Motion to Dismiss: From Catcalls to Kisses, Gender Bias in the Courtroom

Women lawyers: leaning in but shut out.

A picture taken on February 8, 2011 in RWhile Wendy Davis’s 10-hour filibuster was a marvel of political assertion, the best moment from the nail-biter of a Texas Senate session came minutes before midnight, when Democratic Senator Leticia Van De Putte petitioned Senator Robert Duncan for permission to speak. She had been crisscrossing the Senate floor, failing to get Mr. Duncan’s attention, as broader-shouldered men blocked her at every turn.

“Mr. President, at what point must a female senator raise her hand or her voice to be recognized over the male colleagues in the room?” she asked. The protesters gathered above the Senate floor cheered, and they continued cheering past midnight, ensuring that the bill, which would have shuttered most of Texas’s abortions clinics, failed.

“Amen,” was my reaction to Ms. Van De Putte’s comment. I’m an attorney who spent two years practicing in New York federal courts. I’m a nobody compared with Ms. Van De Putte and Ms. Davis, but like them, I’m a woman participating in public life. And whether negotiating a settlement with an adversary or appearing in court, I always felt like I was fighting to be heard on the same terms as my male counterparts.

Some challenges are obvious—even physical—but women are made to feel unwelcome in subtler ways too.

In my own office, a male colleague would greet me in the hallway with a series of wolf whistles. I didn’t confront him because I didn’t want to talk about why he was whistling at me in the first place. So I pretended I didn’t hear. I walked away from him as quickly as I could whenever the whistling, which made me cringe, started up behind me. This strategy failed. He whistled even louder, thinking I hadn’t heard. The whistling didn’t stop until he caught up to me after I rounded a corner too slowly to get away. He asked if the whistling bothered me.

“Yes,” I told him.

“Why didn’t you say so sooner?” he stammered, as though this was my fault. The answer I didn’t give? “All I want to do at work is work, you jerkoff.  I don’t have time to explain sexual harassment to you.” Did I mention he was a lawyer?

Things were much worse outside of my workplace. My adversaries, civil rights attorneys representing plaintiffs in federal court, were overwhelmingly male, and they loved to yell at me, both over the phone and in person. When they didn’t like my strategy, they called my motions “stupid.” When I made a cogent argument that I refused to back down from, I was “too sensitive.” In a case involving a punch to a plaintiff that I thought never happened, I repeatedly asked my adversary why his client never mentioned the punch to the dentist he saw days after the alleged incident.

“Let me put it this way,” he countered. “Are you going to tell your gynecologist about your injured shoulder? That’s not what you talk to your gynecologist about, right?”

One attorney took a different approach, pulling me into his arms so he could kiss my cheek after I’d tried to shake his hand. This happened in a Southern District courtroom at the time a hearing was set to commence—that is, just when the judge was about to take the bench.

My opponents weren’t the only ones determined to make me feel like I didn’t belong. My cases were often referred to mediation, an out-of-court process through which a neutral third party is assigned to meet with the lawyers and recommend a settlement based on his or her evaluation of the case. I should say “his evaluation,” because of the 20 or so cases assigned to mediation, the mediator was a man 19 times. There is something unnerving about a female entering a room in which the mediator, your adversary and your adversary’s client are all male.

In my worst mediation, I was pitted against two lawyers instead of one, the more senior of whom was a veteran attorney involved in many of New York’s most important civil rights cases. I noticed that he raised his voice louder and louder each time I made a point that highlighted how little he knew about the facts of the case. He responded to my arguments with dramatically delivered non sequiturs about the history of his civil rights practice.

One of the hallmarks of mediation is that what you tell the mediator outside of your adversary’s presence remains confidential unless you expressly permit the mediator to share the information. I’d mentioned to the mediator that I found it interesting that the veteran attorney was involved in such a small case. The next time the mediator and I spoke, he told me that he’d informed the other side that I was “intimidated” by my adversaries, especially the veteran attorney.

At the end of the session, I packed up my files. My adversaries hung around, engaging the mediator in small talk about football. I tuned out. When the conversation ended, the senior attorney turned to me and asked, “Does it make you uncomfortable when the men talk about football?”

The answer was no, the football conversation didn’t make me uncomfortable. But a question intended to put me in my place—that is, outside of the conversation the men were having—most certainly did. I smiled, laughed and left.

I could deal with the sexist adversaries, who were trying to gain a tactical advantage by riling me up. As for the mediators, their recommendations were nonbinding. But I expected more from judges, most of whom didn’t even bother to make it seem as though women had a fair shot in their courtrooms. This wasn’t Texas, after all, it was New York, a legal community that has produced some of the most distinguished female lawyers and judges the system has ever seen.

I practiced in both the Southern and Eastern Districts of New York, courts admired across the country for their legal excellence. The Eastern District, located in Brooklyn, is slightly less formal than its Southern counterpart, in Manhattan. In one courtroom, my male adversaries were addressed by their first names. As for me, I’d have to snap to attention whenever the judge said the word “City,” the client I represented. This was the judge’s way of ordering me to start talking.

The author, Kat Macfarlane.

The author, Kat Macfarlane.

In one of my cases, when my male adversary interrupted the judge to make a point, the judge would say, “You’re right.” I was never invited to counter his arguments, and had to resort to interrupting. When I interrupted the other lawyer, I was told to “LET HIM SPEAK!” When I interrupted the judge, I got “I AM SPEAKING, MS. MACFARLANE, AND I AM NOT INTERESTED IN HEARING FROM YOU.”

You get yelled at enough and you start to wonder if you really are out of line. Was I imagining things? When I shared these stories with male colleagues, they had no idea what I was talking about. Thank God for my female friends. We agreed that we were either ignored or yelled at in ways that men were not. In the worst case that I heard about, a lawyer wrote a letter to a federal judge complaining of having to negotiate with one of the women in my office, whom he described as young enough to be his daughter.

What are we supposed to do about this behavior?  Every time I complained to the lawyer who called me sensitive, I became a self-fulfilling prophecy. The stakes are too high to call out a judge on his or her sexism. A judge who doesn’t like you can deny every procedural request you make and get away with it, as long as it’s not an abuse of discretion, a very difficult charge to prove against a judge. Cases can be lost this way.

Women in the public sphere, who argue cases in federal court and vote on bills in state legislatures, already find themselves “sitting at the table” that Sheryl Sandberg so much wants us at. But once they’ve taken their seats, they still aren’t recognized as legitimate speakers, a problem Senator Van De Putte highlighted so eloquently. I just don’t know how to fix it. I am happy to be out of the courtroom for a while, having recently accepted a law school teaching job. Now, if anyone’s doing the yelling, it’s going to be me.

Kat Macfarlane is an assistant law professor.  She spent two years as an Assistant Corporation Counsel with the New York City Law Department.