Challenges and advantages of a young female litigator.

Clara Shortridge Foltz wanted to do something that had never been done before. She wanted to become a lawyer. Her initial attempts to gain admission to Hastings School of Law were thwarted because, as she would later state, "[the] rustle of the ladies' garments would distract the attention of the young gentleman...." Even after becoming the first female lawyer in the State of California in 1878, she continuously faced challenges to her competence, integrity and morality simply because she was female. As one district attorney commented about Foltz in his closing argument, "[s]he is a WOMAN, she cannot be expected to reason; God Almighty decreed her limitation ... this young woman will lead you by her sympathetic presentation of this case to violate your oaths and let a guilty man go free." Women have certainly come a long way since the days of Clara Foltz, yet the old prejudices and ignorance still linger.

In my 1997 graduating class at University of San Diego School of Law, the women outnumbered the men. Naturally, I assumed I would be working with many women, have female mentors and frequently litigate against other women lawyers. Reality had something else in store for me.

I am amazed by the low percentage of female litigators I come across on a regular basis. And virtually none of them are in my age group. Those few I meet are either newly admitted members of the Bar or seasoned litigators several years my senior. I often wonder, "Where are all of the 30-somethings like me?" In a crowded courtroom, I am typically the only woman surrounded by men. My answer lies in some cold, hard statistics. Despite the fact that, in 2001, 47% of U.S. law degrees were earned by women, only 29.1% of lawyers currently practicing in the United States are women. Forty-three percent of female associates leave their first (and often last) law firm by their third year, and, according to a recent poll taken, 65% of female lawyers consider leaving the practice altogether due to gender issues. Perhaps, not surprisingly, 70% of female attorneys polled claim to have experienced some sort of gender bias in the courtroom. In my experience, these sorts of annoyances are infrequent and, if the truth be told, my femininity has actually been more of a benefit to my career than a detriment.

I endured my most memorable experiences of gender bias early in my career. During law school, when I was tagging along to family court with an assistant district attorney, the female judge pulled me aside and informed me that she found it offensive that I was wearing pants (rather than a skirt) in her courtroom. The judge warned me that it would serve me well to respect tradition concerning the proper image for a professional woman. I wondered at the time just which "tradition" she was referring. Thankfully, I haven't heard such comments since, but I remain mindful that both men and women may have distinct ideas about the appropriate place, appearance and conduct of women lawyers.

When I first began my career, I was often asked by judges where "lead counsel" was when I attended a trial-setting conference, because they assumed that I could not possibly be lead counsel. At the time, I attributed it to my age, but as I've grown older, I now believe it was my gender. Even recently, I've been mistaken for the court reporter at a deposition (the vast majority of court reporters are female) and, at that same deposition, I found myself screaming and pounding on the table just to have my objections acknowledged. I've never witnessed a male lawyer being forced to take such steps to be heard.

But frankly, being young and female can be a major advantage for an attorney. In fact, I find that being the only female in a courtroom full of male litigators earns me a sort of "minor celebrity" status, which makes it all the easier to advocate and have my arguments recognized. I have also found that, rather than being left out of the "boys' club," I'm often included in an extremely exclusive "girls club" that I never dreamed existed. For example, when I attended a mediation with my department head before a well-known retired female judge, it was because of my gender that I developed a kinship with this mediator, and it was quickly evident that the matter would not have had such a beneficial result had the mediator not been comfortable with me as a woman.

At this point in my career, I no longer feel compelled to bring a gray-haired male partner to meetings with potential clients to lend legitimacy. I'm no longer asked by judges when "lead counsel" will arrive to court conferences. There is always the occasional client who requests that a male attorney take a deposition, or questions the ability of a female attorney to be assertive in negotiations, but that is truly rare. More often, clients appreciate the ability of a woman to assertively represent their interests.

The field is changing--it is no longer necessary to hide your femininity (or to wear skirts)--in order to be a successful member of the Bar. On the contrary, femininity is an invaluable tool in your arsenal of negotiating skills, as are a woman's intuition, compassion and ability to read people that are stereotypically feminine strengths. With the quickly-growing number of female business owners, corporate executives and entrepreneurs, I'm finding that my gender helps me find clients, serve clients and keep clients happy. I do not believe that, as a general rule, women are simply more comfortable working with other women. What I believe makes some women (and, in fact, some men) prefer to work with a female attorney is the fact that women typically have a different set of communication skills and a different approach to problem solving.

When I look back at my fairly short career and see the changes that I have experienced in the way I am received as a female litigator, the pace at which the legal community is changing strikes me. I plan to enjoy this time when female litigators are still a minority, and when being one may earn me a bit of special attention in the courtroom, since I expect that very soon the benefits of being or having a woman lawyer will make our presence far more commonplace.

Heather L. McCloskey is a partner in Ervin, Cohen &, Jessup LLP's Intellectual Property and Litigation Departments, where her areas of practice include intellectual property, unfair competition and general business litigation. Ms. McCloskey can he reached at 310.281.6349 or [e-mail].