By Tammy Zhu • December 13, 2016•Careers, Issues, Sexism, Sexual Harassment, and Other Forms of Discrimination
This past Tuesday, I went to a panel discussing patterns of sexism and biases against women litigators and particularly young, women litigators. As a petite woman who has been a litigation associate for just over one year, I was discouraged by these stories. What do I have to prepare myself for if I want to stay in this line of work? Getting verbally bullied and yelled at during meet and confer calls, getting comments such as “Don’t raise your voice at me. It’s not becoming of a woman” during depositions, and getting used to my male counterparts jumping in to answer questions for me during law and motion oral arguments.
The panel was called “‘He Said What?’ Tackling Unprofessional Conduct Towards Women Attorneys.” Organized by the Women Attorneys Advocacy Project and the N.D. Cal. Chapter of the Federal Bar Association, the panel featured four speakers: Judge Yvonne Gonzalez Rogers (moderator), Kelly Dermody (partner at Lieff Cabraser), Paul S. Grewal (deputy general counsel at Facebook and former N.D. Cal. magistrate judge), and Annette Hurst (partner at Orrick).
Judge Gonzalez Rogers began the discussion by noting that unprofessional conduct disproportionately affects women lawyers and young lawyers. The panelists went on to share their strategies for combatting unprofessional conduct toward women in meet and confers, depositions, law and motion, and trial.
In meet and confers, when you face a bully, Kelly Dermody suggested that instead of letting the bully keep shouting at you or interrupting you, propose, “Can I call you back at a better time?” or “I would feel more comfortable resuming this meet and confer in front of a court reporter or in writing.”
In depositions, when your opposing counsel cuts off your questions or makes speaking objections that take up all your time, Judge Gonzalez Rogers recommended to “isolate the offending person”: put up your hand, keep talking, and do not even look at or acknowledge the objector. Another panelist shared that when tackling an obnoxious opposing counsel in depositions, she would first request to go off the record and admonish opposing counsel off the record (e.g. this is just a warning, but if this behavior continues, I will call the court). Opposing counsel will inevitably grumble and then commit the same offense a second time, at which point, she would admonish opposing counsel on the record (e.g. we’ve already discussed this issue. Please refrain from this behavior, or I will call the court). After that point, the behavior will generally stop.
In law and motion, the panelists observed that the men are always talking, interrupting, and jumping in. For example, Judge Gonzalez Rogers recounted that in one of her multidistrict litigation cases with a lot of parties, none of the lawyers at the podium were ever women. So during one hearing, Judge Gonzalez Rogers commented to the parties about how there were no women at the podiums. At the next hearing, every party was represented by a women lawyer at the podium. But, whenever Judge Gonzalez Rogers said anything provocative, all the men jumped to the podium. It was as if the men believed that their voices just needed to be heard in certain questions.
To increase opportunities for women to argue at the podium, the panelists encouraged teams to designate before the hearing the spokesperson for each motion or issue. Judge Gonzalez Rogers shared her strategy to increase stand-up opportunities for young lawyers: she often vacates hearings and rules on motions based on the papers, but if a party states that a young associate will conduct all or most of the oral argument in its request for a hearing, she will keep the hearing on calendar on the principle that young lawyers need more opportunities for appearances than they typically receive. She remarked that some firms are excellent at using this rule, but most do not take her up on it. She also encouraged senior members of law firms to ask judges, especially in the Northern District, to allow young associates to argue a motion or an issue in a motion.
In trials, the panelists lamented that similarly, male lawyers all too often usurp the role of lead counsel, taking on opening statements, closing arguments, key witness examinations. Paul Grewal commented that from a client standpoint, he wants to know “How do we win?” and teams with different voices are more likely to win. He urged clients to set clear expectations regarding diversity in the trial team – because when clients set clear expectations, outside lawyers follow them.
Throughout the discussion, the panelists grappled with what clients, law firms, and courts can do to reduce gender bias in the course of litigation. Clients can put diversity requirements on their outside counsel team. Law firms can give more stand-up opportunities to younger lawyers and women lawyers, including asking judges to allow a young associate to argue a motion or an issue. Courts can make themselves more accessible during depositions and encourage law firm partners to give young associates opportunities to argue in court.
At one point, the panel polled the audience regarding whether Northern District courts should ban speaking objections during depositions. They also asked for input regarding whether the court should question prospective jurors on potential biases against women lawyers and if so, what questions does one ask to sleuth out gender bias? Finally, they pitched the question of whether firms and agencies would consider designating a person as ombudsperson for reported misconduct at their office.
If you want your voice heard on any of these questions or have other suggestions for actions the Northern District courts can take to increase opportunities for and reduce biases against women litigators, you can start by leaving a comment on this post, and I will find a way to coordinate with you to share your comments with the Women Attorneys Advocacy Project.
This panel grimly reminded me of the obstacles to come. Staying in this profession would require the willingness to expose myself to these forms of belittling and the energy to fight back. It’s no wonder that discrimination against women attorneys, both implicit and overt, such as inappropriate or stereotypical comments, contributes to women’s underrepresentation in the legal field. No profession should require – or tolerate – systematic, consistent disparagement of any of its members.
To read another article about this panel, see here.