Law News

Women Litigators Still Face Job Pressures Men Don't

By Scott Brede
The Connecticut Law Tribune
September 7, 1999

It's hard to believe a Superior Court judge would waste time lecturing an attorney about the hairstyle of one of the lawyer's colleagues.

But that's just such a conversation Elizabeth A. Gallagher overheard in her early days as a plaintiffs' attorney while waiting to speak before the judge.

The lawyer ahead of her and the subject of the judge's hairdo complaint were women, says Gallagher, 54, now a trial court judge sitting in Hartford.

Meriden solo Jennifer L. Zito used to encounter gender bias in the form of occasional "honey" and "sweetheart" references from certain members of the bench.

Thankfully, however, such remarks stopped many years ago, the 37-year-old criminal-defense attorney notes.

Indeed, attitudes toward women litigators have changed dramatically for the better over the past decade or two, asserts Susan W. Wolfson, former chairwoman of the Connecticut Bar Association's gender equity committee. "Women, by virtue of their diligent efforts and hard work, have achieved great credibility" in the courtroom, says Wolfson, who practices family and civil law at New Haven's Susman, Duffy & Segaloff. "Judges walking into a courtroom and saying 'Good morning, gentlemen'—that doesn't happen anymore."

But despite societal changes and efforts to stamp out gender discrimination in the profession, women litigators say they still aren't always treated the same as their male colleagues. Sometimes, they say, it's jurors judging them based on appearance. Or their aggressive courtroom style can be negatively perceived in a way it wouldn't be for men.

It isn't always just those in robes responsible for inappropriate comments against women litigators.

"We've all had experiences where opposing counsel would be condescending, or make some reference to you're being a 'little girl,' "notes Margaret P. Mason, co-chair of New Haven-based Tyler Cooper & Alcorn's litigation department.

But both Mason, in her 21 years as a trial attorney, and seven other past or present women litigators interviewed for this article, remain hard-pressed to recall examples of when they felt discriminated against by opposing counsel solely because of their gender.

Most of them shrug off patronizing remarks they received by other lawyers earlier in their careers as, perhaps, treatment any attorney just out of law school would have received.

Zito admits that there are some male attorneys who still act differently toward her because she's a woman. "Older men sort of treat you like a daughter," she confesses. Not that that's a bad thing.

"I've always used it in my favor," Zito reveals. "It's often an advantage to have the other side underestimate you," adds Kathleen Eldergill, an employment and civil-rights litigator at Manchester's Beck & Eldergill.

Early in her 18-year legal career, before earning a reputation as a skilled trial attorney, Eldergill won cases "that the other side could have won ... if they had done their homework," she contends. But being taken seriously was never a problem for Susan L. Miller, an insurance-defense attorney at Hartford's Skelley Rottner.

Miller, 50, taught in elementary school for nine years before deciding to earn a law degree. "Because I was older, [opposing counsel] assumed that I had been around for a while," she explains.

Zito, however, says she felt as though she had to work harder than a male attorney to prove herself and get noticed at the mid-sized firm she joined out of law school.

"All the men would go out golfing and the women would be left behind," she recalls. "... It wasn't their fault. It was just the fact that there weren't many women [attorneys] around."

Insurance-defense specialist Denise Martino Phelan, however, doesn't subscribe to the belief that women litigators have to work harder to succeed because of their gender.

Rising to the top of the trial bar, no doubt, demands years and years of late nights preparing cases for trial. But that applies equally to both men and women, contends Phelan, of Hartford's Jackson, O'Keefe and Phelan.

Phelan, 45, also doesn't waste time worrying if she's perceived as overly aggressive by her male adversaries.

"Aggressiveness is part of moving a case forward," she maintains. "If you can't do that you have no business being a litigator."

But other women litigators acknowledge that, in some instances, a double standard still exists in that regard.

"If men are aggressive [in the courtroom], it's generally perceived as OK," admits Eldergill, the Manchester lawyer. "If a woman's aggressive, she's perceived as a bitch."

"Women," adds Skelley Rottner's Miller, "do have to consider ... whether they come across [to a jury] as too shrill or too aggressive. Perhaps, men don't consider that as much when they're planning their cross-examination" of a witness, she concedes.

Mason, the Tyler Cooper litigator, has attended seminars for women trial lawyers where the issue of not being perceived as "brash" was a topic of discussion.

