocial (I speculate this is because women see their sympathy and empathy as being prosocial). According to Jerome Kagan a psychologist and neuroscientist, our ability to develop what he calls moral emotions (sympathy, empathy, guilt, shame, embarrassment, pride, etc) can occur super early in our development (he speculates as early as 3-6 months).

    Most of these emotions are mostly due to our environment and our caregivers, especially our parents. This might be in part where our unconscious bias develops. Of course, this is not always the case. They are plenty of good people with horrible parents and vice-versa. Another psychologist demonstrated that people develop values based on similar factors. He found that most people settle into what he calls a conventional stage of development. His research also showed that girls are more family-focused while boys tend to be more rigid in their rules and application (Basically, men are likely to do something because of law and order and girls are more likely to do something because of perceptions and family).

    We have seen a plethora of items which show that gender plays a huge factor in decision making. Boys tend to like non-fiction more, girls tend to play with dolls more, boys are more likely to be risk takers, girls are more likely to focus on softer things.

    The simple answer is neither of these things makes one gender better than the other and neither one is better than the other. The more complicated answer is these things are never going to change (or at least not change without greatly destroying society as we know it). I feel for the woman who wants both worlds and perhaps they can have it, but that is not likely to come easy, especially in a world that neither sympathizes with them or owes them anything.

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