Study Suggests Persistent Gender Gap—and Solutions for Patching “Leaky Pipeline”

Three years later, St. Eve became an appellate judge for the Seventh Circuit. “I noticed that in the courtroom, things hadn’t changed much,” she recalls. “Sometimes our [judicial] panels would be composed of three women, but all the lawyers arguing appeals would be men.”

St. Eve learned that the Seventh Circuit filing system included records of all lawyers who had made oral arguments. She, therefore, enlisted her incoming clerk, who had a Ph.D. and a statistics background, to analyze those data. The result is How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys, a report released in December 2021 by the ABA Commission on Women in the Profession.

As the report details, the data confirmed what she suspected. Although men and women enter the legal profession in equal numbers, a disturbing gender gap among elite trial attorneys persists. While the data zeroed in on arguments before the U.S. Court of Appeals for the Seventh Circuit, the report suggests the numbers could be even worse for other courts. How Unappealing can be added to the troubling canon of studies verifying the enduring underrepresentation of female lawyers in all aspects of the profession. That reality holds for law firm partners, law school deans, general counsel, or, as How Unappealing documents, appellate lawyers.

“I wanted to do what we can to spur conversation and change,” says St. Eve, who plans to hold a symposium about the research once the pandemic wanes.

Using data from 2009 and 2019, the authors of How Unappealing, St. Eve and Jamie B. Luguri, analyzed the number of men and women who argued before the Seventh Circuit in those two years and discovered that men arguing before the court outnumbered women nearly three to one. Perhaps more alarming, that ratio has remained largely unchanged for a decade. Specifically, in 2009, 24 percent of attorneys who argued before the Seventh Circuit were women. Ten years later, the number increased only minimally—to 28 percent. If these data serve as a guide and this rate of change remains constant, women attorneys will not be arguing half of the cases before the court for another four decades.

“It’s helpful to have hard numbers,” St. Eve says. “The data don’t lie.”

The report also analyzes the types of cases the women worked on, who they represented, and where they worked. The male-female disparity was found to be notably larger in civil cases than criminal cases. Women argued more often in criminal cases. The few women working on complex civil cases were more likely to be working for or representing a government entity than private parties. In addition, women lawyers were considerably less likely to argue business-related cases such as antitrust/securities, contracts, and consumer credit cases.

The results detailed in How Unappealing mirror statistics from similar research about other courts, including the New York Court of Appeals, a federal district court in Illinois, and the U.S. Supreme Court, among others. For example, in January 2022, the New York Times reported that just 18 percent of U.S. Supreme Court arguments were presented by women, even though one-third of the bench itself is composed of female justices.

Despite the Seventh Circuit’s disappointing statistics, it is probably better than other federal appellate courts, according to the authors of How Unappealing. St. Eve explains that the Seventh Circuit’s practice is to grant oral arguments more often than other courts, particularly in criminal cases. This means that other circuit courts are likely predominated by civil cases—complex civil cases, in particular—the precise cases that How Unappealing reported were handled the least by women lawyers.

National Association of Women Judges (NAWJ) President Elizabeth Allen White says she is not surprised by the results of the study.

“The sophisticated cases in my courtroom were largely argued by men,” says White, who spent 23 years as a judge on the Los Angeles Superior Court. “It’s hard to achieve proportionality when there are systemic problems, particularly with government policy and legislation related to family leave [and] child care.”

Exacerbated by the pandemic, these issues “are not unique to [the] U.S.,” White adds. “The same disproportionality exists in England and even countries with better social policies [than the United States].”

Indeed, a 2015 article titled “Women in the Global Legal Profession,” published by Harvard Law School’s Center on the Legal Profession, reported that in the United Kingdom, just 17 percent of British law firm partners are women, even if women now make up 61 percent of graduating law school classes. The region also has a significant earnings gap. Women in private practice earn 30 percent less than men, and women working in corporate legal departments make 28 percent less.

Given how little has changed since 2009, How Unappealing includes recommendations for jumpstarting an improvement to the status quo.

A strong pipeline into the profession is not enough. In recent years, women have begun to slightly outnumber men in law school. According to White, the NAWJ, which has been working toward gender parity in the profession since 1979, already goes into elementary schools, high schools, and law schools to let girls and women know about opportunities in the law. Taking that concept further, How Unappealing recommends that law schools offer women more hands-on appellate experience through clinical education and clerkships.

