Birds of a feather… Exploring gender homophily in the Supreme Court bar

A guest post from Chris Hanretty, School of Politics, University of East Anglia and Steven Vaughan, Faculty of Laws, UCL

Most of us, for reasons conscious and subconscious, associate more with people who are like us in certain respects.

This homophily, or preferential attachment to similar others, is very often innocuous. As academics, we are much more likely to associate with other academics than are non-academics. Yet so far, this homophily has not had any grave consequences (save perhaps for those non-academics around us who are bored by shop talk).

Homophily matters much more for people who are in positions of power, who may choose to surround themselves with – or grant lucky breaks to – others who resemble them. Homophily becomes particularly concerning when people in powerful positions are disproportionately of a certain type, and where the homophily in question is related to ascriptive characteristics such as gender, race, or social background.

Barristers (and advocates, and solicitor-advocates) who appear before the Supreme Court are people in positions of power, both in an absolute sense and relative to other members of the profession. Since barristers rarely appear alone before the Supreme Court, such barristers can bestow significant opportunities on other lawyers by pairing up with other lawyers. These “lucky breaks” may go to other, similar lawyers: that is, they may be characterised by homophily of one kind or another.

Although there are many different kinds of homophily, gender homophily should be of particular interest to lawyers given the historic and continuing male dominance of the senior reaches of the several British bars. If (say) male senior counsel are disproportionately likely to team up with other men, and if having appeared before the Supreme Court forms part of the legal cursus honorum, then women will reach the top end of the profession at lower rates than men.

In an article recently published in Public Law, we investigated the extent to which “team formation” on the Supreme Court is characterised by gender homophily. We collected information on the counsel who appeared before the Supreme Court in cases decided by the court between its establishment in 2009 and the summer of 2015. We did this by consulting the lists of lawyers which feature on the second page of each judgment handed down by the court. Altogether, we identified 1,292 individual lawyers in 470 cases. We then identified the gender of each individual lawyer.

With this information, we were able to carry out a series of increasingly complex statistical tests for gender homophily in team formation. The simplest of these tests involves a comparison between two types of two-member teams: teams headed by a male barrister, and teams headed by a female barrister.

• When a male barrister headed the team, 454 of the 615 more junior barristers (74%) were also male.
• When a female barrister headed the team, 50 of the 95 more junior barristers (53%) were male.

Although both types of team are more likely than not to have male juniors, the proportion of male juniors is much higher when the team is headed by a male barrister. This difference is also statistically significant: if we were to repeat this exercise many times, we would be confident that the proportion of male-led teams with male juniors was higher than the proportion of female-led teams with male juniors.

This simple comparison provides evidence that team formation on the UK Supreme Court is characterised by gender homophily. However, this pattern is compatible with a number of different mechanisms. In the remainder of our article, we discuss two particular mechanisms.

The first of these mechanisms is selection from within an area of law. Different areas of law have different gender splits. Female barristers are, for example, more prevalent in family law than they are in commercial law. This is true both generally and in our Supreme Court data. The chances that junior counsel will be female are therefore higher for family law cases than they are for commercial cases. By failing to take this into account, we may have created an artificial association between the gender of the more senior barrister and the gender of the more junior barrister. Homophily would still exist, but it would exist only in virtue of the way that barristers of different genders sort into different areas of law.

The second mechanism – selection from within one’s own chambers – is similar. Different chambers also have different gender splits. Counsel from the same chambers may be more likely to form teams than counsel from different chambers. Once again, failing to take this into account may create an artificial association. It would then become important to explain why some chambers have disproportionate numbers of male or female barristers.

Neither of these mechanisms, when properly accounted for, does much to reduce the role played by homophily. Whether or not we control for the area of law or the gender composition of the senior barrister’s chambers, male senior barristers are one and a half to two and a half times more likely to have a male junior compared to female senior barristers.

Does this matter?  We think it does. On the basis of our findings, female barristers are in a Catch-22 position: women do better as juniors when other women are in senior positions (because the seniors can grant the juniors access to more complex cases and litigation in the highest courts);  but women only reach senior positions after first being juniors. If half of senior barristers were women, then gender homophily would not be so objectionable. However, given that research by the Bar Council suggested that gender parity at the Bar as a whole is unlikely to ever be achieved (and parity at the top end of the Bar is unlikely in the foreseeable future), further progress towards gender equality at the Bar relies, essentially, on exceptional women breaking through.

