McConnell subsequently defended his actions by saying, “Senator Warren was giving a lengthy speech. She had appeared to violate the rule. She was warned. She was given an explanation. Nevertheless, she persisted.” The axiom “nevertheless she persisted” then became a rallying cry of sorts for women who are tired of being marginalized and delegitimized by male superiors, colleagues, rivals, and society in general.
Recently, (male) opposing counsel in a case I tried in federal court—presided over by a female judge—used the expression in a pleading to complain about the audacity of my advancement of a position with which he disagreed: “Nevertheless, Ms. Fedder persisted. . . .” (No. 7:16-cv-00130-EKD-RSB, ECF No. 174 at 17, Nov. 22, 2017). Of course, my jaw dropped when I read the rebuke, and my client, a woman, reacted similarly. We joked about having T-shirts made to commemorate the episode. But it is a serious issue, one that I am hopeful movements like #MeToo and #TimesUp will spur to improve.
As a “seasoned” big law female litigator, I have persisted through my share of obstacles, insults, #MeToo moments, and unprofessional conduct. But how do I do so? In truth, I don’t really know; I just always have. I find at this stage of my career, I am less offended by certain situations like when I arrive for a deposition and am inevitably assumed to be the court reporter rather than counsel for one of the parties. In those instances, I think to myself “bless their heart” and politely correct their misimpression. However, in other situations I no longer let things slide or ignore them as I may have done years ago. I now directly, yet professionally, confront offenders about sexist comments and misogynistic conduct. Doing so may not always fix the problem, but it certainly empowers me and commands respect. Of course, it also helps to have a good sense of humor, the support and inspiration of fellow sisters-in-the-law, and an occasional vodka cocktail.
Jane E. Fedder is a partner and vice-chair of the environmental practice at Polsinelli P.C., in St. Louis.