THE OPEN MIND
Host: Richard D. Heffner
Guest: Jill Wine Volner
Re: Lady Lawyer
I’m Richard Heffner, your host on The Open Mind. I’d like to think now, but at almost 50 I suspect that there is enough of the male chauvinist that’s been built into my own thinking to make it advisable for me to turn quickly to my guest lest long introduction lead me into such distasteful phrases as “lady lawyer,” or “beautifully, miniskirted advocate.” My guess of course fits these descriptives. But what’s more to the point is that Jill Win Volner is a highly skilled and experience trial attorney who has served with distinction in the Department of Justice and as Deputy Chief of the special Watergate prosecutor’s staff.
Ms. Volner, I wonder if I could begin by asking you what your reaction was during the trial when Judge Sirica said at a point in which you were examining a witness and the witness responded rather testily, “don’t you know you never win by arguing with a woman?”
Volner: Well, I had a variety of reactions to that. The first was that I think it’s been misinterpreted by the press as being a sexist comment. The judge was breaking tension that was building in the courtroom; something that trial lawyers try to achieve. And it was unfortunate that he was breaking the tension. But I thought it was an unfortunate remark for that very reason. It was focusing on me as a woman rather than as a lawyer. But to some extent it may be true that as a trial lawyer I have a certain advantage. A male cannot argue with me quite as easily as he can with other attorneys because juries may react harshly to him for that. And that’s an advantage that I have an am willing to make full use of.
Heffner: I’m surprised that you make the concession; not that you make full use of it.
Heffner: Do you find that there are other ways in which, at Watergate or when you were at the Department of Justice, and I believe you were involved in labor law at that time. Am I correct?
Volner: Well, I was involved in organized crime cases and criminal labor racketeering cases, which is slightly different than labor law.
Heffner: All right. I stand corrected. Need I be corrected in the assumption that the matter of your being – I don’t like the phrase – a lady lawyer came up time and time again?
Volner: Well, I had a variety of problems because I was a woman. I do object to the term lady lawyer. “ I’m a trial lawyer or a criminal lawyer or a litagator. I am not a lady lawyer. There is no such thing as a lady lawyer, unless that’s the area of law specializing in legal problems of women, which is not what I do. I had problems of discrimination. I was the first woman hired as a trial lawyer, and my bosses saw trial lawyers as tough ex-Marines who smokes cigars and intimidated witnesses. I didn’t do that. I didn’t fit their stereotype. And for that reason I had some problems as a woman. And once I proved to them that a woman who is a lawyer is simply a lawyer and can do the same job in her own way, they let me be and gave me trials.
Heffner: And yet what you said a moment ago indicates that it isn’t simply a matter of being a lawyer who happens to be a woman, that there are advantages or disadvantages.
Volner: There are both advantages and disadvantages. And that is because as a trial lawyer a jury, a judge, a witness reacts to the totality of the person. And one unmistakable aspect of my personality is that I am a woman. And because of stereotypes, witnesses and judges and juries act to me in a certain given way. They expect certain things of me; they don’t expect others. The disadvantage is that it’s very important for a trial lawyer to establish a certain rapport and trust with the jury. And they have to believe me and have faith in me. That’s a little more difficult for women to achieve than it is for me because people are used to trusting men and not to trusting in women. So that I have to start out overcoming that handicap. Once I do overcome that I have found that I have no problems. It’s just a question of being very well prepared and showing a jury that I know what I’m doing.
Heffner: You think it was a handicap so recently in the Watergate trial?
Volner: Well, I had, in terms of my colleagues, far less problems than I have ever had. I think that was because they were extremely capable, bright people and felt no threat from a woman doing the same job that they were doing. They were all very, very qualified attorneys, and I faced no problem of discrimination from them. Jim Neil truly accepted me as just another layer on the staff, and assigned me work on the same basis as any other lawyer was assigned work. In fact, someone recently asked him what it had been like to try the case with a woman, and he asked “Who?” (Laughter). So I think that he really did forget that I was a woman and accept me as a lawyer.
