How is the legal profession doing with gender equity, especially in trust and estate litigation? Is there still an income disparity between men and women?
ACTEC Fellows Gail E. Mautner, Nina B. Stryker, Jennifer F. Hillman and moderator Amy B. Beller share research and thoughts regarding gender issues in estate planning and litigation.
ACTEC Fellow Terrence M. Franklin: Women have been struggling to be treated as equals for generations. There have been significant improvements in society and in the legal profession, allowing women to be seated at board tables and on the benches of our legal system. What strides have been made in gender equality in our industry, and what work lies ahead? A panel of ACTEC Fellows dives into this topic - Gail Mautner, Nina Stryker, and Jennifer Hillman. Moderator Amy Beller gets us started with an overview of gender issues in the law and how they may affect trust and estate litigation.
Amy Beller: The statistics show that about 40.8 percent of litigators are women, as opposed to more than half of the graduates of law school being women. There's also an income disparity between men and women in the legal profession, with men making an average of $108,000 a year and women making $101,000 a year. And it will probably come as no surprise to anyone that of equity partners in law firms, only 25 percent are women.
The issues affecting gender in our field and in the litigation field generally are pervasive, and they warrant discussion. I'm very pleased to now turn over the panel to Nina, who's going to speak to us about gender issues in estate planning.
Nina Stryker: Thank you, Amy. I am happy to participate in this program today, and my topic is on paternalism in estate planning. And I have to start out by saying this doesn't just affect simply our clients in terms of how they relate to wives or their children. It can also relate to how they sometimes deal with us. As a very young lawyer, I had a gentleman ask me, “How old are you anyway, honey?” And my response to him was, “I'm old enough to have graduated from law school and passed the bar exam.” That changed the tenor of the conversation. I've also had clients over the years who prefer to deal with my senior partner, who's a man. But more frequently, we are also dealing with some clients, particularly women, who would prefer to deal with me. I think they believe that perhaps I listen better, or they can tell their story. All that to say that as lawyers, we need to be receptive to what our clients are thinking and feeling and how well we can serve them. In terms of paternalism with respect to estate planning, as I said, it applies to both the relationship an individual has with their children, but also their wives, typically. Husbands sometimes don't believe that wives need estate planning because they don't have assets. They can't manage money and they don't want them having sole control. Sometimes there are secrets within the marital relationship that they may not want their spouses to know about but they want to be able to tell you. So we have to be open to that and that gets into the whole topic of the ethics of who you represent. Clearly, in a scenario where the husband does not want you revealing things to the wife, you need to be prepared to represent only the husband. You should not represent both. In terms of the children, sometimes paternalism manifests itself as an unequal treatment with respect to the distribution of assets - whether that is percentage distributions or even allocations within a class of children. A client should be looking at all of the children's capabilities. There also could be cultural biases in cultures where the wives typically don't handle the finances, or their husbands manage them for them. We need to be mindful of that and respectful, but it does sometimes present a challenge in the planning. There's often an attitude that daughters need to be protected and I've had many a client ask me to include language that there is a requirement that the child have a prenuptial agreement so that their spouse or significant other cannot access trust assets that they do not wish them to have. This also sometimes comes up in terms of disposition, outright or in trust. Our firm represents a lot of bank clients and trust companies and particularly for older documents drafted. Before the 1930s and 40s, you do see documents where the shares for the sons are distributable outright. The shares for the daughters are always in trust, usually for the daughters lives. They do not have rights of withdrawal. That presents a bit of a challenge. I haven't had anybody recently suggest that to me, unless there was a special needs scenario or some other unique circumstance that the child for whom a trust has been created really needed protection. In terms of the equalizing, you also see this come up in the context of family business interests. More often than not, in my practice, the son is the one who is the most involved with the family business. And although mom and dad may want to treat the children equally if the business is a significant or perhaps the only significant asset in an estate, it poses real challenges of how you provide for the other children if one or two are participatory in the business. It begs the question of, do you give the child who is the participant in the business a right of first refusal? And if you're using rights of first refusal, when must they be