Women Criminal Defense Attorneys: Interview with Gail Shifman

ShifmanGail Shifman, a criminal defense attorney from San Francisco, has a reputation for being a passionate and dedicated defender. She has extensive experience handling complex white-collar cases for both corporations and individuals, as well as general criminal cases ranging from high profile murder cases to less serious matters. Gail has been included in Northern California Super Lawyers since 2009, is listed in Best Lawyers in America, and been a Martindale Hubbell AV Rated lawyer since 1996. When talking to Gail her fiery and fearless spirit comes through, and she isn’t afraid to speak her mind. She has grown a successful private practice and has much to teach about what it takes to make it on your own. She is an inspiration not only for women that dream of hanging out their own shingle but for the defense bar as a whole. Her passion for her work is infectious and I’m thrilled to introduce her to you.

What is the most significant shift that you have seen for women in criminal defense over the years you have been practicing?

I think the most significant shift has been in the number of women in the field. It’s always so encouraging to see young women come into the fold who are committed to real defense advocacy. Watching them roll up their sleeves and get their hands dirty, so to speak, to ensure that everyone under investigation or charged with a crime not only receives effective representation as guaranteed by the Sixth Amendment (which as we know doesn’t require much other than the ability to breathe) but instead providing vigorous, zealous representation is inspiring. For me, that is always wonderful to watch, work next to and with.

On a more substantive level, I actually don’t think the shifts have been that significant, beyond the numbers. Women criminal defenders whether in white-collar or in general criminal defense still aren’t on a level playing field with men, especially when it comes to competing for business or commanding equal pay. There remains a long fight ahead for all of us to ensure that we’re on equal footing with the men in our field. In spite of our increased numbers and the fact that there are some women who have broken through and found great success, it still feels like a boys’ club.

What do you think we, as women, need to be doing to ensure that we are on more equal footing?

We need to be both more sensitive and less sensitive to gender issues. I know that sounds confusing but first we each need to be strong enough to call out subtle gender biases that happen every day in multiple ways while at the same time we need to learn to take it in stride and laugh at it too. Ultimately, though, we need to call out gender bias when it occurs. Something I have found effective when talking to men about behavior which is either overtly or subtly gender biased, is to couch the conversation in the context of their own daughter. This changes the perspective and provides a better path to understanding. I will ask “would you want your own daughter spoken to or treated in that way?” It doesn’t help to get angry or obnoxious about it and, in fact, I think that approach hurts.

Amongst ourselves, there remain some women who still believe they have difficultly working with other women and that kind of attitude doesn’t serve any of us. We have to recognize that there is strength in numbers. The more women you have working together on a team the better because women actually work quite effectively together. Unfortunately this is still rare and it is more typical to see a team of all men and one woman. We each have to say – “I’m willing and want to work with other women and I’m going to put women on equal or first footing in my mind when it comes to building a team or sharing business.” We each have to say – “I’m going to suggest a woman defender to my male colleagues when they are seeking to refer clients.” So often it seems that men control the corporate business that I think women are reluctant to recommend other women for a number of reasons including the antiquated notion that women don’t work well together. That needs to change. I personally love working with other women and welcome it. I would love to see all female defense teams. That would be amazing.

What does it take for a woman to succeed in criminal defense?

First, you have to learn that the worst thing that can happen is that someone is going to say no, and so what? We all hear no all the time in this business. We hear it from prosecutors, judges and in our practices everyday. No is not the end game. There are plenty of opportunities beyond that no. So first and foremost, you have to be willing to risk being rejected.

Then you need to be relentless. You can never stop networking. You have to learn to develop a way to trumpet your successes every chance you get without being obnoxious. I don’t think tooting our horns comes naturally for most women but you need to find your path to it. Every time you meet someone, that is a networking opportunity. Every time you are chatting with someone, that is an opportunity. And every opportunity needs to be followed up – do it the old fashioned way and hand out your card or even better, email, text or, dare I say, call. Add them to your contacts list; go to lunch. And, get out in your communities – from your individual office to your firm to your broader legal community, parents’ and social groups and beyond. Do you go to the driving range? Make sure they know who you are and what you do. You can’t be shy about how fantastic you are and there are really many ways to do that without being a turn-off. And if you are a solo, like me, you have to remember to remind people that you are out there because we can all get lost in the shuffle. Share with others your successes and your hard fought defeats both in and out of the courtroom.

And, if you have kids you have to figure out a way to create work life balance while making sure that the zeal for your clients and your business comes across every chance you get, which is no small challenge. I have no special tricks up my sleeve about that one.

