By Sydney Reed • June 04, 2017•Writers in Residence, Careers, Politics and Government, Other Career Issues, Issues, Sexism, Sexual Harassment, and Other Forms of Discrimination
Last month, we talked about making a positive first impression and how maintaining that impression can be key to building a respectable reputation in law, in court and at the office. This month we are going to focus on how to respond when others make sexist comments that could undermine that positive impression you worked to make and solid reputation you built.
Two days into my new summer internship, I was reminded of an issue that I had read about just two weeks before the start of my 1L year, the use of sexist nicknames in court, when a young prosecutor told me a story about how a defense attorney berated her and referred to her as "missy" in open court, in front of a jury and how she struggled to maintain decorum and maintain favor with the jury. This very issue made headlines last August when the American Bar Association adopted new ethics rules that outlaw the use of derogatory language, including sexist nicknames. In states that adopt the new rule, attorneys can be fined or suspended use of these nicknames—you know the ones, the infuriating sweetie, honey, missy, darling.
Age and location can complicate the meaning behind the nicknames. For example, older judges or attorneys may use them outside of the courtroom as true terms of endearment and not recognize such language as problematic. Similarly, use of such language in more rural counties may be more commonplace than in more urban counties.
This behavior is interesting in light of the numbers behind gender dynamics in litigation. "First Chairs at Trial: More Women Need Seats at the Table," an ABA study published in 2015 found that while women make up roughly 32% of civil litigators, of those attorneys that identified as "lead counsel" only 24% of attorneys were women. Similar numbers are seen in the criminal sphere, except for when women work as female prosecutors where research showed that 69% those who identified as first chair or lead counsel were women. I found this information particularly jarring because as an intern at a DA's office, I'm in an environment where out of all areas of litigation, women are most frequently seen and act as lead attorneys, and, yet, these sexist nicknames are used frequently in attempts to undermine them.
Outside of the courtroom, there are multiple means that can be used to address such behavior in a professional manner. You can turn the tables by asking if that person would address a man in such a way (How often do male attorneys get refer to as boy in court?), initiate a sit-down talk about the use of sexist language and explain why the language makes you uncomfortable and how it is inappropriate and offensive, or call the person out by asking him to repeat what he said or ask him to explain why he said it. Consider approaching a supervisor if the problem is persistent and pervasive. Of course, as one attorney told me, sometimes a well-placed zinger is all that it takes. For example, many years ago, this attorney had an experience where opposing counsel consistently called her "darlin'" with the most disdainful tone every time he spoke out of court. One day she'd had more than enough and responded by saying, "No one calls me 'darlin'' but my dad, and you sure aren't him." He never spoke to her in any way that was less than professional after that.
The problem becomes even more complicated when it materializes in court. Other attorneys may use sexist nicknames to demean you by suggesting to the jury that you fit the bill for certain stereotypes about women-- to imply that you're inept, frivolous, or overemotional. They may also use such language in hopes of offending you and causing you to lose your focus and your cool in front of the jury. In court, there's no opportunity and no time to address the problem with the aforementioned means. With the jury's eyes on you, the best thing to do seems to be to rise above. Try to maintain composure to the best of your ability. Don't laugh or give an indication that you're uncomfortable or upset. Rising above does not condone the behavior and in some instances, the stark contrast between polished professionalism and sexist snark can cause the opposing counsel to look entirely unprofessional to the jury. In other words, the sexist scheme may backfire and cause him to look incompetent rather than you. If the problem is a regular occurrence, look to see if your state bar has adopted the new ABA rules. If it has, keep a log of instances to include in the complaint you will file with the state bar.
If you have any suggestions or experiences you'd like to share, please comment below.