AuthorRosborough, Robert S., IV

Since Chief Judge Judith Kaye was appointed the first woman to serve on the New York Court of Appeals, nine other women have followed in her footsteps and sat behind the court's ornate wooden bench. (1) Women haven't been afforded the same opportunities on the other side of the bench at the Court of Appeals, however. In fact, when advocates step up to the podium to argue the state's most important cases before the judges of the Court of Appeals, the majority of whom are now women, (2) it is nearly as likely to see two men arguing as it is to see even one woman. (3) Let that sink in for a moment. That's a disturbing trend, and one that does not reflect the ideals of our profession.

For years, lawyers, law professors, and judges alike have studied and spoken about the law's glass ceiling. (4) It is well known that although women now make up more than half of the law students throughout the country, they are not similarly represented as partners in law firms or judges in courts. (5) Some progress has been made, but as Chief Judge Kaye once observed almost thirty years ago now:

There are those who would compare women's advancement in the profession to the erosion of a mountain--a process that will proceed slowly and inevitably once entry barriers fall. But there is in fact no physical inevitability to our ascent. It still requires vigilance--conspicuous, vocal vigilance. I sometimes fear that is forgotten today. (6) Chief Judge Kaye's words ring true: nearly thirty years later and not enough progress has been made. Indeed, the focus on the gender disparity of advocates before the Supreme Court of the United States and other federal appellate courts throughout the country only has sharpened within the last ten years or so. (7) The rates of women arguing before the Supreme Court appear to have improved over the years, from 13.91% over the 1993-2001 terms (8) to 17.79% over the 2012-2016 terms. (9) But that's still very low, especially when women have made up approximately half of law school graduates for at least a decade now. (10)

How does New York compare? Are women arguing more frequently before New York's highest court than they are before the Supreme Court? A 2017 report of the New York State Bar Association, chaired by former U.S. District Judge Shira Scheindlin, for example, examined four months of data reported by New York judges and concluded that they are. (11) "Of a total of 137 attorneys appearing in th[e] Court [of Appeals], female attorneys made up 39.4%." (12) The 2017 NYSBA report was updated again in 2020, using another four months of survey data from the end of 2019. (13) The updated data showed a significant drop off in women arguing before the New York Court of Appeals: "based on 33 arguments involving a total of 67 attorney appearances during the relevant time period, 18 women spoke at oral argument, for an appearance rate of 26.8%." (14) Four months of data, while helpful, is hardly conclusive. (15)

So, I dove a little deeper. What can the last ten years of arguments at the New York Court of Appeals tell us about how much progress has been made at the podium? Have women yet been afforded an equal opportunity to shape the views of the Court of Appeals judges who shape New York law? The results are startling and suggest that Chief Judge Kaye was right all along: without "conspicuous, vocal vigilance" pointing out where the legal profession still has ground to make up, the progress of women and other underrepresented groups arguing before our state's highest court is not inevitable. (16)

As I try to explain in this Article, all sectors of the profession bear responsibility for taking up that mantle--law schools, law firms, government and the public sector, and the courts. Indeed, real progress in ensuring that women have equal opportunities to shape New York law at the highest level can only be made when each of the sectors work in concert toward making our profession more inclusive.


    Recognizing that the first step to addressing the gender advocacy gap in New York courts is to call it out, the NYSBA Report set out "to ascertain whether there was, in fact, a disparity in the number of female attorneys versus male attorneys who appear in speaking roles in federal and state courts throughout New York." (17) To do that, the report's authors devised a survey for New York's state and federal judges that asked them to observe the roles that women played in the litigation before them for four months at the end of 2016. (18) And the survey was distributed far and wide across New York's courts:

    The study surveyed proceedings in New York State at each level of court--trial, intermediate, and court of last resort--in both state and federal courts. Approximately 2,800 questionnaires were completed and returned. The cooperation of the judges and courthouse staff was unprecedented and remarkable: New York's Court of Appeals, all four Appellate Divisions, and Commercial Divisions in Supreme Courts in counties from Suffolk to Onondaga to Erie participated. (19) Believed to be the first observational study of its kind, the report found that the gender disparity was striking: "[f]emale attorneys represented just 25.2% of the attorneys appearing in commercial and criminal cases in courtrooms across New York," and "[t]he percentage of female attorneys appearing in court was nearly identical at the trial level (24.7%) to at the appellate level (25.2%)." (20) The report also pointed out a significant gender gap between public interest law and private practice, with women in public interest being afforded a significantly greater opportunity--almost 20% greater, in fact--to appear and argue in court than women who worked for law firms. (21)

    When the report focused particularly on the Court of Appeals, however, it found the results more encouraging:

    The view from the New York Court of Appeals is particularly interesting. The statistics collected from that Court showed real progress--perhaps as a result of female leadership of that court, now headed by Chief Judge Janet DiFiore and past Chief Judge Judith S. Kaye, as well as the fact that the Court has had a majority of women judges for more than ten years. Of a total of 137 attorneys appearing in that Court, female attorneys made up 39.4%. This percentage held whether the females were lead or second chair counsels. In cases in which at least one party was represented by a public sector office, women attorneys were in the majority at 51.3%. Of the appearances in civil cases, 30% were by female attorneys. The figure in criminal cases was even higher--female attorneys made up 46.8% of all attorneys appearing in those cases. (22) Women appeared before the Court of Appeals almost 40% of the time, according to the NYSBA Report's survey data. (23) That is significant. But can it hold when the data is expanded from the last four months of 2016 to the last ten years? That's what I was interested to know. And as my own research appears to reveal, the gender diversity on the Court of Appeals bench is a good start toward encouraging gender diversity at the argument podium, but it's not enough.


    When I began this project in 2017, I was interested to know what one year of argument data would show. But first, the why. Why is New York Court of Appeals argument data interesting or useful when evaluating the progress that women have made in the legal profession?

    In my opinion, Court of Appeals arguments represent the pinnacle of an attorney's opportunity to shape how the law develops in New York, outside of drafting and passing laws at the legislature. In each case, the Court of Appeals confronts novel legal issues that will have a broad statewide impact. (24) It resolves conflicts amongst the appellate division departments and guides how litigation should be conducted throughout the state. (25) Arguing to the Court of Appeals, therefore, is a unique position of influence, and one that does not come around very often. (26) Advocates before the Court of Appeals generally should be as diverse as the bar is, not only for representational purposes, but because diverse advocates bring different perspectives to legal issues that the court should consider. (27) If women or other underrepresented groups are not being given a chance to argue before the Court of Appeals at rates that you would expect, it would tend to show that the artificial barriers to entry still remain.

    To assess the extent to which those barriers still stand in the way of real progress, I started with the one place I knew I could find information about the advocates who argued before the court: the Court of Appeals' own website. (28) There, the court hosts a treasure trove of data for anyone interested learning about the court. It provides, for example, annual reports detailing the total number of appeals and motions the court has decided in the past year, (29) practice guides for the court's complex jurisdiction, (30) and most importantly for my purposes, day calendars for all of the court's arguments going back to January 2012. (31)

    The court's oral argument day calendars provided all of the information I needed to assess the real progress that women advocates have made in cases that are argued before our state's highest court. From the case names, I was able to categorize the appeals into criminal (People v. _______ ) or civil cases. And from the names of the advocates listed, I was able to use simple internet research to do my best to determine the advocate's gender. (32) I also recorded the total number of cases that had only men or only women on both sides of the appeal, to try to get a sense of how frequently the judges of the Court of Appeals were only hearing arguments from attorneys of a single gender.

    Spurred on by the...

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