A note from Briefly columnist Eric Magnuson: I am proud to have supported women advocates throughout my career, and I am turning over my column this week so that we can start a broad and important discussion of how to get more women arguing before Minnesota’s appellate courts, particularly the Minnesota Supreme Court.
By Liz Kramer, Cicely Miltich, Hillary Taylor and Cat Rios-Keating, Special to Minnesota Lawyer
We live in a time of data. We are inundated by critical data each day—whether about COVID-19, racial disparities, new unemployment filings, or stock market trends. But one particular piece of data is nowhere to be found: Of the attorneys who argue at the Minnesota Supreme Court, how many are women?
There are many articles about the absurdly low number of women arguing at the U.S. Supreme Court, but nothing about the Minnesota Supreme Court. We decided to fix that.
This article shares and analyzes the data we gathered on the gender breakdown of advocates at our state’s highest court. We also share why this data is particularly difficult to ascertain in Minnesota, and some thoughts about why such a disparity exists and what can be done about it. Because—spoiler alert—there is real gender disparity in what voices are heard by our Supreme Court.
We gathered our data from the Minnesota Supreme Court’s most recent term – starting Sept. 1, 2019, and continuing through the end of arguments in June 2020 (the court did not hear arguments in July or August). We used the Case Management System on the Minnesota Appellate Courts website to pull docket sheets for each of the 85 cases that were argued at the court during that period and then painstakingly identified the names of the lawyers who presented the 176 arguments in those cases. We assigned gender to those lawyers based on the common gender associated with each advocate’s first name, and double-checked those associations using online photos, video of the argument, and our personal knowledge of the advocates. (For purposes of this article, gender assignments only include the gender binary of male and female, without inclusion of other gender or sex identities.)
In addition to tracking gender data, we tracked whether the attorney worked in government, academia or private practice, and whether the advocate represented the appellant or the respondent in the case. Because the information is not readily available (and may be private), race/ethnicity, sexual orientation/LQBTQ, ability/disability, national origin or any other identifying status was not tracked. Analyzing how often lawyers from other underrepresented groups argue at the court is equally important, and we hope our analysis will be a starting point for other efforts.
Women argued 52 times in front of the Minnesota Supreme Court during the 2019-2020 term, which is 29.5% of the 176 oral arguments. Of that, the highest percentage of female oral advocates was government lawyers. Out of the 52 female oral arguments, 37 were from government lawyers (71.2% of all female appellate arguments), 14 were from private practitioners (26.9%), and one was from academia (1.9%). (We counted two special assistant public defenders as government lawyers.)
Further digging into the numbers, we found that the biggest gender disparity occurred among private practice appellate oral advocates. Only 14 of the 95 oral arguments by private practitioners were by women, which is 14.7%. In comparison, female government or academic advocates argued a total of 37 of the 81 times, bringing it closer to parity at 45.6%. If cases involving attorney discipline are excluded, however, even the government/academic numbers reveal significant disparities. Of the 37 arguments delivered by female government lawyers, 10 were from the Office of Lawyers Professional Responsibility. Excluding arguments in those cases means female advocates represented only about 33% of the advocates from the government or academic sectors.
Comparing Minnesota data to national data
While the Minnesota numbers show there is significant work to do to achieve gender parity among appellate oral advocates, the federal numbers show this is a nationwide issue. The chart accompanying this article compares data from the Minnesota Supreme Court to the U.S. Supreme Court (where the SCOTUS data comes from Kimberly Strawbridge Robinson, “An Uphill Climb for Women Supreme Court Advocates Gets Steeper,” Bloomberg Law, (May 15, 2020)
Why is this research difficult to do in Minnesota?
The research we set out to do for this article was difficult for a number of reasons. First, the Lawyer Registration Office only began collecting demographic data on gender in 2011 and race/ethnicity in 2016 after Minnesota Women Lawyers and other groups campaigned for better data collection.
That demographic data is not available to the public, however, without a court order. The Minnesota Judicial Branch recently began publishing a summary of the demographics of all Minnesota lawyers in its Annual Report, but that does not contain any data about the demographic breakdown of those appearing before its appellate courts.
