Guest blog: Portrait of the male barrister as an opponent: changing the view

10 January 2018

Sheryn Omeri

Barrister, Sheryn Omeri, shares experiences of unacceptable behaviours of male opponents and thoughts on how the Bar Council can assist in modernising the profession .[1]

I recently came to the end of a multi-day employment law case. My opponent was everything one might have traditionally expected a barrister to be: white, male, apparently public school educated and wearing a pinky ring to assure us he was of the right pedigree.

From the moment I introduced myself with a smile on the first morning of the case (as I always do), he immediately assumed an over-familiarity with me, accompanied by a mean-spirited jocularity which I doubted he would have assumed had I been a fellow male barrister. After I had finished cross-examining his client, he approached me as the parties were leaving the Tribunal room. He began an apparently casual conversation with the innocuous comment: "It got awfully warm in there this afternoon" to which I started to respond with an equally innocuous observation about the absence of air-conditioning. Before I could finish, he retorted: "It must have been all your hot air." This was uttered in a public space, and more significantly, in front of my instructing solicitor and client.

His aim had been obvious: psych her out to throw her off her game; get an easy rise out of her because everyone knows women are slaves to their emotions and do not belong in a profession concerned with reason and logical argument.

While that experience was what ultimately prompted me to write this piece, it was just the most recent in a series of similar experiences of male opponents.

On a previous occasion, among other patronising comments, a male opponent said to me: (again in front of my instructing solicitor) "You don't understand." Interesting, I thought to myself at the time. My understanding cannot have been so deficient since I had just won the trial and we were discussing remedy. My instructing solicitor later said to me: "God, he was so arrogant. It was great the way you shut him down."

In the context of another case, a male opponent sent me an email, into which both his leader and mine were copied, which began: "Dear Sheryn, I am afraid you have not understood..." Though women are often taught to ignore such behaviour and continue to be "nice," on that occasion, I felt that while I could do the latter, I could not do the former. I replied in the following terms: "Dear X, In future, kindly refrain from telling me what I have or have not understood. This sort of language, often used by male barristers toward their women colleagues, is patronising and unnecessary..." To his credit, that male barrister wrote back 9 minutes later apologising for his previous email.

On another occasion, when the judge asked which of us would address him first, my opponent said that he would "be chivalrous" and "allow" me to speak first. Given that I was acting for the claimant, and it was she who was making an application to the court, chivalry was irrelevant. It was the practice that I speak first. Yet, instead of pointing this out, our male judge replied: "Why that is terribly chivalrous of you..."  and continued joking with my opponent about chivalry, confirming the entrenched male view that women may only speak when men allow them, and when they do it is an act of chivalry worthy of praise.

I have also been involved in pre-trial settlement discussions where, immediately upon discovering that I would not be bullied into advising my client to settle if this were not squarely in his/her/its interests, my male opponents have raised their voices, becoming visibly irritated as though having assumed that a woman opponent would be more easily 'persuaded.'

There are more examples.

In my view, there are two points to be drawn from these sorts of experiences - the first is that low-level but persistent attempts to belittle women barristers when they are simply going about their work are unacceptable. While none of them bother me personally because I am always up for the good fight, I understand the arguably more rational view, which I imagine many women hold, that life is just too short. So when considering the reasons why women leave the Bar, it should not be thought that this is solely due to the pressures of motherhood or the incompatibility of life at the Bar with caring responsibilities. There is also a culture at the Bar which is unwelcoming to women regardless of whether or not they have children.

Secondly, this sort of behaviour brings the Bar into disrepute in the eyes of the public. My witnesses in the first case I described were all educated, senior managers. The most senior among them were women. They did not recognise my opponent as anything other than an anachronism. His behaviour did not seem consistent with the modern Britain they knew. I imagine that had I, or someone equally different from my opponent, not been involved in the case to give some balance, they would have walked away from proceedings feeling that the Bar and barristers were a social irrelevance, only to be interacted with when one had no other choice.

It is this which I find most troubling. I find it troubling because I love my profession. I believe it to be not only relevant to the modern age, but vital to the proper administration of justice. It should not be brought into disrepute by displays of old-fashioned entitlement and disdain for that which is different from the white male stereotype.

In so writing,  I do not suggest that all male barristers I have appeared against have displayed poor behaviour of this kind. Many have been equally respectful as they were good advocates. And I do not forget the encouragement I received in my legal career from Australia's most brilliant barrister, Bret Walker SC, who saw something in me from the earliest time, when I was still a law student. Without regard to my sex, Bret taught me both courage and belief in my ability to be a good lawyer, for which I will be eternally grateful.

But there is no excuse for the arrogant, patronising behaviour displayed by the others I have described and heard described by my women barrister colleagues. Barristers of today are the judges of tomorrow, sitting in judgment on a great variety of people and interacting with barristers of different sexes, races, religions, sexual orientations and socio-economic backgrounds. It is unacceptable for them to take to that important role, the views which such behaviour reflects.

In my view, there are a number of ways in which the Bar Council can assist in addressing this unsatisfactory aspect of the practice of our profession. In response to the original version of my piece, I received a number of comments, both posted publicly and emailed to me privately. One excellent suggestion I received from a senior clerk was for the Bar Council to consider mandating Equality and Diversity training as part of barristers' annual CPD requirements. Another I borrow from large corporations which have implemented it, is 'reverse mentoring.' That is, Chambers adopting a formal system of pairing senior members with junior members, men with women, those of majority ethnicity with those of minority ethnicity, those without disabilities with those with disabilities with the express aim of both parties learning from one another's experiences of practice at the Bar, rather than the traditional, exclusively 'top-down' mentoring approach. 

                                                The Bar Council's view

We (the Bar Council) share Sheryn's view that sexist attitudes and behaviours are unacceptable and should not be disguised as part and parcel of an adversarial system. We currently offer support - including an Equality & Diversity Helpline (details can be found here).  We are always happy to consider any ideas readers may have about additional support the Bar Council could provide, as we work to ensure that the Bar becomes an exemplar of a modern, inclusive profession. 

Sheryn is the Australian-born, proud daughter of an Iranian mother and Kurdish father. She practices at the London Bar, with particular experience in employment law, clinical negligence, public law and public international law, having worked at the International Criminal Court. She is currently instructed on the Uber employment status litigation. Previously, Sheryn worked as a solicitor-advocate at the Aboriginal Legal Service in Sydney, as associate to the Honourable Justice Margaret Beazley AO, President of the New South Wales Court of Appeal and at the Paris office of Freshfields. Sheryn is a graduate of the University of Sydney and of Sciences Po, Paris.

[1] This version of Sheryn's piece has been edited to comply with the Bar Council's length requirements. The original, unedited version may be accessed here: https://www.linkedin.com/pulse/portrait-male-barrister-opponent-sheryn-omeri/