Multidistrict litigations (MDLs) are among the most high-profile US legal matters in which a lawyer can be involved, but they are also among the least likely to be led by diverse lawyers. According to data gathered by Law.com, on average, only 5% of lawyers appointed to plaintiffs’ steering committees (PSCs) in MDLs created from 2016 through 2019 identified as “nonwhite”.
New solutions are needed to improve the representation of female and racially diverse litigators on PSCs and broaden the pool of lawyers who have experience in managing large MDLs—experience which often parlays into career progression and economic growth for lawyers.
Leadership on MDL cases is a career-making opportunity
Diversity within MDL leadership positions is important because MDLs shape litigation across the entire country. An MDL ties together potentially thousands of separate cases filed in courts throughout the US for coordinated pretrial proceedings, before they are remanded to individual trials on the merits. These cases are by nature noteworthy and resolve some of the most pressing, complex and high-profile torts of our day. Yet the lawyers who typically lead these proceedings still look a lot like they did 50 years ago, and the usual suspects for this important area of the law remain predominately white and male.
Judges are leading diversity efforts within MDLs
Diversity is a growing concern among both the bench and the bar in MDLs. Federal judges in the US are now stressing the importance of diversity in their orders or in courtroom discussions with lawyers.
For example, in a December 2020 pre-trial order in the Elmiron case, Judge Martinotti informed the parties of his expectation that leadership would be “diverse in gender, ethnicity, geography and experience.” This directive then led to a PSC that was three quarters female.
Case management orders can help new attorneys get vital experience in their careers, and thus potentially also helping female and diverse attorneys to gain experience. To bridge the experience gap in important arguments, for example, US District Judge Chen in the Northern District of California permits more than one person to argue the motion. In his standing order, he sets forth that the court "is amenable to permitting a number of lawyers to argue for one party if this creates an opportunity for such attorneys to participate."
This is reflective of a broader trend of courts advocating for greater diversity. Ultimately, judges want leadership teams that look like the plaintiffs they are serving. This is especially urgent in MDLs where many of the plaintiffs come from underrepresented communities.
While progress is positive, there is still a long way to go
Although both 2020 and 2021 had far fewer MDLs than in years past, the percentage of racially diverse lawyers rose. Recent statistics show signs that the efforts of judges and courts are beginning to move the needle. In 2021, about 16% of attorneys appointed to leadership roles in multidistrict litigation identified as “nonwhite”, up slightly from 14% in 2020 and up significantly from years prior.
While inroads are being made, many racially diverse lawyers appointed to leadership roles in 2020 and 2021 came from smaller, independently owned firms, rather than larger, established plaintiffs’ practices. This may create obstacles given that participation in a PSC requires a substantial upfront investment, making it harder for smaller firms to participate.
More tools are needed to increase the overall percentages of diverse attorneys on PSCs. Female and racially diverse lawyers can use economic incentives like The Equity Project to equip them to compete for leadership positions on the PSC.
The Equity Project is an award-winning initiative to improve gender and racial diversity in the business of law with a pool of legal finance capital earmarked to back commercial litigation and arbitration led by female and racially diverse lawyers. As of March 2022, Burford has committed more than $100 million to back female and racially diverse lawyers. Among other qualifying criteria, matters qualify for Equity Project funding when matters meet Burford’s investment criteria and a female or racially diverse attorney is serving as chair of the PSC. (Learn more about other criteria for Equity Project funding of commercial litigation and arbitration.)
Ultimately, to facilitate real change in the MDL field, we need more opportunities like these for female and racially diverse litigators to take on leadership roles in PSCs.
