April 12, 2006

NYTIMES TO WOMEN LAWYERS: WE DON'T KNOW UP FROM DOWN

Guest blogger, friend and counselor to Horsefeathers, Arnold Roth, assesses the NYTimes's empathic concerns for another class of victims of the patriarchy: women lawyers.

"...To write news in its perfection requires . . . a combination of qualities . . . [A] news-writer is a man without virtue, who lies . . . for his own profit . . . To these compositions is required neither genius nor knowledge, neither industry nor sprightliness; but contempt of shame and indifference to truth are absolutely necessary. He who by a long familiarity with infamy has obtained these qualities, may confidently tell today what he intends to contradict to-morrow; he may affirm fearlessly what he knows that he shall be obliged to recant . . ." Samuel Johnson: Idler #30 (November 11, 1758)

Horsefeathers has frequently decried the unthinking, often near-hysterical, always absurd liberal/feminist drive to unman America, and the efforts of various groups (e.g., the Harvard faculty of arts and sciences) and media organizations (e.g., the New York Times) to achieve that end. Continuing that quest to ferret out and diminish manliness wherever it may be found, the Times now pretends to have discovered, and in an anxious article written last month by reporter Timothy O’Brien, frets about the allegedly “anomalous” fact that there are “So Few Women” as partners in “Big Law Firms” (Sunday Business Section 3/19/06 p. 1; see also Letters in 3/26 and 4/2/06 Business Sections). Mr. O’Brien’s article is typical liberal/feminist nonsense.

The Article. -- Using the Times’ current anecdotal style of introducing topics, Mr. O’Brien’s article showcases Bettina Plevan, who is an “accomplished” woman partner with over 30 years experience at “big [New York] city law firm” Proskauer Rose, and is photographed on an upper landing of Proskauer’s long, steeply-ascending internal staircase (in case you don’t get it, she has successfully made the steep climb to partnership). But, alas, says Mr. O’Brien, Ms. Plevan is “an anomaly”, because “after [most women] begin to climb into the upper tiers of law firms”, something “unusual happens” and “[t]hey disappear” – thus, assert the article’s headlines, Ms. Plevan’s stairs are really “The Down Staircase For Women”.

Mr. O’Brien’s assertions of “anomalous” and “disappearing” women are based on data allegedly showing that, while “for years” law school graduating classes have been “almost evenly split between men and women” and while law firms have been absorbing “new associates in numbers that largely reflect” that 50-50 split, only “about 17 percent of the partners at major law firms nationwide were women in 2005, a figure that has risen only slightly [from 13%] in 1995”. He also claims that some believed that “once law school graduation rates substantially equalized between men and women” the law school pipeline “would fuel [law] firm diversity and cause partnerships to equalize as well”, but the “pipeline has been gushing for about two decades and partnership disparity remains”.

Mr. O’Brien and his sources (all but one women) concede that his “partnership disparity” is not a result of sex discrimination, noting that law firms have passed “way beyond [the] discrimination” and the “discriminatory . . . practices” of many years ago (the Times nevertheless could not resist publishing a woman lawyer’s Letter (4/2/06) claiming that 70 years ago, in “1936”, a law firm rejected her because it then didn’t “even hire female secretaries”). Moreover, neither Mr. O’Brien nor his sources have any other definitive explanation for their “partnership disparity”, although they talk, without any factual support or analysis, in stale and misleading generalities (which they call “biases”, whatever that means) about men’s “hands on the levers of power”, women not “being adequately mentored”, women “enjoy[ing] less access to the networking and business opportunities that flourish in largely male playgrounds”, “'glass ceiling' issues”, and the “maternal wall”. But whatever the reason, or lack thereof, Mr. O’Brien and his sources would have law firms adapt their business practices so as to attain more women partners – they would, for example, have firms measure attorney achievement by some standard other than “billable hours”, reassess “the role that women play in the family” with more of “a sense of shared [husband-wife] responsibilities”, and make it easier for women to “re-enter the legal world” after “temporarily giv[ing] up their professional dreams to pursue child-rearing or other personal goals”.

Mr. O’Brien’s article is thus based on two major premises: first, that women partners are “anomalies” and women are “disappearing” in “Big Law Firms”, and second, that “Big Law Firm” partners should be 50% women. Both of those premises false, and Mr. O’Brien misstates and misrepresents his allegedly supporting data.

