Yesterday, after a seven-day trial, a federal court jury began weighing the question of whether LaBrum & Doak fairly denied Masterson a partnership based on her legal abilities or violated federal discrimination laws by basing its decision on her sex.
The jury of six women and two men deliberated about three hours after closing arguments by lawyers for both sides and instructions by U.S. District Judge Clarence C. Newcomer.
The jurors are to resume deliberations this morning on the question of whether Masterson was improperly denied a partnership in 1992. Because of changes in the law, Newcomer will decide the propriety of the firm's 1991 partnership denial.
Masterson, 35, joined LaBrum & Doak in 1984 after working as a law clerk for Pennsylvania Supreme Court Justice James T. McDermott. She told the jury that she expected to spend her legal career with the firm, but was denied a partnership in 1991, 1992 and again this year. Unless Masterson wins this case, LaBrum & Doak policy says she must leave by Dec. 31.
For the Philadelphia legal community, it has been a year of bad press.
First, there was the steamy trial this summer of lawyer Kathleen Frederick's sex-discrimination case against the law firm of Reed, Smith, Shaw & McClay and one of its best-known partners, Richard Glanton.
The trial was a month-long spectacle that dissected Frederick's allegations that Glanton had pressured her into a sexual relationship with promises to help her career. The jury cleared the law firm but found that Glanton had
sexually harassed Frederick.
The jury awarded Frederick nothing for the harassment count, but awarded her $125,000 against Glanton for defamatory statements he made about her to reporters. Both sides are appealing the verdict.
And now there's Ellen Masterson's suit against LaBrum & Doak, an insurance defense firm of about 120 lawyers that traces its lineage to 1905.
Masterson's claims against her firm contain none of the racy allegations of sexual harassment found in the Frederick case. It is more like Nancy O'Mara Ezold's 1990 lawsuit against the prestigious Center City firm of Wolf, Block, Schorr & Solis-Cohen.
The Ezold trial - believed to have been the first in the nation in which a female lawyer took her firm to trial, saying that she had been discriminated against because of her sex - resulted in a judge's finding that the firm had passed over Ezold for promotion solely because she was a woman. That finding was overturned on appeal, a decision upheld this year by the U.S. Supreme Court.
Like Ezold, Masterson alleges that she was passed over for partner at LaBrum & Doak and that the reason was her sex. But Masterson's allegations go further, contending that proof of the firm's discrimination can be seen not only in the number of women hired and promoted but also in the "culture of the firm."
"It's essentially an old boys' club that meets at the Avalon Yacht Club and makes offers of employment over drinks," said Alice W. Ballard, Masterson's attorney.
Speaking before a packed courtroom, Ballard argued that the firm's partners had failed to provide Masterson with important information about LaBrum & Doak's partnership policies and then used her failure to meet certain partnership bench marks against her.
But mostly Ballard attacked "the culture of the firm," one she said in which off-the-cuff statements by key partners made it clear that no woman had a chance of becoming partner.
Ballard cited trial testimony quoting the firm's former longtime managing partner, Daniel J. Ryan, as saying in 1986, when the firm terminated its first female partner: "She'll be the last broad that will be a partner while I'm here." In testimony, Ryan denied the statement.
Ballard also cited trial testimony about Ryan's successor as managing partner, Zachary R. Estrin, who witnesses said regularly used a four-letter vulgarity for a part of female anatomy when referring to LaBrum & Doak's female lawyers. Estrin testified that he never used the word in front of any woman; he conceded using it "extremely infrequently," along with other vulgarities, in private conversations on the telephone or in his office.
If Estrin uses the vulgarity, Ballard told the jury, "this is what he thinks about women, and this is something from which they will never be able to recover. . . . They are low, they are dirty, and in relationship to him, have no power."
Jane L. Dalton, the lawyer representing LaBrum & Doak, argued that none of the alleged sexist comments had been said in Masterson's presence and noted that Masterson still wanted a partnership at the purportedly sexist firm.
"We're not talking about a firm that doesn't support women, we're not talking about a firm that doesn't give them opportunities," Dalton told the jurors. "We're talking about Ellen, and Ellen is passive . . . she wants the (firm's) executive committee to come to her.
"Lawyers have to be advocates not only in the courtroom, they have to be advocates for themselves in the law firm. Partnerships are not handed out on a silver platter."
Of LaBrum & Doak's 40 partners, four are women, said James O. Hausch, the firm's administrative partner. About half its 80 associate lawyers are women, Hausch said, and the firm has hired 59 women since 1987.