By Steve LaCheen
"Women in Law.” I can remember a time when an article with that title would have raised an eyebrow, if not a smirk on the faces of the local esquires and, more often than not, called for a sarcastic remark from one of the “old darlings” on the bench, to borrow an epithet from John Mortimer’s Horace Rumpole.
I recently came across a book which I had purchased at a flea market some years ago and placed upon a library shelf with every intention of reading it as soon as possible. Well, “possible” never came along until COVID-19 came calling and stayed and stayed, and stayed, and the viral lockdown made it possible to pick up a book and, instead of squeezing reading time into the last half-hour of the day, to just read it as long as it maintained interest, sometimes from beginning to end.
Such was the book titled, “Legal Philadelphia,” by Robert Davidson Coxe, published by Wm. J. Caldwell, Philadelphia, in 1908. The book was intended as a look back at the way matters at the bar were conducted, at least as observed by Mr. Coxe, who, “ventured to believe that with diffident modesty almost a half-century’s membership of the Philadelphia bar ... may serve as adequate credentials, in the present emergency, in view of some asperities of expression.”
Many of the book’s chapters are given the eponymous title of the subject thereof, some of whose names are certainly recognizable today, not as dramatis personae but on perpetual loan to the City as names of streets, schools, and other public buildings; e.g., Sharswood, Cadwalader, etc., all of which are no doubt of interest to the history buff. But, of far greater current interest than the chapters titled, “The old conveyancers of Philadelphia,” “Philadelphia Judges,” “Social Side of the Profession,” “Official Robes,” is the chapter captioned “Women lawyers,” which begins with the acknowledgment that “The female contingent at the Philadelphia Bar at present is an insignificant fraction of the full membership of 2,000, more or less,” and follows with the author’s opinion that “There is no good reason why a woman should not become a lawyer.”
Providing an example to support his opinion, Mr. Coxe commented upon the successful legal career of Miss Mary E. Lathrop, one of the most active members of the Denver, Colorado bar “an extensively recognized specialist in probate and administrative law,” who, “in the essentials of femininity, grace of manner and social attractiveness easily holds her own in the most refined and cultured community, and (her) very successful career effectually negates the theory that practicing law has a tendency to unsex a woman.”
“In the absence of evidence to the contrary,” wrote Mr. Coxe, “one might be tempted to conclude, reasoning from the enlarged and ofttimes exaggerated sentimentality, which is a constituent part of female nature, that there were inherent difficulties in the way of women’s making a practical success in the law.” Still, he continued, “We can believe that a woman’s intellectual powers applied to legal practice will not interfere with the attention which domestic affairs demand; nor give a one-sided aspect to her existence.” Such “chivalry” on the part of Mr. Coxe prompted me, admitted to practice 50 years later, in 1958, to recall my observations of women in law at that time.
When I was admitted to practice in June 1958, there were yet very few women attorneys practicing in Philadelphia, and even fewer of those who would be seen outside the relatively safe harbors of their offices. My own practice then, as a solo general practitioner, took me into court from time to time, most often in civil motions court and, gradually, in domestic relations matters and minor criminal cases, where on rare occasions I would chance to see a female practitioner in court.
It was invariably a matter of note, sometimes of levity, other times of sarcasm, when a female attorney appeared at the bar. The judges, all of whom were white men of middle age, or older, would, for the perceived amusement of the all-male lawyers in attendance, inevitably find the opportunity to comment upon the gender of the attorney.
“Well,” one was wont to say, looking up over his glasses in mock surprise, “Let us harken to the forensic presentation of our own Portia at the Bar.” Another would look down at the lawyer and ask, “Yes, Missy, have you brought a message from counsel of record?” Another might address the all-male audience with feigned courtesy, by posing the rhetorical question, “Gentlemen, would anyone object if the Court bowed to the revered custom of ‘Ladies first?”’
There were, of course, even less subtle insults I recall; for example, the interruption of an oral argument with “Madam, it is late in the afternoon; shouldn’t you be on your way to cooking dinner?” Or a question posed with thinly veiled antagonism “May the Court inquire before setting a date for the next hearing, whether there is a time that might be inconvenient for counsel?” (In an unspoken but no less pointed reference to counsel’s anticipated menses).
So it went, in those early days. As time passed, women lawyers, individually or collectively, developed stock responses to those insulting inquiries; and, as the male contingent was forced by experience to concede that women lawyers were indeed capable of demonstrating equality and even superiority in their legal prowess, such counterproductive teasing slowly receded, and women lawyers were acknowledged more as lawyers who were women than as women who were lawyers.
And, of course, that meant that, among the contingent of women lawyers, there were those who thought the best way to be an effective attorney was to be as brash and as outspoken as the worst of their opposite numbers among the male contingent. The women lawyers who tried that approach found it tough going and soon received the same pushback as their male counterparts.
On a personal note, I recognized very early on in my practice, that the law was a profession perfectly suited to women, no less than medicine, accounting, architecture, or any other profession that did not require enormous physical strength or automatically disqualify them for some other reason. I knew from the first time I appeared in court in opposition to a lawyer of the opposite sex that the law was a profession especially suited to what was often referred to back in the day as “the weaker sex.” Whether I was ahead of my time or just “behind the times,” that was my thinking in the late Fifties and early Sixties.
Fifty years earlier, in 1908, Mr. Coxe wrote about “Women Lawyers,” in the following tone: “There is no good reason why a woman should not become a lawyer. In the contentions of the forum incident to jury trials, in criminal cases and in divorce issues, especially, an inmate sense of delicacy may restrain her from appearing. There have indeed, always been those of the sterner sex who inclinations or prejudices have kept them away from those fields of processional utility; while their success in other departments has been unquestioned and complete.”
Mr. Coxe ended his argument in support of women entering the legal profession with the following seeming non sequitur: “As long as women are interested in the objects and results of litigation, because of their personal or real property rights, and as long as they are available as witnesses in courts and legal proceedings generally, their actual presence before courts and juries is indispensable, and, therefore, proper...”
That women should be welcome as litigators only because they are competent witnesses in their own personal matters, seems a weak argument indeed. But that was after all, written in 1908, and women as yet did not have the right to vote or sit on juries, so we must give Mr. Coxe some credit for landing his hot air balloon on the right side of the field, or at least on the right field.
And how stands our profession today on the matter of gender? From my own limited observation, it is clear that the gender of the attorney is no longer the lightening rod it once was. A lawyer is a lawyer is a lawyer, most of the time, anyway. I still know that male litigants appearing before a female judge might opt for a woman attorney just for that reason; but the ploy is just as likely to be discounted for that reason. And, if a lawyer does the necessary homework to understand the background of the judge, the lawyer may use that information to influence various trial strategies; but gender itself is only one of myriad aspects of the Court’s persona that a litigator will factor into the decision-making process; it will not be the only factor.
So as not to be overly proud of our progress, I still recall the time, in the not too-distant past, when the greatest compliment an attorney (male) could bestow about another attorney (female) was often, “She’s an excellent lawyer; she practices law like a lawyer not a female lawyer.”
Steve LaCheen (stevelacheen@gmail.com), a partner with Stephen Robert LaCheen & Associates, is a member of the editorial board of The Philadelphia Lawyer