My Interest. – I come to Mr. O’Brien’s article after having practiced law in New York City for over 40 years, and been a partner in a “Big Law Firm” for over 30 years. I have had numerous women partners, one of whom became a partner in normal course after about 8 years as an associate, during which time she gave birth to three children. I have worked with innumerable associates, male and female, including excellent, good, mediocre, and incompetent attorneys of each sex; have been actively involved in associate recruiting, hiring and termination, training, evaluation, and accession or non-accession to partnership; and have participated in the consideration, adoption, and implementation of maternity-leave programs, and seen how they have been used, and not infrequently abused, by female associates. I also know from long experience that the practice of law in a “Big Firm” is largely hard, dull, repetitive, unpleasant and uninteresting work – so much so as to make one wonder why anyone, man or woman, would want to do it; even Mr. O’Brien notes that “depression and dissatisfaction rates among both female and male lawyers has [sic] grown” and “many lawyers of both genders have found their schedules and the nature of their work to be dispiriting”, and a Letter (3/26/06) wonders, in light of the “grueling, lengthy commitment demanded of would-be law firm partners and the long odds against success”, why “so many intelligent men and women make the attempt at all”.

Mr. O’Brien’s First Premise Is False. – Mr. O’Brien’s premise that women partners are “anomalies” and that women “disappear” as they “climb into the upper tiers of law firms” is disproved by his own data. While it is certainly true that not all women associates become partners, it is also an incontrovertible fact that women are, and have been, becoming partners in very substantial numbers in “Big Law Firms”. Thus, as Mr. O’Brien’s data make clear, as many as 13% of all “major” law firm partners were women in 1995, and 17.3% were women by 2005. His 2005 data further shows that law firm partners in individual cities ranged from 8.7% women (Salt Lake City) to 23.7% women (Miami), with at least four cities averaging over 21% women (Miami, New Orleans, Denver, San Francisco), and that at least one firm in Dallas presently has 38 women partners, about 25% of all partners, and is seeking more. Clearly, whether one is using as a benchmark the 13% or the 17.3% or the over 21% or the 23.7% or the 25% women partners (or even Salt Lake City’s 8.7%), it is an outright mischaracterization to call Ms. Plevan an “anomaly”; rather, as a truth-telling reporter would have said, she is just a single example of the substantial and steadily-increasing number of presently existing women partners throughout the United States who not only have not “disappeared”, but have successfully climbed their own partnership stairways.

One of Mr. O’Brien’s statistical tricks, in his effort falsely to minimize the very substantial number of women partners, is to assert that women partners increased “only slightly” from 13% in 1995 to 17.3% in 2005 – tricky not because an ardent feminist supporter might not see the increase as “slight”, but tricky because a so-called investigative reporter ignores factors that would permit a more objective reader to determine the increase’s actual substantiality. For example, while it is true that 17.3% is 4.3% more than 13%, it is statistically more significant that (i) the 4.3% increase is about one-third (33.1%, to be more precise) of the 13% base from which it emanated, and (ii) therefore the 4.3% rise in women partners in absolute terms was a 33.1% increase over 1995 in percentage terms (hardly just a “slight” increase), or a percentage increase of over 3.3% per year for the 10 years. Mr. O’Brien doesn’t talk about that substantial 33.1% increase, or that steady decade-long annual 3.3% increase, because it gives the lie to his false claim of “disappearing” women lawyers and his mischaracterization of Ms. Plevan as an “anomaly”. Mr. O’Brien is also tricky in failing to consider the likelihood (if, as he says, percentage trends in graduating classes and new associate hires were truly relevant in telling us what ought to be happening with women partners) that the annual 3.3% increase in women partners since 1995 will actually begin to “soar” in coming years; such likelihood is seen from the fact, for example, and as Mr. O’Brien himself points out, that the percentage of women in law school graduating classes, which was just “creeping up slowly” after 1960 and was “only about 9%” in 1970, “began to soar just a few years” later to the 50% level.

Mr. O’Brien’s Second Premise Is False. – Mr. O’Brien’s premise is that it would be better for law firms if they had more women partners, and if the percentage of women partners more closely matched their roughly 50% of law school graduating and incoming associate classes. But Mr. O’Brien and his sources never give any clue, let alone provide any evidence, of any law firm benefit that would result from having more women partners. For example, there is no showing that having more women partners would increase the quality and efficiency of legal work performed by firms; no showing that more women partners would improve delivery of legal services to clients; no showing that more women partners would raise the amount and competence of pro bono work for the poor; no showing that having more women partners would enable firms to win more cases, close more deals, write more wills, dispose of more tax problems, or make more money; no showing that more women partners would enable firms to get more clients, or improve their client services; no showing that more women partners would attract, or help retain, more or better associates; no showing that more women partners would raise ethical standards or improve the generally lousy (except among themselves) reputation of lawyers; and no showing that more women partners would improve firm governance and administration. And, most interesting, there is no showing that more women partners – that is, the greater feminization of firms -- would in any way ameliorate the fighting, arguing, back-stabbing and back-biting all too common among ambitious, aggressive and egocentric “Big Firm” partners of both sexes.

