The Challenges Unique to LGBT Litigators

Last week, I attended a thought-provoking seminar on the unique challenges faced by lesbian, gay, bisexual, and transgender lawyers in the courtroom. The panel was moderated by Emily Babcock, an associate at Blackwell Burke, and featured four experienced and respected litigators:

  • Ellie Krug, a former small-firm litigator, now director of Call for Justice, a non-profit. Krug is transgender, and lives and identifies as a woman. For most of her litigation career, though, her clients knew her as a man.
  • Michael Ponto, a partner at Faegre Baker Daniels who practices commercial and class action litigation. Ponto is gay, and has always been open about his orientation in his legal career.
  • David Potter, a partner at Oppenheimer Wolff & Donnelly who practices commercial litigation. Potter came out early in his legal career.
  • Amy Slusser, an associate at Robins, Kaplan, Miller & Ciresi who practices commercial litigation. Slusser has been out for her entire legal career.

Coming out, repeatedly

Right at the outset, Babcock pointed out that coming out is not a one-time event. LGBT lawyers (and anyone else who is LGBT, for that matter) have to decide whether to come out again and again and again, to colleagues, clients, opposing counsel, judges, and juries. That decision can influence outcomes, even though sexual orientation obviously has nothing to do with the merits of the case.

(As an aside, my state requires “elimination of bias” CLE. I don’t know how common this is, but when you find yourself saying “wow, I hadn’t thought about that” several times in the first five minutes, it’s pretty strong support for the requirement.)

Regarding colleagues, the panel generally painted a rosy picture. They pointed out that the decision how and when to talk about family and friends with clients is more complicated for them. Discussing family, for example, is usually a dead giveaway on sexual orientation. Still, all agreed that bringing up orientation is not a very different decision from bringing up other personal details.

All the panel members, I should point out, spent most of their careers in states that prohibit discrimination based on sexual orientation. Most states still do not have protections for LGBT individuals. And all practice in Minneapolis, a very liberal city that has been called one of the top 10 destinations for gay travelers. Lawyers in other states might not experience the same openness.

Still, Krug, who practiced as a man and as a woman in Iowa, said she experienced more gender-based discrimination than discrimination based on her orientation. When taking a deposition, for example, she recalled being pushed to the end of the line of deposing attorneys instead of the lead role she was used to as a man. Slusser agreed, and contrasted the unique experience of trying a case with opposing counsel who all happened to be women to her other litigation experiences.

How can an LGBT lawyer market to clients?

Potter and Ponto said that, during the 80s and 90s, the attitude among colleagues was sort of “don’t ask, don’t tell.” Ponto agreed that, in those decades, the question was how a lawyer could market to clients if he or she was out.

While the BigLaw panel members said that being LGBT is more often an advantage now that corporations are looking for diversity in the law firms they hire, the experiences of Krug and at least one audience member showed that it hasn’t always been that way.

An attorney in the audience said that, during the 80s, he built a clientele of gay clients that later deserted him because they were worried what judges would think if they had a gay lawyer. Krug said her practice fell apart after she began transitioning, which does not say much for the trucking and railroad companies she worked with. Except one railroad client, which kept her on after a long phone call. Krug said the general counsel really wanted to understand what her transition would mean for her reputation as an aggressive litigator. She even said this client encouraged her to keep her practice going.

Every member of the panel agreed that industry and location matters. All said they were far more wary when meeting with clients in traditionally-conservative industries and jurisdictions.

Out in the courtroom

Honestly, I think Potter, Ponto, and Slusser were being guarded on the panel. Unlike Krug, they have firm reputations to uphold and good relations with court and opposing counsel to maintain. I think they were (wisely, perhaps) reluctant to say much that could come back to bite them. That is probably why, when it came to litigation, they did not have much to say. Krug did.

Shortly after beginning her transition, Krug tried a case as a woman with her clients’ consent. Still, her deep voice was a dead giveaway that she was transitioning, so it came into play with the jury. During voir dire, Krug asked each juror whether they would hold her transgender identity against her. One hesitated, convincing Krug he would be unable to leave her out of his decision. She used a preremtory strike against him.

That was a preremtory strike, she acknowledged, that she could have used against another juror if potential bias against her were not in play. In short, LGBT litigators may effectively have fewer preremtory strikes. I imagine the same issue plays out for minority litigators in some jurisidictions.

When Krug polled the jury after winning the trial, they told her that she only came up once, when a male juror referred to Krug as “him” and a female juror corrected him.

Guarded or not, Ponto told of sitting in a key witness’s living room while casual conversation turned to sexual orientation, for some reason. The family agreed they would not have one of “those people” in their house. Ponto decided to keep quiet because, as he put it, it was not worth the risk of not getting the affidavit his client needed.

Being LGBT, in other words, means being a complicated political issue, personified. Just by walking into a courtroom, an LGBT litigator has the potential to transform any case into a political statement. For this reason, Potter says he especially worries about being “found out” in rural areas.

Krug even had an ex parte motion dismissed by the court without a hearing. She was simply asking the court to take notice of her transgender client’s female identity, and the judge decided he was not going to “stick his neck out.” You always have to talk about labels when you are a T, she observed, and not everyone is willing to accept the label you have adopted.

Krug summed up the problem of “litigating while LGBT” succinctly. She felt she would have to advise clients in some counties that her mere presence in the courtroom could affect the outcome of the case.

Litigating while LGBT

The BigLaw panelists all seemed to feel that being LGBT was, on balance, an advantage. That, or they were being especially guarded. According to them, the complications introduced by sexual orientation were outweighed by the emphasis on diversity among big firms and big-firm clients.

When it comes to small practices, I think it is harder to generalize based on the experience of Krug and the one audience member who spoke up. Krug has to deal with different issues, after all, since she is a “T.” But solos have less support, and so fewer options when it comes to avoiding the complications of litigating while LGBT.

And, hovering over all, is our duty to our clients. As several courtroom stories related by the panel made clear, the law does not much care whether you are LGBT or straight, white, and male. If being out and gay or bi or transgender could affect the outcome of your case, you have to talk about it whether or not it should matter. Judges and jurors may discriminate, and there isn’t much anyone can do about it during the course of a lawsuit.

If you are lesbian, gay, bisexual, or transgender, what unique challenges have you faced as a lawyer? Do the experiences of the panel members resonate with you?

(And, although this should go without saying, keep your politics out of the comments.)


1 Comment

  1. Avatar Lukasz Gos says:

    Personally, I fear that juries might be diversity-minded, shall we say, and award some sort of pro-diversity bias out of a fear that they could be seen as bigots (including by themselves) if they were to give an adverse ruling.

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