Do you think women bring unique skills and attributes to defending the criminally accused?

Every person has a unique set of skills, whether male or female. Generally speaking though, I believe women are much more effective at listening and understanding the subtext of what is really being said. One of the essential skills of being an effective advocate is being able to tell a story and women are particularly good at understanding their client’s life story. Being able to convey a client’s story for mitigation purposes to persuade the government to refrain from charging or for use to minimize the ultimate sentence imposed by the court is critical.

It’s important to be a good storyteller, but in order to be a good storyteller you first have to be a good listener. You have to understand not just the facts and the law, which are obviously necessary, but you have to understand the motivations and emotions involved. This is true not only for your client but also your opponent because if you can’t understand where they’re going emotionally or where they were emotionally and what is motivating them, then you can’t effectively persuade. At the end of the day that’s what effective advocacy is all about, persuasion.

Most rewarding part of being a criminal lawyer? Most draining part?

The most rewarding part of being a criminal lawyer is effectively managing the risk for my client. Sometimes that means a straight on acquittal at trial and sometimes that means negotiating a resolution that minimizes the impact on their life. Being able to work and communicate with a client and help them understand what the best resolution is for them, in the big picture of their life, is the most rewarding part of the job.

The most draining part is the fallout around the client especially when dealing with the family which can sometimes be a nightmare. I often see male colleagues relegate this duty to female associates or to a woman on the team but, like it or not, it is an essential part of what we all have to deal with when we represent someone. It is, however, emotionally draining and often the toughest part of the job.

San Francisco is a unique environment for women in the white-collar and general criminal field. Can you describe why?

San Francisco has a very entrepreneurial spirit. It always has. The city is on fire right now; it’s booming with start-ups everywhere. Everyone has an idea to make a zillion dollars and it’s the kind of town where the entrepreneurial spirit is valued, above and beyond your gender. So when you have that as a landscape it opens up a lot of opportunities. Nobody cares whether you’re a woman or a man, white, brown or black or what your sexual orientation is if you have a good idea that’s going to make a lot of money.

Having said that, we just had this high profile gender bias trial against a big venture capital firm where a female junior partner was dealing with all sorts of subtle and not so subtle gender discrimination and harassment. She ultimately lost the suit but the trial shed a bright light on what is going on in Silicon Valley as well as other parts of the country. So don’t get me wrong, it’s not as if women here don’t face similar challenges as women do in other parts of the country, but what feels different is the spirit and energy that is uniquely San Francisco.

Most important weapon in your criminal defense arsenal?

My empathy. I understand that humans are flawed and that even a wonderful person 99% of the time can still make a mistake. My job is to convey the message during every stage of representation that it’s a small mistake in the scope of their life. I personally feel that this skill combined with my ability to immediately understand the big picture while at the same time managing minute details enables me to strategize effectively and has made me an incredibly successful advocate.

What has been your most successful business initiative?

I’ve successfully developed working relationships with other law firms. We join forces to work on cases together which has definitely increased the base of work that I have. It has also made it easier for me to market myself on larger cases that might not come my way because I’m a solo.

Claim to fame?

I’m tenacious as hell. I just don’t let go. Some people are less kind at how they describe it and might say I’m a ball buster.

Best advice you ever received?

Be yourself.

Moment you felt you had made it?

I got an acquittal in my first trial and I knew right then and there that I had made it.

One thing people who know you don’t know about you?

I’m a homebody.

Women Criminal Defense Attorneys: One Strong Juror is All It Takes

Just this week Jodi Arias was sentenced to life without parole for the murder of her boyfriend in 2008. Arias has been represented throughout by one of our own, Jennifer Willmott from Phoenix, Arizona who represented Arias in the guilt phase and through two penalty phase trials. Willmott spent many years as a public defender out of law school and is now in private practice. To say that this must have been an all-consuming case for Willmott is an understatement. This is the kind of case that takes everything out of a defense lawyer.

The Arias case has had a media circus surrounding it since the beginning; portions have been televised and it has been all over social media. Like so many other murder trials in the last couple decades the courtroom drama takes on a sort of entertainment quality, somewhat akin to reality TV. The problem with that kind of atmosphere is that it unquestionably has a prejudicial effect on the accused’s right to a fair trial. It is almost impossible to seat a fair and impartial juror in a media obsessed environment which inundates potential jurors with opinions and suggestions rather than evidence. It has a devastating effect on the concept of a public trial and due process.