Why do women make up less than one third of oral advocates at the Minnesota Supreme Court?
If women gave 29% of arguments at the Minnesota Supreme Court, and also only made up 29% of attorneys in Minnesota, that might raise different issues, but it would be an easy way to explain our data. But women’s representation in the bar is, in fact, much higher than their participation at the high court. In 2018, 41.8% of Minnesota’s practicing and non-practicing attorneys were women. (Minnesota Judicial Branch, Report to the Community: The 2018 Annual Report of the Minnesota Judicial Branch 53-56) That is 12 percentage points higher than the percentage of arguments given by women at the Supreme Court. Gender disparities in appellate opportunities for women in private practice are even greater than the demographics reflected in private law firms — NALP reports that 36.33% of attorneys in private practice are women, which is significantly higher than women’s share of private practitioner arguments at the court (not even 15%).
So how do we reconcile these numbers? In an effort to gain a broader perspective than our own lived experience, we interviewed a broad spectrum of female appellate advocates to get their insight on the “why” that could help explain our findings. We were fortunate to get time with retired Justice Helen Meyer, Judge Diane Bratvold, Kay Nord Hunt, Rachel Bond, Katie Barrett Wiik, and Erica Holzer. (We also spoke with Minnesota Women Lawyers’ executive director, Debra Pexa, about its Gender Data Project.) Each of these women shared unique perspectives and observations based on her own background and career path, but a number of common themes emerged when we asked them to reflect on the possible causes for the gender disparity in appellate advocacy (and none of them thought that this past year was an aberration).
All of our interviewees identified the “experience Catch-22” as a contributing factor to the gender disparity in appellate advocacy. Each identified a general preference among clients, referral sources, judges and lawyers for experienced appellate practitioners. The more appeals under an attorney’s belt, the better that attorney is perceived to be at appeals and the more likely to be given opportunities to argue future appeals. Thus, the Catch-22. The experienced continue to gain more experience, while those without are passed over based on their lack of experience.
Although experience is valued in many areas of the law, our interviewees noted it can be a particularly significant barrier to entry in appellate practice. For example, unlike District Court litigation that may yield numerous and lower-stakes arguments for less experienced attorneys to gain experience, oral arguments in front of the Minnesota Supreme Court present a single, high-stake opportunity.
Our interviewees identified this “experience Catch-22” as impacting female appellate advocates uniquely. Women have made up roughly half of law school classes since the early 2000s, so there are fewer vintage women lawyers (who could have built up the appellate experience) period. In addition, more women leave the law, particularly in private practice.
A 2014 ABA article reported that among the top 25 law firms in the nation, “women in law firms make up only 47% of associates, 38% of counsels, 29% of non-equity partners, and 17% of equity partners.” Suzanne L. Jones “Gender Disparity Persists Despite More Women Lawyers in the Pipeline.” Many interviewees commented how difficult it is, especially for women with families, to succeed at law firms, and take on the extracurricular work necessary to build an appellate reputation. Thus, to the extent appellate advocacy, particularly in private practice, is for experienced players, women are more likely to opt out of the game before they acquire the requisite experience.
But the numbers of available women with experience does not tell the whole story. The preference for experienced appellate advocates can serve as a proxy for sexism and reinforce implicit biases. Because the legal profession has historically been dominated by white males, it’s no wonder that the image that comes to mind for many when they think of a successful appellate practitioner arguing in front of the state’s highest court is the image of a Gregory Peck or Ted Olson. As Katie Barrett Wiik noted, “those biases are always there, but they are present and amplified at the appellate level.” Clients request that the senior male partner, instead of his female colleague, deliver the argument, assuming he is the best person for the job. And lawyers who have the opportunity to give referrals to appellate advocates repeatedly overlook the prominent women in that space, instead opting for the “safe choice” of a former judge or repeat male advocate.
There are also structural issues in private practice that tend to perpetuate gender disparities. The way that work is assigned, and credit doled out, often incentivizes originating attorneys not to pass along big appellate opportunities at all, or only to share them with their most accomplished colleagues. Because men tend to originate and control more litigation, these persistent structural issues can make it particularly difficult for women to break through the experience barrier and join the ranks of highly-regarded, experienced appellate advocates.