But "I've never found it to be anything that I had to struggle with," says Mason, who describes her courtroom style as "fairly low-key." "I don't feel that women have to act like men to be good lawyers," adds Zito. "I'm a very aggressive person and I'm a very touchy-feely person. I get in your face," she says, describing her courtroom demeanor. Zito, however, doesn't view her litigating style as indicative of her gender. Some of the best male litigators in the state, in Zito's opinion, don't fit easily into gender stereotypes either, in that they can be both "congenial" and "friendly" when questioning witnesses and debating opposing counsel.

A lawyer's gender, according to jury and trial consultant Paul H. Jepsen, of Minneapolis-based JuryThink Inc., is much less relevant to jury pools than 10 to 15 years ago, particularly in metropolitan areas. Still, Jepsen notes, jurors continue to evaluate women litigators more on their appearance and dress than their male counterparts. But, he adds, "I don't know if that is very significant ... in jury decision-making."

Tyler Cooper's Mason recalls that once, in a post-trial interview with jurors, she was told that each morning they looked forward to finding out what outfit she would wear to court.

"I do think about dress, but so do men," she contends, noting that she didn't believe her apparel distracted jurors from reaching their verdict.

Eldergill says she has a habit of wearing her blue suit the day a trial starts and the day it ends, just like men have a tendency to wear red ties on those occasions. "They say, 'Blue is the color of credibility.'"

In addition to their dress and appearance, older female jurors, according to Jepsen, have a tendency to view women litigators with more suspicion about their motivation for going into the legal profession, and, perhaps, as less capable than their male adversaries.

Robert Ladner, a communications psychologist and sociologist for Behavioral Science Research in Miami, advises lawyers on how jurors perceive differences in gender, race and other factors—and how those perceptions can be used effectively to argue a client's case. "You're essentially playing to the crassest sexual stereotyping that exists in American culture," Ladner says, explaining how some jurors view female litigators.

As a result, he says, in certain instances it could be more effective to have a male attorney handle, say, a trial involving complicated matters of finance or contract law—or have a woman lawyer represent a defendant who wants to come across to the jury as sympathetic.

Zito acknowledges that people have sought to retain her because of her gender.

In some cases, it's a man accused of harming a woman, she says. "Other times," Zito adds, "I've gotten calls where they feel a woman can relate better to a jury" because they believe female lawyers are more sensitive, less arrogant or harder working than male lawyers. "I don't think any of those stereotypes are necessarily true," she notes.

If there is a barrier blocking more women from becoming litigators, it's the difficulty in balancing the demands of the job with family obligations.

Even with men taking on larger roles in raising their children, women often still remain as their children's primary care-givers, women lawyers say.

"There are some women who have probably shied away from the rigors of litigation because of the time demands," concedes Miller, the Skelley Rottner attorney.

Adds Susman, Duffy & Segaloff's Wolfson: "It's very difficult to work part time ... as a litigator because you're not in control of your schedule."

That was how Wolfson, who, after law school, started a fulltime practice when her two children were in grade school, felt nearly two decades ago when she was up all night with a sick child and had a trial that morning. By the end of the day she was seeing spots but never considered asking for an extension. After confiding her plight to opposing counsel, he told her a male lawyer would have no problem making such a request. But like other women litigators at that time, Wolfson, now 61, was uncomfortable with the idea, she says.

"Today if I was doing it now, just about any judge would have granted" a continuance, claims Wolfson.

Zito, who has one child, but is pregnant with twins, says she currently works three days a week, except when she's on trial.

"It's tough being a litigator and a mom," she says, especially because, in Zito's estimation, there are not many women who have left the profession temporarily to raise children and then successfully returned. "What are the possibilities of re-entry? That's still unexplored territory," she cautions.

Gone, no doubt, are the days when Zito could tell clients that they could pick her out at short calendar just by looking for the woman in the courtroom.

Indeed, 15 of the 29 litigators at Waterbury's Carmody & Torrance are women, according to Maureen Danehy Cox, a veteran self-insured defense, employment, and land-use litigator at the firm.

Still, Miller has trouble recalling the last time she tried a case to conclusion against another woman litigator, and it leaves her a bit concerned.

"That says something. Doesn't it?" she wonders aloud.

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