The law in Arizona prohibits the retrial of Arias after two separate juries hung. The Court had no choice but to sentence Arias to life, but was left to decide whether to sentence her to life with the possibility of parole or a natural life sentence. The jury that found Arias guilty of murder hung during the penalty phase last year and the court granted a mistrial. In October 2014 a second jury was sat to hear the retrial of the penalty phase which finally resulted in a second hung jury mid-March 2015. There was one hold out for life, and eleven verdicts for death. Just one. She faced harassment from her fellow jurors during the deliberation and has been threatened after the trial through social media, and been subject to rumors of misconduct and possible investigation.

No juror, regardless of their verdict, should be subjected to the kind of harassment that Juror 17 has been forced to endure. She had the courage to stand up for what she believed in and what she determined the proper verdict should be after considering the evidence. It is shameful that she had to be subjected to that kind of scrutiny and abuse. Funny how our society doesn’t take a second look at a hold out for death and examine their motives in the same way. In fact, have you seen one article questioning the motives of a juror that voted for guilt or death of an exonerated defendant?

We have to address the devastating effects that the current obsessive media environment has on the fundamental rights of the accused and even on jurors’ rights to privacy. It is time for our Courts to re-examine the concept of a public trial in this new media culture. Something has to change. In the meanwhile, this example is a stunning reminder of the power of one juror.

Women Criminal Defense Attorneys: We Should All Be Feminists

I just read a short essay titled We Should all Be Feminists by Nigerian author Chimamanda Ngozi Adichie.

It is a short but powerful summary of Adichie’s Ted Talk that she gave in December 2012. Both the essay and the Ted Talk are truthful and bold statements about the overt and subtle gender discrimination that women still face in our society. She rightfully encourages both men and women to reclaim the notion of being feminists. She states “Culture does not make people. People make culture. If it is true that the full humanity of women is not our culture, then we can and must make it our culture.” Listen to the Ted Talk here.

Women Criminal Defense Attorneys: Blair Berk and Lisa Wayne Negotiate Multi-State Plea Deal for Darren Sharper

Blair Berk along with Lisa Wayne and a team of lawyers in multiple states have seemingly pulled a rabbit out of a hat for Darren Sharper. I previously discussed the challenges and dangers of a multiple victim and multi jurisdictional case of this nature here. The stigma of similar allegations from multiple victims would have been an uphill battle for any defense attorney. But, the lawyers in this case accepted that challenge with grace and style and pulled off a huge victory for their client. Sometimes I watch lawyers fight the tide in every single case. And there are many cases, such as this one, where that is simply not a wise strategy. Fighting against the tide in a case like this would have simply ignited the mob mentality that was circling around it.

The defense team, which includes two of our own, negotiated a global settlement where Sharper will serve 9 years to run concurrent and end all the claims in all jurisdictions. Sharper has already started pleading guilty in some states and others are reported to follow. When all is said and done, he will plead in California, Louisiana, Nevada, and Arizona and is reported to be serving the nine years in federal prison followed by a life term of probation once released. By all accounts this is a huge victory for a defendant facing far more time in each individual case than even this global deal that resolves multiple cases at one time.

The women representing Sharper had the instinct to know that minimizing the risks of fighting different cases in different states was the best way to serve their client. Nine years is still a serious term of incarceration but considering that Sharper was facing far greater sentences individually and collectively, in multiple states, this resolution is clearly a huge victory.

I have to admit that when I first heard about the case it never occurred to me that there could be cooperation between the different states to structure a global settlement that all jurisdictions could live with. This plea serves as a reminder to me and for all of us that we have to look beyond the perceived roadblocks or restrictions in our cases and think outside the box for creative solutions. Congrats to Blair, Lisa and the entire team. No doubt Sharper got the benefit of some fine lawyering.

Women Criminal Defense Attorneys: Nina Marino on Cover of Los Angeles Lawyer Magazine

Nina Marino, who we have previously interviewed here, is on the cover of the Los Angeles Lawyer Magazine this month with Blithe Leece, who is Of Counsel with Marino’s firm. The two women are highlighted as they take up the cause of educating lawyers about the dangers of public corruption prosecutions under the California Penal Code. It’s a comprehensive review of the types of prosecutions that are increasing for public officials and those responsible for public monies in California. They correctly advise that “[f]or any client who sits on a board of directors for a company receiving public funds, the best advice is to know what is going on, ask questions, and maintain records of activities.” The cover article is titled The Accidental Defendant and is worth a read whether or not you practice in California.

