Increasing diversity among appellate lawyers and judges requires building the pipeline during law school, says the head of a new organization aiming to change the face of the appellate bar.
The opportunity and information barriers to appellate practice for attorneys of color begin in law school, said Juvaria Khan, a former Patterson Belknap Webb & Taylor associate who founded The Appellate Project.
Because attorneys of color are more likely to be the first in their families to go to law school, there can be a lack of mentors, networks, and even a basic understanding of what an appellate lawyer does, said Khan, who also worked at Muslim Advocates, a national legal advocacy organization.
“Law schools tend to assume a lot of knowledge that first-generation law students of color often don’t have,” she said.
Those knowledge barriers can be anything from not understanding the importance of clerkships to a successful appellate career to not knowing which activities students should participate in while still in school—things like moot court, law review, or working as a research assistant, Khan said.
“But those choices are rarely explained until it’s too late,” she said.
To change that, the group kicked off its first appellate-focused clinic this year at Howard University.
Co-leading the effort is Orrick’s Tiffany R. Wright, who says she sees firsthand “how bad the numbers are” as an attorney of color in appellate practice. There are only a handful of black appellate attorneys in D.C., where she practices, and she is often the only Black woman in the room.
“It isn’t just the numbers that are a problem,” Wright said.
Appeals cases, particularly criminal ones, disproportionately affect minority communities. Yet the appellate space is “one of the more elite corners of the law and mostly white males,” Wright said.
That affects the quality of the advocacy, too, in that the person arguing the case may not understand the implications for minority communities, Wright said.
The clinic, which includes 10 students, filed its first Supreme Court brief in October in Jordan v. United States, a case involving increased sentences for those convicted of firearms offenses.
The law at issue in the case, and the criminal justice system in general, disproportionately affects black offenders, the clinic said in its brief.
The idea is to give students a taste of what a career in appellate law is like. It involves less of what you see in television courtroom dramas and more research and brief writing.
The Appellate Project has also launched a mentorship program to pair law students with appellate practitioners around the U.S.
“Again and again, appellate practitioners describe the importance of some mentor or connection who provided guidance and helped them get started,” Khan said.
“But that can all be opaque to a first-generation law student,” she said.
Khan said she anticipated receiving 30 to 50 applications and wound up getting hundreds.
In the end, the appellate group paired more than 200 law students with mentors, who include high-level government officials, senior partners at big firms, and “some of the most prolific Supreme Court and appellate practitioners throughout the country,” Khan said.
The next step is a summer fellowship for diverse law students who are underrepresented in the appellate bar, said Timothy K. Lewis, a former federal appeals court judge who sits on the group’s advisory board.
Students participating in what The Appellate Project calls its “incubator program” will be given the opportunity to not only train and network with attorneys and judges in the appellate area, but will receive support and mentorship that extends beyond the summer, The Appellate Project’s website says.
The goal is to introduce the nuance of appellate practice and the players in the field, said Lewis, who was one of three black judges on the Pennsylvania-based U.S. Court of Appeals for the Third Circuit from 1992 to 1999.
It’s “not a lack of desire that these students are underrepresented in the field, but a lack of opportunity,” he said.
Lewis said he saw firsthand the lack of diversity among appellate lawyers while sitting on the federal bench.
“During my years on the Third Circuit I can count on my hand—less than one hand—the number of black lawyers who argued before me,” Lewis said.
The numbers aren’t much better on the federal bench overall where 23% of the 176 active judges on the U.S. Courts of Appeal are attorneys of color, according to Federal Judicial Center data.
Maggie Jo Buchanan, director of the legal policy program at the Center for American Progress, says diversifying the appellate bar and bench will require a rethinking of who qualifies as an elite lawyer.
Currently, appellate practice typically requires stellar grades from a top law school and a first-rate clerkship, which can land you at a lucrative law firm.
But Buchanan said the path to a successful appellate career needs to be broadened to include experiences like public interest law, where women and attorneys of color are represented in higher numbers, Buchanan said.
She pointed to the federal judiciary as an example.
Almost 70% of all white men on the appellate bench as of July 2020 spent time in private practice. But less than half of the 12 women of color who sit on the courts followed that path, Buchanan said.
Young attorneys of color need to see “people taking paths to the highest level of the profession,” Buchanan said.
The Appellate Project joins other programs aimed at getting underrepresented groups into the legal career pipeline.
Just the Beginning is an organization of judges and attorneys dedicated to helping students of color and from low-income backgrounds get into the legal profession. It sponsors summer judicial internships for law students and runs a clerkship referral program.
Bar associations and other professional groups also have programs focused on helping junior attorneys get opportunities. The Federal Circuit Bar Association sponsors a mock argument series that gives next generation attorneys experience arguing before judges, and encourages attorneys to provide pro bono representation for veterans as a way to get their first oral argument.
ChIPs, an organization focused on advancing women in technology, hosts an annual Next Gen Summit to empower junior to mid-level female attorneys who work in technology, policy, private practice, corporations, or government.