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February 13, 2024

Bench & Bar Pipeline

By: M. Courtney Koger

Jay Breakstone moderated this presentation on DEI issues, with a strong focus on how to attract diverse attorneys to the world of appellate practice.  The panelists included the Hon. Amy St. Eve of the Seventh Circuit; Juvaria Khan, founder of The Appellate Project; and Nadeen Abou-Hossa, Esq., a former staff attorney with the Texas Court of Appeals, now in private practice.

The panel began by examining where we are now.  Judge St. Eve, who has been on the Seventh Circuit for five years and was previously a district court judge for 18 years, noted that her court currently has a 6/5 split between male and female active judges, but there are days when all of the attorneys arguing cases are both white and male.  She cited the article she co-authored with Jamie B. Lugari, How Unappealing: An Empirical Analysis of the Gender Gap among Appellate Attorneys, published by the ABA in 2021.

This study used data from the Seventh Circuit in 2019 showing that only 28% of the advocates arguing before the court were women.  Judge St. Eve noted that this number was only slightly better than the 24% figure from 2009, i.e., 10 years earlier.  Judge St. Eve also noted that the numbers differed based upon the type of case.  In 2019, 33% of the arguing attorneys in criminal cases were women, but only 24% were women in civil cases.  Further, she noted that in cases with higher dollar amounts at stake, or where issues appeared more complex, the percentage of advocates who were women was lower.  Antitrust cases provided an extreme example, where a mere 4% of the advocates were women.    These numbers demonstrate how non-diverse the appellate bar remains.

Having demonstrated at least a part of the problem, the panel turned toward ways to move forward.  Juvaria Khan is the founder of The Appellate Project, the first and only organization focused on diversifying the appellate bar.  Ms. Khan noted that racial diversity is even lower than gender diversity, although there has been little done to collect data, which makes the problem difficult to quantify.  She reminded the audience how critical it is to have diverse, lived experience in the rooms where decisions that affect everyone are being made. She highlighted this point with a story about Justice Ruth Bader Ginsberg.  A case involving the strip search of a teenager came before the Court, and it was Justice Ginsberg who was able to explain to the mostly male justices just how traumatic such a search could be for a 13-year-old girl.

The Appellate Project established a mentorship program to aid law students who lack the network and resources of more privileged law school peers.  For example, poorer or less privileged law students may miss out on clerkships because they do not know about them or how to apply for them.  Since clerkships provide a frequent stepping stone to appellate work, the goal is for judicial clerkships to reflect the diversity of the community.  This program pairs law students of color who are interested in appellate practice with mentors in the appellate filed and provides clerkship support and skill-building workshops.  The Appellate Project also has an intensive summer fellowship program called The Incubator that provides training and networking with appellate practitioners and judges to help build a supportive network.  The Appellate Project works with students of many backgrounds, including LGBT, disability, socio-economic class, geographic diversity, and color.

Nadeen Abou-Hossa spoke next and addressed the need to push the door open for everyone to be able to get clerkships.  She expressed her sincere belief that a more diverse appellate team means a stronger, better appellate team.  In addition to her practice, Ms. Abou-Hossa is an adjunct professor at St. Mary’s School of Law and she took students to compete in at least three national moot-court competitions.  She noted that she sees her diversity as a first-generation Mexican-Lebanese woman raised in the Middle East as an advantage to connecting with students who might not have seen or met any lawyers or potential role models like themselves.

Judge St. Eve noted that she has seen little change in the appellate bar appearing before her during the past five years on the Seventh Circuit.  Mr. Breakstone commented that change IS happening and related how he felt the first time he had to argue in front of a panel of five female judges.  “This is how it feels,” he told himself and the audience.

The discussion then turned to courtrooms, with Mr. Breakstone noting that the courtroom where the New York Court of Appeals hears cases is quite formal and does not look like the rest of the world around it.  Ms. Khan mentioned that the First Circuit recently remodeled some courtrooms to include lower benches and other details designed to make attendees feel more equal instead of looking so far up at the judges.  Judge St. Eve noted that her court shares a ceremonial court room with the district court, and that the chief district judge changed the décor to put pictures of current judges behind the bench (in front of the audience), with former judges’ pictures on the side walls of the courtroom.  She commented that the visual difference of the more diverse sitting court compared to the less diverse former judges was quite noticeable.

Panel members also commented on the need to address disability issues and the need to make courtrooms more accessible.  Ms. Khan made the point that everybody needs to take responsibility rather than forcing the person with the disability to do the work of requesting accommodations, etc.

Judge St. Eve noted that law schools must advocate for their diverse students.  Ms. Abou-Hossa noted that she had never even met an attorney before law school, so now she feels compelled to help students with diverse backgrounds like hers find out about clerkships and ways to make connections.  Ms. Khan related her own experience of learning about clerkships after she began practicing when she attended an event and was asked by a senior lawyer why she hadn’t done a clerkship.  She explained that she hadn’t understood the value of clerking, plus the students she saw applying did not look like her.  This senior attorney invited her to coffee, explained clerkships and why they were valuable, and how to apply.  She then applied for and got a clerkship.  This sort of encouragement can make all the difference.

All the panelists agreed that even the fact the appellate bar is talking about DEI issues shows some progress.  Bringing out the issues can encourage employers to diversify where they hire or recruit, and who individuals mentor.  These steps can help.

Judge St. Eve noted that dividing oral arguments can be one way to let younger lawyers argue cases.  When she was on the district court, she would sometimes allow oral argument on a motion if the lead lawyer guaranteed a lawyer with less than five years’ experience would argue.  She would like to see panels of appellate judges try something similar.

As the session ended, the audience was encouraged to take steps to increase diversity in appellate practice, including volunteering as mentors with a program like The Appellate Project.

M. Courtney Koger

Kutak Rock LLP

M. Courtney Koger is a partner at Kutak Rock LLP in the Kansas City office.  Courtney works extensively with insurance-coverage issues and appellate practice, handling civil appeals in a variety of areas.  She has argued cases in the 5th, 8th, 9th and 10th Circuit Courts of Appeals as well as every appellate court in both Missouri and Kansas.

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