Should Judges Push For Arguments By Female Lawyers?

sealThere was an interesting article in the ABA Journal this week discussing how U.S. District Judge Elizabeth Wolford has responded to a New York State Bar Association report on women participating in court arguments at a lower rate than men.  Wolford went public with how she has made it clear that, in a case where female associates were present, the court wanted to hear the argument from those attorneys as opposed to their male counterparts.  The “suggestion” raises some obvious concerns over the use of gender or age in such decisions as well as the impact on a client’s choice of counsel.

The effort of Wolford to encourage the participation of female lawyers is commendable and the New York report identifies an area of obvious concern for the bar.  However, the question is the role of the court in pushing for arguments from lawyers based on gender or age.  How can a judge ideally pursue this well-meaning purpose and should there be limits?

Wolford told the ABA Journal that she has tried to make a difference by recounting a case before her shortly after the issuance of the report:


In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.

Obviously, when a judge makes clear that she would prefer women to argue a case, most lawyers will yield to avoid any negative backlash.  Yet, would this be viewed as a noble act if a judge said he preferred to hear from the men in the courtroom?  Is the use of gender permissible simply because the judge is claiming a purpose other than sexism?

The interjection of a judge in the selection of arguing counsel based on gender is equally troubling with regard to the client’s right to choose representation.  The client may be paying a more senior counsel (who happens to be male) because of his skill or knowledge.  However, faced with a judge who expresses a desire to hear from women, the client must choose in alienating the judge or giving up his or her preference in representation.

While advocates maintain that these are nonmandatory rules, they may not seem so when a judge expresses her preference for a female or younger lawyer to argue.  Firms already have an incentive to train younger lawyers by giving them time in arguments.  The question of whether judges should actively push for selections based on gender or age is appropriate in an active case.

What do you think?



53 thoughts on “Should Judges Push For Arguments By Female Lawyers?”

  1. I think this is a noble idea, but poorly formed by the judge.

    I have no objection to allowing the researchers of a case present their statements. But success in oral arguments is sometimes based upon HOW something is said, more than upon WHAT is said. And the skill set of a solicitor is different than that of a barrister.

    Yes, I know; I veered off the coast and crossed the Atlantic Ocean with the analogy. But through my studies, I have met many who were better with writing a script than they were at acting. And vice versa. Those are two different skills. And it takes skill with injecting emotion into the written words.

    Elvis Presley and Frank Sinatra were considered the pinnacle of singers. But they rarely wrote any songs. Would the judge in this article refuse to listen to the performances of either, because the songs they performed were written by others? I would hope not. Yet she is insisting that she needs to listen directly to the songwriters instead of the greatest performers.

    Irving Berlin was one of the most prolific composers of the past century. Yet he didn’t make any recordings of his performances. In fact, he rarely performed in public. Would this same judge insist that he come out of the shadows to perform on stage, even though he didn’t believe he had the talent, and was a shy and reclusive person?

    I think the judge is making a mistake that could negatively impact any individual that comes into her courtroom to present their case.

  2. This is overt bias and is not acceptable. Bias is not defined by whom it favors. The fact that anyone is favored is bias. From a judge, who’s job by definition is to be impartial and to follow the law, it is particularly disturbing. Obviously this judge’s instruction from bench was intended to be intimidating, and she clearly succeeded per the article. (Note: this is written by a woman who would be embarrassed by anyone (male or female) making similar comments based on my sex)

    (Food for thought: Wonder what the judge would do if a male lawyer got up, said he “identified as a woman” and therefore hoped she would be pleased that “she” would be making the legal arguments)

  3. Quick. Get me a barf bag. This is just sliding so fast into the abyss of absurdity.

  4. Corporations generally don’t decide who argues a motion. They leave that decision to the law firm, and the partner in charge of the case will generally select a male associate that he is grooming for partnership. The women do the research and writing but the men get the glory of “winning” by arguing the motion in court. Judges know this, and she is just trying to make things more fair. HelI, I work for the federal government in D.C. and it happens here as well. An Asian female attorney prepared an in-depth report, but then management handed it off to a young white male attorney to present to an ABA Committee, giving him credit and professional recognition. The female attorney who actually prepared the report wasn’t even in the room. Until these practices are openly challenged by those in a position to do so, nothing will ever change.

    1. Research and prepping ability do not necessarily warrant trust in arguing proficiency. By assuming it does you make the same mistake as the district judge.

      And anyway, equality within the corporation needs to be attained there -inside. Not bluntly imposed on the basis of an ill-researched statistic.

    2. It seems to be a rule in white man’s world: women do the work, men get the glory. I suspect that minority persons, male and female, have the same problem of doing the work and some white guy getting the glory.

  5. I’m with AYY, chosjng counsel is the right of the litigant. For a court to interject its bias deprives the litigant of the fair trial. The judge needs to avoid scratching that itch.

  6. I practiced for over 30 years and found very few women that could argue very proficiently, however with all the pink bunny hats, etc.,what can you expect.

  7. Freedom or dictatorship.

    Freedom or bias.

    Freedom or “Affirmative Action Privilege”.

    People must adapt to freedom.

    Freedom does not adapt to people…

    dictatorship does.

    Women have an imperative natural function to accomplish.

    If women don’t make people,

    who does?

    If women don’t make enough people to grow and defend a nation,

    what happens to the nation?

    Nature abhors a vacuum.

    If women don’t make enough people to fill a nation,

    foreign people will invade.

    Oops! Goodnight, America.

  8. It sounds like there’s a basis to file a formal complaint of judicial misconduct with the Chief Judge of the Circuit Court of Appeals. There’s grounds for appeal on the basis of being deprived of counsel of your choice, or alternatively because the judge is putting her thumb on the scales of the side that has the female attorney.

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