Heffner: I’m sure he was smiling just as I would smile if I said that. But let me ask you whether there aren’t differences in an approach to legal matters as they might be to all other matters between a man and a woman. Is there none, are there none, is there no difference in your approach? Would the quality of mercy be less or more strained in the instance of a lawyer who happens also to be a woman.
Volner: Well that’s a very broad question. Let me answer it in two parts, I think. The first part is whether there’s a difference in terms of legal abilities and legal analysis. On that, I would say no. My background, my training are the same. I don’t think there is anything called “women’s thinking or logic.” I don’t think my approach to a given set of facts or a legal problem is any different than any other lawyer’s. My approach to a witness may be different, as a witness’ reaction to me would be different than it would be if you were the lawyer. I think men and women think of woman as better listeners. It’s oftentimes easier for me to elicit information from a witness than it is for a man. On the other hand, if it takes strength and intimidation, I may not be able to achieve that quite as easily. I may have to call in an assistant who is male to overcome that. I think eventually women will be accepted as any other professional and be treated as any other professional and will overcome that. But at least for now we’re stuck with the stereotypes. And people react to the stereotypes. I have internalized them. I react exactly the same way other people do in very many instances.
Heffner: When you say you’ve internalized them, that means, I suppose, that you act as a woman is supposed to act at certain points, even as an attorney in a trial
Volner: Oh, I think what I really meant – that may be true; I haven’t really thought about it – but what I had in mind more was that I think of myself in terms of women, or when someone says, “Secretary,” I automatically visualize a woman. And that, of course, is not necessarily true. Very recently I made that mistake and it was a man who was the secretary. And I’ve just accepted those things. It’s a little more difficult to break out of the stereotype and to do what you want to do and to do it in your own way and not feel that you have to play by the men’s rules. I sometimes find myself trying to do a job the way a man would do it or the way I think a man would do it, which is wrong. Every trial lawyer has to do the job in their own way.
Heffner: Yes, but you still talk about a certain difference, a certain approach to a witness perhaps, being a better listener perhaps, being perhaps less aggressive in the approach to a witness. That’s a difference. Are you suggesting that it’s a real difference or a socialized difference? One in which you follow the stereotype of what a woman is supposed to be like?
Volner: Not what a woman is supposed to be like, it’s what by training I am like. It is what I have been trained to do. To some extent it’s a question of reaction. People think women are better listeners. Eventually people will say either that lawyer is or is not a good listener. It won’t be cased on assumption because of sex, which may or may not be true. Some men are better listeners than women. Other women are better listeners. And everybody will be judged eventually on their own abilities. But right now we’re judged by stereotyped reactions.
Heffner: It was said during the worst of our involvement with Vietnam that had women made the decisions in that regard, or had women generally made the decisions in history regarding war or peace, those decisions would have been different from what they have been in the past. Think the same thing is true about the dirty pool of Watergate?
Volner: Well, that’s an interesting question. Yvonne Braithwaite Burke recently spoke of a study, which showed that in fact women would have handled Vietnam differently. My feeling is that is a result of socialization; that women have been trained differently than men. And so that at least right now women would have handled it differently. The same is true in trial law. Women do react differently and handle things a little differently because of years of training. Also because for years we have not had the power to exercise. So when we do get the power we exercise it differently. It’s my feeling that eventually when women exercise power for long enough, women will probably treat it very much the same way men do. I would hope that women will not give up the advantages of training that they have now. When I say “the advantages” I mean the certain qualities that make them different and better in some ways than men, but that they will adopt the best of men’s training and be able to combine the best of both without giving up either.
Heffner: That seems to me like such a strange – forgive me – such a strange point to make. Because either one assumes that fundamentally there are no differences other than those that we’ve grown to believe there are, or that there are those differences which we can sustain, maintain, even in the light of being brought up differently, being brought up in a non-sexist way. Hold on to the best of the worst? Is that what you’re suggesting?
Volner: No, No. I’m saying hold on the best of the best. What’s I’m saying is that, for example, women have been through the centuries more sensitive and more emotionally involved for the same reasons that you were suggesting that Vietnam may have been handled differently. And I’m saying that’s not a disadvantage or a bad trait. I mean that women should be able to retain…
Heffner: Coming from the stereotypes or the stereotypes of them?
