The gender gap in the legal profession has been the subject of commentary and studies for many years. Even as female law student and even law firm associate numbers have risen, percentages of women in leadership roles have not seen the same gains. A recent study from the Temple University School of Law reveals that gender disparity in multidistrict litigation (“MDL”) is even greater than the law profession generally. The study, entitled “Vying for Lead in the ‘Boys’ Club’” by Dana Alvaré, shows that women comprised only 16.55% of total plaintiffs’ leadership positions in MDLs from 2011 through July 1, 2016; this percentage is less than the 24% of women in lead counsel roles in litigation generally observed in a 2015 National Association of Women Lawyers survey.
MDLs are proceedings in federal courts where similar plaintiffs’ cases are consolidated before a federal judge for pretrial matters, and sometimes bellwether trials. Plaintiffs’ counsel vie for leadership positions that are not only influential in the MDL proceedings but also potentially lucrative. The selection processes for leadership positions differ from one MDL to the next. In some MDLs, the plaintiffs’ leadership self-nominates and works out the leadership roster based on experience, connections, and ability to commit sufficient resources to the MDL. In others, the attorneys apply for positions in leadership and judges make the selection. The judge considers numerous factors, including counsel’s ability to devote sufficient time and resources to the litigation, ability to work cooperatively with others, and notably, counsel’s knowledge and experience in prosecuting complex litigation (including class actions and MDLs). Interestingly, smaller female representation in MDLs was not tied to the gender of the presiding judge or even the system of selection.
Why do these statistics matter? This MDL trend shows that systemic problems in the legal profession persist, particularly when the price of admission to this exclusive club requires prior experience in mass torts. Further, inexperience with mass torts also increases unawareness on how to navigate the leadership process.
It’s not all bad news, though. Alvaré’s study also identified encouraging trends in. During the study period, “notable efforts and progress” had been made with the average rate of total female appointment increasing to 27.65% in 2015. Several judges have recently directed in leadership structure orders that opportunities be provided to “less-senior” attorneys “in an effort to offer a more diverse group the experience necessary for future leadership appointment.” This addresses the vicious cycle of experience being a factor to be considered, thereby allowing the same group of attorneys to serve on plaintiffs’ leadership of mass torts again and again.
In another promising development, the Duke Law Center for Judicial Studies held a two-day conference in April 2017 to discuss the findings of Alvaré’s study and ways to increase the number of women and minority lawyers appointed to leadership positions in mass torts. Fifteen judges attended the invitation-only conference, along with seasoned MDL practitioners and those who have tried to break into the upper ranks of plaintiffs’ leadership. The aim of the conference was to “lay the groundwork for the drafting of bench-bar best practices,” which would be further honed after the conference. By pointing out the issue and discussing it with judges, the conference addresses one problem that Alvaré identified in her study: a false assumption that the gender gap will work itself out over time. Even as women have achieved parity in law school graduation with men, similar gains have not borne out in firm leadership, judicial appointments, or the plaintiffs’ bar leadership. Sitting back and waiting will not increase women or minorities’ participation in the legal upper echelon, but finding ways to let a more diverse group of attorneys participate in plaintiffs’ leadership is a positive step.