Like Mother, Like Daughter?

The Bencher—January/February 2020

By Judge Gene E.K. Pratter and V. Paige Pratter, Esquire

The glory of each generation is to make its own precedents.
—Belva Lockwood, the first woman to argue before the U.S. Supreme Court

Like mother, like daughter? When mother and daughter are both lawyers, this question is too dicey to address here. Instead, our focus will be to make some observations about our profession, principally concerning women, in the 28 years between our respective law school graduations—1975 and 2003—and now.
Both of us work full time in law, having done so since our graduations from the University of Pennsylvania Law School. We each have two children but chose different child care options after returning from brief maternity leaves. Our husbands also have law degrees, though one stayed with non-law pursuits. Both of us have worked in large law firms, one of us for more than 30 years in the same firm before becoming a federal district court judge, and the other in three firms in three cities after a federal court clerkship and before becoming an assistant U.S. attorney and now leader of an in-house legal team in a multi-national tech corporation. These experiences contribute to our reflections as to whether and, if so, how women affected the legal profession and vice versa.

Focusing on the numbers, what is different?

GEKP: Since 1975 the gap between the number of women and men in our profession has been shrinking. Considerably more women now participate in every aspect (except in support service roles if reports of secretarial buy-outs and reductions-in-force are accurate). In the 1970s, between 15 percent and 30 percent of law students were women, typically coming directly from college. In the 1990s and early 2000s, women still represented less than half of law students, but by 2009 about 48 percent of law school graduates were women. Now, many schools report that more than half their students are women. A similar pattern appears in large law firms. Reports show entering associate classes of approximately 45 percent women; in the 1970s it was closer to one-fourth. The first time I ventured into a federal courtroom in the mid-1970s Article III women judges were few and far between. Of course, none were U.S. Supreme Court justices. Then, in 1979, 23 women were appointed to federal judgeships, more than doubling the number of women nominated as federal judges in the previous 190 years. Reports for 2018 show one-third of judges on highest-level state courts are women.

VPP: In federal and local prosecutors’ offices, the presence of professional women has been steadily increasing too. The count of women U.S. attorneys went from none in 1975 to 11 in 2002 and equivalent numbers now. There is similar increase in the number of women in law enforcement generally.

GEKP: The reference to more women in law enforcement and prosecutors’ offices reminds me of a criminal case I had a few years ago. Mid-way through a hearing I noticed that all of the participants—the prosecutor, defense counsel, FBI agent, probation officer, deputy U.S. marshal, court reporter, the judge and the defendant all were women. Whether that represented progress of some sort, it was surely significant that no one noticed the gender demographics earlier in the case.

What about women lawyers in leadership positions?

VPP: Role models can be instrumental to anyone’s success, so it’s worthwhile to look for women in leadership positions, such as women Supreme Court justices. Notably, most of the Supreme Court’s law clerks in this term are women. More women are leading corporate in-house legal departments, large and small, just as more women are first chair on trial teams. This is also true in law schools. In 1974, 3 percent of the deans of 157 law schools were women; now the number is almost 40 percent. Law faculties track similar changes.

GEKP: Of course, leadership is seen through the eye of the beholder and exhibited differently person-by-person and institution-by-institution. It is a tough concept to nail down. When I graduated from law school, women in Congress were a rarity; not so this term. However, in the 1970s lawyers were a much larger percentage of state and federal legislators than they are now. Various women leaders say that the most successful women leaders are those who are, and appear to be, comfortable with who they are, who take care not to use their gender as a feint, and those whose toughness has a purpose and is only one of many tools in the box. Women leaders are quick to say that more leadership opportunities for women are needed and institutional obstacles have to be removed.

Even though women enter law firms at comparable rates to men and may achieve parity in promotion to nominal partnership ranks, women remain relatively scarce in firm governance, ownership, and profits. They still represent about a quarter of the partners and just slightly above one-fifth of equity partners. In nonprofits, government, in-house positions, and academia women lawyers do represent higher percentage rates in senior roles than in private practice.

