Women See No Gains as Plaintiffs-Side Complex Case Leaders

Women are still much less likely than men to run the biggest federal cases for plaintiffs, despite the recent focus on gender diversity in the legal profession.

Women’s appointments to plaintiff-side leadership roles in federal multidistrict litigation decreased slightly from a peak in 2015, new research shows.

Roughly 24 percent of leadership roles went to women in 2016 and 2017, Dana Alvare found. Alvare is a researcher with the Sheller Center for Social Justice at the Temple University Beasley School of Law, Philadelphia.

Women were appointed to nearly 28 percent of the lead spots in 2015, according to Alvare, who has been studying the subject. The beginning years of the decade had much lower percentages.

The years 2016 and 2017 also saw a drop in the percent of women in the overall highest plaintiffs-side leader roles: from 26.5 percent in 2015, to 21 percent in the later two years combined.

However, the number of women appointed lead counsel, the top-ranked positions, remained steady at 22 percent in all three years.

Alvare, in addition to crunching the numbers, interviewed dozens of female attorneys about their experiences, their backgrounds, and their efforts to get into leadership.

Structural barriers in some firms that keep women from getting needed experience to contend for leadership, and unconscious bias preventing mentoring, were some factors that account for the consistent gender gap, Alvare found.

The new numbers will be presented in June at a Duke University conference on diversifying leadership in law, Alvare said.

Less Trial Time, Fewer Mentors

More than a third of pending federal civil cases are consolidated in MDLs.

The first phase of Alvare’s study, a part of Temple’s Women in Legal Leadership project, analyzed MDL appointments in cases from 2011–2015.

The new numbers are “still a deficit, but better than 2011-2014,” when women received less than 17 percent of all plaintiffs’ MDL leadership appointments, Alvare said.

Some women reported good mentoring and networking opportunities, she said.

But many others said they don’t get trial experience in their own firms, and some said male senior attorneys are more likely to mentor young male attorneys than young female attorneys, Alvare told Bloomberg Law.

Unconscious cultural factors that work against women, including unconscious bias, is part of what has been keeping women from getting networking opportunities and work experience, she said.

Alvare had thought the numbers after 2015 would go up, given recent attention to women in the law and judges’ efforts to encourage the appointment of women and less senior attorneys to positions in MDL leadership, she said.

“I think that the stagnation of the rates shows the strength of the existing structures and culture that maintain this gap,” she said. “There is only so much that the bench can do.”

The gender gap is a complicated issue with multiple causes, Alvare said.

The finances of pursuing large, complex litigation, which require a significant commitment of money and time from a firm, also work against women, who are far less likely than men to be equity partners with the ability to direct the firm’s financial decisions.

Some judges will ask about financing when an attorney applies for a leadership appointment, Alvare said. “If you don’t have that big firm name behind you with the war chest, that’s going to be a significant barrier for people,” she said.

Retired Pennsylvania Judge Sandra Mazer Moss, executive director of the Sheller Center and senior adviser to the Women in Legal Leadership project, called the drop disappointing in the short run.

But “I’d like to think that these are just little setbacks,” she said.

Moss, who said she has advocated for women’s equality since the 1970s, said, “I know how long it takes to take those steps.”

“I think the #metoo movement is going to catapult more and more women into areas of leadership,” she added.

Leadership Breakdown

One nuance of MDL leadership is a discrepancy in prestige between “Tier 1” slots, which include lead counsel and other top jobs, and “Tier 2” slots, which include lower-level leadership appointments such as to the plaintiffs’ steering committee.

Alvare looked at the breakdown of these “leadership within leadership” appointments.

Looking at 2016 and 2017 together, women made up 21 percent of the Tier 1 appointments and 30 percent of the Tier 2 appointments.

In 2015, women made up almost 26.5 percent of the Tier 1 spots, but just 28 percent of the Tier 2 spots, Alvare found.

Alvare also looked specifically at lead counsel appointments, usually between one and three attorneys selected to lead the plaintiffs’ MDL leadership.

That figure remained constant, with women appointed to 22 percent of the lead counsel spots for all three years.

Alvare also hopes to research women’s appointments to MDL leadership on the defense side, where it is believed that women are better represented, she said.

To contact the reporter on this story: Julie A. Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com