Chauvinistic Comment Gets a California Lawyer Sanctioned by the Court

Judge Sanctions Lawyer for Sexist Comment

U.S. Magistrate Judge Paul Grewal, Northern District of California Jason Doiy / The Recorder

SAN FRANCISCO — A federal judge in San Jose has ordered a Southern California attorney to pay up for making a sexist remark to a female attorney during a deposition.

Peter Bertling of Santa Barbara’s Bertling & Clausen told opposing counsel that it wasn’t “becoming of a woman” to raise her voice at him during a contentious expert deposition in October in a wrongful death suit.

The utterance didn’t sit well with U.S. Magistrate Judge Paul Grewal, who sanctioned Bertling and ordered him to donate $250 to the Women Lawyers Association of Los Angeles Foundation.

“A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common,” Grewal wrote in an order issued Tuesday. “The bigger issue is that comments like Bertling’s reflect and reinforce the male-dominated attitude of our profession.”

Grewal also forced Bertling’s clients to pay the plaintiffs’ costs for the deposition, finding that Bertling had “repeatedly and unapologetically flout[ed] guideline after guideline” during discovery.

Bertling didn’t respond to an email and voice message seeking comment.

Oakland solo Lori Rifkin, who sought the sanctions against Bertling, said that based on conversations she’s had with lawyers across the country “this is something that almost every woman attorney has experienced again and again over their careers.” Rifkin, who was a lawyer in the Department of Justice’s Civil Rights Division from 2010 to 2013 before going into private practice, said that many women don’t make an issue of comments like Bertling’s for fear of being labelled “whiners.”

“This is reflective of the usual course of business which needs to change,” she said.

 

Grewal’s sanction order detailed a string of problems with Bertling’s conduct in discovery, including a propensity toward coaching witnesses, cutting them off and answering for them in depositions. Grewal found that Bertling repeatedly failed to hand over relevant documents, including a medical expert’s notes from jail visits which were delivered to plaintiffs’ counsel the day after an important brief was due.

“Discovery is hard enough, even without conduct like that,” Grewal wrote. Beyond awarding plaintiffs their costs for three depositions and for briefing on the sanctions order, the judge ordered that the expert hired by Bertling’s client be made available for another four-hour deposition to be paid for by the defense.

It was during the expert’s earlier deposition that Bertling asked Rifkin to lower her voice. When Rifkin asked him to stop interrupting her, Bertling said, “[D]on’t raise your voice at me. It’s not becoming of a woman or an attorney.”

In a brief declaration filed in response to the motion for sanctions, Bertling wrote, “In retrospect, the proper term for me to have used in this context would have been ‘attorney.’ I apologize to Ms. Rifkin if I offended her by referring to her as a ‘woman’ instead of as an ‘attorney.’ ” Bertling wrote that his remarks were made “in the context of Ms. Rifkin literally yelling at my client and creating a hostile environment during the deposition.”

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