Alice in Civil Defense Land: A View Through The Looking Glass

WDC Journal Edition: Winter 2011
By: Virginia L. Newcomb, Borgelt, Powell, Peterson & Frauen, S.C.

Alice: When I get home I shall write a book about this place…if I ever do get home.
Alice in Wonderland (1951 Film).

Down the Rabbit Hole

Alice: Well, after this I should think nothing of falling down stairs.[i]

Story: In 1982, Alice began her first year at UW Law School, the Class of 1985, as one of the 36% of the law school class who were women.[ii]

This represented a significant increase over the past decade, where women had lagged far behind men in law school enrollment; at the beginning of the decade, the percentage of women in law school had been only 4%.[iii] In fact, women formed an even smaller part of the Wisconsin Bar until the mid-60s. “Up to that time, with very few exceptions, [women] were merely tolerated and were not seriously considered for leading jobs and positions in the law.”[iv]

Story: There was never any doubt for Alice as to what area of law she wished to practice, quickly focusing on getting a law clerk position at a civil litigation firm in her first year of law school. She learned that even carrying trial brief cases to court for senior partners could provide interesting and enlightening experiences. The most difficult task she had in second chairing trials as a law clerk was keeping her mouth shut and her name off the record.

Alice: Curiosity often leads to trouble.[v]

Story: Alice worked as many hours as humanly possible during law school and two summers before graduating May 1985. Clerking provided the real life experience that prepared her for the demands of the real job.

Alice began as an associate in June 1985 in the civil trial law firm where she had clerked after a two week respite. She was fortunate to not only get assigned good trial cases, but second-chaired larger trials with increased responsibility. She was the only woman associate and there was only one other woman who had ever been hired as an attorney at the all-male firm.

Her hard work was rewarded when she was offered a position to open a new office for an insurance defense firm that had been in existence since the 1800s with no woman partner to that date. An all-male partnership was not an unusual phenomenon for insurance defense firms in the early 1990s.

What Has Changed In The Last Twenty Years?

Today, women make up 45% of the 2010 entering UW Law School class.[vi] Out of the 472 individual attorneys who are members of the Wisconsin Defense Counsel, 118 are women, or almost 19%.[vii] It is obvious that the legal profession, and insurance defense litigation in particular, has attracted more women, and it is clear that firms are hiring more women since the 20th century, but have attitudes changed?

Story: Early on, Alice was told by another female trial attorney that one of her standard voir direquestions was to ask the jury, “Does it bother you that one of the attorneys who will be presenting the case to you (then pointing to herself) is a woman?” Occasionally, the attorney would get a juror who expressed the view that women should stick to more traditional professions, e.g., homemakers, secretaries, nurses, court reporters, and the like. Instead of asking that question in voir dire, Alice opted to use a more subtle approach, assessing non-verbal cues and jurors' interactions with her, along with doing some stereotyping herself, for example, “this truck driver who grew up in the South probably has never run into a woman trial attorney before" or "this woman who is sitting with a dated hairstyle, wearing a dress, who has been a stay-at-home mom all her life may not relate to a female trial attorney trying to tell her anything.” And sometimes there were not enough strikes for such a jury panel!

Talking with jurors following trials can provide a great deal of perspective on how jurors view a woman attorney without even asking a direct question. Some jurors find matching shoes and outfits to be more memorable than the most skillful cross-examination of an expert on which hours had been spent developing appropriate questions. Some jurors feel angry when an aggressive male attorney tries to push a female attorney—or the facts—around in court. Some jurors feel a woman should not be as assertive as a man in court, especially when making objections. Those comments from jurors can often provide good lessons to be learned, even if there is nothing one can do about some of the cards one is dealt.

Finally, many women trial attorneys use their femininity to advantage, breaking out of the “blue suit mold,” even smiling, laughing, or adding humor where appropriate. The most important thing is “be yourself.” Don’t try to be macho. Don’t play “little ‘ol me helpless.” Be yourself.

King of Hearts: What do you know about this unfortunate affair?

March Hare: Nothing.

Queen of Hearts: Nothing whatever?

March Hare: Nothing whatever!

Queen of Hearts: That’s very important! Jury write that down![viii]

Have Judges’ Attitudes Changed Toward Women Trial Attorneys?

Wisconsin had no women judges until 1970, when the first woman took the bench in Vernon County Circuit Court. In 1976, Shirley Abrahamson was appointed to the Wisconsin Supreme Court as the first woman justice. Martha Bablitch followed by being elected to the Wisconsin Court of Appeals when it was established in 1978. Barbara Crabb has served as a federal judge for the Western District of Wisconsin since 1979.

Today, the number of women judges has grown significantly. A majority of the justices on the Wisconsin Supreme Court are now women. In Dane County alone there are five women judges out of the seventeen circuit court branches, or twenty-nine percent.[ix] Out of the 249 total circuit court judges, 36 are women, or fourteen percent.[x] Thus, the landscape for practicing in courts by women and in front of women has changed.