In with the old, but with a new sense of purpose – innovation with users

The recent HMCTS Court Hackathon, led by the estimable Susskind and Vestbirk, got me thinking about newness in innovation and the role of users in the process. As did an exchange with in-house lawyer Chris Simkins (@hum_drums) about where innovation comes from. Chris’ was inspired by this very interesting talk from Alistair Parvin of WikiHouse.

Part of the talk involved showing how planning regulations could be broken down into a decision tree that interacted seamlessly within a computer aided design tool. The design would (probably) be planning compliant as a result without lengthy to-ing and froing between architect and planners. One of Chris’s points was that it was fascinating to see the embedding of law in the WikiHouse process being led by non-lawyers. That innovation was, as he put it, demand not supply led. Seeing this comment, and the WikiHouse approach to planning law, reminded me of a floppy disk I saw back in the early 1990s. That floppy disk was for a DOS-based programme designed to take non-expert advisers through complex welfare benefits calculations. It had a sticky address label on it with the words Lisson Grove typed across it in the Courier font. Both to support Chris’s point, but also to cause mischief, I wondered aloud how old Lisson Grove was, and to my delight, I discovered that it appeared to be still going, with all the visual pzazz of the old version intact.

My request for info on Lisson Grove’s age was answered by James Hand (@JamesAHand), who came up with this beauty.

Turns out that as our politics is taking a distinctly 1970s veneer, the 1980s are making a bit of a comeback in LawLand. The kind of managed pathway which one sees in the Canadian solution finder is one example, and it looks like the online court here may head in a similar direction. To be clear, we have far greater technological power now to build Lisson Grove type systems, and AI promises – at some point – other possibilities. The point of Wavelength’s Hackathon winning entry using Alexa is not that Alexa is the right interface. Alexa can’t even get my shopping list right. The point is that better interfaces than a computer keyboard are possible or imaginable. Lisson Grove also reminds us that these decision-tree systems can be resilient but it also reminds us of where innovation may need to come from. User needs have to be central, and perhaps chronic or strong enough to motivate action. As the 1989/90 piece tells us:

[This is] a program originally developed by Professor Brian Jarman in the
early 1980’s. A GP at Lisson Grove Health Centre, he started work on it after finding that some of his patients, in particular the chronically sick, were not receiving the benefits they were entitled to, and that their poverty was a contributory factor to their ills

The doctor was not trying to make more for less, he was trying to make his patients better. There was a higher social goal, a pressing social need, and the wisdom and skills to see a better way of doing something. Finding these axes of maximum potential is crucial to innovating for access to justice. Deep engagement with users looks essential.

What Alistair Parvin’s talk also suggests is a step change in thinking is possible when knowledge is embedded in systems: he shows how cost, environment, build, regulation (in this case planning)  and delivery can be linked in a system that raises our eyes from the prosaic (getting something done) to the social (building for a purpose – in this case sustainable living). There’s a really cool example of a farmhouse being designed and built before your eyes. It is inspiring, I heartily recommend it.

There are a whole range of interesting ideas in there: what are the design patterns of law, for instance, but the most important is – what is the overarching purpose we are aiming for, what are the values we promote in seeking to embed justice in systems, and who contributes or owns that process? As Mr Parvin says, when hearing of an innovation, one should think: that’s an interesting future – who owns it?  This is both a policy question and an ethical question; a technical question and a process question; a principled question and a consequences question. I, as many people seem to be right now, am beginning to work more seriously on these issues. James’ contribution forces a reminder that they were doing that too in the good old 1980s.

One final point, that guy from Pointless, Richard Whatsisname, pointed out this week that Tainted Love the 1980s Soft Cell classic was released closer to the Second World War than today. The Lisson Grove approach is more PostWar than it is Millenial. Let that serve as a reminder that we need to focus carefully on what constitutes progress.

Oh, and here’s one from their back catalogue, because – as you can plainly see I am feeling nostalgic and because the Hackathon is also a reminder that it is important to have fun along this particular journey. 

