Curated Content United States: Honoring Women's History Month: JAMS Neutrals Reflect On Their Careers And Provide Words Of Wisdom For Future Generations (Podcast)

In this podcast, JAMS neutrals Hon. Karen Brown Willcutts (Former), FCIArb; Hon. Gail S. Tusan, Senior Judge; and Hon. Judith Fabricant (Ret.) discuss their remarkable careers in recognition of Women's History Month. The conversation starts with each neutral reflecting on some of the barriers that they encountered and how those experiences ultimately shaped them. The neutrals reflect on how they have seen an increase in the number of women in the legal profession and the role that mentorship, fair treatment and taking opportunities to help support other women can play in boosting those numbers. From there, the neutrals discuss their work on the bench and how they encourage other women to pursue judicial careers.

Focusing on ADR, Judge Willcutts, Judge Tusan and Judge Fabricant discuss their observations on how gender may influence an individual's approach to dispute resolution, as well as instances where they believe their gender may have influenced their appointment to certain cases. They also highlight certain skills—such as strong listening and empathy—that have helped them build successful ADR careers. The neutrals also reflect on areas where the industry can improve regarding gender inclusion, such as finding opportunities to expose women to careers in the law at earlier ages. The conversation concludes with insight for younger women looking to build a career in ADR and a reminder to be yourself, be authentic and find ways to support those around you.

JAMS - Podcast - Women's History Month

[00:00:00] Moderator: Welcome to this podcast from JAMS. In this episode, we're going to recognize Women's History Month by speaking with three women, JAMS neutrals who have led remarkable careers in the law. With us are Judge Karen Brown Willcutts, formerly a trial lawyer and civil associate judge for Dallas County, whose career has spanned more than 35 years; Judge Gail Tusan, who spent more than 30 years of judicial service in various Georgia jurisdictions, including four years as chief judge of the Fulton County Superior Court; and, finally, Judge Judith Fabricant, whose 25-year career on the Massachusetts Superior Court included seven years as its chief justice.

[00:00:47] Wow. So, it is so wonderful to have all of you here. Judge Tusan, I'll start with you. Women have made strides in the law, but it hasn't been easy. Can you talk about some of the barriers you've encountered throughout your career and how they've shaped you?

[00:01:08] Judge Gail Tusan: Absolutely. Happy to be here and to have this conversation on the occasion of Women's History Month. You know, at this point of my career, I certainly feel like I have had nothing but an absolute honor and privilege to serve on the bench and to serve my community, but quite candidly, there—there certainly were barriers along the way, and as I was reflecting on my career, there—there're kind of categories of barriers that—that I would set forth at this time.

[00:01:39] One would be—and I actually recently wrote about this in a book that I co-authored—and it's others', I guess, limitations that they seek to impose on you for whatever reason, whether it's not knowing you, whether it's bias, whatever it might be. And so, I certainly recall a few instances—probably at the beginning of my career, even going back to law school—where I had to reassure myself and be confident that, you know, I was capable and entitled to be wherever I was, to acquire the knowledge and information, and had to work around the perceptions or the suggestions that maybe I might do something else, you know, less ambitious or, you know, less of a trend-setter.

[00:02:28] Another barrier I would say—certainly as a young associate—I was the first African American female associate at my law firm. It was a wonderful film. It was a wonderful experience, and I wouldn't trade it for the world, but I didn't have any mentors that looked like me or had similar experiences.

[00:02:50] I was young, married. I had a child. And, you know, there just weren't people there, the women that were mentors or offered it as mentors, they were single. They were older. They didn't have young children. Finally, I would say a barrier to trying to advance oneself was having the lack of experience that was put forth as being necessary to achieve the next level. So, I found myself having to create opportunities for myself to gain the experience necessary to be able to advance.

[00:03:30] Moderator: Judge Fabricant, Judge Tusan talked about low expectations and not many people who could mentor her, not many people who look like her. Does that sound familiar? What about you? What were your experiences early on in your career?

[00:03:45] Judge Judith Fabricant: I want to pick up on something Gail said. Gail referred to having to assure herself that she was capable, and particularly the perception that maybe I might want to do something else. I think that's what I felt in my early years as a lawyer.

