Commercial Division justices have been trailblazers in the bench’s efforts to improve the diversity and inclusiveness of the attorneys appearing before them. For example, many Commercial Division justices include in their individual rules provisions specifying that oral argument is more likely to be granted in cases where women or attorneys from historically underrepresented groups have a speaking role. Justice Jamieson of the Westchester Commercial Division recently emphasized to members of the New York State Bar Association at the Association’s Spring Meeting that she often insists on hearing from the women or diverse attorneys present, posing questions directly to them—sometimes to the chagrin of the “lead “ attorneys—during conferences and arguments.
These and other efforts of the Commercial Division justices have greatly contributed to the substantial improvement of the courts and the legal profession in its inclusion of women and attorneys from historically underrepresented backgrounds. A recent survey published by the New York State Judicial Committee on Women in the Courts, however, found that “there still remains a significant strain of bias against female lawyers, litigants, and witnesses that adversely impacts the fairness of their treatment in the judicial process which must be vigorously addressed.”
The Judicial Committee on Women in the Courts based that conclusion on disappointing answers to specific questions posed to female attorneys that participated in the survey. For instance:
To the question whether female attorneys were being addressed by first names or terms of endearment by other attorneys, while male attorneys were addressed by surname or title, almost one third (32%) of female attorneys reported it occurring very often and another 37% answered that it did occur sometimes. These data demonstrate the untoward frequency of such inappropriate behavior raising justifiable concerns.
Among other corrective actions, the Committee encouraged that “[w]hen instances of improper conduct arise, including gender bias, the judge shall appropriately intervene.”
On this score, Manhattan Commercial Division Justice Masley (pictured above) is a leading example. Not only do her Part Rules strongly encourage active in-court participation by women, but she recently issued a stern instruction to members of the bar to use gender neutral language wherever possible.
In Wilmington Tr., Nat. Ass’n v Elmwood NYT Owner, LLC [N.Y. Sup Ct, New York County 2021], Justice Masley granted an injunction prohibiting a court-appointed receiver from interfering with a mortgagee’s possessory right to certain property, but nonetheless held that the receiver could send the mortgagee appropriate notices under the loan documents.
But Justice Masley found that a notice previously sent by the receiver’s counsel was inappropriate because it was addressed to “Gentlemen.” The Court observed:
However, such notices shall not be addressed to “Gentlemen,” which in 2021 is unprofessional, inconsiderate, and discourteous. Gender neutral language is consistent with the CPLR, the Rules of Professional Conduct Rules and a civil society. “An attorney who demonstrates a lack of civility, good manners and common courtesy taint the image of the legal profession and, consequently, the legal system, which was created and designed to resolve differences and disputes in a civil manner.” (Laddcap Value Partners, LP v Lowenstein Sandler P.C., 18 Misc 3d 1130[A], 2007 NY Slip Op 52538[U], *7-8 [Sup Ct, NY County 2007].) Gender-neutral language is also essential to good business practices. (See Kim Elsesser, How To Use Gender-Neutral Language, And Why It’s Important To Try, Forbes [July 8, 2020]). A judge has a duty to address such conduct. (Code of Judicial Conduct 22 NYCRR 100.3[B].)
Justice Masley directed the receiver and counsel to educate themselves about gender neutral speech and its importance, citing a March 2017 pamphlet published by the New York State Judicial Committee on Women in the Courts offering recommendations for incorporating gender neutral language in legal writing and argument.
Litigators of all backgrounds know the importance of professional courtesy before the court, clients, and adversaries. Justice Masley reminds us that now is a good time to ensure that our default language in written and spoken advocacy is as inclusive as possible.