Benchslaps, Women's Issues

Why This 'Sexist Comment' Sanction Misses The Point

The news is abuzz with a court sanctioning a lawyer for his sexist remarks, but everyone's missing the bigger picture.

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Look, I’m not going to say male lawyers should be going around telling women to adopt behavior “more becoming of a woman” in litigation. Some people — including Staci — understandably laud the recent decision dishing out sanctions on a male attorney for making these sexist comments to opposing counsel durng a deposition.

But what galls me about this decision and the coverage surrounding it is how it completely misses or at best glosses over how the culture of the practice itself not only allows swipes like this, it makes them inevitable from the get go. Because the problem with Peter Bertling’s comment is not simply that it derided Lori Rifkin for “practicing while woman” — though it did do that — it’s that it, curiously, simultaneously sought to emasculate her. And chastising Bertling’s retrograde language can’t touch the latter point.

To understand how thoroughly this sanction elides the point, one need look no further than Peter Bertling’s response to his punishment:

In a brief declaration filed in response to the motion for sanctions, Bertling wrote, “In retrospect, the proper term for me to have used in this context would have been ‘attorney.’ I apologize to Ms. Rifkin if I offended her by referring to her as a ‘woman’ instead of as an ‘attorney.'” Bertling wrote that his remarks were made “in the context of Ms. Rifkin literally yelling at my client and creating a hostile environment during the deposition.”

Judge Grewal calls this a half-hearted politician’s response, which is fair. But, in limiting his sanction to Bertling’s words, Judge Grewal also doubles down on the idea that the belittling aspect of comments like Bertling’s are the whole problem here. When Judge Grewal suggests that “‘inappropriate or stereotypical comments’ towards women attorneys are among the more overt signifiers of the discrimination,” he’s right that they are “overt” but misses that the the necessary flip-side is that there’s something “covert” at play too. In this case, it’s the celebration of masculinity that we expect everyone to participate in — mostly to the detriment of women.

Belittling Rifkin as a woman is the superficial aspect. The flip-side is that comments like this are meant to rob an adversary of their right to participate in what is coded as a masculine game. Whether we use terms of “professionalism” — as Judge Grewal does — or “civility” — as Chief Justice Roberts highlighted — these are important issues that too often get boiled down to “be nicer” vs. “oh, come on.” Which is too bad, because the “rough and tumble” litigation trope is the “boys will be boys” of legal culture. That’s why mere platitudes to these concepts only scratch the surface of how we’ve allowed litigation (at some levels) to get so broken and contentious that it creates a masculine game where women are always already starting from behind. Taking the “overt” statements out of the equation may be important but does nothing to mend the civility problem. This is why Judge Grewal’s decision inches toward its best point when he starts discussing professionalism as a whole, and lurches backward when he limits professionalism to “not making snide remarks.”

It’s important to note women can still succeed in playing the litigation game, no matter how slanted, which only proves the point. Take the Dick-Joke Deposition where a female attorney implied that her male opponent lacked the proper dangly parts. He wasn’t as much of a “man” as she was, implying that being a “man” is always the apex of litigating. Which of course it’s not, because the reserved, professional approach of the Biglaw types is almost always so much more successful in the end than the petulant tantrum garbage that prevails elsewhere. Unless of course it’s a savvy ploy designed to get that specific reaction. In any event, the tale of the “Dick-Joke Deposition” is exactly what the college professor types mean when they say gender and biological sex are two different inquiries. It’s also where that whole “lean in” stuff turns into “getting hit by the pitch” because individual women are asked to get ahead by making the obstacles worse for the generation behind them by ignoring that there’s ever anything about the underlying rules themselves promoting this stuff.

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Bertling may have belittled Rifkin as a woman, but he was also hostilely reminding her that as a woman, her “yelling at my client” would never be good (read: “masculine”) enough and that kind of shade will still come up every time Bertling shrugs off a man yelling at a client and files a — perhaps deserved — motion against a woman who does it. And that’s the sort of stuff that happens.

The point is, this decision may be well-intentioned, but it’s really pretty weak tea and we should all cool our jets over it. Don’t let the fervor to benchslap the most egregious behavior out there overcome vigilance against all the covert behavior glossed over by incivility. Until more judges take control and start forcing lawyers to step off the macho bulls**t — this judge did — litigation will still get more combative, more playground, more bullying, and more hospitable to Bertling’s overt and covert swipes.

Until then, we’re just giving tacit approval to lawyers acting like, well, quite appropriately, dicks.

Earlier: Lawyer Receives Stern Benchslap And Amazing Sanction For Sexist Deposition Comment
Deposition Derailed By Dick Joke Dispute
Disastrous Dick-Joke Deposition Earns Stern Benchslap

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