[00:04:05] I don't have horror stories. Nobody treated me badly. I clerked for a judge who treated me very well, who has been a mentor ever since. I worked at a law firm that treated me very well, and then I worked in a series of public offices where I was well treated. I don't have horror stories, but I had that feeling and I sensed that others around me had the question of was I going to stick to it? Was I going to stick it out? Was I in it for a career, or was this sort of a short-term lark that I would rethink when I had children, when my children got to whatever age. And, in order to be taken seriously, I really had to think internally about whether I was going to continue with it and had to convey to everybody else that yes, indeed, I was going to have a whole career in the law.

[00:05:08] Moderator: And a very distinguished one. Judge Willcutts, can you chime in about your experience early on in your career? What—where have you seen strides?

[00:05:18] Judge Karen Brown Willcutts: Yeah, so my ideas about what growth I have seen, like the others', sort of go back—starting at the early days of when I entered law school in 1982. And it was actually kind of a banner year for young women coming into law school because about half of my law school class were women, which was quite unusual. So that was a big stride way back in 1982. And, you know, a decade before, it wasn't probably anything like that.

[00:05:50] But I had interesting experiences, which were a little disconcerting at first. After my first year in law school, I had an interview in my hometown of Fort Worth, Texas, for a summer clerkship. And when I told the male partner who was interviewing me that I wanted to be a litigator, he said something to the effect of "Darling, I don't know any women litigators in Fort Worth." Well, needless to say, after that, I only interviewed with Dallas law firms. Well, then I was fortunate too in 1985 when I graduated from law school and I joined what at the time was a pretty large firm in Dallas. And we had actually two or three women in our starting class that were in litigation. But one setback that I saw early on was that as time went by, it seemed more and more women, more than men, were sort of dropping out of the practice of law. And I attribute this in part to the lack of a maternity leave policies and flexible schedules for lawyers. I was the first associate in my firm to have a baby. And there was no maternity policy for lawyers.

[00:07:02] I just had to make a proposal to my firm about what I would like, and it was accepted, fortunately. And then as time went by, though, the women partners sort of lobbied, and we did develop a lawyer maternity policy. And I think, though, since then, significant progress has been made in providing reasonable maternity leave and paternity leave for new parents, as well as flexible schedules and also alternative tracks for both men and women who don't necessarily want to be on the grueling partner track.

[00:07:37] So, that's one great stride I have seen. Also, one great experience I had was that I was really blessed to have two wonderful male partners who mentored me. They had faith in me. They gave me great responsibility, opportunities to excel. And I also was fortunate to have a female associate who was just a couple of years ahead of me, who befriended me, gave me all her litigation forms, even though we weren't in the same department of the firm. And I think this is the kind of thing that we are making more and more strides on. When I first became a lawyer, there probably weren't that many local, state and national bar associations that had women lawyer sections, and now that's just a great stride. Very common. And I do think it's important, though, that women don't focus solely on help from other women or women related organizations.

[00:08:39] I had one of my great male mentors nominate me for a position on the council of the Antitrust and Business Litigation section of the State Bar of Texas. And I served on that for five years. And then I was the chair for one year. And that was a great way to meet other lawyers and just make strides from across the state.

[00:09:03] So, just quickly, a couple of other points that I think I've seen strides in that helped me, that I think can help other people. Not to underestimate the value of helping younger lawyers. Not only is it a kind thing to do, but it can enrich your life as a lawyer and a person. I just think there's a lot of progress that's been made in quality of life.

[00:09:26] For lawyers—and I have had several younger lawyers that I mentored come to me years later and thank me for my help. And I just think that's part of what we need to get better at, and we are getting better at. And then, of course, other huge areas of growth are the many women lawyers who are now serving as general counsel of major corporations.

[00:09:49] They're leaders in government and managing partners of major firms. So, just an overview of some of the great strides that I've personally seen.

[00:10:00] Moderator: Absolutely. Anybody else want to add to that list of strides that you've seen?

