February 05, 2019

Diversity at The Appellate Level

By M. Courtney Koger

Diversity – or lack thereof – among lead appellate counsel was the topic at this AJEI session.  This panel was moderated by Michelle Sharpe Silverthorn, formerly the Diversity and Education Director for the Illinois Supreme Court Commission on Professionalism and currently the Founder and CEO of Inclusion Nation.  She was joined by the Honorable Anne Elizabeth Barnes of the Georgia Court of Appeals, the first woman elected to serve on the Georgia appellate bench, and only the second woman to serve on the Georgia Court of Appeals.  She was also joined by John Uyham, Senior Counsel – Mergers and Acquisitions/Finance for The Coca-Cola Company, representing in-house counsel, and Tracee Davis, a partner at Zeichner Ellman & Krause LLP, representing lawyers in private practice.  Davis was the first African-American Principal Court Attorney at the New York State Supreme Court and is a former chair of the Commercial and Federal Litigation Section of the New York State Bar. 

Silverthorne began with some numbers and statistics.  She noted that, by 2044, the United States will be a majority-minority nation, with larger and larger numbers of minorities in younger generations.  Silverthorne noted that the legal profession has been approximately 85% white and 65% male, with only “microscopic” shifts in those percentages over the past 20 years.  Yet, since 1975, the percentage of women with full-time employment rose from 46% to 57%.  Further, even though women make up just over 35% of attorneys, they account for only 21% of senior partners and 12% of the highest level of firm leadership.  Where women have made up about 40% of law students for decades and now are more than half of the class, how is it that the numbers in senior and leadership roles are so skewed?

She used a story from the novel Americanah, by Chimamanda Ngozi Adichie, to make the point that people in this country do not always want to talk about such issues.  At one point in the book, the protagonist and her friend were shopping in a boutique.  They were waited on by one of two sales clerks on the floor.  When they went to check out, the checkout clerk asked which of the sales clerks had helped them.  The two women did not know her name, so the clerk asked several questions (hair length and color, height, etc., all of which were similar for both sales clerks) to try to identify the correct clerk.  The attempt failed, and the checkout clerk was not able to credit the proper sales clerk with the sale.  As the two women left the store, one asked the other why the checkout clerk had not simply asked whether they had been helped by the black sales clerk, or the white sales clerk.  Her friend answered that there were simply some things that Americans did not discuss.

Silverthorn noted that as leaders – senior appellate counsel and judges – we need to reflect diversity better.  If talent is walking out the door, then we need to talk about it.  We need to stop pretending that we simply don’t notice these negative trends.

Judge Barnes raised the question of why diverse representation should matter.  She noted that 6 out of 15 judges on Georgia’s Court of Appeals are women, but 8 out of 9 judges at the Georgia Supreme Court are men.   She pointed out that public trust in both the judicial system and the rule of law needs a bench that reflects the diverse population.  She also commented that, without different perspectives brought from different backgrounds, there might as well be only a single judge to decide every issue.

Uyham picked up on this point and noted that a diverse team of lawyers adds value to clients.  He recounted a tale of a closing he attended as a young lawyer in private practice where the client commented that Uyham had probably gotten good grades in college and law school.  The client further commented that he himself had gone to state college and gotten Cs, but now Uyham worked for him.  Uyham took this exchange as a lesson that there are different paths to success.  From his experience, the more viewpoints brought to a matter, the better chance of getting the right product or result.  He noted that Coca Cola has franchises in 207 of the world’s 209 countries, so diversity makes up a key point in their business, and they need lawyers who can work across those kinds of differences.  Simply put, lawyers need to be in tune with their clients to avoid making bad decisions or giving bad advice.

Davis spoke about her experiences in the world of complex commercial litigation.  The more complex the matter, in her experience, and the greater the number of partners involved in that matter, the less likely she was to find a woman with a speaking role on the team.  She also noted that often teams lacked even one woman of color.  She pointed to the need to give diverse women speaking roles and more presence in the courtroom.  The lack of access to these experiences helps drive women out of the practice of law.  Women and minorities without support or opportunities are marginalized and will leave the profession.

Judge Barnes chimed in noting that she had not received certain things in her pre-judicial career until she asked for them, unlike her male colleagues.  For example, she was not made partner until she asked, and she did not get to travel on big cases unless and until she asked.  Learning to ask was hard.  She compared her experience to that of women candidates for office, who often do not run for office unless someone urges them to do so because they would be good at the elected position.