Excalibur – perhaps the sword of truth got stuck?

lt is almost three and a half years since I wrote about Clifford Chance and the Excalibur case.  One reason this case may be taking a rather long time to emerge from the bowels of the SRA is that there has been ongoing litigation. In November 2016 CC were further criticised by Tomlinson LJ for an acute conflict of interest. There was also a professional negligence case which was settled.

There have been developments since then. Today the Lawyer tells us, via Financial News Today, that the SRA are investigating and that CC might be gearing up for a fight, with Clyde & Co instructed (fresh, if that be the word, from their own record-breaking run in with the SDT).  An expensive but important business will ensue -contributed to, one would surmise, by the standard of proof.

Given the level of seriousness of the allegations (medium serious not striking off serious, I’d guess), is this kind of cock up (if that is what it was) one that is best served by an adversarial trial to beyond reasonable doubt standards a la Crown Court? For all that the case may show failings of judgment and unprofessional conduct (or judicial intemperance, one or other seems to be likely on the facts as known) and for all that the case clearly merits investigation and, on the face of it – but we do not know all the facts, prosecution, I suspect we will have a hearing because a) professional defensiveness; b) the proof standard makes it worth a punt; and, c) the powers of the SRA to deal with this, other than by going to the Tribunal, are so limited (If I remember rightly, a £2,000 fine).

I most certainly do not rule out, though, the possibility that there might be: d) substantial room for doubt on the evidence as to whether anything wrong was done – Court of Appeal judges can make mistakes, as we all know. In many ways what is of interest is not just what happened to lead to this car-crash of a case, but how CC responded afterwards. As a firm that would – I am sure- like to hold is self out as a model of professional governance, it would be much more interesting to hear how it learned the lessons, rather than seeing how it goes into battle on the facts of this case for yet one more time. Or perhaps, like Sunderland AFC on one of its most enjoyable energy-sapping mid-season runs, sooner or later they have to win one of these.

The Lawyer story is worth reading in full for a better flavour of the history and my blog of old is here. In the meantime, settle down for a couple more years and await the outcome.

Standard of Proof in Bar Discipline

The Bar Standards Board is inviting comments on its proposals to bring the standard of proof into line with all professionals other than Vets and, for now, solicitors. Lucy Reed has exceeded her own high standards with an exceptional blog post on this.

In terms of the three questions the BSB asks, I agree  that the standard of proof should be the civil standard, that the decision should not await the SRA making such a shift, and I do not perceive equality or other impact concerns that should stop them doing so. I don;t propose to go into the arguments as the BSB’s document does that admirably and with concision.

I suspect one argument that may be made against the proposals is the risk of ‘political’ prosecutions of barristers for handling controversial cases. This is a risk that faces other professionals, although it might be thought to be a greater risk for lawyers, who’s work inevitably implicates them in greater controversy. Any such risk is properly protected by the independence of the regulator and prosecutorial decisions, rather than an artificially high burden of proof.

I hope also that a more public interest oriented standard of proof will also open the door to a wider range of enforcement, redress and restoration – with perhaps more disciplining of misconduct but a wider range of responses to such enforcement. Ethics is  important but it should perhaps rarely be the life and death of someone’s career. In particular, it is to be hoped that practitioners are less likely to fight made out misconduct conduct charges and more willing to engage in meaningful contrition and learning from their errors. This is not an approach likely to develop in scheme which has a criminal, adversarially oriented approach of which the balance of proof is one significant element.

A call to academics: law, technology, and access to justice in UK law schools

Roger Smith has written a challenging post on the teaching of innovation and lawtech in the UK.  I urge you to read it. Law schools should do more, but I think they Roger’s post is limited in the sense that it does not demonstrate much awareness (if any) of what is actually happening in this country around teaching law students about law, innovation technology. That’s disappointing, but rather than complain or tell you all what awesome things we already do at (say) UCL, I thought it might be an idea to do something a bit more constructive and less self-aggrandising.

So I am asking you, if you are in legal education, to help me collect some information on what is already happening in the nation’s law schools (and I am defining nation as meaning the UK here but really would be delighted if others wanted to join in).  If you are willing (and you can provide your information confidentially) I will publish a summary and if you are keen, I will try and organise a way of bringing all those interested together to discuss progress and problems in this area.

So if you teach or oversee activity in legal education on innovation or technology in legal services please fill in this survey.