[00:10:05] Judge Gail Tusan: Yes, Andrew, I would. So, in Georgia, when I became interested and was encouraged to pursue basically a career on the bench. So, I practiced law for approximately 10 years but spent about 30 years on the bench. So, most of my career has been as a judge and in Georgia, as I'm sure in most states back—prior to the early '90s, benches were populated primarily by older white males. And we had some civil rights legislation litigation began first and then had a settlement that was negotiated to create new positions on various benches throughout Georgia. And so, that's really how I got my first opportunity to serve as a general jurisdiction felony trial judge. I was one of the first to fill the position, and I would say, you know, comparing what the bench looked like years—you know 30, 40 years ago to what it looks like now, I'm so proud that there are so many women that have had the opportunity either to be appointed or to actually run for office, supported by their communities to serve. And so, now the bench properly reflects the community that it serves, and women make tremendous judges. We're great listeners; we're patient. We have the ability to kind of multitask. We're used to facilitating and resolving disputes. So, I would encourage anyone, you know, listening to us that may have an interest in serving on the bench to consider it. And personally, it does give you the flexibility that you need in terms of your schedule, if you wish to balance your career with family or personal interests.

[00:12:05] Judge Judith Fabricant: I'm going to second the encouragement that women consider a career on the bench. In Massachusetts, all judges are appointed. It—it's sort of like the federal system. We don't have any elected judges. We certainly have seen an increase in women judges over the last several decades, but the increase is not evenly distributed across the departments of the trial court. We have separate departments of the trial court for separate subject matter. The superior court is the trial court of general jurisdiction that handles the larger-scale civil cases and the more serious criminal cases.

[00:12:45] And the number of women on the superior court just has not been what it should be. The diversity of the superior court in general has not been what it should be. So, I want to send a message out there to women lawyers in Massachusetts. Please apply for the superior court. There is a real need, and, I think, to make that application, you have to be willing to put yourself forward, but you should put yourself forward. So, that's my message to women at an earlier stage of their career in the bar in Massachusetts.

[00:13:22] Moderator: OK. Important PSA there. Thank you. All of you have spent time on the bench, but what is it about ADR that interested you? Judge Tusan?

[00:13:33] Judge Gail Tusan: So, I've kind of alluded to this. I think what interested me in transitioning from being an elected judge with a docket to a senior judge serving as requested so that I could then transition into an ADR practice was really my love of interacting with people. I think my gift for facilitating and resolving disputes—and there's certain limitations that all of us probably have experienced as a judge in terms of, you know, what you can say, how you can say it, how you should say it—nothing like the TV judges that we see and cringe when we hear them. But, you know, the ability to kind of, I guess, take off the robe and be a little less formal, but be more intentional, about using your experience in resolving and presiding over countless cases and your people skills to help the parties themselves reach an agreement. Because when—when they help to curate the resolution, there's more investment and more acceptance with the final result. And so, I had just reached the point after 30 years where I just wanted to do something different but knew that I had just a boatload of experience that I still could offer to serve my community.

[00:15:02] Moderator: Judge Fabricant, do you have any observations on how gender may play a role in how individuals approach arbitrating or mediating disputes?

[00:15:12] Judge Judith Fabricant: Well, we all try to avoid stereotypes, and I will try to avoid stereotypes. That said, I think one of the skills that is most important—certainly in mediation and in arbitration—is listening. I think there's a quality of listening that perhaps women cultivate and or are encouraged to cultivate in the course of our upbringing and careers that is useful in the mediation context. It's also one of the things that we bring—those of us who come from the bench, you can't listen as deeply and as long; you certainly try to listen, but you can't listen as deeply and as long as you can in an ADR context. So, listening, I think, is really important. Listening deeply, giving people the opportunity to be heard, to tell their story. People want to tell their story, even people in business disputes—and that's most of what I've been involved in—and we have this idea that people in business disputes are making business decisions. Well, that's true, but they have emotions around their business decisions. And what I have felt that I've been able to do is to listen deeply to the emotions of the parties. And I have felt like that has facilitated resolution.

[00:16:40] Moderator: And Judge Willcutts, if you were to look at some of the skills and approaches that you bring to your craft, what's been helpful in your career?

[00:16:52] Judge Karen Brown Willcutts: Yes. Well, thank you. I think listening is definitely a skill that is very important. I agree with that. I think, similarly, empathy, especially in mediation. Of course, in arbitration, we have to be a little more distant, but even then, I think we can show some empathy, but I think empathy is a big part of it. I believe that, over the years—and I've been with JAMS for about 18 years now—that I have been requested in certain kinds of cases because I am a woman—you know, sexual abuse, sexual harassment or sexual discrimination cases, especially where the claimant is a woman. I think women often just feel more comfortable with another woman listening to their story.