Having no such evidence, Mr. O’Brien’s only argument is that more women partners would benefit law firms by creating “diversity”, and he cites Ms. Plevan’s opinion that “diversity is a beneficial thing”. Of course, even assuming that there should be “diversity” and that it is “beneficial” does not help Mr. O’Brien because significant “diversity” already exists, and has existed for years, in the “Big Law Firms” – witness, for example, the “diversity” resulting from the 17.3% women partners nationwide, the 23.7% women partners in Miami, the 22.8% women partners in New Orleans, the 22.3% partners in San Francisco, and the 25% in a Dallas firm

In light of that already existing, and incontrovertible, substantial “diversity”, the real question posed by Mr. O’Brien’s article is how much more “diversity”, if any, is desirable and/or appropriate. Mr. O’Brien asserts that it ought to be about 50-50 men and women, but he doesn’t (and can’t) tell us, for example, why a Dallas law firm would be better having 50% women partners instead of 25%, or why law firms nationally would be better having 50% women instead 17.3%, or even why Salt Lake City firms would be better having 50% women instead of 8.7%. Here again, all Mr. O’Brien is saying is that law firms ought to have more women partners, and here again, as pointed out above, he has not a shred (in legalese, the “least scintilla”) of evidence to show that law firms would be better for doing so.

Moreover, Mr. O’Brien is statistically and logically wrong in arguing that there should be 50% women partners simply because 50% of graduating classes and 50% of new associates are women (I guess he hasn’t heard of the post hoc fallacy). His argument reflects a complete ignorance of the multifaceted non-statistical factors that determine whether an associate is a success in real-world law firm, and whether he or she becomes a partner – for example, the talent and ability properly to investigate and research matters that will have real-life effect on people’s interests; the talent and ability effectively to work on and ultimately to be responsible for real and highly complex real-life civil and criminal litigations, contract negotiations, corporate transactions, real estate deals, trust and estate matters, tax problems and other firm business; the ability to work effectively on multiple matters at the same time; the ability to work with partners and other associates; the talent and ability to work with and attract real clients; the ability and willingness to work as long as required, and to perform properly under extreme pressure; the talent and ability to learn and develop into partnership material through actual experience; the desire and drive to be a partner; and the firm’s real-world need for, and ability to support, an additional partner. Those factors are, as Mr. O’Brien obviously does not understand, totally different from factors that enabled the associate to navigate the academic arena, the classroom situations, the moot courts, and the primarily theoretical and make-believe environment of a law school successfully enough to get himself or herself hired as an associate. And it should also be obvious, as I have seen from long experience, that the proportion of men and women in a law school graduating class or in an incoming associate class, whether 50-50 or something different, is not determinative, or even relevant, as to which of those men and women (if any) will become partnership material, or in what male-female proportion.

So what is left of Mr. O’Brien’s argument for more women partners, when his construct of a law firm world in which women partners are “anomalies” and “disappearing” is so clearly a creation out of whole cloth, when the percentages of women partners are actually substantial and growing, when such percentages already create the “diversity” he finds so beneficial, and when he can show no evidence of any law firm benefit beyond such diversity from having more women partners? Stripped of his misrepresentations and misinterpretations, the argument boils down to the contention that more women should be partners simply because they are women – a contention founded on the tired old, politically correct, liberal/feminist position that women simply are better than men, that we ought to have more women and less men (and less manliness) wherever we can, and that one of those places is “Big Law Firms”. And that is why, for me, Mr. O’Brien’s article is nothing but liberal/feminist claptrap.

The Alleged Disadvantages To Women. -- Mr. O’Brien does not advance his argument by asserting that (i) women are being disadvantaged by men’s “hands on the levers of power”, lack of “mentoring” and “networking” opportunities, a “glass ceiling” and a “maternal wall”, and (ii) firms’ business practices should be changed to make women’s partnership path easier. The short answer to such talk is that women, already a substantial and growing percentage of law firm partners, are obviously not being held back either by those alleged “disadvantages” or by existing firm business practices.

