As my mom is fond of saying, I’m a tough cookie. These also weren’t my first experiences of incivility in our profession. My female litigator friends and I often get together over drinks to commiserate about how a senior male lawyer was rude to us at a discovery, said something inappropriate to us out of earshot of other counsel, or our clients, or left us a nasty voicemail message designed to intimidate.
We often wonder whether this is happening because we are younger, because we are female or both.
And while I may be jaded, these recent experiences still rattled me. Maybe it was the accumulation of all three incidents. Maybe I hadn’t had enough sleep. But I was stressed and annoyed, and I wanted to do something about it. So, I did what so many millennials do: I turned to social media. I wrote a Facebook status describing what had happened, how it made me feel, and asked my friends for advice.
I was overwhelmed by the response. More than 100 friends “liked” my status (which, for the non-millenials out there, means that they agreed with or endorsed the sentiment I was expressing).
Further, more than 40 friends wrote comments on my status. Fellow lawyers sympathized and shared similar experiences. Non-lawyer friends told tales from their own professions. And many — women and men — suggested coping strategies, which fell into two camps.
The first suggestion was familiar to me. Let the bullying senior counsels underestimate you, ignore their bad behaviour, kill them with kindness, go about your business, keep a stiff upper lip, etc. And then crush them in court, do an incredible job at discoveries or write a killer factum. In a nutshell, be better, both in behaviour and at the law, and barrel on.
While I tend to adopt this approach in my practice, because it is the path of least resistance, it is ultimately emotionally unsatisfying and, more importantly, it does not correct the bad behaviour.
The second suggestion — confront the bad behaviour by calling it out — is harder to execute. A Crown friend up north shared that she once asked male defence counsel: “Are we going to keep standing here while you try to intimidate me or are we going to run a trial?” (This friend has more chutzpah than I do). A labour and employment lawyer dealt with counsel who was particularly rude to her over the phone by insisting on only communicating with him in writing.
A former colleague said, when she has come across aggressive or sexist counsel in the past, she has used the following hilarious line: “You’re very emotional right now. Would you like to take a few moments to pull yourself together before we continue this conversation/examination/negotiation?” Her comment got more than 20 likes.
The sheer number of responses to my Facebook status, and variety of coping strategies my friends proposed, suggests this is a widespread problem. I’m grateful to have such an incredible network to lean on for mentoring and support (and to vent with over a glass of wine). I’m also grateful to hear senior women lawyers report that this problem apparently dissipates with age and experience. One of them pointed me to this helpful CBA resource for dealing with “the rude lawyer.”
However, I resent that so much energy and emphasis is being put on what we can do — as the victims of this bad behaviour — to cope with it, and not on what can be done to stop the behaviour itself.
As many of my friends pointed out, this bullying is learned behaviour. Younger litigators sometimes act this way, because they see senior counsel doing it and think it is an effective way to practise law. Not only is it a counterproductive litigation strategy, it also has a negative impact on lawyers who are building their practices and getting their sea legs.
So, while I am going to do my best to call out this behaviour in the future, I also want to make a plea to senior counsel: Confront this behaviour when you see it. Help your associate deal with a bullying senior lawyer on the file. Stick up for a junior lawyer being mistreated in court or at a discovery. Show them that there is a way of practising law that focuses on the merits, and not on egos and bluster.
Guest columnist Jessica Prince is a litigation associate at Polley Faith LLP in Toronto. She can be reached at email@example.com.