Dealing with Difficult Witnesses or Adversaries (As a Woman)

Female lawyers face different challenges.  Early in my career, I was speaking with several female colleagues about a particular type of difficult witness or adversary: the one who makes inappropriate, gender-based comments.  We’ve all been there.  Admittedly, when asked how I dealt with that situation, I said that I follow my first instinct, which is to brush it off, to ignore it, to move on.  But these women challenged me to confront the situation, arguing that this behavior will not improve unless we do.

The American Bar Association has confronted this problem.  In 2016, the ABA approved a change to the Model Rules of Professional Conduct that makes it an ethical violation for attorneys to harass or discriminate in the course of their practices.  Under the new version of Model Rule 8.4, it is professional misconduct for a lawyer to

engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

The comments to this Rule specifically define the prohibited conduct to include “harmful verbal or physical conduct that manifests bias or prejudice towards others.”  Under this Rule, one might argue, calling a female attorney “honey, sweetheart, or dear,” commenting on her need to take breaks from a hearing or deposition to use a breast pump, or relating her aggressiveness to her menstrual cycle constitutes unethical and sanctionable misconduct.  In more recent years, several states have debated whether to incorporate this change into their professional rules – with mixed results.

The ABA rightly recognizes the corrosive effect of this behavior.  First, this behavior demeans and undermines female attorneys to whom it is directed – which, in many cases, is precisely the reason that the comments are made, even if those engaging in the behavior do not realize it.  Many factors lead to the attrition of female lawyers, but this behavior certainly doesn’t help make the practice of law a welcoming place for women.  Also, and just as significantly, this behavior affects the way that juries and others in the courtroom perceive the lawyer, her client, her arguments, and the case – thus undermining the fundamental fairness of the justice system.

The real question for many is how to effectively address this behavior.  On one end of the spectrum, some women will prefer to do what my first instincts told me:  ignore it.  On the other end, some women will challenge the offender “on the mat.”  For many, traveling that road is difficult.  They risk inviting the familiar “Oh, lighten up” response or even endangering a professional relationship.  One suggested way to confront the offender is to repeat and pose what was said as a question, perhaps even feigning uncertainty whether you heard the comment.  In other words, “I’m sorry, did you just call me sweatheart?”  The hope is that, when the offender hears the comment repeated, he will realize his mistake, apologize, and try to do better.  If that doesn’t work, a more direct approach may be warranted, particularly if the behavior is severe or repeated.

It is important, with any difficult witness or adversary, to remember the words of Justice Neil Gorsuch: “There is a such thing as discovery karma.”  If the comment is made in writing or on the record, or if the behavior persists, the judge or jury will eventually learn about it, and, when they do, their tactics will not help them. For questions, call one of our Sioux Falls, Sioux City, or Omaha attorneys today.