exercised and what is a fair price for the business? You need to look at issues such as valuation and frequency evaluation in case the children don't agree on the first valuation that comes through. If there are not enough assets to equalize all of the children, this often creates hard feelings and I strongly suggest to my clients who are providing a disproportionate scheme that they talk to the children about what they're doing and why. If you don't, it definitely sets the matter up for a real contest down the road and for a lot of family inter-fighting. Next, I'd like to touch on women being nominated as fiduciaries. In my experience, most clients are very happy. Spouses name each other as the executor first and then someone else as an alternate. In many scenarios, however, if there are continuing trusts for the wife, particularly, the husband does not want the wife serving as the sole trustee. They will want to name a business manager, a family friend, a golfing buddy, an accountant or someone else to serve with the wife; and that can create some hard feelings as well. I've also seen clients who don't even want their wives to be co-trustees, which leaves them out of the information and the availability of assets, and they just feel very much marginalized. In terms of working with women as fiduciaries, I’ve found both men and women can be very attentive fiduciaries. Although, the majority of the women are a little bit more attuned to detail, which is very useful in our practice. And, with that I'm going to turn the program over to Gail to talk about paternalism in fiduciary litigation.
Gail Mautner: Thanks so much, Nina. Once the estate plan is complete, for better or for worse, you can find problems erupting after the death of the testator. In fact, you can also find problems still during their lives as they become older and older and have challenges with capacity as Nina has explained. There are often issues with aging parents and control over a family business where brothers are favored, and sisters are disfavored. But looking postmortem, I often have clients coming into my office because they've received some kind of expected or unexpected situation where the estate plan favored someone that they did not feel was fair to be favored. Sometimes it is a surviving second spouse and I've got the adult children of marriage number one or some prior marriage in my office. Sometimes it's the reverse and it's the surviving subsequent spouse who's in my office. I often refer to these as postmortem divorces, in which we are either outright challenging documents or we are untangling the beneficial rights of the adult children from an earlier marriage with the beneficial rights of the surviving spouse of the later marriage. This can be even more complicated in community property states such as my state of Washington, where title is not determinative of ownership, and property that is characterized as either community or separate can be subject to a lien in favor of the alternative. Alternatively, commingling can present a problem, and particularly so when a surviving spouse, often the wife, has been working in the deceased spouse’s separate property business, often the husband’s, for little or no compensation. If the surviving spouse is the wife and I'm representing her, what I often see are attempts to explain stereotypes of so-called gold digger or conniver or an evil stepmother. This is, of course, particularly true where the surviving wife was significantly younger than the now deceased husband and his kids never liked her very much anyway. There you see playing out in the litigation views about whether she's entitled to what she's received, particularly if she didn't work outside the home, or the marriage was not as long-standing as the first marriage. And often, these are based on negative stereotypes, including those that devalue a homemaker’s contribution. This is often exacerbated if the husband was an entrepreneur, and the business is associated with his name and public persona. Of course, there are multiple steps before even getting to court and being saddled with stereotypes or hostility. And one of them is going to be finding an attorney. Now, I have been doing this many, many decades and no longer see this situation that people come in and wish that I were a guy instead of who I am. But I do see often when men come in, they often present as demanding to know whether I'm going to be aggressive enough as a litigator or am I going to teach the other side a lesson. They use language like junkyard dog for what they're looking for in a litigator. Whereas women often come into my office and what they present is, I wasn't treated fairly. I want to be treated fairly. I haven't been respected. I want to be respected. Can you make that happen for me? And while certainly not universal, I see it often enough to see it as a definite theme that runs through. So step one - even before you find a lawyer - is to know that you have rights and be able to get the information that you need to assert them. And regardless of what the trust says or what state law might say about beneficiaries’ rights, one thing I've seen over the years is that surviving wives and families of cultures that are more traditional in terms of male dominance as head of the family, even when that dominance is benevolent, results in women not having the information or the tools to know that they have legal rights or