Female Litigators: Staking Your Claim in the Courtroom

Another great program was presented by the Ontario Bar Association's Women Lawyers Forum, this time jointly with the Civil Litigation section. It was called “Female Litigators: Staking Your Claim in the Courtroom” and it was part of the 2017 OBA Institute.

The two hour program was chaired by Maureen Whelton and Richa Sandill and was split into two sessions.

The first, “Candid Conversations”, with Linda Rothstein and Linda Fuerst, was indeed candid. While some may be tired of hearing “back in my day the judge called me ‘toots’” talk, I believe that it is important to remind ourselves that not so long ago things were much worse for female litigators. Most lawyers in the room were shocked at the sexist behaviour exhibited by judges and lawyers toward “The Lindas” (as they were affectionately nicknamed) in their early days of practice.  Linda Fuerst had to “dress like a woman” in court in order to gain respect from the judges. Comments on their appearance were often made. Linda Rothstein was once interrupted by a judge while she was making submissions in court so he could tell her how nice her nails looked.  Both Lindas stuck to their guns, demanded respect, and knew they were worthy of the same respect as their male colleagues.  Both also recognized that change occurred when there were more female judges appointed to the bench, but outside the courtroom the discrimination continued.

Some takeaways:

• Linda Rothstein advised the audience to dedicate themselves to being persuaders with both their voices and their body language. Women tend not to have a big booming voice or a big physical presence, but neither of these is necessary. Strive to be authoritative. She would visualize the word “authoritative” on her forehead when in court.
• Linda Fuerst counselled us to strive for credibility, integrity, authority and confidence.  Use tone to work on sounding authoritative. Remember to be yourself, but be the best version of yourself.
• When asked how to call out colleagues who exhibit less than ideal behaviour: Linda Rothstein said to do it “as fearlessly as possible under the circumstances”. We owe it to ourselves and to our clients. We need to “get good at having difficult conversations”. You can be firm and fair. It might not feel good, but it is necessary.
• Linda Fuerst encouraged us to improve our self-promotion. Her male colleagues tend to be better at it (although some are over the top). It is important for people to know you are doing a good job.

The second session was called “Women in the Courtroom: Intergenerational Perspectives on Challenges and Success Strategies” and Shantona Chaudhury, Anne London-Weinstein, Asha James and Sandra Nishikawa were on the panel.

I appreciated Sandra’s initial comment that those of us in the room were ultimately very privileged and empowered women. It was important to keep our privilege in mind as we went on to “whine and complain” as Sandra half-jokingly put it. I agree wholeheartedly.

The stories from the second panel revealed that in some ways we have come a long way; but in others, not so much. For example, Sandra was recently at the Supreme Court of Canada when, before Court, she was referred to as “the girl” by a senior staff member. While the person later apologized, this is just wrong and disheartening on so many levels.

Some of the panellists also spoke from the perspective of being racialized lawyers and how that has affected how they are treated in the courtroom and elsewhere. Sandra is sometimes mistakenly identified as a court translator. Asha finds that racialized lawyers must be extra or over prepared compared to other litigators.

A few of the panellists expressed the same sentiment as The Lindas that behaviour outside the courtroom is always worse than in the courtroom as there is no “overseer”. When asked if we should call others out on bad behaviour, the panellists felt that it depended on the context.  As women, yes, we should. However, as litigators we have our clients and the case to think about. Is it in your client’s best interest to call out opposing counsel or a judge or adjudicator on their misbehaviour? Perhaps you wait until the case is done.  Shantona advised us to know how to “pick your battles”. Is it something egregious? Call them out. Or is it something that can wait? Then, let it wait. As you practice longer, and gain more experience, it is easier to make these calls. If something occurs during a court appearance, Asha suggested calling a mentor for advice when court was on a break.

Some takeaways from the second session:

• When asked for their “mantras”, Asha said to “be prepared and be yourself”. Figure out your style. Sandra said to be “tenacious and professional”. Anne suggested “pitbull perseverance” and being over prepared for court.
• Sandra noted that sometimes women can be our own worst enemies. Try not to engage in demeaning talk about other women’s appearance. We’ve been socialized to think that other women are our competition but that needs to change.
• Anne thinks it is important to remember that we have a moral responsibility to help younger lawyers coming up: Sponsor them, mentor them, and recommend them for files. We can all do our part.  Anne goes out of her way to promote young female criminal lawyers (especially after the disappointing report about women exiting criminal private practice).
• Shantona and Asha believe that mentorship is a very important part of becoming a good lawyer.  Sandra recommended having more than one mentor, as well as having a champion and a great support network.
• Anne suggested that we need to nominate other women for awards and not just awards for women.
• Also, we were reminded to try and support women on maternity leave.  Pregnancy and maternity leave “feminizes” us and makes it obvious that we are different from our male colleagues. Shantona supports women lawyers on leave by letting them know about writing or speaking opportunities.

Overall there was some great advice provided for female litigators (and female lawyers in general). Mentoring and supporting other women is important, and continuing to have these programs and these public discussions will hopefully bring about change and help female litigators successfully stake their claims in our courtrooms. 

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