Sexism = Sanctions

From the fact that women argue a miniscule amount of SCOTUS cases to the persistent pay gap to the depressingly small number of female equity partners, we all know that the law profession can be terrible for women. Perhaps that is why seeing a resounding benchslap directed at a sexist attorney is so satisfying.

It isn’t uncommon for voices to get raised when depositions become contentious. In this particular instance, though, the male attorney, Peter Bertling, thought it was a great time to school his female opposing counsel, Lori Rifkin, as to how women were supposed to act.

During that deposition, Rifkin asked that Bertling stop interrupting her, and his response was cringeworthy. This is what he said on the record (emphasis added): “[D]on’t raise your voice at me. It’s not becoming of a woman or an attorney who is acting professionally under the rules of professional responsibility.”

That is cringeworthy indeed—and utterly unnecessary. You can tell someone to stop shouting at you without gendering it. The judge in the case—Paul Grewal of the Northern District of California—agreed and issued both sanctions and a benchslap.

Now, to be fair, the sanctions were not entirely based on Bertling’s sexist comment. He had also been obstreperous and poorly behaved in other ways during discovery and depositions, including coaching witnesses and delaying document production. But the judge reserved particular ire for the sexism part, and rightly so.

Bertling endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys. […]

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.”

That is an exceedingly satisfying benchslap. Along with the usual discovery/attorney fees type of sanctions, the judge also ordered Bertling to donate $250 Women Lawyers Association of Los Angeles Foundation as a specific and targeted sanction for the sexist remark. Bravo, Judge Grewal. Bravo.

Featured image: “Comic Marvel Design” from Shutterstock.`

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  • LegallySpeaking

    I find this article very troubling as an attorney and a 1st Amendment advocate. The purpose of this article is to chill free speech by informing lawyers that they will be sanctioned if an male attorney ever makes a comment that a female might consider “sexist.” How one defines “sexist” is arbitrary and apparently only what a female feels is sexist.

    And then the author admits that this “sexism” isn’t the reason why the attorney was sanctioned. But she only admits it way down in the article, thus misinforming anyone who only reads the headline or not too far down—which is common, as we are all busy attorneys.

    It seems Lisa Needham seeks to chill free speech by deliberately lying about what a judge did, and makes her own feelings the arbiter of what should be sanctioned. How very unprofessional—and unAmerican—of her.

    Shame on the author Lisa Needham.

    • If your speech is chilled by this post, you might want to get your spine checked.

      You might also want to try reading even further down the post where Lisa quoted the portion of the judge’s order where the judge made it abundantly clear that a portion of the sanction was, in fact, specifically for the sexist comment.

      Further, your assertion that sexism means whatever arbitrary thing a woman wants it to mean is silly. Words have meanings, and sexism is discriminating on the basis of sex. In this case, the lawyer’s comment was self-evidently sexist. It was not remotely arbitrary.