There 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?
Sooo, if the Judge was male, and said, “Yo! I want to hear from that fine looking b*tch there!”, would it still be a “commendable” thing? Plus, has anybody considered whether or not Judge Wolford is a lesbian??? Why do we assume her desire to hear from “female” associates is based on good intentions???
Squeeky Fromm
Girl Reporter
No, the judge should not force either side to use a particular associate to argue a case. It’s none of her business. It is up to the law firm and the associates themselves to determine who should do it.
A man should be passed over because of his gender no more than a woman should.
Women are not these shrinking violets that need outside forces to help them open their mouths. We are quite able to take care of that all on our own, thank you very much.
There are several problems with the court’s actions here. First, of course, is that a judge doesn’t get to decide who presents an argument for a party. That decision is for the client to make in consultation with counsel. Second, the judge’s comments in this instance suggest that she would be more favorably disposed toward legal argument from a woman, possibly creating grounds for a recusal motion. Third, the fact that lead trial counsel in a case appears with another attorney does not mean that the other attorney, male or female, is competent to present oral argument.
The only appropriate vehicles for the court’s efforts to encourage more oral advocacy by women are seminars and speaking engagements. I do not question Judge Wolford’s motives. However, this is an example of the sort of overkill one encounters in any well-intentioned cultural revolution.
Well said, Mike A.
Jurisprudential “Affirmative Action Privilege”?
Revolution, Mike? This wouldn’t qualify for a crab apple throwing fight.
The unintended consequence may be that firms avoid sending junior associates to trial if they’re female, lest they be chosen by the judge to argue the case! When will judges realize they are not God? I was a litigation associate for ten years in NYC. I never tried a client’s case, although I did try pro bono cases. But then, the head of my litigation department had never tried a case himself either! Big firms, big money at stake means lots and lots of posturing and negotiating and avoiding the time and expense of trial at all costs. Judges should to stick to their sole function: decide the law on the case or controversy in front of them!
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.
Would it be equally commendable for the defendant to request a different judge? How about a different composition in the jury? Why not allow the defendant to select the courthouse or who should be allowed in to observe the proceedings?
The time for this judge to promote her social agenda should be before she puts on her robe and enters the courtroom. Now that she has gone on the record with her bias, she has exposed her court to future appeals due to that known bias. Had she said she would like more attorneys of a specific color to argue before her court, her bias would be unacceptable.
I don’t know this judge nor do I know how fairly she runs her courtroom; but I now know if I were a defendant before her that my choice for counsel will be limited due to the public bias of this judge
There are approximately ten thousand lawyers in Missouri. There are perhaps a hundred who are competent to try a jury trial in state court, in federal district court and also argue appeals in both jurisdictions. There may be many lawyers showing up at jury trials every day but many are incompetent.
How many men in the jury and how short are the attorney’s skirts is what it boils down to that Judge is a reverse sexist and you are correct it’s the defendants choice.
Both medicine and law were male dominated back in the 50’s. Now, there is much more parity. Women in medicine have changed that profession for the better. The mass infusion of women into the law profession has not done much to change the paternalism. That said, this judges remedy is flat ass wrong.
Another black-robed tyrant masquerading as a judge. Justice should be blind and color-blind.
And gender-blind too.
Sounds like “make work” for lawyers. Next step will be to require the hiring of two lawyers, one male, one female. Then later a transgender too. I am becoming very disenchanted by the legal profession.
A criminal defendant could make an argument that his 6th Amendment rights are being violated. In fact, any criminal defendant who henceforth appears before J. Wolford has an appellate issue, particularly if he or she has a court appointed male attorney.
Good point. If I were going up and knew she was presiding I’d let the trial run its course and then I’d go back to court claiming mistrial.
Ah, just so. Since you are not a lawyer, you’ve not run across the doctrine of waiver, or preservation of error. Your premise is based on the old strategy known colloquially as “sand-bagging” or “laying behind the log” or some such, and is no longer effective in any real court in the real world.
That being said, the well-meaning judge stepped way out of her lane with this one. I thought she might get some blowback on this, but Google fails to reveal such. This is characterized by the old adage that “the only difference between a federal district judge and god is that a federal district judge has more power on earth.”
this is to “I should have objected in the trial court” andy
Don’t judges have other things to do…like be judges?
I ran a small business for quit a few years. I had a woman customer who owed me some money. One day When she was in my business I reminded her that she had an outstanding balance with me. She told me that if I tried to collect the money owed she would accuse me of sexual improprieties. I had considered hirering a very savvy female lawyer who was also a customer. I believe this was a situation that I would have better represented by a woman than a man. This would not be social engineering. It would have been a case of choosing the better person for the job. In the end I chose to not persue the case. I took the loss against the possibility of bad publicity.
You’re not a judge. If you hired a woman lawyer it would have been a (questionable) legal strategy. When a judge says it it takes on a different dimension.
Any way to authenticate your hair-brained story? I thought not.
This is to “I just make up stuff to feel important” bobbie
There is some social science behind her argument. Women (as a group) are less assertive. I think her idea is noble but her methodology is unconstitutional.
That’s just the women you know. Try Scandinavia.
David Benson – make your point.
Assertive!
David Benson – is that why the rape and sexual assault rate is up in Sweden? Are the women assertive?
No, that’s because of other judges’ social engineering bs.
D.B.B. just got a spanking.
her idea is anti constitutional on it’s face. It would be a great time for jury law nullification to get a mistrial.
Paul, female assertiveness depends on the culture.
Sounds to me like this will encourage law firms to make sure that there are no female associates present.
Law of unintended consequences in full force here.
Agreed!
Off topic but the Dec 25 issue of The Nation has an interesting article on restorative justice.
As a female litigator who has been practicing civil cases in the ND of Il (state and federal) since 1992, this horrifies me. Judges should NOT be advocating and implementing social justice positions that impact an individual’s rights in their court room. That is not a judge’s role.
I think the 5 year olds should argue first.
I disagree with her position. There is no basis in law requiring gender quotas in representation before a court. Her suggestion their choice is voluntary as to whom to staff as client’s advocate can be a form of undue influence on behalf of the judge.
My recommendation for a client would be to request a change of judge if his/her case is to be seen by this judge.
Yeah.
I think a good argument for recusal can be made from this very thinly veiled sexual discrimination
Pandering