In addition, given the glaring contrast between women representing government versus private entities, statistics show that women may be paid less, are overlooked for promotions, lack access to business development opportunities, may be denied raises or bonuses, and remain in the distinct minority when it comes to equity partnerships and firm leadership positions. They are also dissatisfied with mentoring opportunities.

For these reasons, among others, women do not stay in the profession at the same rate as men. This attrition is not just bad for women; it also hurts firms and clients. Whenever lawyers leave firms, they take “human capital”—important institutional knowledge, solid working relationships—with them. Moreover, time and money are spent recruiting and getting replacement lawyers familiarized. Junior women attorneys need mentorship, support, and opportunities to succeed.

Having experience arguing appeals leads to arguing more appeals, but senior law firm lawyers are still disproportionally men. Law firms should offer more training for women lawyers, including encouraging work on pro bono cases and having junior women lawyers argue discrete issues in oral arguments to gain that experience. Firms can also appoint women to leadership positions with titles—“vice chair of appellate practice,” for example—that will give clients confidence in assigning women to high-stakes appeals.

White notes that having a “core group of women to help each other” is essential to advancement. “That’s what NAWJ is all about. And that’s what I had with other women judges on [the] L.A. Superior Court.”

But, she adds, “it takes not just other women but good men. One thing that carried me through [in private practice] was having a [male] senior partner who believed in me and encouraged me.”

Law firms, especially top-tier firms, must do a better job of being family-friendly, adds White, who retired from the bench in 2020 and is now a neutral for JAMS, which provides mediation, arbitration, and alternative dispute resolution services. “They can have women representatives get out to promote the firm to top-quality law school candidates. But the culture has to be there first.”

Judge Lisa Walsh, a past president of NAWJ and an 11th Circuit judge in Florida, worked as an appellate lawyer for 12 years before becoming a judge. Her own appellate practice got a boost from a female plaintiffs’ attorney, “one of the top two or three appellate lawyers in Florida,” who began referring overflow cases to Walsh.

Judge Walsh recommends that appellate lawyers, particularly solo practitioners, serve on bar and appellate rules committees as a way to get referrals. She also suggests that women lawyers approach legal aid and public defenders’ offices about volunteering as a way to get oral argument experience. Today, as a judge on the 11th Circuit, Walsh sees plenty of women arguing appeals, although she does note that the big, complex cases with a lot of money at stake tend to be argued by men. Working backward up the decision tree may be the best way to determine other interventions, according to Meghan Dawe, a Harvard Law School research fellow who focuses on gender, race, and class equality in legal careers. “Who’s making these choices [about who argues appeals]? Is it clients—men wanting to be represented by men?” Corporations have a profound influence when it comes to ensuring women have equal opportunities in the courtroom. Clients can ask for gender metrics before hiring law firms and require that women lawyers serve on their teams.

In addition to the notable dearth of women lawyers arguing before trial and appellate courts, studies of the U.S. Supreme Court show that women lawyers there are interrupted earlier and more often. (Disturbingly, studies also show that female justices are interrupted at higher rates by both male colleagues and male attorneys.) How Unappealing suggests that courts themselves should examine how their practices and culture may be sidelining women. In particular, judges should allow flexibility in how arguments are structured. For example, courts could allow senior lawyers to split argument time with junior attorneys.

“The courts bear responsibility for this dynamic,” Judge Walsh says. “Judges should express that everyone is welcome. District courts can tell parties, ‘We want to see more young associates.’ And when a man who is arguing keeps pausing because a woman colleague talks in his ear and puts documents in front of him, judges can say, ‘[May] I ask her some questions?’”

Judge Walsh says that if judges treat men and women attorneys with equal regard, clients will see no downside to sending women into the courtroom. “But if there’s a perception that women are treated differently,” she notes, “the consequence is that clients won’t allow women lawyers to make oral arguments.”

Swethaa Ballakrishnen, an assistant professor at the University of California, Irvine School of Law who specializes in gender and the legal profession, says that How Unappealing’s findings regarding the Seventh Circuit are emblematic of larger issues and a useful call for structural reform. “It’s like a fever—it’s telling you that there’s an underlying infection,” Ballakrishnen explains. “These studies are a call for self-evaluation, a call to pay attention to what can be changed. What are the metrics used to measure success, and is it setting up a gendered outcome?”