March Hare: Why don’t you start at the beginning?

Mad Hatter: Yes and when you reach the end...stop.[xi]

But most women trial attorneys who have any longevity still have stories of prejudice to tell regarding their experiences with judges.

Story: Alice had an oral argument on a motion for summary judgment within months of being sworn in to the Wisconsin Bar. The argument was to be in judge’s chambers in the Dane County Courthouse (a practice that has long since been abandoned). Alice had received the brief in opposition to her motion the day before the hearing, so she was prepared to put her reply to every argument on the record. After stating her appearance and the judge hearing the appearance of her male opponent, Alice spoke about two sentences of her argument on the record before the judge said, “Sweetie, I’ve heard enough. I’m prepared to rule; the motion is denied.” With all the composure she could fake, Alice remained standing and asked to continue for the record. The judge looked both surprised and annoyed, but was silent while she continued and the court reporter dutifully took down the argument. The judge reiterated his denial.

The judge’s telephone call back to the male senior partner at the firm beat Alice back to the office. Though the judge had left out the “Sweetie” from his story, Alice could find no partner who found the whole experience to be particularly offensive or wrong. Fortunately, that judge soon left the bench.

There are probably more stories about young women being mistaken for court reporters or secretaries—or even being asked to leave a closed hearing even though they were representing one of the parties—than one could tell. Even more stories tell the tales of more subtle discrimination. Fortunately, the stories have been fewer and farther between as older judges have retired, more women have been accepted into the profession, and more women find their way into the courtroom.

Mad Hatter: Ah thank goodness! Those are the things that upset me!

March Hare: See all the trouble you started?

Alice: But I didn’t think….

March Hare: Ah, that’s just it, if you don’t think you shouldn’t talk.[xii]

Have Law Firms Changed?

Women are still not equal in law firms, but their position has improved.

Story: Alice can remember after spending her first few years with very high billable hours and spending nights and weekends working on cases getting glowing reviews at the end of the year. One year she was also told she was getting a raise that was quite generous. She then found out it was less than her male counterpart, hired in the exact same year, with fewer billed hours and fewer “dollars in the door” than she. She had a great dilemma over what to do; she could ignore it and not rock the boat so early in her career, or she could follow her conscience and perhaps jeopardize her partnership track. The money was less important to her than the principle—if they could do this to her at such an early stage in her career, what was next for other women who came down the same path? She found herself in a partner’s office after a restless night asking for some justification for the disparity. There was none that was given. A few days later she was told her raise would be adjusted to the male counterpart’s level. It was not above it. She would never get above it. But the playing field was “level” for the start of another year.

Queen of Hearts: Now then, are you ready for your sentence?

Alice: But there has to be a verdict first.

Queen of Hearts: Sentence first! Verdict afterwards.

Alice: But that just isn’t the way.

Queen of Hearts: All ways are…

Alice: …your ways your Majesty.[xiii]

Billed hours and dollars in the door are the measuring stick for evaluating the work of an associate in a defense firm. They are the sign of an attorney’s dedication to the firm and profession, the sign of client confidence and partner confidence in the associate’s work, and the key to moving up the ladder in the firm at a steady and determined pace. Yet those hours and dedication come at a price. Many women must decide whether to marry, remain married, start a family, care for aging parents, and many other demands that society expects of them. Many women have traded their family life for partnership tracks, and firms have carved out special pay arrangements for women and men who choose to have more family or personal time outside their practices. Such arrangements can be quite fulfilling for both the firm and the individual. Yet it is difficult for women to make these personal choices and feel that they are being compensated fairly for their sacrifices and working without guilt. They hope for a time when family obligations ease as children grow, when quality clients can be marketed, and when files can be obtained to continue their litigation practice. But it is difficult in reality. “Scholarly evidence repeatedly shows that women in all sectors of the workplace are subjected to various forms of sexual harassment and other forms of demeaning behavior based on their gender…. The results show…most consistent offenders are other attorneys.”[xiv]

One of the often heard criticisms of women trial attorneys is that they will become too emotional and will be unable to handle the pressures of a trial.

Story: Once upon a time there was a very contentious and difficult case in which the plaintiff was making a claim for a brain injury following a car-truck accident. After a year and a half of pretrial litigation and unsuccessful mediation, the case was set for trial. There would be a total of four experts testifying live in addition to the evidentiary depositions that had been taken. The trial began on schedule with jury selection on Monday. It was a typical jury panel made up of fourteen people, predominantly men. The opening statements and trial testimony were to begin at 8:30 a.m. on Tuesday.

