Women's Issues

Mansplaining, Man Interruptus And Other Tacky Conduct

Lady Justice is already blind. Is she gagged as well?

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As a woman lawyer of a certain age, okay, as a dinosaur woman lawyer, I still have trouble understanding (and no, this is not cognitive impairment on my part) why the battle of the sexes, and yes, I think it still is, rages on in our profession. I know it’ll take another 150 years for gender parity at senior levels in our world, but can’t we take more than a few baby steps here and there? Are we walking? Toddling? Still crawling?

I offer just a few recent examples in trying to answer the apparently age-old question of what is taking so long? Women are still treated as less than equal. 

After ATL blew the whistle on this sexist post, the law school did a mea culpa and apologized for the inappropriate wording. What about husbands of law students? 

When a woman attorney commented that a deposition room was hot, her opposing male counsel hoped she wasn’t in menopause. Eventually, the court sanctioned the counsel for the remark. 

People fall all over themselves to apologize, using as excuses “inappropriate wording,” “not our culture,” and a variety of other disingenuous descriptions for getting caught. The problem is that apologies don’t make any difference. I’m not even sure that sanctions make a difference, unless the amount is sufficiently high that a state bar disciplinary process has to sit up and take notice.

Unless and until the thought processes change that set the tone for these various stupid and discriminatory actions, women lawyers are still progressing at a crawl. Some may be toddling, some may even be walking, as long as we stay the obligatory several steps behind and schlep those document cases.

Go into a courtroom where there’s a “bet your company” case or any business or commercial case of substantial value on calendar, and count how many women are at counsel table, and how many of those actually get to argue a motion or examine a witness. I don’t think you’ll need even two hand’s worth of fingers to count.

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On that point, I thought the title of retired United States District Court Judge Shira Scheindlin’s recent op ed in the New York Times, “Female Lawyers Can Talk, Too” was spot on, especially given recent situations I and other women lawyers have encountered of “mansplaining,” “man interruptus,” and other similarly distasteful putdowns of women lawyers.

Need for me to refresh your recollection of “mansplaining?” Here it is. 

There is nothing more aggravating than mansplaining. It’s patronizing, condescending, and implies that women should not “worry their pretty little heads” about things that are obviously for men only. It communicates contempt for the woman’s knowledge, experience, and/or expertise. It’s pervasive.

So, when women appear in a courtroom in a junior role, not able to speak to the court, argue a motion, or examine a witness, what signal does that send? It says that the woman lawyer is inferior, doesn’t know the case, and is metaphorically gagged from saying anything or adding value. Woman lawyers can know the case cold, as they’re usually the ones who have worked it up. So, woman lawyers, have you ever been mute in court? I thought so. Have you been able to change that mindset at all? If so, how? If not, I thought so.

Just as bad as “mansplaining,” and in some respects, it’s worse, because it shows no regard for women lawyers is what I and my woman lawyer friends call “man interruptus,” that is, male lawyers interrupting women lawyers without regard to anything the women lawyers may be saying at the time.

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Even the women justices on the United States Supreme Court are not immune from “man interruptus.” 

Why this disregard for what we have to say? We woman lawyers encounter man interruptus all the time. We encounter it in the courtroom, although oftentimes the court will try to put a lid on it. We encounter it in depositions. We encounter it in daily interactions with male lawyers in discussing cases, working with clients, and, yes, even at bar association and networking events. It’s pervasive, patronizing, and puerile. 

(I could have said “childish,” but I wanted the alliteration.) It’s a not so subtle form of bullying and it needs to stop… now.

The mansplaining and man interruptus are just two more examples of the pervasive gender bias that women lawyers have encountered, still encounter, and will encounter probably forever. Commissions come and commissions go, initiatives come and initiatives go. Well-intentioned groups conduct research, study this topic ad nauseam, publish findings after writing well-meaning reports. They gather dust and so little changes.

Male lawyers representing clients can push the cause of women lawyers forward if they’re willing to do so, and that’s a big if. If the partner on the matter tells the client that he has complete confidence in the woman lawyer arguing the motion, examining the witness, whatever the situation, then he needs to push the client to agree.

We all know that it’s the client’s call, but if there’s a “wink, wink, nod, nod,” between the male attorney and the client, we all know what will happen: the male attorney will make the appearance, argue the motion, represent the client in mediation, first chair the trial or arbitration, and get the credit.

It’s long beyond the time when I or any other woman lawyer should have to bring up these topics yet again. Women clients, whether in-house or not, as well as women lawyers need to insist upon women speaking up and out, not just in court, but in all aspects of the legal world. If we don’t do it, who will? It’s not a call to arms, but a call to have a voice that is heard and respected.

So, here’s my question: Lady Justice is already blind. Is she gagged as well?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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