Litigators

The Discrimination Women Litigators Face In The Courtroom Isn't Likely To Go Anywhere Soon

Why do we keep rehashing the same issues over and over again without any measurable progress?

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There were several stories this past week about women lawyers on the “same old, same old” topics. I don’t think there’s anything in these stories that women lawyers don’t already know and that male lawyers know (or should know) if they’re sentient. Why do we keep rehashing the same issues over and over again without any measurable progress? Are we all talk and no action?

Let’s review:

There’s an article in the August issue of The Atlantic entitled, “What Does It Take to Be a Trial Lawyer If You’re Not a Man.” Stop the presses! An antiquated, 20th century dinosaurial expression that seems apt here. We know that in a perfect world, being a female trial lawyer shouldn’t take anything other than doing our job, but we don’t live in a perfect world, far from it, and so what Lara Bazelon discusses in this article shouldn’t be news to any female lawyer who has ever set foot in a courtroom.

According to Bazelon, female lawyers are still essentially dead meat in the courtroom.  Why? B-I-A-S. No surprise as to where it comes from: it comes from judges, attorneys, juries, and clients, too. Thank you for sharing. We could (and perhaps should) write a book. Of course, if we did, we might be perceived as “whiners,” “overly emotional,” “shrill,” or even “crybabies.”

Of course, there’s a double standard; men are aggressive, but women can’t be for fear of being labeled a “bitch.” Men wear suits and ties, but women’s attire is fair game for comment and criticism. Remember all the crap Marcia Clark took about her appearance during the O.J. trial? If I recall, no one made any comments about how the men dressed, their hairstyles, or their makeup. Clark twisted herself into a pretzel as a result of comments made. Unfair? What do you think?

Judges don’t talk down to male lawyers, but they consider women lawyers fair game for patronizing, condescending comments. However, the landscape is not all bleak. Bazelon reports that some women trial lawyers thrive by dint of the very personality traits associated with women: compassion, warmth, and accessibility. My sense has always been that authenticity is critical. Juries smell phonies.

So, one size does not fit all. Being female can be a good thing in the courtroom, but oftentimes, it’s Ginger Rogers dancing with Fred Astaire, backwards and in high heels.

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Now a law professor at University of San Francisco School of Law, Bazelon’s advice to her female students: “So I tell my female students the truth: that their body and demeanor will be under relentless scrutiny from every corner of the courtroom. That they will have to pay close attention to what they wear and how they speak and move. That they will have to find a way to metabolize these realities, because adhering to biased expectations and letting slights roll off their back may be the most effective way to advance the interests of their clients in courtrooms that so faithfully reflect the sexism of our society.”

Phooey, so says nationally known Berkeley criminal defense lawyer, Cristina Arguedas. Here’s her spirited rebuttal to Bazelon’s article in a letter to the editor at Law.com.  Please, I don’t want to hear even one snarky “cat fight” comment. Hopefully, even if we haven’t moved the needle much, we’ve at least moved it past that kind of sexist remark.

Cristina Arguedas says that “[t]here is no doubt that it is unfair that I and other women have the extra burden of confronting those sexist attitudes—but one thing I have never done is capitulate to them. Yet that is what Bazelon’s article advocates.” Arguedas is right. We mustn’t accept these attitudes as givens and feel powerless to change them. The only way attitudes will change is if we make them change. We have to remember our dual functions as attorneys representing clients and as officers of the court. Do we have the duty to say something if we see something? I think we do, but timing may well be crucial as to when something is said.

At the ABA annual meeting, Bazelon’s article was a topic of discussion. Yes, it’s unfair that women trial lawyers have to be more careful, more circumspect than the men. But that’s life, and not just in the courtroom. And yet, even as we continue to battle for parity in the courtroom, studies show that women at senior levels continue to leave the profession.

Why do senior women lawyers choose to leave? The answers do not require a law degree, just common sense and a sense of the world around us. I have discussed this issue ad nauseam over the last several years, and you must be just as tired reading about it as I am writing about it. How about gender and age discrimination, an unwillingness to share the work (and the credit), the unwillingness to let go, the refusal to think that someone else (a woman, even) is just as capable? How about the obligations of raising children, caring for aging parents, managing a household? Those tasks fall unequally upon women. The ABA is looking at this issue, but, once again, it is focusing on why women leave “Biglaw.” Choosing to leave is not limited to “Biglaw,” by the way.

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I’ll be pleasantly surprised if the forthcoming ABA report, due out next month, has any recommendations that haven’t already been made more than once. Will recommendations actually lead to action, rather than just being shoved in a drawer to be dusted off in a decade or so like some archaeological relic? What are the odds?

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for more than 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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