Alice followed her typical pattern of arriving at the courthouse as it opened at 7:30 a.m., and began last minute preparations for the first day of trial. At 8:30 a.m., the jury was brought into the courtroom and the plaintiff’s attorney delivered his opening statement. It was short but effective. After the statement, the judge, who seemed increasingly shaken as notes were exchanged with her clerk, asked to take a short break. The jury was sent to the jury room. The judge announced that it was just reported over the Internet that a plane had flown into the north tower of the World Trade Center. While it appeared to be a tragedy in and of itself, everyone assumed that it was an isolated incident of a pilot falling asleep or having a heart attack or some such accident. But the news kept pouring in. It was a terrorist attack. There was a second plane. The south tower was hit. People were jumping. People were trapped. The Pentagon was hit. Tragedy in Pennsylvania. It was difficult to comprehend the tragedy. The towers collapsed.

The judge asked what the attorneys wanted to do about telling the jury what had transpired and what to do about the trial. The jurors may have had loved ones in New York, Washington, or Pennsylvania that they were concerned about. The plaintiff’s attorney wanted to go ahead with the trial because his case was ready and the experts had been pre-paid for their testimony time. The plaintiff had been waiting for over a year and a half for this trial. Alice was both dismayed by the attitude but also in shock from the events that were unfolding and the drama that was so unexpected outside the courtroom.

By consensus, it was determined that the jury should be brought in, advised of what had happened and what may still be happening, and asked whether they would like to continue with the trial or go home and attend to their personal lives and business as necessary. The jury was sent back to the jury room to make a decision. Within fifteen minutes there was a knock on the door and the jurors were lead back into the courtroom. One of them advised the court and counsel that all fourteen of them wanted to continue with the trial. To do anything else would allow the enemy to succeed in disrupting an important institution in America. This was one of less than a handful of trials that would go forward in the country.

The defense opening statement was presented to a group of fourteen riveted jurors, a judge, a clerk, and opposing counsel who all had chosen to completely shut out the outside world and concentrate only on the facts and the reality presented by the case for that day. For the next three days there was no television, no radio, no newspaper, and no report of the tragedy that was going on because only that case existed.

At the conclusion of the case, the two alternate jurors were selected, but they chose to stay in the courtroom to see the rest of the story play out. It was an overwhelming defense verdict. Perhaps it was in part due to the extreme contradiction of the plaintiff’s alleged injuries versus the catastrophic nature of what was going on in the outside world, perhaps it was due to more traditional explanations. But Alice left the courtroom, her job done, and got into her car and turned on the radio to bring in the outside world and begin a cry that would last for days.

Alice: If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn’t. And contrary-wise what it is it wouldn’t be, and what it wouldn’t be, it would. You see?[xv]

Today, even in established defense practices where women have become “partners,” are they really equals? Women partners are prone to be on the “flower committee” or “secretarial hiring committee,” while the men are on the “budget committee” or the “compensation committee.” A woman’s clients or practice area can be usurped under the guise of “progress” or “greater profit” for the firm. Practice tends to follow tradition in these areas and prejudice is difficult to overcome.

Alice: It would be so nice if something would make sense for a change.[xvi]

Defense Practice In The 21st Century

Traditional barriers to women in the workplace continue to erode. This trend has only come because women have worked hard to excel at the profession and continue to be vigilant for inequality, and have pointed out where inequalities exist to break down the barriers that existed for them.

It is still disappointing to see that of the 99 attorneys that make up the Wisconsin portion of the American College of Trial Attorneys, only one woman is on that list.[xvii] It is disappointing to see that since the inception of Wisconsin Super Lawyers list in 2005, of the 50 “Super Lawyers,” only one or two women have made the list each year, and there were no women at all in the top 50 Super Lawyer list in 2008.[xviii]

There is still a lot of work to do within the profession. But it is good that women who choose to dedicate their lives to the practice of insurance defense litigation will be able to take advantage of the progress that’s been made and to continue to work for complete equality in the future. It is a profession that carries both the greatest personal risks and greatest personal rewards.

The End.

[i] Alice in Wonderland (1951 Film).

[ii] Anne E. Bickel, Gender Differences in Law School: Past and Present (1994) (citing The Official Guide to US Law Schools (1992)).

[iii] Id.

[iv] Joseph Ranney, “Wisconsin Women and the Law,” Wisconsin Lawyer (February 1996).

[v] Alice in Wonderland (1951 Film).

[vi] UW Law School Admissions Statistics.

[vii] From statistics provided to the author by the Wisconsin Defense Counsel.

[viii] Alice in Wonderland (1951 Film).

[ix] Statistics provided to the author by the Dane County Clerk of Courts.

[x] Statistics provided to the author by the Wisconsin Office of Judicial Education.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Virginia Sapiro, “Opening the Door to Women Attorneys, Gender Equality in Wisconsin Legal Careers,” Wisconsin Lawyer (February 1994).

[xv] Alice in Wonderland (1951 Film).

[xvi] Id.

[xvii] See American College of Trial Lawyers.

[xviii] Wisconsin Super Lawyers.