Sexist Remark Draws Women Bar Association Contribution

The ABA Journal has just posted an order of the United States District Court for the Northern District of California that can serve as a teaching tool on how not to conduct discovery and defend depositions.

A part of the problem

At a contentious deposition, when Plaintiffs’ counsel asked Bertling not to interrupt her, Bertling told her, “[D]on’t raise your voice at me. It’s not becoming of a woman . . . .”  There are several obvious problems with his statement, but, most saliently, Bertling endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys. To make matters worse, in his declaration in opposition to this motion, Bertling offered only a halfhearted politician’s apology “if [he] offended” Plaintiff’s counsel, and he nevertheless tried to justify the comment because it “was made in the context of [Plaintiff’s counsel] literally yelling at [his] client and creating a hostile environment during the deposition.”

A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. The bigger issue is that comments like Bertling’s reflect and reinforce the male-dominated attitude of our profession. A recent ABA report found that “inappropriate or stereotypical comments” towards women attorneys are among the more overt signifiers of the discrimination, both stated and implicit, that contributes to their underrepresentation in the legal field. When an attorney makes these kinds of comments, “it reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.”

As the attorney had already been ordered to pay costs, the court got creative

within 28 days, Bertling shall donate $250 to the Women Lawyers Association of Los Angeles Foundation—an organization in Bertling’s region dedicated to women in the legal profession—and submit a declaration to the court confirming his compliance with this order.

(Mike Frisch)