By Claire E. Parsons • October 15, 2018•Ms. JD, Writers in Residence, Issues, Sexism, Sexual Harassment, and Other Forms of Discrimination
“Are you the court reporter?” After 3 years of law school, 2 bar exams, and a little over 1 year of practice, that was the question I received upon arriving at a deposition I was set to defend. It also happens to be the same question many other female attorneys get at depositions. The question in my case was, I believe, an honest mistake. Yet, the frequency with which it and questions like it are asked suggests to me that it is not just a mistake.
Indeed, I have also been asked whether I “work for” an attorney, I am a “licensed” attorney, and if I ought to be the person deciding an issue since my (male) partner who had not handled a single deposition or court appearance for the case had “better experience.” I’ve been told I should smile more. I’ve been told I should smile less. I’ve been left intentionally off of emails by male opposing counsel, despite repeated reminders that I, and not my male partner, was the lead attorney on the case. I’ve also been “tattled on” by male witnesses and attorneys alike via email when they copy my male partner on nasty correspondence in which my transgressions (read: stuff that they didn’t like) are laid bare.
Now, I admit that my style is aggressive, but my assertive demeanor can’t be the sole culprit here since nearly all of my female attorney friends have reported their own similar stories to me. In fact, these situations are common enough that there is a word for them: microaggressions. In a 2010 blog post Dr. Derald Wing Sue, Ph.D. defined them as “the everyday verbal, nonverbal, and environmental slights, snubs, or insults, whether intentional or unintentional, which communicate hostile, derogatory, or negative messages to target persons based solely upon their marginalized group membership.” This is a fancy way of saying microaggressions are situations which occur that make people feel, based on their membership in a certain group, that they don’t belong. I don’t have the research knowledge of Dr. Wing Sue but I can tell you from my own experience that’s exactly how they feel.
What’s worse is the fact that many women lawyers lack mentors who can encourage them through situations like these. In a recent survey, the ABA has suggested that these small but hurtful experiences that over 80% of female attorneys report experiencing may contribute to the decisions of many women to leave the practice of law altogether. I’ve been practicing 10 years now, so I’ve had my share of these comments. I don’t know that there is a “good” or “right” way to respond to these slights but here are the strategies that have helped me:
1. Stay Calm
Staying calm when someone else behaves badly is like forgiveness. You don’t do it for them; you do it for you. One reason it is important to stay calm is that it isn’t always easy to tell if the behavior is intentional or not. Though they should know better and be more careful of other people’s feelings, the reality is that people just say thoughtless things sometimes. We all do this on occasion. If you stay calm, you may be able to see the difference. If you don’t and you unload on this foolish person, it could make the situation worse and you may feel bad about it later.
On the other hand, if the person is attacking you on purpose they are probably doing it to throw you off of your game. If you stay calm, their tactics fail and you won’t fall into the trap of rewarding bad behavior. In addition, you’ll be in a better position to respond strategically if it is necessary.
2. Ignore It If You Can
There are some microaggressions, such as the court reporter question, that don’t necessarily require a response on your part except to advise the person that, remarkably, you are in fact a “licensed” attorney. I think you have the right to educate the offending person if you wish, but remember that you don't have to do so in all cases. You aren’t obligated to educate the person. It isn’t your job (and it may not be worth your time) to bear your soul and tell them how hurtful/inappropriate/irrelevant/thoughtless, etc. the comment was. Thus, if you can ignore the comment and move on, it may be the right call.
3. Set Boundaries If You Must
Lest you start to worry that I am advising you to tolerate bad behavior at all costs, I am not. There are times when you have to respond to microaggressions from other attorneys. In general, I think a response is necessary if it is repeated or if it threatens to impair the interests of your client or undermine your authority. The best approach here is to calmly identify the offending conduct and state a consequence if the behavior continues. I once did this when opposing counsel kept insisting that my opposition to his discovery requests was, not the result of his numerous overreaching requests, but instead the product of me being so “young” and “inexperienced.” After a few of these remarks, I told him I found the comments irrelevant, unprofessional, and an implicit attack on my gender. I also told him I would end the call if he did it again. He not only did not repeat the behavior; he apologized profusely and we finished the call. I think this situation worked because, despite my frustration, I stayed calm and assertive, and gave clear instructions and consequences for continued bad behavior.
4. If You Are Hurt, Let Yourself Hurt
The “micro” in “microaggressions” may refer to small incidents but I have found that they hurt more than you’d expect or maybe more than they “should.” Though they were each small incidents, I remember every single gender-based comment or bullying tactic I have ever experienced and I doubt that I’ll ever forget them. If these things don’t bother you, consider yourself lucky and just keep letting them roll off your back like water off a duck. If they do, there’s no use and no sense in trying to fight it. One of the best benefits of my meditation practice is that it has helped me to learn how to deal with “negative” emotions, such as anger, hurt, or sadness. In truth, you don’t deal with them. You just let them come and go.
It is hard to do this if you feel an emotion and then start to think about how unfair and wrong the whole situation was. That will just trigger another emotion which will trigger more thoughts and the whole experience will last longer and be more painful. The better approach, if you can remember it, is to try the RAIN technique that meditation teacher and author, Tara Brach, developed. With this approach, you “recognize” the emotion by noticing how it feels in your body, and “accept” it by allowing it to run its course. Then you “investigate” with kindness and curiosity to see what is really at the heart of it. Finally, you “nurture” by giving yourself whatever you need. Most of the time when I did this, I found that the microaggressions hurt because they made me feel like I didn’t belong.
This may sound cheesy to people unfamiliar with mindfulness practice but from experience it works and it has stopped me from any number of disastrous responses I could have made out of hurt or anger.
5. Find Your People
You may be wondering how you “nourish” or “nurture” yourself in response to a hurtful remark intended to make you feel like you don’t belong. There are certainly ways to do this on your own by just taking care of yourself and reflecting on your own achievements. But the best way I have found is to take solace in my community. The people I have usually gone to after a microaggression have been my female lawyer friends. While it is unfortunate that they have had similar experiences, shared experience is one of the building blocks of community and community heals.
If you don’t have a strong community of allies in your own firm, you can go out and make or find one through your bar association or other professional organization. You can even find some legal communities for women online. I personally recommend @LadyLawyerDiary on Twitter and @MothersEsquire on Facebook and I have seen how female lawyers have used these communities to seek out support after troubling encounters.
Law practice can be rough and tumble and it isn’t for the feint of heart. If you have been hurt by a microaggression it doesn’t mean you don’t belong. To the contrary, the more I practice the more I see that attorneys with powerful hearts tend to be the most effective and successful ones. If microaggressions have hurt you, you aren’t alone and you can survive them. And when you do, the one benefit of dealing with a microaggression from opposing counsel is that it makes beating them even more satisfying.