A third of recent Third Circuit oral arguments were by women. Hurray?

Three recent studies have looked at whether women are getting their share of oral arguments in appellate courts:

  • On his Empirical SCOTUS blog, Adam Feldman examined Supreme Court arguments between 2012 and 2016 and found that less than 18% of the advocates were women–even though women’s win rates were higher.
  • Lawyer Raffi Melkonian studied Fifth Circuit oral arguments from 2016 and found that 17% were by women.
  • And on his New York Appeals blog, Rob Rosborough looked at 2016 arguments in the NY Court of Appeals and found that 37% were by women.

These studies inspired me to figure out how the Third Circuit measured up. The answer: out of 100 recent Third Circuit oral advocates, 34 were women.

Breaking down the numbers, here’s what I found:

  • In criminal or habeas cases, women were 44% (7 of 16) of the advocates.
  • In civil cases,* women were 32% (27 of 84).
  • There were 4 cases were both advocates were women, versus 18 where both were men. In the other 26, there was at least one of each. One of those 4 cases in which both arguing counsel were women was Hayes v. Harvey, the public-housing appeal in which the court recently granted rehearing en banc.

* Civil includes everything that’s not criminal or habeas. (And, while not the focus of this post, the fact that only 8 out of 48 arguments were crim/habeas cases is startling.)

My quick-and-dirty methodology: working backwards from the end of 2017, I  went through the appeals with published decisions after oral argument until I had 100 advocates. That ended up being published opinions issued between August 29 and December 31; it was 48 cases instead of 50 because in 4 of the cases 3 lawyers argued. Whenever I had any doubt about a lawyer’s gender, I checked online. Note that my numbers exclude oral arguments that resulted in unpublished opinions, which shows I’m lazy but I doubt affects the numbers.

I confess that I was surprised by these results. I suspected our gender imbalance among oral advocates would be just as bad as the Fifth Circuit’s and the Supreme Court’s. Not so. Yay Third Circuit.

Still, a third of our circuit’s oral arguments by women is nothing to crow about.

How to improve? Melkonian encouraged senior lawyers who assign cases, and clients who pick who argues, to give more women a shot. I agree, but I believe the rest of us have a role to play, too.

Bar groups decide who presents on CLE panels; judges decide who to appoint to committees; lawyers decide who to invite to judge their moots; reporters decide who to quote; nerdy bloggers decide whose work to recognize. Those decisions, and dozens like them, all affect career trajectories.

Something’s wrong when it seems like a triumph that men are getting only two-thirds of the oral arguments. It’s going to take a conscious, sustained effort by all of us for women appellate lawyers to get their due.