Judges Push for Diverse Voices in Court

• Author: Rebecca Beyer
• Pages: 9-10

Judges Push for Diverse

Voices in Court

ON THE DAY U.S. DISTRICT JUDGE ELIZAB ETH

WOLFORD RECEIVED A COPY OF A NEW YORK

STATE BAR ASSOCIATION report revealing that

women participate in cour t at lower rates than men,

the judge had a meeting to disc uss a pending breach-

of-contract case .

In addition to a male par tner,

each side had a female asso ciate

who, Wolford says, had clearly done

the relevant research. W ith the report

in mind, Wolford of the Western

District of New York recommended

the associates a rgue at the hearing—

and they did.

“It was one of the best arguments

I have had the privilege of presid ing

over,” Wolford reca lls.

According to the July report , female

attorneys acc ount for just 25 percent of

counsels appearing i n commercial and

criminal New York state and federa l

cases. In more complex matters , the

percentage declines f urther. A 2015 ABA report found

similar numbers in a st udy of the Northern District of

Illinois.

In August, Wolford implemented a standing ru le that

encouraged young attorney par ticipation. Such rules,

which often o er oral arg ument as incentive, are one

way the NYSBA report r ecommends the bench help

address litigation’s gender disparities.

Wolford’s rule was inspired by similar gu idelines

set forth by Judge William A lsup of the U.S. District

Court for the Northern Di strict of California. He imple-

mented his rule soon af ter taking the bench in 1999,

but he also requires larg e fi rm s to document how they

will integr ate junior attorneys into a case. Al sup says

he does so for the good of the profession, as well as for

up-and-coming law yers.

“If we don’t train the next generation, then lawyer ing

will su er and the public wi ll lose confi dence” in the

system, he says.

None of the rules mentions gender or race. But

the measures can h ave the e ec t of

increasing opportun ities for women

and minorities becau se they now make

up a greater share of young attor neys.

In 2016, according to ABA data , women

composed more than half of mat ricu-

lating students at all law schools, a nd

minorities made up more than a t hird of

such students. In 2009, 47 percent of all

enrolled students were women and 23

percent were minorities.

Attorney Sharon Porcellio, who

worked on the New York bar report,

says she thinks the r ules are an innova-

tive way to address an a ge-old problem.

“Those of us who have been pract ic-

ing for a long time had hoped that the

pipeline theory”—the idea that increa sing numbers of

women and minorities in law school would lead to equ al

representation in practice—“wou ld work,” she says. “ The

pipeline theory has not proven to work.”

Attorneys say the nonmandat ory rules can make it

easier to convince cl ients, who may prefer the most

senior team member’s participation, to a llow junior

lawyers the chance t o argue. But they also point out

that not every matter i s appropriate for assignment

down the ranks. In 2016, a federal judge cr iticized

Facebook for failing to send a more senior lawyer t o

a hearing. At the next appea rance, Paul Grewal—

Facebook’s vice president and deputy general counsel

and a former Northern Distr ict of California magistrat e

judge—was present.

Standing rules help women and young attorneys take the lead

U.S. District Judge Elizabeth Wolford

Opening

Statements

JANUARY 2018 ABA JOURNAL || 9

EDITED BY LIANE JACKSON / LIANE.JACKSON@AMERICA NBAR.ORG