what their legal rights might be. Often, an uncle or a business associate of the now deceased husband withholds information, and the surviving widow simply doesn't know where to turn. She's been patronized or disrespected and doesn't have the tools or even the fortitude to advocate for herself. And I'm often approached by potential clients after various windows and statutes of limitations have closed or are close to closing because now, they are finally fed up with not knowing and not being treated fairly. And in that case, cultural norms of obedience or submissiveness or even a fear of being ostracized or not liked anymore, or being accused of being too aggressive, have kept women in the dark about pursuing assets that are for their benefit but not under their control. Finally, the third scenario I see a lot in litigation is that widows who were always dependent on their husbands become soon dependent on another strong male figure after their husbands are gone, who then engages in some kind of vulnerable adult financial exploitation or undue influence. And those women, who have become victims of that, are brought to me by a friend or a relative who sees their predicament and wants to help them. Once in the courtroom, judges who've seen these themes recurring in a lot of cases before them may have views that are impacted by their own experiences in their own families. And so, as counsel it's often good to research your judges and find out something about them and what they might expect from you. I'll leave it to Jennifer to talk about how women attorneys are treated in court. But I do often see in trials in the courtroom women as litigants being burdened by stereotypes and fighting an uphill battle against the harsh or bad light that their litigation and adversaries may paint them, using the stereotypes of the evil stepmother or something like that. Similarly, if there are fights among siblings, women who've been shut out of the business or who are bringing claims of undue influence against their brothers, or their uncles are treated as if they were greedy or unworthy of inheriting. So in some, women are often the subjects of stereotypes. Sometimes, occasionally, the stereotype can be helpful if the woman is viewed as the victim and the judge sees him or herself as the protector. Then the evidence may move the judge to want to protect your female client. But again, if she's viewed as greedy or predatory, she may find the stereotype has infected the proceedings and it's our job as litigators to overcome that and make the judge see her as someone who's entitled to be heard and respected in the courtroom. So with that, I'll turn it over to Jennifer to talk about how we might be able to do that.
Jennifer Hillman: Thank you so much, Gail. Yes. I am going to be talking a little bit about the lawyer’s perspective when it comes to gender and litigation. And I will say this. When I was a young woman, or a younger woman, I wondered if I was being treated a certain way because I was young or because I was a woman. And I'm no longer that young lawyer and yet I still find that issues come up. So, I have been mistaken for the paralegal and the legal secretary. I have had counsel insinuate that I was crazed, overly emotional, because I advocated for my clients in court. There are attorneys who try to bully you or mansplain an issue. I even had this happen when I was the one that helped draft the legislation; and yet someone decided that they were going to try to tell me what it meant. For these, you know, there are sometimes undercurrents of cultural differences when a party is from more of a patriarchal community. If an attorney or a party doesn't shake your hand because their religion or culture forbids physical contact between men and women, that sets the tone. It sets the tone for the entire proceeding and it's something that needs to be dealt with. For all of these reasons, I probably spend a lot more time thinking about how I give my arguments than a male attorney or even what legal arguments I'm going to be making. You know - I have to avoid being seen as being too soft, but I can't be too abrasive. I also have to be aggressive but not too aggressive. And I do spend a lot of time thinking about how I'm going to say my argument and what words I'm going to use. What tone I'm going to use when I do that. When I go into a deposition, I do think about when I'm deposing this person, what's my goal? What do I think their personality is, and what kind of role can I take on that I think is going to get me to the results I want and the answers I want? And it may be very different for different people. And you know, there may be some things that I try to do to get more information out of people. You have to really think about that; and I do think that, as a woman, I have to do that a little bit more than men might. You know, I think men can be men and boys can be boys. But, there are certain stereotypes that go along with women that we need to be aware of because we don't want them to negatively affect our clients. The New York State Bar Association found in its 2017 report that female attorneys accounted for just 25 percent of all attorneys appearing in commercial and criminal cases in courtrooms across New York State. The data also showed that the more complex the matter, the less likely it was for a woman to appear as lead counsel. So this is clearly an issue. It's clearly something