What I obviously love most is that the Los Angeles County Bar Association highlighted two strong women criminal defense attorneys on the cover of their prestigious bar magazine. Way to stand out Nina and Blithe!

Women Criminal Defense Attorneys: Judy Clarke and Team Continue to Impress

The trial of Boston marathon defendant Tsarnaev officially started and Judy Clarke laid down the gauntlet in a fight for her client’s life. She wasted no time telling the jury in opening that her client committed the crime.

The New York Times called her strategy an echo of Clarence Darrow. Clarke told the jury she wasn’t contesting the who, what, where, and when of the government’s case, but only the why. She then went on to paint a picture of her client as a lost teenager who was controlled by a radical older brother. Clarke told the jury that her client would not sidestep responsibility for his crimes. This was a move that undoubtedly gained her credibility with the jury, being that she wasn’t going to try to insult their intelligence with some slick argument but rather told them the truth. It is amazing how jurors respond to being told the truth by a defense attorney.

Since the dramatic opening there have been countless daily reports of the parade of witnesses. Clarke and Miriam Conrad are taking every opportunity to extract detailed facts that support their theory. Some of the first witnesses were victims of the attack who shared harrowing stories of survival. CNN reported that the defense team did not cross-examine any of these witnesses. This was absolutely the right move. It showed respect for them and their stories, and that they were doing exactly what they promised in opening, not fighting the what.

When one of Tsarnaev’s friends was called to testify that he had given Tsarnaev the gun that was later used to kill a police officer, Conrad cross examined the witness about comments Tsarnaev made to his friend about his brother that clearly supported the defense theory that his brother was controlling and radical. There are similar reports for almost every witness that has taken the stand. I couldn’t help but imagine when reading these reports that Clarke and her team reminded me of skilled surgeons who are very methodically making incisions in a patient to get to the cancer in the patients body while trying to prevent it from spreading. It is a very deliberate and thoughtful dance.

No one would question that this is a tough defense case, but sometimes the answer to even the toughest case is simply the truth. And the truth is that family relationships are complicated and complex. The truth is that we have all seen this story before. Most of us have had the experience of representing a client who wasn’t predisposed to commit crime but committed a crime nonetheless at the bequest or prodding of a family member. I think this is such a universal experience that if you represent people accused of crime you surely have seen the effect of family influence on a client. So, the only difference here is that the crime that was committed resulted in unimaginable destruction. It doesn’t change the story behind what happened and bravo to Clarke and the entire defense team for having the courage to tell, what appears to be, Tsarnaev’s authentic story and hoping that the jury has the courage to listen and understand.

Women Criminal Defense Attorneys: The Focus on Women’s Issues is Stronger than Ever

Lately there seem to be more and more stories about women standing up and drawing attention to inequality in the workplace. These issues range from unequal pay, to work environments that serve to harass and belittle women, to a lack of fair opportunities for promotion to positions of leadership. Right now there is trial in San Francisco relating to a high profile employment discrimination suit brought by a former partner of Kleiner Perkins, a venture capital firm. The testimony in the trial sheds light on the “good old boys” environment that many women are complaining about. A former prosecutor has brought suit against the district attorneys office in Suffolk County Massachusetts for gender bias, claiming she was paid less than her male counterparts.

And these aren’t just isolated cases. A gender discrimination lawsuit against Goldman Sachs was back in the news yesterday when a magistrate recommended denial of their claim to certify a class. The women have alleged that work related events were held at strip clubs.

This focus around women’s issues isn’t going away anytime soon. The Clinton Foundation released the No Ceilings Report this week that is the result of a study conducted in partnership with the Gates Foundation and the Economic Intelligence Unit. The Clintons announced this No Ceiling Initiative aimed at closing the gender gap and promoting more women into position of leadership. Then yesterday, the United Nations held its 59th Commission on the Status of Women and urged the private sector to help close the gender gap.

Even movie stars are getting in on the action. During Patricia Arquette’s Oscar acceptance speech she said “To every woman who gave birth, to every taxpayer and citizen of this nation, we have fought for everybody else’s equal rights, its our time to have wage equality once and for all and equal rights for women in the United States of America!” My favorite part of the speech was watching Meryl Streep and Jennifer Lopez cheering her on and fisting pumping in the air from the audience. So women in law are clearly not alone. There is disparity in pay and treatment across the professional board from law, to Silicon Valley, to the gaming industry, to engineering, and yes even in Hollywood.