VPP: From the standpoint of providing role models or becoming leaders, we should be concerned that women leave law firms before attaining seniority at a greater pace than their male counterparts. This narrows the pipeline and shrinks the pool of women available for promotion. Fortunately, leaders are found in many places, and we can find women leaders elsewhere among governors, state attorneys general, Cabinet secretaries, and municipal governments, for example. Some of us are even lucky enough to find it in our mothers.

Do today’s women lawyers have significantly different experiences than women did four decades ago?

GEKP: Probably, yes. Because there are more women in the profession generally, there are more role models, more potentially or presumably sympathetic or empathetic colleagues as mentors. This also means—for good or ill—any given woman is less likely to be perceived as unusual or unique. Instead, there is a possibility that an institution may consider a woman merely part of a constituency of “the women.” While the risk that any individual woman lawyer could be marginalized should be reduced now, unacceptable or unfortunate events still happen. Nonetheless, the expectation is that there are fewer surreptitious or pejorative discussions about a “mommy track” for those pursuing both a career and motherhood. There is flextime and telecommuting. As useful as such options can be, they are not without risk of sidetracking the lawyers who use them. Still, many of the “good/bad old days” are gone, replaced, if not exactly by a new dawn or new normal, then at least by something of a new age.

VPP: Some of the 1970s and ’80s stories make my hair stand on end. My own experience includes far fewer problematic examples. My contemporaries and I hear about negative experiences women lawyers and judges had 25 or 30 years ago; I can’t imagine being expected to research and write the brief, prep the experts, and bring the coffee! Attitudes about part-time and flextime have progressed so that the majority of newer lawyers look favorably on legal industry employers who offer these arrangements. Recent surveys report that many newer women attorneys say they are interested in these options at some point in their careers. Although there are now more families with stay-at-home dads and lawyer-mother breadwinners, more women lawyers than men work part time. Fewer men and women may do so, perhaps because many younger lawyers are concerned that working part time or on flexible schedules is or can be career limiting, notwithstanding contrary protestations.

Have institutions changed because there are more women lawyers and an increase in the presence of women generally?

GEKP: They have changed, though I doubt there is a primary cause. Thirty or 40 years ago there hardly would ever have been a lawsuit by a woman lawyer against her firm. Now, such reports in the legal news are not rare. To be fair, years ago there were virtually no reports of any lawyer leaving, much less suing, his or her firm. Another change is the presence of ubiquitous consultants offering costly advice about attracting, interviewing, retaining, compensating, and developing women professionals. These businesses started to appear in the 1980s, but not many firms used them. Now, many lawyers themselves have become the consultants or headhunters.

Networking events for women abound. Bar associations and firms sponsor “high tea,” not just golf outings. Care is given to gender balance for assembling panels and programs. Bar publications regularly include articles about dress codes. Many men also benefit from the increase in women lawyers. For example, it is not unusual for both men and women to ask that a court hearing or conference wrap up early because of carpool duty. I try to gently remind some of my judicial colleagues who may not themselves have had (or have) primary child care duties that scheduling court matters for very early or late in the day can be especially tough and stressful for lawyers—most often women—who get kids out the door in the morning or get dinner ready or both. This, by the way, is my most frequently used example when asked if women judges “do things differently” than their male colleagues. Perhaps this is one small way we judges can help the profession become more family friendly, a welcomed change for men and women alike.

VPP: Maybe because of increased numbers, but hopefully because it is the right thing to do, women expect equal opportunity for getting into law school, leading firm practice groups or bar committees, being hired and enjoying promotions in firms and legal departments, and stepping into professional leadership roles in all sectors. Many communities have successful all-women firms and, for example, the Women’s White-Collar Defense Association and the Women Antitrust Plaintiffs’ Attorneys group have robust worldwide participation. Firms have experimented with on-site or co-op day care. Efforts to adjust hiring interview routines and enhance client development skills and opportunities for women also result in a much different experience for more recent generations. These changes likely are here to stay.

What about women professionals’ relationships with each other?

