By Lindsay L. Tygart JBA Board of Governors
We claim that we live in a modern society, but gender inequality is still evident in many professions, including law.
For many, the phrase “gender bias” is an abstract and illusive idea that women and men are treated differently solely because of their gender. Many attorneys have never been a victim of gender bias, many think it only occurs in other parts of the state or country and many operate under the misconception that it does not exist in the legal profession at all.
I am here to dispel these myths.
For those who have never been a victim of gender inequality, good for you, but it is important to not remain ignorant of the issue, just because it has never personally affected you.
For those who believe that it only occurs in other parts of the state, I can assure you that it is happening here in Jacksonville, right now, as I type this article.
And finally, for those who believe that this discrimination is not actively and forcibly invading many aspects of our legal profession, I respectfully request that you kindly remove your blinders and educate yourself on this issue so that you do not end up a victim, or worse yet, a perpetrator.
Recently published surveys have painted a discouraging picture of the prospects for women in the legal profession. It is an unfortunate reality that gender bias exists in many aspects and many practice areas.
Simply put, women have made uneven progress as compared with their male counterparts, and this is true whether we are discussing salary, partnership track, case assignments or, my own personal favorite, trial work.
A young, female litigation associate, at a midsize firm in town, became pregnant with her first child. She ultimately discovered that, per her physician’s recommendation, the baby would be delivered via cesarean section at 39 weeks.
Her delivery date fell on the Wednesday of the first week of a two-week jury trial, which had been set the previous year. Although this young, female attorney had planned to try this complicated case with her senior partner, this was her case. She had handled the pre-suit, she had handled the discovery, the depos, the experts and, most importantly, the client.
She attempted to obtain consent to reset the trial from the opposing party’s attorney, but she was denied. She was forced to file her motion to continue and set it for hearing. At the hearing, the opposing attorney argued that this young associate’s cesarean section was purposefully scheduled for the week of trial in order to secure a continuance and gain some kind of unfair advantage. Fortunately, the judge presiding over the case was horrified by the obtusely absurd argument and she not only granted the motion, but gave the opposing attorney a lecture on professionalism and civility.
Two weeks ago, I was contacted by a fellow trial lawyer and mom who is currently pregnant with her second child. She filed a motion to continue in one of her trials, which is set when she is scheduled to deliver. Opposing counsel filed a response. In this response, the attorney cited a case which discusses how the trial court should handle a continuance when one attorney has an “illness.” That’s right, an illness. This attorney actually filed a pleading, in the public record, with his name on it, which compares the birth of a baby to an illness.
The point here is that these two female lawyer-moms are not alone and their stories are not isolated incidents. Many times gender bias is not as blatant as a female attorney, walking into a hearing and being mistaken for the court reporter or an opposing counsel referring to a young attorney as “sweetheart” or “honey,” although I have been involved in both of those situations.
The good news is that gender bias is becoming a topic of conversation in the legal profession and raising awareness is quickly rising to the forefront of business here in our city and state. Last May, The Florida Bar board of governors considered the proposed Rule of Judicial Administration 2.570, which governs parental leave.
The proposed rule provides, “A motion for continuance based on parental leave of the lead attorney in the case shall be granted if made within a reasonable time after learning the basis for the continuance unless substantial prejudice to the opposing party is shown. Three months shall be the presumptive length of a continuance granted for parental leave absent good cause for a longer time. If the court denies the requested continuance, the court shall state on the record the specific grounds for denial.”
The commentary to this proposed rule discusses that the legal profession is committed to the importance of work-life balance, and allowing trial lawyers, both mothers and fathers, time to enjoy their new additions without the fear that the trial, of a case they have worked so hard on, will be taken away from them and given to another attorney, simply because they dared to start a family.
Baby steps are being taken in the right direction, but there is more work to be done. Education and awareness on this issue are of the utmost importance.
Kofi Annan said, “Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance.” This is what we should all strive for.
Lindsay L. Tygart is an attorney-mom at Coker Law. Her practice includes personal injury, medical malpractice, wrongful death and nursing home neglect.