Q&A: Making waves

In 1992, Judge Kathryn Vratil became the first woman appointed to the federal court for the District of Kansas. She later served as the court’s chief judge for six years and on the U.S. Judicial Panel on Multidistrict Litigation for nearly a decade. In 2015, she appointed the first-ever majority-female plaintiffs’ steering committee in the Ethicon power morcellator multidistrict litigation. Tulsa, Okla., attorney Rachel Gusman spoke with Judge Vratil, now a senior judge for the District Court of Kansas, about her groundbreaking career and why improving diversity at all levels of the legal profession is vital.

You have been a judge for more than 25 years. What drew you to the law?

I was a student at the University of Kansas when the waves of protest in the late 1960s and early 1970s with regard to racism, the war in Vietnam, and women’s liberation, among others, hit campus. Throughout that period, I was a person with one foot in the protestors’ camp and one foot in student government. I had a lot invested in peaceful change and proactively addressing social issues. And those of us who opted to work for change from within the system tended to gravitate toward law school because it seemed like a very instrumental way to effect change. 

The other key factor was finding a mentor. There were no lawyers in my family, and I didn’t know any lawyers growing up. But while I was at the University of Kansas, there was a dean of women named Emily Taylor who was light-years ahead of her time in terms of encouraging women to enter graduate programs and rethink the traditional roles assigned to them. She opened my eyes to the possibility of being a lawyer. 

Did you anticipate your law career would take you to the bench?

No, I expected to be at a practice. I started at the University of Kansas School of Law in 1972, and there were only 14 women in my class of about 140 students. The female students did really well—disproportionately well in terms of having leadership positions, making law review, and achieving the other typical measures of student success. 

But when we graduated, it was really difficult to get jobs. Only three of the big firms in Kansas City had female attorneys, and each of those firms had only one. When we graduated, not a single woman in my class received a job offer from any law firm in Kansas City. 

So the dean of the law school, Martin Dickinson, went to bat for us. In my case, he asked Judge Earl O’Connor at the District Court of Kansas if he would interview me, and eventually I became Judge O’Connor’s first female law clerk. My hiring was controversial to some in the courthouse. But Judge O’Connor and I developed a great relationship, and he became a fantastic mentor for me. After my clerkship, I joined a law firm, eventually becoming a partner while simultaneously serving as a part-time municipal judge in my hometown. When Judge O’Connor took senior status at the district court, he encouraged me to throw my hat into the ring to become his successor. 

I still pinch myself, but all the stars aligned in a way that made that possible. I had not been active in partisan politics, but Kansas had two senators—Bob Dole and Nancy Kassebaum Baker—who embraced the opportunity to consider diverse candidates to fill the vacancy. And although the Senate Judiciary Committee had shut down the pipeline for judicial confirmations in anticipation of the 1992 presidential election, the chair, Joe Biden, reopened it for one last confirmation hearing in late September. At that hearing, which occurred on less than 24 hours’ notice, the committee took up six nominations—including mine. We were all confirmed two weeks later, just weeks before the election, but 67 other nominees were not so lucky.

My colleagues and I sometimes discuss how difficult it can be believing you’ve earned your success, especially in the face of bias. Did you experience this self-doubt when you first sat on the bench? 

I won’t say I had no pangs of self-doubt. But I was fortunate to have a tremendous support network within my court and from the Federal Judicial Center’s orientation program for new judges, which we call “Baby Judges School.” The questions that I first experienced when I became a law clerk about my qualifications were hopefully mitigated when I was appointed to the bench. Part of it was the passage of time. It was 17 years later, and a lot had changed about how women were perceived and accepted. Also, I was older and had developed a track record as a litigator in a large law firm.

But it wasn’t perfect. There was still bias about women as judges. For example, in an old courthouse where I worked for about 18 months, I didn’t have my own courtroom. I had an ­overhauled janitor’s closet for my reception area, and a jury room was my chambers. Many times, the lawyers would be in there, and I’d walk in and have a seat, and they’d say, “When do you think the judge will be here?” Also, from time to time at bar events, people saw my name tag (“Hon. Kathryn Vratil”) and felt amiably entitled to address me as “Hon.”

What are some systemic obstacles to increasing diversity in our courts and in law firms?

I think that one reason the judiciary is such a welcoming place for women and minorities is that we all get paid the same, and we all get our cases randomly assigned. The things that lawyers fight about don’t exist in our world.

Diversity is one of the crucial issues facing the legal profession today. Women have a slight edge in terms of admission to law school and seem to be entering law firms at a rate commensurate with men. So something’s happening within firms that is either causing women to leave or is denying them leadership roles. The problem is even more pronounced for female minorities and people who are in more than one category of a historically underrepresented group.

What are some steps that could be taken to address this?

One of the things that jumps off the page when I talk to clients and lawyers about diversity is that when it comes to trying cases, clients tend to want someone with a proven track record. The safe call is to go with the more experienced partner who’s probably going to be male and white and to keep other attorneys in supporting roles. 