Volner: The stereotype is the result of the fact that this is how we’ve been trained, and so most women do behave that way, and the stereotype fits. And what I’m saying is that women don’t have to become harsh and never cry and never have the kind of emotional reactions that they supposedly have now. But they should be able to have the strength that men have. And that’s a result of training too. Similarly, men should be able to have the same emotional reaction that women have.
Heffner: You mean be permitted to cry and…
Volner: Absolutely. That may be a trial example, but the deeper internal feelings.
Heffner: Well, let me go from that perhaps trivial example to a question that has to do much more specifically with the law. I’ve asked this question of other guests on the program, other guests who are lawyers, who happen also to be men rather than women. The impact of Watergate upon our picture of the legal profession, the impact of Watergate upon the kind of training that lawyers receive, the impact of Watergate upon our ability to go so easily down the slippery slope to connivery and manipulation in the courtroom What do you think the events of the past couple of years, at the very height of the legal profession, what do you think the effects of those events will have upon the practice of your profession?
Volner: I think they’re going to have very good effect. Lawyers are far more sensitive today than they were two or three years ago. Much more concerned about not coming close to the ethical line. Much more aware of the ethical implications in a variety of factual patterns which they may not have seen before. And that’s a good thing. Unfortunately, the legal profession suffered enormously as a result of Watergate because so many of the participants were lawyers either by training or by profession. And people don’t trust lawyers the way they perhaps used to. And lawyers are going to have to prove that they are trustworthy, ethical people. And I think it’ll have a good effect, because lawyers will be sensitive to it and will prove to the American public that they can be relied upon.
Heffner: Do you think there’d be any shift in emphasis from searching out the winner in a courtroom to searching out truth?
Volner: Well, of course as a prosecutor, that is hopefully what I’ve always done is try to elicit the truth. I personally have never held back harmful evidence. I think juries can handle both the good and the bad and make a decision as to what’s right. I really do believe in the jury system and in the adversary system, and do think that even now the truth in some form comes out as a result of the adversary system.
Heffner: Do you think that in a sense Watergate and the hijinks of the last couple of years have indicated that the adversary system itself leads to a kind of manipulation in which almost anything is fair if you’re representing a client, to win for him?
Volner: Oh, absolutely not. I think if anything one of the results of Watergate is to show that as a representative of a client you still have an ethical obligation to yourself that you have got to think through what you are doing and what it means to you and what the ethics are to you.
Heffner: You think that that truly has had an effect, not just upon the young who are coming into the profession, but upon the old who are practicing at the top of the profession?
Volner: I think so.
Heffner: What evidence is there of that? That may be a very unfair question, because I asked you what you think, and then I asked you what the evidence is. But I wonder if there are real indications other than your own hopes.
Volner: Well, it’s really, my opinion is based imply on discussions with other attorneys in the Watergate case on both sides of the trial, both defense and my colleagues on the prosecution team. And with lawyers outside of the area of criminal law who do feel that this has sort of brought home the fact that you have an obligation to yourself to remain true to your ethics, and there are limits to what you do in representing a client. And this was a very dramatic example of what you can and cannot do.
Heffner: If you could phrase that limitation upon what you do in representing a client, what would be the phrase, or how would you put that limitation?
Volner: Oh, that’s really a tough one to answer. There are just, because of the variety of circumstances that it arises in, there are certain rules. An easy thing to understand is whether you put a guilty man on the stand to tell a story that he has told you is false. And that’s obviously something you can’t do. The tougher questions come short of that, when you don’t know whether he’s guilty, for example, when you’re putting on a defense and there is evidence that your defense is not true. What is your obligation? Do you put on both parts of it if you’re a defense lawyer? If you’re a prosecutor you have a clearer obligation. If you’re defending a client, what is your obligation? How far do you go in negotiating with the government or with dealing in terms of payment? That’s something that’s clearly a problem.
Heffner: Why does the prosecutor have an added obligation? Isn’t every attorney a member of the court? Doesn’t he represent the court essentially In his own way isn’t he responsible to the legal process? Why a prosecutor more than the defense attorney?
