Talent beyond the familiar faces of the legal world

Last year, I wrote a piece for this publication that asked when we would stop having lists of top women lawyers. The tenor of discussions over gender and race has changed a lot in the past year, and the answer may be "sooner than we thought." But a decree that such lists are not necessary does not make it so. Lists of top women lawyers were created in reaction to the observation that women made up a small minority of those on lists of top lawyers more generally. That condition still holds. To be clear, lists of top women have their vices. I still find myself annoyed every time I am listed as a top "woman" lawyer rather than a top lawyer. But I am even more annoyed when I see lists of top lawyers that are overwhelmingly male.

To be sure, the professional world is more welcoming to women than it was when I joined it 30-plus years ago. I get less advice to wear makeup, although in fairness the intervening years of age may have something to do with that. Parental leave policies are more generous and are gender neutral. And in the past year, I was not once asked if I was the court reporter. Progress!

So why are lists of top women lawyers still regrettably important? Because experience shapes expectations, if not preferences. Picture a trial lawyer, striding around the well addressing a jury, jumping up to challenge a ruling, getting a hostile witness to erupt on the stand, risking contempt to make a record. Who do you see? Such lists help remind clients and firms that the most familiar profile of a trial lawyer is not the only one.

In my experience, jurors get it and are no longer surprised to see "the lady lawyer" kick some ass. And, as my mentor John Keker once put it, old white guys are boring. Getting (and holding) the jury's attention is half the battle. It helps to mix it up.

Depending on how one understands "DEI" or programmatic steps to promote women in the profession, such as Ronald Reagan's (!) campaign promise to appoint a woman to the Supreme Court, programs and branding may become less common but the need to think consciously about merit will not.

Labels don't make choices. People do. The progress made so far is the result of people making choices. So regardless of what happens to programs or slogans, it falls to every single one of us to do our part. Partners, look at your teams. Daily Journal, look at your lists. Clients, look at your counsel.

Are they gender-balanced? If not, why not? Selecting less-qualified women because they are women is not OK today, and arguably never was. But there's nothing wrong with taking pains to avoid the consequences of sexism. Women who have made it notwithstanding the still-palpable obstacles are probably pretty good. Quotas are out, but you can make individual judgments that take into account the broader landscape. It remains legal to root out discrimination. Let's do that.

Daralyn J. Durie is a partner at Morrison & Foerster LLP.