What can be done?
It’s often said that the first step with addressing disparities is recognizing the issue. Recognition requires the appellate bar to grapple with the fact that it is perpetuating some of the systemic limitations referenced above, and that in spite of obstacles there are a few prominent female appellate advocates in our bar. Understanding what has allowed them to be successful, and talking to them about their ideas for change, as well as some of our brainstorms, generated a number of ideas to address this disparity.
First, someone must regularly track this data (and other demographic data). This article provides one data point, but without more we cannot assess whether we are making progress in alleviating the disparities or backsliding.
Second, we need to ensure women get more appellate opportunities. That can come from more intentional assignment of billable cases at firms, and disrupting the traditional private practice model of having the relationship partner select the appellate team. This system perpetuates structural disadvantages for women by continually allowing implicit bias to impact the distribution of appellate work. Unbiased case assignment systems can strip away this institutional disadvantage. For example, the Office of the Minnesota Appellate Public Defender’s commitment to a rotational assignment system created a workplace where, according to Managing Attorney Rachel Bond, “in all [her] legal experiences, it is the one place where gender feels the most neutralized.”
The court can help create more opportunities also. Much like federal judges (hat tip to Judge Ann D. Montgomery) have done, the appellate courts could incentivize and encourage the practice of lawyers splitting argument time, so that a single Supreme Court argument could actually create four argument opportunities (two for each side). That would make it easier for greener attorneys to get stand-up time, without clients having to forgo the entire perceived benefit of the experienced advocate.
A third and related way to address the gender disparity is for the few recognized appellate advocates to actively take a role to promote and provide opportunities to women to develop those necessary skills and their reputation in this field, whether through pro bono opportunities, writing and speaking or billable cases. Mentors and champions for women coming up in the appellate bar are important. Most of the female appellate advocates and judges we interviewed raised mentorship as a key element of their development. (Kudos to Eric Magnuson, David Herr, Phil Cole and John Lommen.) We look forward to the time when mentor relationships will not only extend to women, but also to attorneys of color, and especially to women of color.
Finally, the real power to make change is with the clients. Clients can demand diversity in their appellate advocates, just as they demand diversity in their litigation teams overall.
Fourth, the bar, its publications and its CLE arm need to commit to spreading “credentialing” opportunities around. Underrepresented women in the appellate bar can build their expertise and visibility through writing articles and presenting at CLEs. Yet we know these opportunities are generally given to the same small group of experienced male appellate advocates. This may occur due to their experience, name recognition, an implicit bias toward male expertise in the appellate bar, or the effort required of organizers to find new names to fill these roles. But if we want to impact these numbers, we cannot accept this inertia.
Fifth, we need to make sure the “pipeline” of appellate lawyers is diverse. We do not have data on the demographics of appellate law clerks in Minnesota, but because appellate advocates often come from that group, it is important to make sure those clerks include both traditional diversity (i.e., gender, race, LGBTQ+, disability, and other traditionally considered types) and academic diversity (i.e., candidates not on law review or with less than top 10% grades). Clerking is still a fairly exclusive experience, however, so another way appellate courts could get involved in lessening the disparity could be to create a separate mentorship program for women and minority junior attorneys who express interest in an appellate career. Allowing those newer attorneys to develop personal relationships with appellate judges would both encourage and credential them.
Of course, these ideas are just the beginning. Our hope in harvesting and reporting this data is to start a productive conversation about how our legal community can work together to better track, and then eliminate, disparities like these in appellate practice. As Judge Bratvold noted, the justice system as a whole benefits from diversity, because “a more diverse bar will ensure the best arguments, broadest experiences, and most impactful cases come before the judges.”
Liz Kramer is Minnesota’s Solicitor General; Hillary Taylor and Cicely Miltich are Assistant Attorneys General; Cat Rios-Keating is a 3L at Mitchell Hamline and a former clerk at the Attorney General’s Office. All four authors identify as female.
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