Volner: I think that it’s more important for a prosecutor to be much more careful of any ethical question. Which is not to say that defense layers don’t have that same obligation. But as you started out the program or said earlier, justice is a very important thing, and that government wins whether the defendant is convicted or not. And it’s far more important for guilty people to be acquitted than it is for an innocent… or that’s the goal: rather than permitting an innocent person to be convicted by tainted evidence or any other form of ethical problem.
Heffner: And yet I think there are many of us, those of us who are laymen and women think in terms of the search for truth as identified with the legal process, whether it’s on the side of the defense or on the side of the prosecution. And I would add this question. And I know again it smacks of sexism. But do you think there’s any difference in approach to the question of how far you can go in playing the game between the – I’ll use the hated phrase – the lady lawyers you know – or put it better — the lawyers you know who are a woman.
Volner: Thank you. (Laughter).
Heffner: … as opposed to the lawyers you know who are men?
Volner: No, I don’t. I think there are some lawyers that I know who have much greater sensitivity to the ethical questions than others. There was one lawyer on the Watergate prosecution team who did very little the courtroom work but did question some witnesses, who I would consider the conscience of the Watergate trial team. Who, he was a man, but was extremely sensitive to any kind of ethical question. Saw ethical questions where I never, ever would have even begun to think that there was a problem. And that’s my experience, is that he was much more sensitive than I was. So that I think it’s really a question of training, of background; not a question of sex.
Heffner: And generally that’s your attitude toward that question…
Heffner: …that’s the way you would answer it. You know, I’ve wondered in preparing for the program, wondering what questions I would ask you, I was going to put to you exactly the same questions I put to Louis Nizer and Judge Sol Wachtler. And I don’t necessarily… I don’t – not necessarily – because of the difference between the lawyer whose a lady and the lawyer who is a man – but because I wanted to ask you a question that I couldn’t ask of them. And that has to do with, as I noted it to myself: that what are the personal choices that face any woman, that face you, who elects to enter the professional world? Now, because of our history I can’t ask that of Louis Nizer and I can’s ask that of Sol Wachtler; but I can ask you. And it’s not done in a sexist manner. But what are the things that you have to be concerned with as you choose to enter the professional world?
Volner: Well, let me get you off the hook. I don’t think it is a sexist question; I think it’s a fair question. It’s important for other women who may be thinking of careers or who, for that matter, have embarked on them and are finding difficulties to think about. Also statistically there are very few women in professions. There’s only three percent of the legal profession who are women. So obviously there are certain problems that women face. Your choices are numerous. It’s a question of combining family and job; choices that for men up until now have not been a problem because the role was that men went out and worked and took care of the money aspects which the little lady stayed at home. My husband is a lawyer, and we have shared our household responsibilities. These are things that we have chosen to do. There are various ways to resolve that particular question. Another question is how much of your feminine identity do you have to give up in terms of the stereotype feminine identity in order to be a successful professional?
Heffner: What’s the answer to that question?
Volner: Well, I don’t know what the answer is. In my own case, I am not ashamed to be a woman. I am a woman. I don’t think there’s any disadvantage in it. And I, in fact find, as I think I indicated, some advantages to be a woman. And as a trial lawyer, my job is to win. But to win within the ethical bounds.
Volner: And I will use the advantages that being a woman presents. That’s part of the job of any trial lawyer. And so the choices sometimes are not really choices. They’re what in law we call false conflicts. They aren’t really conflicts at all. I think you can, if you learn to accept yourself as a professional, you can simply be a professional in the workday world and still be a woman outside of the courtroom.
Heffner: Do you think that’s truer in the law than in other professions in medicine? Engineering?
Volner: No. I think the same is probably true in all professions. I have talked to women in other professions, and they have faced some of the same dilemmas and have come out pretty much the same way that I have. By stereotype, woman professionals are the tough, aggressive, “masculine” (in quote) type women. That used to be the stereotype., But I think anybody who did a survey of women in professions today would be very surprised at the fact that they are what would be considered “normal” (in quotes again) women. They’re attractive, they’re interested in other things. Similarly, men are much more into other things. They’re not ashamed to admit that they enjoy cooking. And it’s a healthy thing. It’s sort of a human liberation. And that’s what’s really important in the end.