that we need to work on. What I can say is that there has certainly been much less tolerance for any outwardly inappropriate behavior. And that really has to come down to the women who came before me and the men who stepped in to support those women. I can wear a pants suit and not worry that the judge will be offended I'm not wearing a skirt and stockings, and much of that is because there is more representation. There are more female attorneys, female judges and female law students. But that's only going to change and we're only going to continue to change if that keeps happening, and if people keep to remember that these are stereotypes and that each person is an individual person with their own talents and abilities, and we're all here because we're good attorneys. And with that being said, there are some very good advantages to being a woman and a trust and estate litigator. So much of what we do in fiduciary litigation is more than just the issue at hand, as all of the panelists have really, kind of, alluded to. This is about family matters and it's about relationships. Women do tend to be the caregivers of the family. Many of us are part of the sandwich generation caring for older parents and grandparents while also caring for their own children or even grandchildren. I personally come from a very large family, which can be very wonderful but can also be very trying when you're dealing with different personalities. And I've always found that navigating those relationships as a woman has made me more skilled at navigating the pitfalls and the relationships that my clients are dealing with. So, women do tend to, at least, be perceived as natural listeners, and sometimes there needs to be tough love. But there also needs to be a kind heart when negotiating what the client actually wants from a litigation and how to get them there. I think some of us joke that we spend part of our time as psychologists with our clients, and that can be very true. And sometimes that's what is needed. I personally have had clients in their 80s who went to family counseling as part of an estate litigation. That is what we're doing and that's what we're here for. And it may be worth it to your client to relent on a small issue if it means that a fractured relationship can be repaired. And as lawyers, while we certainly have this idea in our head that we want to win, win, win, when those more personal issues are at play, we need to be more aware that a win may not necessarily be a judgment or emotion that's won. It can be the repairing of a fractured relationship. And I believe that women and litigators are very well situated to give their clients that advantage. So back to you, Amy. I think you have some more to tell us.
Amy Beller: Finally, a word about women in mediation of trusts and estates disputes. For all of the reasons that Jennifer and Gail and Nina have mentioned, many of the stereotypes involving women play to our advantage when we're talking about women as mediators. We are perceived as being good listeners. We are perceived as being caring. We are perceived as being peacemakers and reconciliators, and all of those things that play into a positive outcome in mediation. As one of the few female certified mediators in my area of South Florida, I find that I often get selected because I'm female. The clients are female. The clients want to be heard, as Gail mentioned. And sometimes I am selected because the attorneys involved in the case just can't connect with their own female clients. Sometimes, however, I find that I'm not selected for the mediations involving the matters that are more hardcore trust and estates technical matters: accounting disputes, elective share calculations, tax issues. And it's an interesting dynamic. When I am an advocate and I am selecting a mediator, I certainly do think about the mediator’s personality and how that mediator is going to connect with my client; and as part of that, gender is certainly a component. This panel has over 100 years of experience behind us in trust and estates litigation, and this is our point of view on these various issues. We certainly have come a long way from, as Jennifer mentioned, the times when wearing a pantsuit was a radical proposition. That was the case when I started my practice in New York in 1992 and it's not the case any longer. So we've made strides in the right direction. However, I did interview a young female attorney this week and she told me that she left her high-paying big law job, in part, because of gender issues. There is a long way to go and conversations like this, hopefully, move us in the right direction. Thank you for your time.
ACTEC Fellow Terrence M. Franklin: Stereotypes plague not only women but people of color and all those who do not fit the traditional mold. This video series strives to tackle issues of diversity and inclusion head on... from economic inequality... to recruiting and retaining diverse individuals... to gender equality. Little actions add up to big change. Take stock in your personal interactions to improve the future for everyone. The changes you make in your practice can have a ripple effect, inspiring change in others and improving the profession for all.
Please visit ACTEC, actec.org/diversity for resources on increasing diversity in the legal profession. And make sure you subscribe to ACTEC's YouTube channel to be informed of new videos as they become available.