How to address the imbalance of women and men in appellate law
By Hal R. Morris
I am a partner in the litigation department of an Am Law 200 firm, vice chair of the firm’s appellate practice group, deputy general counsel for the firm, and I serve on a variety of firm committees. In addition, I have longtime faculty appointments at both Chicago-Kent College of Law and the University of Chicago Law School. I should also add that I am a white male.
Did my race and sex afford me an unfair advantage in becoming an appellate practitioner? But more important, did my sex and race cause me (knowingly or unknowingly) to contribute to barriers to the meaningful participation of women in appellate law?
I know that women have been and are disproportionately underrepresented in appellate courtrooms. At both law schools where I teach, the typical class is composed of more than 50% women. However, when appearing in appellate courts at both the state and federal levels, that number drops precipitously. And I have to think hard to recall a woman adversary at oral argument.
Seventh Circuit Judge Amy St. Eve recognized this same imbalance in the 2021 ABA study “How Unappealing: An Empirical Analysis of the Gender Gap Among Appellate Attorneys” she co-authored with Munger, Tolles & Olsen associate Jamie Luguri, which noted, “Women attorneys are underrepresented in courtrooms across the United States. Though men and women enter the legal profession in equal numbers, recent research has documented a gender gap among attorneys who appear in trial courts and at the Supreme Court.”
Why are more women not found in appellate courtrooms and listed as authors of appellate briefs?
To better understand and address this issue, Saul Ewing Arnstein & Lehr’s appellate practice group hosted an informative seminar titled “Appealing to Women: The Gender Imbalance in Appellate Practice” to investigate ways to address this imbalance.
The seminar was conducted by six female legal professionals: a third-year JD student; a firm partner; firm counsel; a firm associate; a licensed lawyer from Germany; and a licensed lawyer from Sweden. They offered the following takeaways:
• Firms and partners must listen to younger women lawyers’ career objectives.
• We need to each examine our individual biases and be prepared to make choices that might be difficult. Women should be added to appeals and other case teams, not for optics but because of their talents and skills.
• Law firm partners need to invite involvement by women as integral players in client representations.
• Clients need to understand that the best representation may not be from the older male partners.
• Courts need to embrace involvement by younger women in cases by allowing greater involvement in specific aspects of appellate representation, such as permitting split arguments.
• Law schools must give women law students the opportunity to both choose appellate law and to see and hear about the diversity in the practice.
• We need to not only continue to address this imbalance but also go beyond mere talk and begin to take action.
The discussion at the seminar made clear that there are many factors contributing to this imbalance. The root causes are societal, institutional, with the courts and with clients. Changing societal norms is beyond any single lawyer or law firm. And even the ABA’s Model Rules of Professional Conduct do not address this issue, nor do they provide any real manner of solving it.
Experienced male appellate practitioners in positions of practice management are likely not the problem, but that it is incumbent upon them to recognize that they should be part of the solution. By doing so, the profession, clients and courts will be better served.
Hal R. Morris is a partner at Saul Ewing Arnstein & Lehr, a multioffice, full-service law firm. In addition, he is vice chair of the firm’s appellate practice group, serves as the firm’s deputy general counsel, and will become general counsel at year end. He has long time faculty appointments at Chicago-Kent College of Law, where he is the professor responsible for the publication of the Seventh Circuit Review, and at the University of Chicago Law School, where he teaches a seminar on legal ethics.
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