[00:17:45] So, I think that's—and again, I don't want to stereotype either—I think there are a lot of men out there who are empathetic, but certainly, in my experience, I feel like that is something—you know, 50 years ago or whatever, a lot of women wouldn't have had the choice [to] have a woman be their mediator, to have a woman be their arbitrators. I think, that's just one instance that I've seen of where I think we've advanced.

[00:18:10] Moderator: Judge Tusan, do you want to add anything about your history that you think gives you an advantage in resolving disputes?

[00:18:17] Judge Gail Tusan: Well, part of my practice—I guess a subspecialty—is family law. And when I was on the bench, I helped to create a family division for our court where the goal was to take as much of the acrimony as possible out of the adversarial nature of resolving a family law case and to inject into the process some ADR and some opportunities even for individuals without counsel to feel like the playing field, you know, was relatively level or equal. And so, I think based on that experience and reputation as being a good family law judge for part of my career.

[00:19:07] Many of the cases that I have heard with JAMS have been as a result of that prior experience. And then I think—without getting too personal—I have personal experience with going through, you know, a family transition. I've been a stepmother, you know. I've dealt with custody issues, well, with a former spouse.

[00:19:32] I think that gives me the ability to kind of see both sides of those types of cases, which is certainly the type of neutral that you want. I think to be selected more often, you need to have a reputation for being able to kind of see both sides of an issue as opposed to being perceived as a, you know, a plaintiff's neutral or respondent's neutral.

[00:19:57] Moderator: Mm-hmm. Absolutely. Judge Fabricant, the theme for Women's History Month is Count Her In: Invest in Women. Accelerate Progress. How do you interpret that theme? What does that mean to you?

[00:20:11] Judge Judith Fabricant : Well, I think back to the early part of my career. I graduated from law school in 1980, and the sense of being kind of invisible—even though I said I didn't have any horror stories—there was that sense of being kind of invisible, of not being taken seriously. I think that is much better now, but what we still need to do is make sure that everybody is seen. So, for me, for example, in doing a mediation, if there are on one side—there's an older male lawyer and a younger female lawyer, which is a quite a common phenomenon. I think we've all seen that—that on the bench as well.

[00:20:54] I want to make sure that I acknowledge both of them, that I speak to both of them by name, that I give them both an opportunity to speak. I certainly wanted to do that when I was on the bench, and I want to do that as a mediator and as an arbitrator. I think that's what makes change over time is when everybody is acknowledged, everybody is seen, everybody is given an opportunity to participate. We've seen a lot of that change, and we need to see more of it.

[00:21:23] Moderator: Judge Willcutts, what are some other ways that the profession can accelerate inclusion?

[00:21:29] Judge Karen Brown Willcutts: I think one of my favorite ways to help, I think—and we have a lot of programs like this in the Dallas area, really in Texas, but I'm more familiar with the Dallas area—is engaging young women early on at the high school level and at the college level. I like to take part in speaking to high school kids when they have, you know, days where we're going to expose kids to different professions to be involved in helping judge mock trials. We even have high school programs here in our area where they do mock trials and certainly at the college level. I just think helping girls see and envision early on what a career in law is like—and, of course, I'm most familiar with litigation, but women who do real estate and corporate transactions can all be a part of mentoring and exposing younger women to the opportunities in law. Also, being a mentor yourself to young associates in law firms, which again is my background. I was at a private firm for 17 years before I went on the bench.

[00:22:41] So, being a mentor to younger women. Speaking at seminars for women. Figuring out why women still, I think, are dropping out—I don't have the exact statistics, but in just in my own personal experience—we still see, I think, more women dropping out of the legal profession than men and also women still not necessarily getting promoted at the same rate as men with similar qualifications and skill levels.

[00:23:11] I read a book and spoke with one of my colleagues at a women's seminar a number of years back, and the book is sort of dated now, but it was called Women Don't Ask, and it was all about why women aren't reaching the heights of their career quite as well as men. And I think we still need to be talking about that. I think it still is the issue. And I think the women that wrote the book were in business and in education, and they actually wrote a subsequent book, which I only recently heard about, called Ask for It, just teaching women that you can be assertive without seeming like you're pushy, which, unfortunately, you know, I think in history shows us that a man can be assertive and everybody, you know, applauds him for it. But if a woman is "too assertive," then she's considered pushy or difficult or whatever. And I think that's still something that we need to work on, and it's something that we need to teach women about as they're coming up: how to be assertive without appearing to be, I don't know, pushy, I guess is a word, but it shouldn't be a difference—is the problem between men and women. And I think we just need to still work on that.

