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Managing Your Dismissive and Bully Peers: Gender as an Advantage and Additional Female Attorney Strategies

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By Paul Fisher1 and Juli Adelman

In this section on gender, we share additional experiences unique to female attorneys in their interactions with male attorneys, and how they have responded. Certain responses are more effective than others, and their positive or negative impact can vary with the situation and delivery. The next part of this chapter will share the perspective of some male attorneys, how they have responded to actions by some female attorneys, and the results received. Try detaching while you read, as a parent might at their child’s first middle school dance. This article is drawn from interviews with more than 45 attorneys.In this section on gender, we share additional experiences unique to female attorneys in their interactions with male attorneys, and how they have responded. Certain responses are more effective than others, and their positive or negative impact can vary with the situation and delivery. The next part of this chapter will share the perspective of some male attorneys, how they have responded to actions by some female attorneys, and the results received. Try detaching while you read, as a parent might at their child’s first middle school dance. This article is drawn from interviews with more than 45 attorneys.

Gender as an Advantage

The previous installment underscored the importance of exercising judgment — rather than reacting — when deciding how to respond to inappropriate gender-based remarks or behaviors. It is also important to keep in mind that both men and women may have advantages in law practice based on gender.

One attorney believes that emotionally secure women can use their femininity to their advantage: They have less ego on the table than men, and more flexibility in working things out. Another woman attorney opined that women develop relationship skills in dealing with their partners and children. On the other hand, men learn to stand up and be tough or macho; they do not always have the most pliable spirits and therefore frequently end up butting heads. This same woman lawyer believes that whether male or female, if you are insecure, you will always feel someone has taken advantage of you. For both women and men, developing an understanding of the unique talents one brings to the table is a constructive way of developing power.

More than one female attorney interviewed indicated that they use their gender and feminine charm to disarm opposing male counsel and make them more comfortable. Another told of a month-long trial in which her opposing counsel was a quite tall, famous male attorney. After the jury returned a verdict favorable to her client, she spoke with the foreman, who told her the jury had been angry and upset with the male attorney for mistreating her by always pointing down at her at the counsel table (she is petite even when standing). She had not reacted to this but had remained professional throughout the trial.

Several female attorneys interviewed indicated that male attorneys sometimes underestimate their skills and tenacity. One stated that when she calls them on this, they get angry. Another believes that being underestimated is an advantage. She looks back on her time as an associate when male opposing attorneys underestimated her litigation skills and did not work as hard. This served her well.

Additional Female Attorney Strategies

The following are examples of some ways female attorneys have responded to gender comments or interactions with male attorneys. They are intended to provide the reader with some understanding of how others have responded and whether or not each strategy was successful.

One attorney, when new to practice, appeared at a deposition where the opposing counsel, knowing who she was, asked, “Are you the court reporter?” Believing she had to maintain the upper hand she replied, “I’m the lawyer. Are you the custodian?” When something like this is said in good humor, with a chuckle and open body language, it will break the tension and help the relationship. The same comment made with disdain or closed body language will ratchet up tensions and be counterproductive. Make fun in a polite way: “If you can make them laugh, especially at yourself as a woman lawyer, then they are yours.”

Now in practice for 25 years, this lawyer still starts relationships with opposing counsel, male or female, by being a nice person. But she sends a strong message that she is there to protect her client and that if necessary, she will “wipe the floor with you.” The male attorney reaction to this is usually, “I didn’t mean anything, Madam; I’m sure we can work this out.”

One seasoned woman lawyer observed that in her experience, some of the most difficult opposing counsel have been women with low bar numbers who “came up through the ranks, were tough as nails and had a chip on their shoulder.” She reported that “There were some very dramatic scenes. I told one woman who used to be so aggressive, ‘Back down. You don’t have to talk to me this way. That tactic does not work with me. Let’s get rid of this junk.’”

Reframing the conversation is a powerful tool for productively redirecting the conversation. One woman lawyer was treated disrespectfully early in her career by older male attorneys who lost a motion or trial and made bullying comments to try to undermine her confidence. She would depersonalize this and change the conversation to, “What is the best way to get through this productively in the interest of our clients?”

When older male attorneys call her “darling,” this attorney maintains her cool and levelheadedness, and makes light of it. She does not want to appear emotional or aggressive. She might say offhandedly, “Do you ever call male attorneys, ‘darling’?” However, when male attorneys shake each other’s hands and not hers, or if she is asked if she is the court reporter, she does not ignore it. She announces she is Counsel for X and shakes everyone’s hand. She wants to let others know in a non-aggressive manner that it is not okay to treat her differently.

This same attorney has experienced both male and female attorneys repeatedly ignoring her as they interrupt and speak over her, asking new questions as she makes objections to their previous questions at deposition or trial. She tries to keep her cool and create a record of the behavior. She states, “Counsel let me finish. You are going to let me get this on the record.” She tries to not let it get to her. When she was younger, this type of interruption felt “like a kick in the gut” every time. The longer she was in practice, the more she lost her sensitivity to it. She is no longer shocked by the “head game of litigation.” Now she is proactive. While she does not let inappropriate comments or actions slide, she is always professional and tries to bring in lighthearted humor whenever possible.

Finally, we offer one interviewee’s practice tip that reflects a recurring theme of this series. This female attorney finds that the best way to deal with dismissive and bully opposing attorneys is simply to follow the rules — the Code of Civil Procedure and Local Rules. In one case, both opposing male attorneys repeatedly sent to her nasty email discovery demands. She attached their emails to her reply to their discovery motions. At the motion hearing one of the male attorneys screamed at her and the judge ruled in her favor. The male attorney told her, “You must sleep with the CCP under your pillow.” Her approach in dealing with abusive attorneys is to not take comments personally, to refrain from engaging in argument, and to stick to the rules. Expect that this may upset the other side even more. However, this sends a message that you cannot be taken advantage of and must be taken seriously.

Next Chapter

Male attorneys’ experiences and strategies.

This series of articles is the result of extensive interviews with more than forty attorneys in Southern California. These attorneys are primarily litigators / trial attorneys and several transactional attorneys. The group has some diversity, male, female and gay, with a range of practice experience from seven to 40-plus with the average of approximately 25.

Paul Fisher is a full time mediator with Fisher Mediation in Los Angeles. He mediates complex business, real estate, construction, trust, estate and conservatorship conflicts. Paul has a special talent for managing high conflict personality parties and their attorneys. He can be reached at paul@fishermediation.com or (310) 444-9200.

Juli Adelman is chief executive officer of Vantage Trial Consulting, a full-service litigation strategy, jury research and trial consulting firm based in Santa Monica. She can be reached at juli@vantagetrialconsulting.com or (310) 883-5048.

1Copyright by Paul Fisher