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John Bair
John Bair
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Shifting the Paradigm: Gender Issues and Lawsuits

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The Yaz Birth Control lawsuit isn’t just helping women affected by the drug’s harmful side effects, it’s also bringing to light some major gender issues in the legal profession which, although present for years, are just now gaining the attention they deserve. The suit, led almost entirely by men, is reflective of a trend across the legal industry, where first chairs at trials, judges, and other high profile positions are held almost entirely by men, a kind of “old-guard leadership”. Such lack of diversity shows a gross underrepresentation of women in leadership positions, as men jockey to ensure continued appointment, blocking fresher, younger, and more gender diverse individuals from advancing in the profession. Although the situation is improving, slowly, due to efforts from the judiciary and the more progressive law firms, women are still left relatively underrepresented in an industry that awaits the release of hard evidence to outline the disparity in female representation for mass litigations and positions of leadership within the judicial system. But hopefully, they won’t wait long.

Evidence produced by a major study, pending release by the Sheller Center for Social Justice at Temple University’s Beasley School of Law, quantifies a number of factors that go into the appointment of female attorneys to steering committees, and breaks down the number of females serving on such committees nationwide, examining whether gender, of either the attorneys or the judges themselves, may play a role in facilitating a more diverse roster of leadership appointments. The study will also include first-hand accounts from attorneys in the field, studying how diversification in the judicial system may provide women with greater opportunities to serve in leadership roles.

Dana Alvare, a research fellow pursuing a PhD in the sociology of law and gender at the University of Delaware, comments that, “The nuts and bolts is, we know that the legal profession is gendered…We’re making progress but this has been a long-identified problem, and so we’re looking at how that plays out in the MDLs” (Multi-District Lawsuits).

Sandra Mazer Moss, a retired judge from Philadelphia, noted that during her years of supervising mass tort cases she found that many times women were the ones researching the cases and preparing the briefs, but rarely saw any real trial time, much less in leadership positions. “It was very problematic” said Moss, “…to constantly see them pushed to the side when you know they’re the backbone of the litigation.”

Unfortunately, the evidence of a gender gap in the legal profession is nothing new. Roberta Liebenberg, an attorney who conducted a similar study, found that women comprise a disproportionately low percentage of lead attorney positions, and fail to receive repeat appointments, stifling a new generation of leaders, irrespective of gender.

But, despite the historically disproportionate number of women in lead positions within these high profile cases, the paradigm may (slowly) be changing. Many judges, including US Supreme Court Justice Samuel Alito, now request that lawyers staffed on cases more fairly represent the class composition in terms of “relevant race and gender metrics” and take gender into account when making such appointments.

Dianne Nast, who has been working on MDL’s since the 1980’s, has also noticed a paradigm shift, however slight, and suggests that it’s not coincidental, given the shift toward more women entering the judiciary, “With all the women on the Judicial Panel on Multidistrict Litigation, it’s impossible for the issue to not be noticed. I don’t think this is a movement anymore. It’s a settled issue that there are going to be diverse committees.”

Although it’s clear the legal profession has come a long way in terms of gender diversity, there is still more to be done. With more women entering the profession annually, the inclusion of women on high profile MDLs and litigation proceedings is an inevitability that the so-called “old-guard leadership” must not only recognize, but embrace. A more diverse panel of representatives benefits not only the profession itself, but also those for whom they serve. I would encourage all those involved to speak up, be they male or female, and fight for equal representation and diversification of our field. Be vocal, and be vigilant. When we involve all, we all benefit.