Women in the Law: Seen AND Heard

As an old trial lawyer, I frequently appear in court for motions or trials. When I do, I never appear alone. I always have a female lawyer right beside me. And often, when we address the court, she does the talking. (Well, at least some of the talking, as I generally can’t resist saying a few words myself!)

The late great British Prime Minister Margaret Thatcher famously observed, “If you want anything said, get a man. But if you want something done, get a woman.”

To get things done, we lawyers often have to say things in court to judges or juries. And I have found that when female lawyers say it, it often gets done.

I have spent my entire legal career with female lawyers. For 36 years, I have slept with one of them, specifically, my wife, Claudia. She is one of the smartest and best lawyers I’ve ever met. She is a second-generation lawyer on her mother’s side, as her mother, the late Claude Galbreath Swafford, was a trailblazing female Tennessee attorney. She was one of two women in the University of Tennessee Law School Class of 1949 and was as tough a lawyer as I’ve ever met. I once asked her why she decided as a young girl growing up in Greeneville, Tennessee, that she wanted to be a lawyer. “I’ve always enjoyed a good fight!” she replied.

Since I’ve shared my adult life with strong female lawyers, it’s no coincidence that I take a female partner or associate with me whenever I go to court, and I defer to them to do a lot of the work (and be heard) when I get there.

But to my surprise, I have discovered that not many old male trial lawyers like me do this. When I go to court with this lawyer beside me, more often than not, my adversary is a male lawyer who is either trying the case on his own or is accompanied by male co-counsel. And when my old male adversary does bring a female lawyer with him to the courtroom, he often just has her sit there beside him and pass him notes. I guess these old geezers want their female co-counsel to be seen and not heard.

I frankly don’t understand this approach by so many of my old male colleagues in the Bar. The majority of the Tennessee Supreme Court is now female. A majority of the Circuit Court judges in Shelby County where I practice are female. Yes, it’s Tennessee where the men are men and the women are judges!

Am I the only old geezer male attorney who has noticed this?

ABA Commission on Women Issues
Report on ‘Women in the Law’

Learn more on the gender gap in the legal profession from the American Bar Association’s Commission on Women in the Profession. According to recent findings collected in the Commission’s report, “A Current Glance at Women in the Law, January 2017”:

  • Men make up 64 percent of the legal profession; 36 percent are women.
  • In 2005, a woman lawyer earned 77.5 percent of a male lawyer’s salary; in 2015, it was 89.7 percent. At the median, the typical female equity partner in the 200 largest firms earned 80% of the compensation earned by the typical male partner.
  • Women make up 31.1 percent of the nation’s law school deans.
Check out these and more findings at https://www.americanbar.org/groups/women/resources/statistics.html, including percentage of women on law reviews, the judiciary and more detailed compensation.

 

The majority of new lawyers emerging from law schools these days are female. For the life of me, I do not understand why when these young women become associates at established firms, so many male senior partners just use them as if they were caddies.But the times they are a changin’, and old geezer lawyers may soon get the message, as a number of judges across the country are now encouraging law firms to send their female partners and associates to court and let them speak up.

Recently, U.S. District Judge Jack B. Weinstein of the United States District Court for the Eastern District of New York issued a court rule urging a “more visible and substantive role for young female lawyers” working on cases in his court.

In a recent interview with The New York Times,[1] Judge Weinstein said he decided to “codify” such guidance after a recent New York State Bar Association report found that female attorneys appear in court less frequently, and when they do, they are less likely to be given a prominent role such as lead counsel or even involved co-counsel. The report specifically found that women are lead lawyers for private parties barely 20 percent of the time in New York trial courts. While I have not done any research, I’ll bet the figure is even lower for female lawyers in Tennessee trial courts.

Judge Weinstein is an old male lawyer himself, 96 years young. He told The New York Times that encouraging involvement of young female attorneys and minorities in trials and motions is “particularly important because we have so few trials these days, and some of the youngsters don’t get the same training they used to. It is important for everyone, and for the litigation process, that the upcoming generation understands the fundamentals and just gets up on their feet.”

Former U.S. District Judge Shira A. Scheindlin has also weighed in on this subject in a recent New York Times op-ed piece titled “Female Lawyers Can Talk, Too.”[2] Judge Scheindlin recalled that during the 22 years she spent on the federal bench, she often encountered the following courtroom scene: A senior partner in a large law firm would be arguing a motion. Judge Scheindlin would ask him a tough question. The senior partner (invariably a man) would turn to his female co-counsel seated next to him, and then after conferring with her, he would answer the judge’s question.

“I would ask myself,” Judge Scheindlin said, “why she wasn’t doing the arguing, since she knew the case cold.”

Judges Scheindlin and Weinstein are the latest in a number of federal judges across the country who are urging the Bar to encourage female lawyers speak out and speak up, inspiring old male lawyers like me to bring young female lawyers into the courtrooms and let them either take the lead or play a major role in trying the lawsuit or arguing a motion.

I have found that Tennessee judges are very receptive to hearing my female co-counsel argue motions or play a major role in trying a case. I’ve even received compliments from judges about my perceived progressive approach in promoting female trial lawyers, when in fact all I’m doing is sharing the load with my female co-counsel because they are so darn good!

I received one of those compliments in a back-handed way a couple of years ago when I was arguing a case before the Tennessee Court of Appeals. One of my partners, Maggie Cooper, was with me. At the beginning of my oral argument, I introduced myself to the court and then quickly added, “With me today is my co-counsel, Margaret Cooper. Ms. Cooper wrote our brief!”

At this point, Judge Holly Kirby (now Justice Holly Kirby) quickly interrupted me and said, “Yes, Mr. Haltom. When we read your brief, we knew you didn’t write it!”

“Thank you, Your Honor!” I replied in my best Jethro Bodine voice.

Not surprisingly, Ms. Cooper and I won that case, and it was all because Ms. Cooper wrote the brief. And the next time she and I have a case before the Court of Appeals, I intend to have her do the oral argument!

Notes

  1. A Judge Wants a Bigger Role for Female Lawyers. So He Made a Rule,” by Alan Feuer, The New York Times, Aug. 23, 2017, https://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html.
  2. “Female Lawyers Can Talk, Too,” by Shira A. Scheindlin, The New York Times, Aug. 8, 2017, https://www.nytimes.com/2017/08/08/opinion/female-lawyers-women-judges.html?_r=0.

Editor’s Note: The issues of gender discrimination and the lack of opportunities for women are pervasive in the legal profession. This column is one opinion presented as a means to open a dialogue. Please read the resources in the box above for more information.


Bill Haltom BILL HALTOM is a shareholder with the firm of Lewis Thomason. He is a past president of the Tennessee Bar Association and a past president of the Memphis Bar Association. Read his blog at www.billhaltom.com.

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