[00:24:32] Moderator: Yeah, still a double standard there. Judge Tusan, Judge Willcutts mentioned the importance of mentorship. Can you talk a little bit about mentorship and how that's played a part in your career and maybe, you know, what words of wisdom or advice would you offer to younger women looking to create a career in ADR?

[00:24:53] Judge Gail Tusan: So, Andrew, I love this question. I am a founding member and served as the second president of an organization in Georgia called the Georgia Association of Black Women Attorneys. And in addition to our mission of serving the community, particularly women and children, a key principle of our existence—and I think our success and still existing in being a vibrant organization after 40 years—is the awareness that we need to support each other as—as women professionals.

[00:25:27] We need to develop confidence in being able to self-promote in a tasteful but successful way and also to promote each other. And so, throughout my career, I have been blessed with mentors both male and female who have helped me to evolve into, you know, the person that I am. They have helped me to assess, you know, all of the things that I'm involved in and how to present my experience in a way that would be responsive and useful in applying perhaps for a judgeship. I know one of my colleagues today was talking about—I think it was Massachusetts needed more judges on the superior court. And the application can be very daunting, and you can look at it and think, well, hmm, I don't know what I would say, or I don't have that many cases to share.

[00:26:22] Judge Gail Tusan: But you've done a lot. And so, the mentor that you choose for yourself should be someone who recognizes your raw talent, acknowledges your past successes and can help you along your journey to achieve even more. I think my advice would be to make sure that you garner experience in a variety of ways, that you're well rounded, that you periodically do a self-audit of what you're most passionate about and, you know, if you're not enjoying your day job—you're not excited about getting up every morning and making time for it—then it may be that you need to make a change, and you shouldn't be hesitant to do that in an intentional way if that's what your heart is telling you. In addition, I think it's important to make sure that your mentor can assist you in actually gaining not just the legal knowledge that you need to be an expert in your field, but also helps you to position yourself to be able to develop the business acumen that you need and the ability to attract clients that you need in order to be successful. And, in the ADR field, we all need others to refer business to us, and we need not to be hesitant to help others in attracting business to perhaps share cases, to refer one case, with the expectation that maybe you'll, you know, get a different case. I think we just have to help each other and not be hesitant or feel that we need to compete with each other to the detriment of anyone.

[00:28:06] Moderator: There's pearls of wisdom there. Judge Fabricant, anything to offer the young listener out there who's trying to think about how to create a lasting career in ADR.

[00:28:20] Judge Judith Fabricant: Well, I agree with everything Judge Tusan said and could not say it better in any respect. I would just add that I think it's really important for all of us to be mentors for others at every stage of our own careers and at every stage of others' careers. That's something that one can do at an early stage and can do a little differently at a later stage, and we all should be doing that.

[00:28:48] Judge Gail Tusan: I would just say be authentic. So, you know, we're all different. All of us on this panel, I think, have had and are still enjoying successful careers. But, you know, there are differences among us, and you shouldn't try to mold yourself into, you know, being like someone else that you see as being successful. You need to really be intentional about trying to assess what your strengths are, identify what your weaknesses are and work on those. But be true to yourself. And if you're true to yourself, you're going to be successful. And that's what's most important, to be you.

[00:29:36] Moderator: Well, Judge Willcutts, Judge Fabricant, Judge Tusan, you all have led and still lead distinguished careers. It's been an honor and privilege to speak with you on this special occasion. We really appreciate it.

[00:29:52] Judge Gail Tusan: Thank you.

[00:29:52] Judge Judith Fabricant: Thank you, Andrew.

[00:29:52] Judge Karen Brown Willcutts: Thank you, Andrew.

[00:29:55] Moderator: You've been listening to a podcast from JAMS the world's largest private alternative dispute resolution provider. Our guests were Judge Karen Brown Willcutts, Judge Gail Tusan and Judge Judith Fabricant. For more information about JAMS, please visit www.jamsadr.com. Thank you for listening to this podcast from JAMS.

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