Sparke, Carolyn --- "A Personal Perspective of a Woman Barrister" [2003] ALRCRefJl 18; (2003) 83 Australian Law Reform Commission Reform Journal 23

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Reform Issue 83 Spring 2003

This article appeared on pages 23 – 25 & 75 of the original journal.

A personal perspective of a woman barrister

By Carolyn Sparke*

I begin this article with a disclaimer—I have no idea whether my experience is typical of those at the Bar. I have been at the Bar for about 11 years. I do not practise in an area involving family law or children. (While many women do, there are plenty who don’t!) I broadly describe myself as having a commercial practice, with a speciality in deceased estates and dabbling in equity. I have found something of a ‘market niche’. I do not have children. I have a very tolerant and supportive partner. What I will tell you is what life is like for me—I know that life for others can be different.

The Bar is an idiosyncratic, eclectic place. It has a variety of characters, generally robust, often arrogant, frequently charming and altogether individualistic. There are those who are well-suited to vigorous cross-examination and others well-suited to studious intellectualism. Some really talented people never seem to make it, and others with busy practices can make you wonder how they got through law school. With that background it is difficult to say that anyone can have a ‘typical’ experience. However, most of the Bar are still men, so I guess the women’s experience is still not ‘typical’.

Overt sexism still exists. Of the two recent batches of silks appointed, comments were heard around chambers such as these—‘She would never have got that if she was a man’, ‘token choice’ and ‘I wonder who she slept with’. The reality is that over the years there have also been criticisms of choices of male silks as ‘nylon silks’. Every year it is always a subject of discussion but usually without the vitriol directed at the women who are perceived as ‘not up to scratch’.

The last two ‘junior silks’, obliged to give the toast at the Bar dinner, have both been women. They both gave excellent performances and this may well begin to dispel the notions that the female silk is purely a token appointment.

You don’t need to be a silk to be a target of sexism. I have twice in my career at the Bar been told by solicitors friendly to me that they were unable to brief me for a trial because the client did not want a woman running the case. One of those was early in my career and one was very recent. By the same token, early in my career I was specifically asked to run a prosecution in which I would be required to cross-examine a young male policeman about sexual matters in the hope that a woman asking him those questions would embarrass him. More recently, a client has commented that she was glad a woman was running the case as she felt the primary witness on the other side would not be able to ‘charm’ a woman in the way she would a man.

Is there any substance in any of this? Obviously we would like to think not—we are all advocates who perform to the level of our competence. But you have to wonder at the subtleties as to how we are received both by clients and the Court. My partner encourages me to wear the bright lipstick which would go with putting forward an ‘aggressive female persona’. I do not do it but I wonder if there is merit in the comment.

One of the older male silks I know has a particular crusty reputation. He greets younger women with a pat on the back and a touch on the arm. When women moved into the ‘club’ of his chambers, without being outright abusive he was perceived as making their transition difficult. Did he do it because they were new or because they were women? While he is known as being crusty he has not made life difficult for the younger men who came to the floor. However, he has happily worked with female juniors and, I understand, given them due respect. How does this old-fashioned crusty behaviour translate to our professional lives? For some it is water off a duck’s back—for me I am able to have a laugh, have robust discussions with him and other men, and I feel it has no impact on my practice at all. However, some will feel intimidated. Some women will be unable to feel that they are treated as equals and they will feel that they get less than the professional respect they deserve.

That perception is sometimes right.

The true gender divide at the Bar is far more subtle. Some of it is systemic. Because I do not have children I do not suffer much of it but there are real structural problems for self-employed mothers. Those who have children and understanding husbands manage to combine motherhood and a career. However, a budding young prospective barrister friend of mine recently held off coming to the Bar in favour of having a baby. There are many women who take ‘time out’ or become part-time barristers because they are unable to juggle the needs of working mothers. I do not overlook the fact that there are fathers at the Bar who face the same structural problems. Their needs are probably identical. However, there are fewer of them and social expectations are still that women will carry that load.

