INSIGHT: It’s Time to Address the Gender Divide in Law

When alleged shooter and self-proclaimed anti-feminist attorney Roy Den Hollander arrived at the home of the Hon. Esther Salas, the first Latina woman to serve as a U.S. District Court Judge in New Jersey, he carried with him in his car a “competitor” hit list of female judges and one female public defender—all with Hispanic ties—marking women as targets in the legal profession.

This is not the first time women in the law have been targeted. In 2005, the Hon. Joan Lefkow, a judge in the U.S. District for the Northern District of Illinois, was also targeted by a disgruntled litigant. Her husband and mother were killed in the attack.

As a former litigator, now the first female federal judge in the Western District of Texas—and also Hispanic—and a current partner and litigator, we (both authors) are troubled by the portrayals of women in the law, which allow for the societal imprint of women in the law being targeted for their work. Sadly, we are not surprised that progressive female judges and litigators are the target of a self-proclaimed anti-feminist like Den Hollander. That, in itself, should be shocking.

This begs the question: How do we constructively move toward an expedited and effective judicial process based on the facts of a case, not the gender of the attorneys trying or presiding over the case?

Gender Divide in the Courtroom

When I, Alia Moses, was first appointed, and before my reputation as a knowledgeable and prepared judge was established, stereotypes pervaded the courtroom. Some male litigators carried with them the preconception that I was just another Hispanic female judge who was a token placeholder appointment for a border court and was incompetent.

It has taken many years and time in the courtroom to tarnish that perception. The perception that I was mean and intolerant, instead of in control of the law, facts, and the courtroom is a perception infrequently attached to male judges.

As a female litigator, in an area of the law still dominated by men, I, Nicole Westbrook, have had to navigate a minefield of misconceptions about my abilities and those of other women in the law. Should I refute some of the stereotypical comments thrown around about women litigators, such as we’re emotional, not attractive enough, or too aggressive? Or, should I stay quiet to later fight a more disturbing stereotype about women in the courtroom?

While extreme, Den Hollander’s views and misguided actions highlight the lack of respect for the judicial process and its participants. There are more people with similar views, but whose sense of propriety keep them from doing anything other than giving voice to their views, at most.

Follow the Money

The current construct of the legal profession feeds anti-feminist thinking, consciously and unconsciously. Money conveys status, and in litigation, the big money is in white collar crime or civil litigation, where litigators represent companies and individuals often in the death throes of their businesses.

Hiring an attorney to manage a DUI in Colorado costs, generally, a flat fee of up to $15,000, cast alongside a typical civil case, where that same amount is paid month after month as court proceedings weave their way through the judicial process.

So, where are all of the other female attorneys, if not appearing in court? Many are exceptional transactional or appellate attorneys appearing before appellate judges for argument, an area not really considered litigation. Many of those who do litigate cases in court find themselves in courtrooms arguing criminal cases, again, with little attention to the important work these women are pursuing in the courtroom. In Judge Moses’s courtroom, it is not unusual to have all female litigants in criminal matters.

The persons and issues represented vary greatly from human smuggling cases to large narcotics seizures, to public corruption cases. Yet, these women are rarely portrayed in the media or given credit for the work they do. In the Western District of Texas, the current federal public defender is a female, and the top chiefs, including the Del Rio division chief of the U.S. Attorney’s Office, are women.

Eliminating the Gender Divide

The structure of today’s law firms, and how law firms work, value and divide work flows, is partly responsible for funneling women toward criminal and transactional law rather than civil litigation.

The firm model is a pyramid, made to weed people out. When the lawyers in a position of power in a firm are predominantly older, white men, they tend to give prime work to and elevate those that look like them, thereby avoiding having to learn how to communicate and network across the gender divide. This leads to women in firms taking on lesser roles and being overlooked for the types of civil cases that generate attention.

By the time women get to the partner level, many have dropped out for any number of reasons—motherhood, a desire to do something different, an inflexible work environment or discouraged by gender pay disparities. According to the Major, Lindsey & Africa’s 2018 Partner Compensation survey, male partners earn significantly more (53%) than female partners, on average.

These trends can be reversed. Covid-19—and the Millennial generation—are creating opportunities to redefine what is expected of lawyers, the law profession and how services are delivered, all which can help female attorneys branch out into new areas of law and ultimately enhance perceptions of women in law.

How we address the perception of women as litigators and active courtroom participants is a responsibility of all attorneys and society, as a whole. The perception of a woman’s worth begins long before we enter a courtroom. We at times “assist” the negative perceptions by a lack confidence that we can compete at all levels with our male counterparts, especially in the courtroom.

The idea of ambition, or a desire to get ahead, must become gender-neutral. Ambitious female attorneys are not viewed in the same positive terms as ambitious male attorneys. Men are tough, but fair and competent; women are mean, even if viewed as competent.

In the 34 years that I, Alia Moses, have been an attorney, and now judge, the term “ambitious” was never said to me as a compliment. That did not deter her ambition to succeed in the legal field, in whatever capacity she served her profession, and she encourages other women to be challenged and not deterred.

Much can be done to root out anti-feminist ideologies and help female attorneys find their rightful place in the legal environment. This includes networking effectively, bridging the communication gaps, through defining your abilities via your work ethic, and defining a strategic path right out of law school to the career and reputation you want to build.

Den Hollander’s unconscionable actions have exposed a sad underbelly of gender discrimination in law. Let’s get it right moving forward by not only creating opportunities within law, but by changing the perceptions and expectations firms, courtrooms and clients have about female attorneys and litigators. We must eliminate the gender divide for a strong legal profession to continue to thrive.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Judge Alia Moses, a former litigator and assistant U.S. attorney, now presides as the first female district judge over the U.S. District Court for the Western District of Texas.

Nicole Westbrook, an attorney with Jones & Keller P.C., litigates complex business matters, achieving outcomes that improve lives, and is a trial instructor and frequent writer on legal issues.