Sometimes it is Okay to Say Nothing at All

Recently I was involved in a lengthy trial where, impressively, five of the seven lawyers in the courtroom were women. The judge and clerk were also women. One male lawyer was a senior member at the bar and the other male lawyer was from a younger generation of lawyers. Trial is difficult enough but during this trial, for the first time I can remember in 32 years of practice, I had to decide whether I should call out a senior male colleague during trial for his chauvinistic behavior directed at me but impacting all the women in the room. I decided to say nothing, and, in my view, it was the right choice, albeit not an easy one. I wanted to write this blog not to vent about the inappropriate behaviour of a male colleague. Rather, I wanted to say that sometimes saying nothing is okay. There is pressure to speak up and not let things slide. Most of the time, that is a good thing. However, we should also remember that we are not obligated to always take a stand, despite the personal cost and effort, and despite how futile the attempt to change someone’s behaviour.

I want to start this story on a high note because we really have come some distance since I started my practice in 1989. Even 15 years ago I could have easily been the only female lawyer in the courtroom. I am so proud of our profession’s trajectory with bright talented women forging the future of law. What I am not proud of is the fact that there remains even one male lawyer who is so ignorant of present-day practice and just plain common decency.

So, what happened?

In this trial, counsel for the plaintiff was a senior white male lawyer. I was lead counsel for my client along with one of my male partners. The other defendant was represented by two female lawyers. So far so good. Trial days were met with cordial good mornings, but really no other communication except through the Judge. This is not necessarily surprising as during trial counsel focus entirely on their own role in the courtroom and the job they are there to perform. One day, the senior male lawyer wanted to have a discussion with defense counsel about an issue in the trial. I am still shaking my head, but this senior male lawyer would only look one person in the eye – the only other male lawyer and my colleague. His entire conversation was directed only at my male junior despite an entrenched trial practice of addressing significant trial issues with lead counsel. The issue affected all defense counsel and yet the other lead counsel (also a woman) was not invited to the conversation. In short, the senior male lawyer was communicating only with the junior male lawyer, ignoring senior female counsel. It was almost a surreal experience for me, and it was over before I could even process what was happening.

Walking away from the Courthouse I was torn over what do to about the experience. I felt an obligation to say something. This obligation weighed heavily on me. This was not about a personal slight. I viewed the behaviour as an afront to women. I was also angry that this ridiculous display of chauvinism was taking up space in my brain that would normally be entirely focused on the trial. Now I felt that I had the job of continuing to advocate for my client in the courtroom, but also the job of advocating for women and teaching this man a lesson. Women doing two difficult jobs at once, how original.

I thought about all of this and decided to say nothing. I made my decision based on two key factors. First, I did not think anything I said to this man would change his behaviour. I believed he would deflect and tell me I misunderstood or misjudged the situation. Second, and more importantly, I did not want to engage in a confrontation with opposing counsel about a matter that did not involve the job we were there to do – conduct the trial.

Importantly, my male colleague was as outraged as me. We have a whole generation of younger male lawyers, and many older male lawyers, who support women. The display of chauvinism I experienced is a rare occurrence today. I am okay with my decision. Not everyone is worth our time, and not every fight is ours to fight.