Ever since the Kozinski horror, I have been more intently reading[i] and listening[ii] to the stories of female lawyers who have suffered various kinds of abuse or disrespect from male lawyers because of their gender. I was, and am, not so much interested in assaults or explicit sexual harassment because it is obvious that no one should suffer such things.

I was, and am, more interested in the interactions (sometimes subtle) of male and female lawyers in the courtroom. Taxonomy is important. There is, at least to me, an important distinction between incivility writ large and sexism. In my view, it is important to distinguish between the two if only to avoid confusion, but as this post illustrates (I hope), that can be difficult. People of good will can easily conflate the two and the resulting uncertainty may cause us to talk past each other.

I stumbled across a twitter thread from a female lawyer, perhaps a CDL given her twitter handle (@CriminelleLaw), that I encourage you to read.[iii] I want you to assume, as I do, that CriminelleLaw and the lawyers who later responded in the twitter exchange are all well-intentioned.

CriminelleLaw describes her interactions with a male opponent in a court case. She begins this way:

She then supplements her complaint with this addition about her opponent’s behavior in the courtroom:

Another female lawyer responded: “Oh, this makes me incandescent with rage.”

A youngish male lawyer was not entirely buying it.[iv] He tweeted: “For real though: Accusing an opponent of being emotional – without more – isn’t necessarily gendered. The most emotional adversary I’ve ever had was a 42 year old man.”

CriminelleLaw responded: “I never mentioned it was gendered. It’s highly inappropriate in this context, in this scenario, no matter gender. I would never say something like this because it’s obvious deflection. Resorting to this type of litigation is for the poorly prepared/ those lacking confidence.”

The skeptical male lawyer’s response did not sit well with others. Another female lawyer, who refers to herself as the “bitchy barrister,” responded in part this way: “The irony of mansplaining the intent as gender-neutral isn’t lost on me.”

The first male lawyer, not to be outdone, tweeted: “Let me get this straight: By suggesting that a lawyer accusing opposing counsel of being emotional isn’t necessarily gendered I’m ‘mansplaining’. Is it possible that a man can have an opinion on something without being accused of mansplaining? Apparently not.”

The “bitchy barrister” responded and in part wrote: “99% of dudes don’t get what it’s like to be a woman in this profession.”

In another twit, the skeptical youngish male lawyer added, “Interrupting like that is classic old man lawyer behavior. Classic. Old man lawyers did that to me in state court when I was younger. They don’t just do it to women. They do it to younger men as well.”

Later on, a second male lawyer saw sexism and responded: “I hate to mansplain men to a man, but while I agree this guy is an unprofessional jerk and if there’s any justice in the world that will bite him hard, I don’t see this as lack of confidence. I see this as clueless mediocrity + sexism. ‘Hur, hur, hur, wimmen sure do get excited.’”[v]

And the thread goes on. It extends this way almost ad infinitum.

What do I think? Well, that is truly a problem. I honestly don’t know what I think.

My initial inclination was to read the complaints of CriminelleLaw with skepticism to the extent, if at all, that her grievances alleged sexism. Long ago, Aristotle taught us that the three methods of persuasion are ethos (the ethical appeal), pathos (the emotional appeal) and logos (the logical appeal).

There is nothing inherently gendered about any of those methods.

More specifically, I understood from CriminelleLaw’s first tweet that the reference to emotion by her male opponent dealt with a motion to dismiss. If that was so, and without further context that she fails to provide, the fact that opposing counsel lodged an objection to an emotional appeal regarding what is customarily a straight up legal question did not strike me as facially sexist in nature. Indeed, as CriminelleLaw at one point in the discussion emphasized, “I never mentioned it was gendered.”

As for interruptions, lawyers of all genders interrupt each other (to my displeasure) all the time. “So what,” I said to myself.

But as surely as I thought (and typed) the foregoing words, I reflexively drew back. While Aristotle’s methods may not be inherently gendered, that old Greek also thought that “women’s voices were proof of their wickedness.” Parul Sehgal, From Ancient Myths to Modern Day, Women and the Struggle for Power, New York Times (December 5, 2017) (book review of Cambridge classicist Mary Beard’s book Women & Power). In that same vein, CriminelleLaw’s male opponent used the word “characteristically” before the word “emotional,” thus perhaps snidely referring to the stereotype of women as mostly emotional beings.

Still further, I remembered that a recent study, conducted by a Northwestern law professor, found that female Supreme Court justices are interrupted about three times more frequently than their male counterparts. Tonja Jacobi and Dylan Schweers, Legal scholarship highlight: Justice, interrupted – Gender, ideology and seniority at the Supreme Court, SCOTUS Blog (April 5, 2017). If that is so for female Supreme Court Justices, then perhaps CriminelleLaw’s complaint about interruptions by her male opponent had merit beyond the question of civility, as the interruptions could be seen as driven by sexism.

So, I will put the question to you, the readers of Simple Justice. Were the male lawyer’s actions (using the words “characteristically emotional” in a brief and the interruptions in the courtroom) sexist?[vi]

Richard G. Kopf

Senior United States District Judge (Nebraska)

[i] For example, read the #LadyLawyerDiaries.

[ii] Also, listen to the podcast hosted by Dahlia Lithwick interviewing Heidi Bond, Emily Murphy, and Leah Litman entitled #MeToo in the Courts.

[iii] I found this thread because of a tweet, dated December 28, 2017, at #LadyLawyerDiaries written by Ellie Margolis, a law professor and critical legal theorist at Temple.

[iv] It is clear though that this youngish male lawyer thought CriminelleLaw’s male opponent was a jerk.

[v] Unhelpfully I thought, the “Dean of #appellatetwitter” then added his two cents. “[W]ow, this is awful.” Exactly what was “awful” was not made clear.

[vi] Let us stipulate that incivility is to be opposed and that I am not referring to incivility without sexism. One can be an ass but not a sexist ass. As I said in the beginning, a proper taxonomy is important if only to be precise in our language and to avoid misunderstandings between people of good will.