Uyham mentioned the importance of mentorship.  He believed that every young lawyer needs to find herself a lawyer higher up in her firm (or company) to be her mentor.  He also noted that senior lawyers have an obligation to look out for younger lawyers.

Davis picked up on the mentorship theme.  She noted that she has met many lawyers who feel that they are not competent to mentor someone who doesn’t look like them.  She acknowledged that there is at least a perceived cultural divide in many such cases, but she believes that it can be overcome by looking for areas of common ground.  Young lawyers can learn how to navigate in the profession from older lawyers who are of a different race, gender, etc., and more senior lawyers can mentor younger lawyers across those lines very successfully.

Judge Barnes brought up judicial clerkships.  She noted that clerkships are the least diverse at the highest levels, with state courts often doing a better job in that area than federal courts.  She said she did not believe there was overt discrimination causing the lack of diversity.  However, we need more pipelines to get female and minority applicants into clerkships.  She laid the responsibility in this area on judges, who must recognize the issue and encourage more minority applicants, and more pipelines for minority applicants.

The panel discussed the (now infamous) study of oral arguments at the United States Supreme Court that found that women – justices and attorneys– were interrupted 10 times as often as men.  The study even confirmed that male attorneys interrupted female justices far more often than they did male justices.  She did note that, once the problem was exposed, the disparity at the Supreme Court lessened.  This study confirms the importance of tracking and measuring data, because you cannot manage a problem like this if you don’t measure it.

Uyham noted that clients are now pressuring firms for teams of diverse lawyers, including teams where diverse lawyers do more than act as window dressing.  He noted that Coca Cola had historically surveyed its law firms annually, asking questions about diversity.  However, they discovered that most surveys were filled out by marketing departments, so they stopped.  Coca Cola has instead begun asking to rotate relationship partners every 5 years, and inquiring about succession plans for both relationship managers and key working attorneys.

Davis agreed that succession planning should be a focus.  She has seen many partners grooming lawyers who look just like themselves, not necessarily intentionally, but perhaps showing some implicit bias.  She has found a need to educate leadership and to create a culture within a firm to celebrate diversity and groom/mentor diverse attorneys.  She noted that the skill set that gets many lawyers hired (law school grades, for example) is not the skill set that gets lawyers into leadership roles.  She noted that this latter skill set can be particularly uncomfortable for women.  She believes that what will move the needle on diversity in our profession is exposure of diverse attorneys to power in the profession.

Davis pointed out that firms need to recognize drive and ambition in minority attorneys.  Things like court time for junior attorneys to argue motions or handle witnesses are important.  She pointed out that judges can waive or do away with rules that allow only one lawyer to speak on a particular motion or question a particular witness.  She suggested that judges could also consider granting hearings or oral arguments only if the senior lawyer commits to bringing a junior lawyer to handle the argument. Judge Barnes noted that she would consider a request for oral argument in which a partner certified that it was the proposed arguing lawyer’s first oral argument.

When the panel took questions from the audience, an attendee asked if we spend too much time focusing on big firms when only a small percentage of law-school graduates go to those firms.  Uyham responded that part of the reason for the focus on big firms was following the dollars, and the focus by Coca Cola where it spends the most in legal fees.  He noted that Coca Cola has an annual event for minority-owned firms to come and network, and then he tries to increase spending with those firms as a result.

A judge in the audience noted her experience that male lawyers arguing in front of her court would address male judges as “Judge” or “Your Honor,” but address the female judges as “Ma’am” instead.  The audience and panel agreed this is inappropriate.  Another judge in the audience recounted being addressed with the “Mrs.” prefix, rather than “Judge,” during oral argument even though the male judges were addressed by title.  A follow-up question asked whether male judges on those panels responded to the improper titles, but apparently they had not.

The session ended with Davis making the economic case for enhancing diversity.  It improves the results for clients, and in many cases, leads to clients who care about diversity being willing to send more business to lawyers who demonstrate their own diversity commitment.

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M. Courtney Koger

M. Courtney Koger is a partner at Kutak Rock LLP in the Kansas City office.  Ms. Koger is a graduate of Harvard Law School.  Her practice focuses on commercial litigation with an emphasis on appellate work.