“Tokenism” does not equal “Diversity”

Lawyer defending client with jury in court

By Jill D. Schmid, Ph.D.

A tweet from Bloomberg Law caught my eye: “#Gender gap persists Among Lead Trial Counsel.” The tweet was a reference to a recently released report titled, “First Chairs at Trial: More Women Need Seats at the Table.” The report was prepared by the ABA’s Commission on Women in the Profession and the American Bar Foundation (authors Stephanie Scharf and Roberta Liebenberg). The report is an excellent analysis of the lack of women in lead trial roles and what can be done about it. I urge anyone involved in the legal profession –law schools, corporations, firms – to read the report and look for ways to encourage diversity within trial teams.

While gender (as well as racial) diversity is optimal for a number of reasons, I hesitate to make this kind of statement without a quick follow-up: too often people think that means that the trial team simply needs to “add a woman.” That is absolutely not the answer – adding a “token” woman to the team to “appeal to women on the jury,” does not work. I would say the same thing if someone asked, “Do we need a man?” or “Do we need a minority?” or “Do we need a handicapped person?” I add that last one since we had a client ask us once if they should find a disabled expert since the plaintiff had a disabled expert. For all of these, the answer is “no.” (To be fair, I’d tell someone in a deposition to be quite careful using an unequivocal no….there can be exceptions. So go ahead and ask the question, but the answer is likely: “Still no.”)

What you need is a team of qualified, credible, and likable attorneys. If you are “adding” a woman because you think that’s the only way women on the panel will relate to your case, you have a much bigger problem than the fact there are no women on your trial team. When a woman is added to simply sit there, no juror looks over and thinks, “Oh, now I’ll vote for them since they have a woman on the team.” Additionally, when a woman is added to take one or (at the most) two witnesses (while the male lead or male co-chairs do everything else), the primary message sent to the jury is that those are not very important witnesses. A caveat – this can change if there are multiple members (some men and some women) on the team who are all “second” (i.e., “equal”) and everyone takes a few witnesses. Essentially, you want parity among the “non-lead” team members with no one person clearly serving in a minor or trivial role; and, that’s true for men or women. If the “junior” member takes only one witness, jurors place that witness in the same position in the hierarchy – at the bottom. Maybe you don’t care, but understand if the only “junior” person on the team is the female attorney (no matter age or rank), then you are not scoring any points with jurors.

Does this change if the case involves a sexual harassment or discrimination? Typically, no. If you’re defending a sexual discrimination case and the “men” on the team appear to be minimizing or trivializing the only female’s role, then all you’ve done is corroborate your opposition’s key theme. Keep in mind, I’m only talking about the problem of adding that “token” woman to the team. In a sexual harassment case (or any case!) if there is parity on the trial team, and the woman is not taking a “lesser” or “minor” role, then having diversity can be a plus.

Bottom-line, do not add a “token” woman to your trial team because you think it will “look good” to the jury. Seek diversification because of the insights different perspectives can give.