Many naysayers thought the conversation that got reignited when Sheryl Sandberg wrote Lean In would extinguish as quickly as it started. But in fact the opposite has happened, it has spread like wildfire. It is now in a soon-to-be Presidential candidate’s best interest to openly take up women’s issues and gender inequality in pursuit of the White House. What does that tell us? That collectively our voices are strong and powerful. Let us not forget that.

Women Criminal Defense Attorneys: Women’s White Collar Defense Association Annual Retreat

This year’s Women’s White Collar Defense Association Annual Retreat, formerly known as “Spa Day”, took place last night in New Orleans. It was another raving success. There were over 175 women from all over the country present for an afternoon and evening of networking. This is the fourteenth year that women in the white-collar field have made an effort to connect around the ABA white-collar conference. When the group first met there were 8 women and today the association has over 800 members with an annual retreat that reaches maximum capacity around 175 women. For the past couple years there have been wait lists of women that want to attend and of firms that want to sponsor. The energy and excitement of the women in the room was palpable.

Karen Popp of Sidley Austin, who was one of the original eight, is a driving force behind the association’s continued growth and success. She addressed the women yesterday during both the afternoon and evening events and is an inspiration for the group and for anyone in the field. She shared how networking with women in the field has grown her business and contributed to her success. The women of Collora, LLP including but not limited to Maria Durant and Eve Slattery deserve a lion’s share of praise for the time they put into organizing the event year after year. Maria gave special thanks to the consultant firm sponsors and law firm sponsors that made the event possible this year. Finally, Marjorie Pearce of Ballard Spahr addressed the women and encouraged every woman in the room to get involved in the clemency project and donate their time to help. Check out the clemency project through NACDL, which directs you how to contact them to volunteer.

Every year I attend this event I am reminded about the power of connecting with other women in the field. Consider what eight women who put their minds together were able to create; a powerful network for women in the white-collar field. It is a shining example of what we can accomplish when we join together and commit to helping one another. Just imagine what 175 women can do!

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Women Criminal Defense Attorneys: Joan McKown Represents Goodyear in Settlement with SEC

Joan McKown of Jones Day represented Goodyear in a reported settlement of more than $16 million dollars related to charges brought by the SEC. The charges stem from the company’s violations of the Foreign Corrupt Practices Act (FCPA) when its subsidiaries paid bribes to land tire sales in Kenya and Angola. Here is the SEC press release. The SEC claimed that Goodyear failed to prevent the payment of 3.2 million in bribes during a four-year period that were improperly recorded in their accounting records as legitimate business expenses. The settlement requires the company to report its FCPA remediation efforts to the SEC for a three-year period.   It has been reported that Goodyear self-reported the violations and that the DOJ declined filing criminal charges.

Prior to joining Jones Day as a partner in 2010, Joan McKown spent 24 years working for the SEC and left in 2010 as longtime Chief Counsel of the Division of Enforcement. She lectures extensively on SEC matters and not surprisingly focuses her practice on representing clients and companies before the SEC. McKown clearly drew on her experience, knowledge, and advocacy to reach this favorable outcome for her client. Without question we are lucky to have her on the defense side of the table.

Women Criminal Defense Attorneys: Checking in With Women Criminal Lawyers Around the Country

Bruce Jenner hired lawyer Blair Berk after he was involved in a car accident in early February that resulted in a fatality.   Berk, who practices in Los Angeles, California, has a great deal of experience representing celebrity clients, which spark intense media attention as we previously discussed here.   Jenner was involved in a car accident with four other cars that caused the death of a 69-year-old woman. There is an investigation into the cause of the accident.

Meanwhile, the jury selection process is still on going in the Dzhokhar Tsarnaev Boston Marathon bombing trial. Judy Clarke and Miriam Conrad are not giving up on a request for change of venue and were just granted a hearing before the First Circuit Court of Appeals for their clients renewed request to change venue based on the answers from prospective jurors. The prosecutors are obviously arguing that the appeals court should deny the request to change venue, while the defense has repeatedly pointed out that conducting this trial in Boston could never yield an unbiased impartial jury. Jury selection has been ongoing since the beginning of January, which in and of itself should speak volumes. The Court of Appeals did deny a request to stay the jury selection process until the argument before the Court, which could be argued does not bode well for their chances. In spite of this, kudos to the defense team for not giving up on this critical issue. Argument before the Court of Appeals is later this week.

Please reach out if you know a case involving a woman criminal defense attorney. I want to continue to feature the great work that women are doing across the country!