Heffner: Well, in the end of the legal profession – I’d like to come back to this question of where you think the practice of law is moving in this country. What kinds of opportunities are open, not to women, but to men and women? I find that so many, many more of my students these days want to be lawyers, perhaps because they feel there are no opportunities elsewhere. When did you see different directions being taken by the law today than might have been taken if you could have transported yourself back a quarter-century ago – which, of course, you can’t.
Volner: I’m not exactly sure what you mean. There’s been a change.
Heffner: Public service law, for instance.
Volner: Well that’s something that happened while I was in law school. When I first began at Columbia, a very heavy corporate tax orientation to the law school. By the time I graduated, the law of poverty law and public service law was really the big field. Several coursers were being offered. The students were not going to Wall Street law firms – which of course led Wall Street law firms to raise their prices considerably.
Heffner: And now they’re going.
Volner: And now they’re going. There is now a trend – I don’t know if it’s so much money as it is just conservative trend again – students are much more interested in corporate law again. Also, jobs are very hard to get now in law, and I’ve been speaking in law schools and the students are very concerned about the fact that they simply cannot get jobs. So if your students are thinking that they should go because there aren’t alternatives elsewhere, they’d better consider what the legal job alternatives are. There’s one advantage, which is that a law degree is an entrée into other professions. It’s good background for business, for journalism, for several other fields. Banking. And so that maybe without being a lawyer or a courtroom lawyer or a negotiator, there are other things that a law degree can do for you.
Heffner: And you don’t find that the slippery slope, as it was referred to during the Watergate trials, how easy it is when one is training to be a lawyer to learn the ways in which one can manipulate, confuse a witness perhaps, make black look like white or white look like black, you don’t feel that that’s leading people away from the ethical concerns that you feel should prevail?
Volner: Well, there are degrees of ethical concerns. That is still a problem of manipulating a witness. I think it’s less easy to do then people think, and doesn’t happen as often as people think. Courses are now being taught in ethics in law schools. There’s a whole new emphasis on this. When I went to law school, nobody taught ethics. Or at least it wasn’t a required course. Nowadays it is. I think with a greater awareness and sensitivity, lawyers will not make the mistakes that perhaps they did in the past. I think also, let me just say that I think the ethical problems and the slippery slope aspect have been so overemphasized that we’re really, I mean, a lot of people involved in Watergate were lawyers; but a lot weren’t. And most lawyers are not unethical or crooks or bad people; they are very responsible, ethical people.
Heffner: Let me ask you one final question, because we just have two minutes left. Perhaps ethical. How well trained, how knowledgeable, how competent to represent their clients do you find most of your colleagues at the bar? This is major question that has come up recently.
Volner: Yes, Chief Justice Barger has made quite a point of saying that trial lawyers in particular are now well equipped to represent clients. I’ve been very fortunate in my experience as I’ve had rather large cases, and so the defendants have hired very good lawyers. I have not really come across, with one exception, layers that I thought were either unethical or unintelligent. The one exception was someone who ended up in trouble himself and was indicted for a narcotics violation. And he was also ill equipped intellectually to have been representing his client. But that was my one very large exception. On the whole I found my colleagues to be very qualified.
Heffner: Do you find though, can you imagine though that the Chief Justice is more correct rather than less so in his concerns?
Volner: Well, I’m sure that he’s speaking from far more experience than I am, and I would tend to believe what he’s saying, although I could not from my own experience say that that’s true.
Heffner: Do you think law school is the place to resolve this problem, or training after law school, as he has suggested?
Volner: Well, I think both. There’s no question that your training after law school is equally important with what you learn in law school. Law school really teaches you a way of thinking, an approach to a problem, how to analyze. But everything else you learn, which is really how to be a lawyer, comes afterwards.
Heffner: And you think perhaps then that the training that has been suggested, the post-graduate training, might be helpful?
Volner: I would say the better place to start would be in law school. And if you can train them right there you may not need the post-graduate part.
Heffner: Thank you very much, Jill Win Volner for joining me today in this discussion of the legal profession – not of lady lawyers, but of layers who happen to be ladies too.
And thanks too, to you in the audience. I hope that you’ll join me again on The Open Mind. Meanwhile, as an old friend used to say, “good night, and good luck.”