In my legal writing class my first year of law school, each student presented mock oral arguments, and received feedback from classmates. Following my argument, I was told that I was “persuasive” and “well prepared,” but what resonated most was the handful of classmates who described my argument as “aggressive.” One classmate felt that I was “too aggressive,” and that maybe next time, I should try not to “go for the jugular.” I was shocked, and quite frankly, upset. For one, the argument was about personal jurisdiction; it still isn’t clear to me how anyone could be inappropriately antagonistic about a fairly dry procedural question. Moreover, I thought that was exactly what I was being trained to do—zealously advocate for my client to the best of my abilities.
I asked my female legal writing professor, who had previously worked as a litigator for over a decade, how I could train myself to be less aggressive in the courtroom. She asked me to take a step back, and recognize that many of the classmates who described me as “too aggressive” were basing their assessment of what a lawyer should be on a male-centric ideal. If I were a man, my classmates would not have used the word “aggressive,” but would have used a word like “assertive” or “confident.” She noted that other female classmates’ arguments had been described as “poised,” “articulate,” and “composed”—also words that would likely not be invoked in describing a male classmates’ presentations. My professor told me of her own experiences, both inside and outside of the courtroom, where she was told she was both too lady-like for a lawyer and too aggressive for a woman. She assured me that nevertheless, women could be successful attorneys, and that she believed that the gender dynamics of the courtroom were changing for the better.
A recent article in The Atlantic underscores how prevalent such experiences are for female trial lawyers. The article highlights what have been called “no-crying motions”—motions commonly filed by male opposing counsel seeking to prevent female attorneys from displaying too much emotion during an upcoming trial. The author of the article, law professor and former federal public defender Lara Bazelon, describes how she practiced law “differently from many of [her] male colleagues and adversaries.” She notes how, in contrast to men, she often said “thank you” to others in the courtroom, and that she frequently apologized. In contrast, male attorneys have been lauded for assertive behavior in the courtroom, and moreover have been permitted to uphold sexist dynamics. Incredibly, it was only two years ago that the American Bar Association voted to revise Model Rule of Professional Conduct 8.4(g) to prohibit attorneys from discriminating against other attorneys while practicing, thereby prohibiting judges and attorneys from calling their female peers “sweetheart” and “honey” in court. And just this month, an attorney in Miami objected to a continuance request from his pregnant opposing counsel, whose due date coincided with the planned trial date, asserting that counsel’s parental leave was not a compelling reason to postpone the trial, and insinuated that counsel was using her pregnancy as an excuse to delay the case. Fortunately, the judge did not agree with counsel’s argument, and granted the continuance.
Unfortunately, however, sexist behavior in the legal profession extends beyond the public courtroom, where transcripts can memorialize inappropriate comments and thereby (hopefully) expose bias against female attorneys. And indeed, just as the #MeToo and #TimesUp movements shed light on rampant sexual harassment in the entertainment industry, more private legal arenas—such as law firms and judge’s chambers—have started to engage in meaningful discussions of gender bias in the profession.
For instance, earlier this month, the Women’s Bar Association of Massachusetts, in partnership with the Rikleen Institute for Strategic Leadership, published a “Survey of Workplace Conduct and Behavior in Law Firms.” The extensive survey found that within private law firms in Massachusetts, nearly 40% of individuals reported that they had be the recipient of unwelcome emails or texts of a sexual nature in the workplace, and over 21% of respondents stated they had received or witnessed unwelcome physical contact at work. Many responses to the survey noted that it was often senior members of the firm who engaged in these unwelcome acts. The survey found that as a result, incidents were rarely reported, as women were concerned of the negative impact such a report could have on their reputation amongst their co-workers and on the future of their careers. Concluding that this “unchecked power imbalance serves as the foundation for a perpetuation of negative and inappropriate behaviors in the workplace,” the survey recommended working to create a positive firm culture, particularly amongst firm leaders, and to develop a process to encourage and support reporting of unacceptable treatment of female attorneys. In addition, following the reports of sexual misconduct from former Ninth Circuit judge Alex Kozinski, a group of current and former female law clerks created the group Law Clerks for Workplace Accountability to address harassment in the federal judiciary. The group recently issued a comprehensive report with recommendations such as requiring a more robust national reporting mechanism and soliciting input from law clerks.
While it is clear that the national conversation about sexual harassment and sex discrimination in the workplace has begun to infiltrate the legal profession, and even though women make up at least half of law school enrollment (if not more), these recent reports underscore that there is still a tremendous amount of work to be done. It was under a decade ago that my law school classmates described me as “too aggressive,” indicating that even for the younger generations of attorneys, entrenched notions of how a lawyer should appear and act remain pervasive. With the help of groups like Clerks for Workplace Accountability and Women’s Bar Associations across the country, lawyers can begin working to meaningfully change the profession for the better. In addition, lawyers have begun to push back by filing gender discrimination lawsuits against their employers. The employment lawyers at Sanford Heisler Sharp have experience in advocating for attorneys in these important gender discrimination cases.