VPP: No doubt my experience is colored by 13 years in an all-girls K–12 school, but I think professional women today really believe that a rising tide lifts all boats. We enjoy each other, including the chance to support one another. As an example, I recall a criminal trial where the judge (perhaps one who hadn’t yet received the gentle reminder about family schedule demands) announced we were staying until the jury reached a verdict, no matter that he finished charging the jury at 5 p.m. Defense counsel—a mom I had only met during this case—then scrambled to sort out child care coverage. We realized we lived in the same neighborhood, so her baby was brought to my house where our sitter watched all the kids until the verdict was announced later that evening. Opponents in the courtroom, we had each other’s backs in life.

GEKP: There is greater interest in mentoring now. This was not a topic much written about 35 or 40 years ago, much less the subject of serious attention in law firms and corporate legal departments. Now, it is so central to professional development, there is even the counter-consideration of the so-called “Queen Bee” phenomenon—namely, do some senior, experienced women professionals have the attitude of “I had to do it the hard way; so should you”? Some career strategists even caution against expecting professionals to wholeheartedly look out for those coming along later. This is often couched in gender terms, but it might apply to men too, senior and junior, thus making the American Inns of Court, with its emphasis on mentoring, even more valuable for everyone. 

What about changing views by clients or the public in general?

GEKP: There has been a sea change in the expectations of clients, probably prompting speedier acknowledgment of the importance of women lawyers. I recall a big gender discrimination case in the late 1970s against our firm’s college client that vetoed the inclusion of a woman associate in a key role on the defense trial team. Our senior partner risked losing the client by insisting the preferred associate remain on board. That associate—an Inn member—later became chancellor of the Philadelphia Bar Association. And as roles of women generally have changed, our profession has had to take notice. Nationwide demographics tell us that in 1975 women were heads of 13 percent of households; that has doubled since 2003. Women-owned businesses have multiplied at a faster rate: 1.0 million in 1977 to 2.5 million in 1980, a gain of 33 percent as compared to an 11 percent gain for men in the same years. Now, in 2018, about 12.3 million (40 percent of all businesses) are owned by women.  Even women’s events in the Olympics and other athletic pursuits show remarkable and similar growth in numbers and attention. It’s hardly surprising the law profession responds.

Any other thoughts about what is or could be ahead for women lawyers?

GEKP: I suppose we will know that women are equal at all levels and in all aspects of our profession when we do not just celebrate “firsts.” Frankly, just cracking the glass ceiling is not enough. Indeed, the cracks appeared long ago. Wouldn’t it be better if there was no glass ceiling to discuss? I’d like to see some language changes so that we no longer refer to a “woman litigator,” a “woman lawyer,” a “woman prosecutor,” a “woman G.C.,” and such. After all, when reference is to a man, we talk, or the press writes, about “lawyer,” “litigator,” “G.C.,” “prosecutor,” “judge,” or “dean.” And I hope we cease the debate between the gradualists or apologists (“It is OK if changes happen in moderation eventually…”) and those who are more impatient (“We shouldn’t have to wait one minute more…”) to a realistic optimism that accepts the unmistakable and irresistible momentum for change in all aspects of our profession. It’s my hope that we soon get to the point where we do not automatically think that exceptional women lawyers and judges are exceptions.

[Endnote: For the data presented we are indebted to Michael Hayes, manager of library research for the Library of the Third Circuit Court of Appeals. He was indefatigable and good-spirited in tracking down reliable and interesting information. Of course, what we have done or failed to do with his hard work is our responsibility.]

Judge Gene E.K. Pratter is a judge on the U.S. District Court for the Eastern District of Pennsylvania in Philadelphia. Before becoming a judge in 2004, she was an attorney at Duane Morris LLP for 30 years. She is a long-time Master of the Bench in the University of Pennsylvania Law School American Inn of Court. V. Paige Pratter, Esquire, leads Microsoft’s Corporate Investigations Team in the Office of Legal Compliance. Prior to joining Microsoft, Pratter served as an assistant U.S. attorney in the Eastern District of Pennsylvania and was a Barrister member of the University of Pennsylvania American Inn of Court.

© 2020 Judge Gene E.K. Pratter and V. Paige Pratter, Esquire. This article was originally published in the January/February 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.