But this prevents those other attorneys from gaining experience and visibility, and that’s a huge problem, not just for minority attorneys, but for law firms and for the legal profession. Lawyers without trial experience may be afraid to push to take cases to trial, but the solution isn’t to keep giving cases to the same people. To ensure a strong new class of trial lawyers, more attorneys need to receive opportunities earlier in their careers. I don’t know how law firms—and clients—will be able to achieve the goal of having diverse teams unless they require that diverse lawyers appear in court for them.

In the context of MDLs and complex class actions, judges play a critical role in appointing leadership. Hopefully, we can ensure that attorneys who are qualified and willing to serve have leadership opportunities that are not constrained by gender, race, ethnicity, or other similar factors.

What did you see as a judge that prompted you to act?

To me, it’s about being fair to qualified members of the bar who want leadership roles in complex litigation. I was on the Judicial Panel on Multidistrict Litigation (JPML) for nine years, and I became highly aware of the fact that women and minorities were grossly ­underrepresented in leadership roles.

We had oral arguments every month in different places around the country. You’d see only about 30 to 50 attorneys argue, but hundreds of attorneys would appear for arguments for ancillary reasons. Sitting on the bench, I could count on my hands the number of women and minorities who were there. I would count them every time, and I would write the number at the top of my docket sheet. The lack of diversity was appalling. The numbers ticked up a little bit each year from 2004 when I started but not by very much. When I left in 2013, it was still rare to have women arguing before the panel. 

While I was preparing to speak at a panel on leadership selection and how a transferee judge makes ­leadership appointments, I looked at the form orders that judges use, which generally include six set criteria covering categories such as experience and how well the person interacts with and relates to others. There were no written criteria that women and minorities should be represented, and I could only find a few places on the record where judges and lawyers had even mentioned diversity. 

Then I attended another panel discussion on how hard it is to find qualified female attorneys to join ­leadership teams. I was on fire when I started hearing this. Next thing you know, I grabbed a microphone and shared that I was tired of hearing people say that they could not find qualified women to lead these complex cases. I ended with something like, “As judges who make these decisions, I don’t know how we look in the mirror at ourselves and make leadership appointments that exclude people who are qualified and willing and deny them the right to participate in the process.”

A lawyer in the audience took my point seriously, and he and others helped put together the majority-female ­leadership team that I eventually appointed in the morcellator MDL. [For more, see Q&A with Aimee Wagstaff and Paul Pennock: A Milestone in Gender Equality, Trial 44 (July 2016).]

How did appointing this team affect that litigation?

I strongly disagree with the argument that the demographics of the legal team in a class action or MDL should necessarily mirror the demographics of the class. I think that it presents a slippery slope for women and minorities who want to be leaders in litigation that is not gender-specific or connected to specific racial or demographic groups. The majority-female leadership team in the power morcellator cases was excellent and not because the allegedly defective product was used exclusively on women. The members of the plaintiffs’ steering committee knew that they were at a historic moment and seized that opportunity to serve with enthusiasm and competence.

How do you think the underrepresentation of women and minorities affects the administration of justice?

I’ve been a judge for 25 years, and I’ve tried many jury cases. After each one, I talk with the jurors. If there are women or minorities they’ve seen in the ­courtroom who aren’t participating at the same level as others, the jurors want to know why. Lack of diversity speaks volumes because juries really do expect that. If you want to mount a successful case, putting together a diverse team must be part of your strategy. 

Another point is that there’s been a ton of research about how diverse groups tend to outperform nondiverse groups by a substantial margin.1 If we appoint more diverse groups in leadership positions, that’s not only making the system more fair and more transparent but also being more faithful to our mission. 

What do you hope a young attorney might learn from your career?

To prepare for a recent speech to law students, I wrote my younger self a to-do list. It included 10 things I wish I had known when I was their age, with advice like “make merry,” “make sense,” and “make amends.” The item I want to highlight here is “make waves.” Soon enough, young people will become the trustees of not only the courts but all of our most treasured national institutions. I’d like to believe that most of us are well past the time when women and minorities were viewed as just token performers. 

I’m not saying there’s no longer discrimination and bias, but I think the field is wide open, and the time has never been better to really proactively establish your role as a player. Demand a seat at the table—and then make room for others.

I have a unique perspective on the underrepresentation of women and minorities in complex class actions and MDLs. I’ve served on the JPML and presided over eight MDLs as a transferee judge. I know the people who are making these decisions, and I know how the procedures work, so I can reach out and say things that I feel need to be heard. Not everybody agrees with me, but I can start the conversation. 

The message about the importance of diversity is being shared by me and many, many others. In part because of ­leadership from the JPML and academia, the judiciary is moving quickly in the right direction. Hopefully, the legal profession as a whole will follow.

Rachel Gusman is managing partner at Graves McLain in Tulsa, Okla. She can be reached at rachel@gravesmclain.com. Judge Kathryn Vratil can be reached at KSD_Vratil_Chambers@ksd.uscourts.gov. 

Note

1. See, e.g., David Rock & Heidi Grant, Why Diverse Teams Are Smarter, Harv. Bus. Rev. (Nov. 4, 2016), https://hbr.org/2016/11/why-diverse-teams-are-smarter.