Moreover, the alleged “disadvantages” (or “biases”, as some of Mr. O’Brien’s sources say) are largely speculative and unsupported by any evidence. Talk of men controlling “the levers of power” is typical conspiracy-theory nonsense and does not demonstrate any bias against women; men didn’t have any trouble using their “power” to make partners of Ms. Plevan and the other 17.3% women partners nationwide, and the only direct evidence of men’s attitude toward women partners is Mr. O’Brien’s reference to Dallas attorney Michael Boone, whose law firm already has 25% partners, and who “intends for that percentage to increase”. With respect to the alleged lack of “mentoring” and “networking” opportunities, and aside from the fact that there is no evidence that such lack kept any associate, man or woman, from becoming a partner, my experience is that there generally is no such lack and that, to the limited extent that there might be, the affected associates are as likely to be men as women; as one of Mr. O’Brien’s sources points out, “male associates aren’t particularly well mentored at all firms either, and there’s pretty widespread dissatisfaction with that”. The talk of an alleged “glass ceiling” for women in the law is just another way of characterizing what Mr. O’Brien calls “The Down Staircase For Women In The Law”, and the allegation of a “glass ceiling” is as wrong and silly as the allegation of a “Down Staircase”, for the reasons already discussed.

The claim of a so-called “maternal wall” is an odd one for a feminist sympathizer to make, for it does emphasize (contrary to usual feminist dogma) that women are innately different from men in important physical attributes that affect their ability and commitment to climb the partnership stairway. In any event, there is no evidence that a “maternal wall” has prevented any woman from becoming a law partner, and there is substantial evidence that it has not – for example, Ms. Plevan’s children, my woman partner’s children referred to some paragraphs ago, and the children of the woman partner whose letter is quoted at the end of this paragraph, and the pregnancies relating thereto, did not keep those women (just as a “maternal wall” did not keep the 17.3% women partners nationwide) from becoming and performing as partners. But most importantly, the “maternal wall” problem demonstrates that, contrary to what Mr. O’Brien would have us believe, men partners have long been sensitive to the unique needs of women associates and have sought to accommodate both their child-bearing needs and their career goals. For example, my firm and all other firms that I know of, and I believe all “Big Law Firms”, have long had, and are constantly updating, maternity leave plans designed to achieve such accommodation. Of course, those plans may not work perfectly for one or another woman associate, but no plan can fully reconcile for all women the inherently incompatible needs of child-rearing and a meaningful law practice; this is reflected in a Letter (3/26/06) from a former woman law partner, who points out that she “came up through the ranks of a firm with all the benefits to which [Mr. O’Brien’s] article refers – including supportive male mentoring and extensive business development opportunities – and . . . made partner when my oldest child was 2”, who found that for “most women, pursuing a legal career while raising children presents the classic meeting of an irresistible force and an immovable object: both clients and children are enormously demanding, and both expect and deserve reliability and nearly full-time dedication”, and who after 13 years left her firm not because of any “bias or . . . roadblock referred to in the article”, but because she finally “realized that I could not at the same time serve as the lawyer my clients deserved and the mother I wanted to be to my children”.

* * *

Thus, when all is said and done, there are plenty of women partners in the “Big Law Firms”, and there are no “biased” impediments or business practices that keep women lawyers from climbing up that same staircase to partnership that Ms. Plevan successfully mounted. In fact, had Mr. O’Brien wanted to present an accurate and truthful picture, rather than confirming Dr. Johnson’s view that a necessary qualification for a reporter is “indifference to truth”, he would have added many women to that partnership landing on which Ms. Plevan is photographed.

The Irony. – There is a real, obviously unintended, irony in Mr. O’Brien’s article. Even though a patent effort to help feminize “Big Law Firms”, and make them less manly, Mr. O’Brien’s article actually seems to assert that (oh, horror of horrors!) it is the less feminine, more “manly” women who are most likely to become partners. For example, noting that “men . . . more aggressively self-promote” and are more willing to say “I want”, he points out that Ms. Plevan, his prototypical woman partner, has “a lot of drive”, is “competitive”, wants her “talents and skills . . . recognized”, and has “never been shy about saying 'I want'” (and, her photograph atop the Proskauer staircase pictures her in a drab brown, manly-looking suit). Mr. O’Brien further quotes one of his sources as emphasizing that, like men, “women need to learn how to be comfortable saying 'I want' and how to say it effectively”. Thus, ladies, if you want to make partner in Mr. O’Brien’s universe, you better have balls.