Studies over the years have revealed that discrimination can be far more subtle. We often get feelings of being overlooked, of the briefing practices within firms working against us. But we will never know. We will never know if we do well, or badly, because of gender, age, membership of the ‘club’ of a particular speciality, or for reasons completely unrelated. We will never know if solicitors’ briefing practices are based on pure merit, or other, subtle factors relating to the role of men and women—even more subtle than the ‘old school tie’—male solicitors not used to working in a team with women, not wanting to place control into the hands of a woman?

Save for the comments I made earlier, I have never perceived either from client or solicitor any hesitation in seeking my advice or sending me a brief just because I was a woman. In my first clumsy years, on a handful of occasions I experienced what appeared to be patronising comments from the Bench and from opponents. One was overtly directed towards me as a woman from an opponent (a reference to me as a ‘little girl’, ridiculous on any basis, especially ridiculous when I am 5’10’’ and broad-shouldered!) but the others were hard to tell whether they were directed to me as a newcomer to the ‘club’ or as a woman.

Women are well represented in the probate area (my particular speciality). Women are represented in tribunal appearances of all types. If women are still statistically under-represented in the superior courts, why is it so? Is it a simple matter of generational change, with women yet to become numerically senior enough in firms to equalise briefing practices? Perhaps when women become peers and equals within those firms they will be able to break the pattern and equalise briefing practices—whether calling upon the old girl’s network or simply briefing those who are competent regardless of their connections.

But for all of this description of how life is for me at the Bar, the statistics are nonetheless revealing. A report commissioned by the Bar in 1998, dealing with the equality of opportunity for women at the Bar, observed that women in practice are still not running the big cases. Whether as a result of perceptions of competence, perceptions of women having to work shorter days to pick up children or simply a matter of generational change, the statistics at that time were that although women were well represented in certain jurisdictions (family law and children’s law), and they were reasonably well represented in the lower courts and at interlocutory stages, they were still under-represented in superior courts. Justice Marilyn Warren, a female judge appointed to the Victorian Supreme Court a few years ago, observed at a ‘welcome’ by the Women Barristers’ Association that from the Bench at that stage she had observed a very small percentage of women appearing before her. I gather from recent newspaper reports that she continues that observation and still anecdotally observes that women are under-represented in serious contested matters before her.

To some extent the statistics are reflected in my practice. I am flat out busy all of the time—a large number of mediations, lots of paperwork. However, I run few major trials. It may be the case that so many of the matters in my jurisdiction settle at mediations. Maybe it is the case that my reputation is not as good as I think it might be. Maybe it is the case that I suffer the hidden prejudice that I am talking about. The reality is that I will never know. None of us will ever know.

We all know incompetent male silks. While there are private grumbles about them, few people make overt comment. We have all experienced surprising decisions from male members of the Bench. Again, we grumble in private but no overt comment is made. However, an incompetent female silk will tarnish the reputation of women forever. Her failings will be held high. An incompetent female judge will be similarly treated—her frequency of appeal decisions will be a target of mirth.

The flip side is that competent female appointments are held high—the Judge or silk held as a kind of ‘superwoman’. A currently sitting judge told me once that she felt it was a great advantage to be one of the few women at the Bar of her time. When she had a good day everybody knew about it. They may initially have under-estimated her but she was able to achieve a good reputation probably more quickly than a man because she stood out, she was unusual and her successes were more noticed than a man’s would be.

This is the discrimination that has yet to be overcome. The high profile members of the profession are expected to speak for and represent the women of the profession. They carry a huge burden and it is a burden that will only be lifted when ordinarily competent women, or even incompetent women, are given exactly the same level of treatment as ordinarily competent, or even incompetent, men. When women no longer receive either the ‘token’ or the ‘superwoman’ comment but are simply judged for who we are, that is when the change will have come.

I must admit that a lot of this is invisible to me, but rational logic means that it must have an effect on my practice. If I have a bad day in court, perhaps I am criticised behind my back more than a man having a bad day in court. Perhaps the flip side is that if I have a good day, I am commended more than otherwise I would get.

In the meantime my days are long just like everyone else’s. I generate advices, affidavits and pleadings just like anyone else. I enjoy being a woman but I suspect it makes little difference to my own practice.

* Carolyn Sparke LLB, BSc has been a barrister in Victoria since 1991. She specialises in equity/wills and probate law and has a practice in general commercial work, including property law, insolvency, intellectual property and corporations.