How much do law graduates earn…?

Some very interesting data out linking graduate and tax records, which deserve wide digestion and scrutiny. I have not had time to do the latter, but my quick take is here on Storify.

Martyn’s Day

For some time, I have known how I would start my inevitable blogpost about Leigh Day’s disciplinary hearing. Win or lose, I would want to state unequivocally my prior belief, my starting point. That starting point is best indicated by what I told a legal magazine when asked – about three years ago- which lawyer I most admired and why? I thought for a bit and then told them Martyn Day. There were, from memory, two reasons.

One was that I admired the way Martyn had built a firm that did important work that they really believed in. Perhaps I should have picked Sarah Leigh who actually started the firm: male centric bias, quite possibly, but I had met Martyn a handful of times, in professional contexts where he was always purposeful, interesting, even though he was properly wary of me (what I was working on was somewhat antagonistic to his beliefs and his interests).

The second was that I, and the researchers I had worked with, (worked ‘on’ might be a better description) Leigh Day lawyers, and we and they came away with a feeling that this was a firm that had great people and the ‘culture thing’ as good as we had seen it. Partly for that reason, I could not really bring myself to engage with the reporting of the SDT hearings. I couldn’t read it through the glasses I had on. I did not want to.

The second point is that Martyn, and Leigh Day, has enemies. I know, imagine. I remember being taken aback when seeing a leading City spokesperson literally hissing about them being ambulance chasers. The hypocrisy was shocking: the same spokesperson that would have smoothly defended the way his colleagues ingratiate themselves with (say) Big Tobacco, or pretend that the debate about Tax Havens is properly framed as a debate about privacy had lost, I thought – but I might be wrong – a sense of perspective. The commercial law world is compromised by the need to keep their clients sweet but that does not mean Leigh Day is not, was not, might not be too. Phil Shiner had reminded us what was possible. I would have to wait for the findings to see what came out, I knew.

So, as you might imagine, I am relieved that Martyn and his colleagues were acquitted. A little piece of me does not have to die. And I am not unsympathetic to idea that dark forces were out to get him. And for what it is worth, what I did read of the SDT hearings did not suggest to me they had a good case. But also, for what it is worth, what I have read of the allegations that the SRA bent to the pressure of the government was similarly weak. But I want to say that my judgment here, at least, is likely to be limited – only modestly encumbered by evidence and experience. And I see the same flaws in judgments being reached by the professions and the commentators via the vehicle of questions need to be asked.

It is certainly the case that the hearing was expensive. And that the SRA lost on all 20 counts might very well raise questions about whether the prosecution should have been brought. And that any discussion between the SRA and the Government might have been inappropriate or unwise. But it might also be the case that the SDT is a poor tribunal. Or that the standard of proof is wrong (or right – this case may very well be an interesting and acute case study of the problems posed in disciplining lawyers). It is also the case that it would be worrying indeed if the good, sometimes great, and – the law of averages tells me – sometimes poor work that firms like Leigh Day does might be chilled by such judgments. But it is also the case that allegations of the sort that were made really do need to be investigated and, where appropriate, prosecuted. Phil Shiner tells us that, if it tells us anything. Martyn’s innocence (if that is properly how we see an acquittal) does not tell us that there is a need to find blame – not yet. And neither does it tell us we should not have a proper but balanced look to see if blame is deserved.

Oh, and there is one other thing which I was readying myself to say if Martyn had been convicted. Although, I confess now I am not sure I would have been brave enough to say it without carefully reading the decision (which we must wait for until August). Instead, I remind you about two other lawyers who I greatly admire, for similar reasons, and who could just as easily have made it into my most admired column, two similarly high profile, senior lawyers of great repute have been convicted – in the past- and after they scaled the heights – of significant professional misconduct. Making mistakes is much more common than we care to admit. Some of those mistakes probably do require the full monty of adversarial process but most probably do not. And nor do mistakes usually require the analgesic reaction meted out to (say) Phil Shiner. Pretending this is about bad guys and that they are acres away from us is not always wise. So let’s react, investigate, think about the lessons to be learned. But let’s also keep those lessons in perspective and remember which glasses we have on as we peer at the few things we know now or the SDT judgment in a few months’ time.