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The Silence of Women

Vivia Chen

January 21, 2011

Fotolia_8373223_XS Women in law are not wimps. Not the ones that I know. Even in law school, they struck me as outspoken, articulate, and, not infrequently, argumentative. I don't recall too many shrinking violets back then, and I don't see many now.

Yet, women's voices aren't being heard--literally. That seems to be happening both in law school classrooms and in the highest court in the land.

First, on female law students: From a recent study of 26,000 law students at 77 law schools conducted by Indiana University, the Chronicle of Higher Education (hat tip: ABA Blog) reports:

Although nearly half of American law students are women, they are less likely than their male classmates to ask questions in class or to discuss assignments with their professors.

Female law students are also more likely to say they work hard out of a fear of failure or the desire to avoid being embarrassed in front of their peers.

Unfortunately, that reluctance to speak out, coupled with the fear of making mistakes in public, might be crippling women throughout their careers. It could also be a factor as to why so few women have argued in the U.S. Supreme Court.

As The Washington Post reports: "While the high court now has three women on its nine-member bench--the most ever--the justices are still more than five times more likely to hear an argument from a male attorney than from a woman, an Associated Press review shows." In other words, women argue only 15 percent of the high court cases.

Blatt_lisa_1 Arnold & Porter partner Lisa Blatt (pictured left) made history recently with her latest appearance before the Supreme Court: She's now the record holder among women for arguing the greatest number (30) of cases before the high court (her advocacy style was recently discussed in The National Law Journal).

The Wall Street Journal Law Blog calls Blatt's achievement a "milestone," but cautions, "Let’s put that into perspective: According to the Supreme Court, Blatt is currently 21st in the number of most argued cases among active attorneys. First is Edwin Kneedler, who has been in the solicitor general’s office since the Carter administration, with 111."

So what accounts for the dearth of women before the high court, in Blatt's opinion? She told WSJ: "It’s helpful to enjoy the art of advocacy--verbal combat or verbal jousting. I find it telling that so many woman might be horrified, and you know, wouldn’t want to do it."

Even in the less rarefied world of business litigation, Blatt says, "you see more men than women." Interestingly, Blatt herself gravitated towards appellate practice because she found working as a trial lawyer "draining" and "combative." She also told the WSJ that "[trial] lawyers aren’t nice to one another. At the Supreme Court, everyone is so honorable."

Akin Gump partner Patricia Millett, who's argued 28 cases before the Supreme Court, told The Washington Post: "One of the things I'm most concerned about is women self-select out of the types of things that lead to appellate Supreme Court careers."

Are women muffling their own voices? Or are the powers-that-be just tuning them out? Maybe it's time for women to make a lot more noise.


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 Photo: Fotolia (top)





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I think the answer is not so much enjoying the art of advocacy but being on the right case at the right time. And a prior position in government that sees countless cases get to the Supreme Court level doesn't hurt either seeing Attorney Millet argued 25 cases while as a Solicitor General but only 3 in the last 3 years in private practice. Although not listed in Ms. Blatt's bio I would imagine the majority of hers were while she was working for the government and not private practice.

Women make plenty of noise as it is - unfortunately for women, however, the type of noise that tends to win high-stakes lawsuits is that of putting forth reasonable arguments, not just the irrational rants that women tend to be so good at.

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: [email protected]

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