Solo Practitioners, Women's Issues

Flying Solo As A Woman Attorney

Toni Messina's message to women attorneys thinking of going solo out there is -- let's stick together. 

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Retired federal judge Shira Scheindlin recently wrote an editorial in the New York Times titled, “Female Lawyers Can Talk, Too.”  It got me thinking.  When it comes to representing poor clients, people for whom the court appoints attorneys — I see as many female attorneys as men.  They either work for one of the big state or federal public defender organizations or are appointed as one-offs by the state or federal government. However, when it comes to getting hired to represent a defendant who has money to pay for an attorney — the men get the lion’s share of the work.

This is as true today as when I started working as a criminal defense attorney two decades ago.  The women get the court-appointed work, the men get retained.

Although the courts in general have become more women-friendly in recent years — there are many more women prosecutors, judges, court officers, and public-defense counsel than when I started — the number of women in private practice, either hired by law firms or working as solo practitioners, has not significantly changed since the early 1990s at least in terms of their representation as lead counsel in trial work.

I started my career as a Legal Aid attorney in the 1990s.  More than half the staff were women.  Many were excellent trial attorneys — dedicated, committed, fierce.  There was (and is) no question that they could do any case a man could do.

When I went into my own practice in 2004, I met very few women in private criminal defense work. When I was appointed to the federal CJA panel, I was often the only female defense attorney in a sea of grey suits.  It’s a strange feeling walking into a courtroom in our day and age and being the only woman inside.  Literally, the other 15 attorneys in the room would be men, vying for the best seat, the longest appeal to the judge, the show-the-client-I’m-worth-the-big-bucks stuff.

Judge Sheindlin in her New York Times editorial addressed this paradox. While women now make up more than 50 percent of law school populations, they only make arguments in court 20 percent of the time.  The report, commissioned by the New York State Bar Association, was a first-ever observational study of the number of women speaking in court.  The data was collected and submitted by judges over a four-month span. It analyzed 2,800 responses.

Why aren’t there more women getting retained on cases? Why is it that the big money, high- publicity cases, both civil and criminal, go to men?  Can you name even one renowned female attorney? It’s not because brilliant female attorneys aren’t out there. We just haven’t grabbed our piece of the spotlight.

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Based on my anecdoctal observations, fewer women are in private solo practice than men.  Solo work is more stressful, both economically and logistically, than working for a public defender organization. There’s no guaranteed next client, no paid vacation, no maternity or health insurance coverage (unless you buy it for yourself). I know many women who stayed with a large organization not because they shunned the challenge of hanging out their own shingle but because they needed to be the beard for the family health coverage. In many cases, this then permitted the husband to go out on his own and earn the bigger bucks. I’ve seen talented, innovative, ballsy women stick with the safer route (note, I said “safer,” not “easier”) because it lessens the anxiety in relation to finances, unexpected work surprises, and health coverage.

But that’s only half the story of why more women work for large public organizations than as solo practitioners.  I’ve seen it time and time again.  Women still don’t get hired as much as men.  As noted in the Bar Association report quoted by Judge Scheindlin, “the survey showed that when there was a big bet-the-company civil case, few clients were prepared to put their business’ fate in the hands of a woman.”  The same is true for criminal work.  If it’s a tough RICO case, or a celebrity basketball player who’s found with a gun, or a rich Upper East Side kid who kills his parents — men are hired.

I may have tried more cases (and won more) than most, but I just ain’t a man and it’s tough to get high-paying private clients.

What’s the reason for this cognitive dissonance? Are people who need criminal defense services so easily fooled by size over savvy? Surely today’s clients know that women are as smart, tough, and dedicated as men. We may not look the same or speak in as braggadocio a manner as some men, but that doesn’t mean we aren’t just as tenacious in court.  In some instances, we are even better.  Our negotiating skills may be more flexible because they’re less tied to our egos. We may catch people off-guard on cross, not by yelling at them but by calmly coaxing out inconsistencies and illogic.

Based on the Bar Association’s findings, even where women do the work (brief writing, witness prep, etc.), it’s the male attorney (often a white man) who addresses the court, although he’ll often refer to the woman, also sitting at counsel table, for the specifics.

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I’ve noticed that certain ethnic groups are more comfortable with hiring women than others.  Many African immigrants (people actually from Africa), will not hesitate to hire a competent woman.  Maybe in matriarchal societies, it’s common to go to a mother-figure in times of trouble.   African-American families, also, are more even-handed in hiring whomever (male or female) they believe will do the job best.

Latino cultures vary. Even though I speak Spanish, I rarely get hired by Dominican men.  (The women are more open minded, provided their husbands or boyfriends permit them.)  It’s a different story for Mexicans, Hondurans and Guatemalans. They know women can do as good, if not better, a job as men.

Well-heeled white males facing white-collar crimes — they want an alpha male like them. Maybe they relate better to each other.

Judge Scheindlin suggested that judges compel more female participation by insisting that if a female wrote the brief, she be the one to argue it.  Or that corporate clients demand that their legal teams be more diverse.

It’s disturbing to see how this trend — hire the man over the woman — hasn’t changed much since I started practicing law. I don’t want to think it’s per se misogyny, but I do think it’s based on misunderstanding and misconceptions about women. Women are as dedicated, smart, ambitious, and fearsome as men. We may have a different approach, but it doesn’t mean we can’t do as well or even better than our male counterparts.

My message to women attorneys thinking of going solo out there is — let’s stick together.  It’s only by increasing our numbers that we increase our chances of getting a greater share of the limelight, the same fees as men, and the proof that we win just as many (if not more) cases.

Our time is coming.  Unfortunately, it’s just not here yet.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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