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Volume 20, Number 1
Jan/Feb 2003

Is Being Different Still a Problem?

Charisse R. Lillie

The ranks of multicultural women in the bar are steadily growing, with women of all races and ethnicities entering every form of law practice from corporations to government agencies to large, small, and solo firms.
Karen Spencer Kelly of Kelly and Monaco began her practice in a small firm and became a partner there in 1990. She and her partner Marilyn Monaco, an associate and later partner at the same small firm, established their firm in November 1993. Kelly concentrates her practice in all aspects of civil litigation defense on the trial and appellate levels and participates actively in a number of outside organizations.

Kelly and Monaco has prospered, but there have been challenges: "Being a woman of color has been a hindrance [in developing her practice]," states Kelly, adding that a public perception that multicultural women receive special treatment because of governmental set-asides is instead a "public misconception." Actually getting work, particularly in the public sector, she says, depends on developing an ability to partner with larger firms or other small firms-in addition to fighting the common perception that solos or small firms are capable of doing only one thing.

Race and gender still matter. Ample evidence demonstrates that gender and ethnicity clearly have an impact on an attorney's dealings in courtrooms. Female and minority attorneys encounter problems such as nonrecognition, having their qualifications questioned, inappropriate comments about appearance, and outright antagonism. The small number of female and minority judges on the bench also has an impact on the administration of justice. Increased diversity and the additional viewpoints that are its result will bring increased sensitivity to the problems faced by attorneys-as well as the accused-in their courtrooms.

The justice system in which many attorneys work also often seems like two different worlds from the perspectives of white male attorneys, on the one hand, and multicultural female attorneys, on the other. Unfortunately, when female and minority attorneys raise concerns and attempt to point out differences in their treatment, many colleagues still dismiss these as whining or over-sensitivity. For example, in a survey of the perceptions and experiences of attorneys in the Second Circuit, one attorney commented, "I'm not trying to downplay the problem of racial prejudice or sexual prejudice if it in fact exists, but I'm in court almost every day and have been for 14 years, and I just don't see these things as real factors in the daily operation of judicial business."1

However, many organizations, including judicial commissions, task forces, and the ABA Commission on Racial & Ethnic Diversity in the Profession, recognize that complaints of prejudice have merit. A recent book published by the ABA's Commission on Women, Dear Sisters, Dear Daughters: Words of Wisdom from Multicultural Women Attorneys Who've Been There and Done That (Dear Sisters),2 was conceived to meet the need for advice, mentoring, and support for multicultural women attorneys facing race and gender challenges. A few of the issues highlighted in Dear Sisters are examined here.

Nonrecognition
One of the primary problems that female and minority lawyers face in courtrooms is that others don't recognize them as lawyers solely because of their gender or race. Angela Langford Jacobs, an African American woman with more than 20 years of litigation experience recalls "going to court in a small town and sitting in a row marked 'Attorneys Only,' just to have the bailiff ask loudly if I was seated in the wrong section." In a similar situation, Amalia S. Rioja, a Mexican American woman, describes instances in which her opposing counsel or co-counsel would mistake her for the receptionist or paralegal. In one instance, they asked her to label exhibits during a deposition even though the court reporter was sitting at a table with her equipment in front of her.

Questioning Qualifications
Rita Aliese Fry, an African American supervising attorney in a city law department, recounts an incident in which an elected official refused to accept her statement that she could make final decisions regarding a case. After being informed that she was the person with whom he had to deal, the official left court to avoid working out the situation with her.
Unfortunately, judges also contribute to the devaluation of women and minorities appearing before them. A minority attorney in private practice describes a situation in which "district court judges tend to ignore and under-value your comments and input, unless you are willing to stand up and confront the judge."3 In a similar vein, women often note the attention of judges noticeably diminishes when they speak, implying that what men have to say is more important. One Louisiana lawyer recalled, "I was halfway through my theory when the judge interrupted me and said, 'Oh, come on now, shut up. Let's hear what the men have to say.'" An isolated incident? A female Asian lawyer reported the following:
The judge asked that counselors state our name for the record. My opponent stated his name and, then I stated mine. The judge looked down at me from the bench and, in open court, asked me, "Are you an attorney?" I said, "Yes, sir." He then asked, "Are you licensed to practice here?" I said, "Yes, sir." He continued to ask, "Will you provide me with your bar number after the trial?" I said, "Certainly, sir."4

Inappropriate Remarks
Crude or subtle-but always inappropriate-comments are often made about the physical appearance of female and minority lawyers. These not only distract from the issue at hand but also minimize and otherwise impair the effectiveness of such lawyers. The comments made by former Texas Assistant Attorney General Jay Floyd in the Roe v. Wade litigation are a classic illustration. After the female attorney for Jane Roe finished her oral argument and sat down next to another female attorney at the counsel table, Floyd began his address to the U.S. Supreme Court by stating, "Mr. Chief Justice, may it please the Court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word." In another instance, a female minority lawyer was told that she should not wear her hair braided to the courthouse because some people might think she was not professional.

Antagonism
Female and minority lawyers also sometimes have to confront overt hostility in courtrooms. In one instance, a male attorney reportedly demanded that his female opponent not interrupt him, adding, "Women attorneys have a hard time keeping their mouths shut." A Connecticut judge advised female lawyers arguing in court, "The trouble with you women is that you never learned to fight things out on a football field [and]…are too emotional." In another instance, the same judge offered a gratuitously mean-spirited response to a female lawyer's request to be heard at another calendar call due to difficulties with her case: "Women are the problem." Even more disturbing is that the audience in the courtroom greeted his remark with laughter and applause. Similarly, an Illinois judge was reprimanded for telling pregnant lawyers, "Ladies should be at home raising children" and "if your husband had kept his hands in his pocket, you would not be in the condition you are in."5

No Horror Stories
Karen Kelly does not have horror stories to share about her life as a woman lawyer of color. She has been fortunate and savvy enough to have marketed herself primarily by doing excellent legal work. Both she and Monaco believe their small firm background was "the best thing that ever happened." It threw them directly into all aspects of practice very early; gave them opportunities for frequent client contact; and exposed them to a wide range of work in varied practice areas including general civil litigation, personal injury, governmental relations, and public finance. In their own firm, they've made a conscious choice to stay small, although they added an associate in 1997.
Kelly's community involvement has included quite a bit of pro bono work, varying from incorporating minority businesses to representing community organizations as defendants in civil litigation and filing for tax-exempt status for church and community arts organizations. Every lawyer in the firm undertakes extensive pro bono activities, a testament to their commitment to community involvement.
Kelly's success as a practitioner in two small firms provides a wonderful example for women, including minority women, contemplating a small firm practice. Kelly and Monaco prove that a small firm can support equal opportunity, contribute substantially to the community, and undertake meaningful pro bono activity while maintaining economic viability.

Notes
1. A Report of the Perceptions and Experiences of Lawyers, Judges and Court Employees Concerning Gender, Racial and Ethnic Fairness in the Federal Courts of the Second Circuit of the United States, ANNUAL SURVEY OF AMERICAN LAW [hereinafter ANNUAL SURVEY], 419, 452 (1997).
2. DEAR SISTERS, DEAR DAUGHTERS: WORDS OF WISDOM FROM MULTICULTURAL WOMEN ATTORNEYS WHO'VE BEEN THERE AND DONE THAT (ABA 2000).
3. ANNUAL SURVEY at 450.
4. Foul Play in the Courtroom: Persistence, Cause and Remedies, 17 WOMEN'S RIGHTS L. REP. 309, 316, 332 (1996).
5. Id. at 313-15, 328.