November 1990

What's Sex Got to Do with It?

PARTNERSHIP ON TRIAL

WOLF, BLOCK'S COURT BATTLE WITH A SPURNED ASSOCIATE DEMONSTRATES HOW HARD IT IS TO DEFEND A DECISION ABOUT WHO SHOULD BE A PARTNER IN A BUSINESS TEMPERED BY COLLEGIALITY

Loren Feldman

IT MAY HAVE BEEN ON THE FOURTH DAY OF THE TRIAL that Wolf, Block, Schorr and Solis-Cohen started to feel the pain. That was the day Nancy Ezold, the first spurned associate ever to take a law firm to trial for denying partnership, flipped open the firm's personnel evaluation files and started to read aloud. The comments, all penned by Wolf, Block partners, all directed at former associates who had made partner, clashed with the dignified Ivy League law-review image that the firm was trying hard to construct.

First, Ezold, who claims she was denied partnership because she is a woman, read slowly from a list of one male associate's purported weaknesses:

"Overly impressed with himself. ” "Does not focus on issues.” "Talks incessantly."

Then she moved on to the male associate who "simply disappears without notice, sometimes for a couple of days and sometimes on extended vacations." One time he failed to show up when he was supposed to be working on a motion for a client, U.S. Healthcare Systems, a Philadelphia health maintenance organization that was going to trial. When the client asked where the motion was, the associate said he'd been too busy with other matters, which led U.S. Healthcare's president to conclude that Wolf, Block wasn't all that interested in his business. "As the result of [this] unfortunate remark," Ezold read gleefully, "the firm came very close to losing a client responsible for over a million dollars in fees." She paused. "If [he] were more organized," the evaluation continued, "he would complete what needs to be done before he leaves on his jaunts."

By the end of the trial these male associates would all be familiar. The one who committed malpractice by delivering a sealed document to opposing counsel. The one whose "outrageous personality" offended both a partner and yet another important client-- "My father-in-law," wrote the partner, "changed law firms as a result." And the one who was so generally hapless that a partner wrote, "If he is made a partner, I will never again submit an evaluation of any associate. I don't know how he has lasted this long."

"All these people made partner?" asked federal district judge James McGirr Kelly at one point.

"That is correct."

The 13-day bench trial, held in Philadelphia in August and September, could have a decision late this month--a decision that is no doubt being nervously awaited in male- dominated firms across the country. With increasing numbers of women coming up for partnership at a time when the economic climate is forcing firms to dole out partnerships judiciously, it seems unlikely that this will be the last law firm to be challenged by a jilted female associate.

Throughout the trial Wolf, Block scored points against Ezold, asserting vigorously that she did not have the credentials or the intellect to be a Wolf, Block partner, but the trial prompted some to wonder if the firm might have let its emotions get the best of its intellect, something it never would have allowed a client to do. "Why do you try this case?" asks one partner. "What price pride?"

The price was steep. The trial exposed some old rifts at the firm and created a few new ones. One current partner, Gregory Magarity, Ezold's biggest supporter for partnership, testified for the plaintiff. And the comments Ezold pulled from the firm's evaluation files were printed in The Philadelphia Inquirer in an article headlined, "Some become law partners, warts and all, trial shows."

The trial also raised questions about the always-subjective partnership process that could have been embarrassing for almost any firm. If the trial proved anything, it proved that litigation can be a messy and unsatisfying way to evaluate either competence in a lawyer or discrimination by a firm.

Ultimately, say the lawyers who run Wolf, Block, they refused to settle the case because they didn't want to encourage other such suits and because they were certain they were right. "We are concerned here with excellence of service and making money," says Charles Kopp, co-chairman of the executive committee. "And we are not interested in sex discrimination."

"THERE'S A CERTAIN IRONY here," says Kopp. "We know what discrimination is."

The 215-lawyer firm might not exist if not for the anti-Semitism that long plagued the law business. Founded almost 90 years ago by a brilliant litigator named Morris Wolf, the firm has had a magnificent history in part because it was once one of the few places in Philadelphia where a Jewish lawyer could get a job. At a time when many clients wouldn't retain a Jewish firm, Wolf, Block developed a national reputation among those who would.

Taking advantage of his aristocratic roots among Philadelphia's German Jews, emphasizing his own litigation practice, and building the city's best real estate practice, Morris Wolf created a firm that came to play a major role in the Philadelphia legal community. It produced five chancellors of the bar association, three city solicitors, and one mayor. Until recently Wolf, Block employed more lawyers in Philadelphia than any other firm.

Much of the growth followed the 1962 arrival of another brilliant litigator and rainmaker, Howard Gittis. A key consultant to several mayors, including Frank Rizzo and William Green, Gittis delivered high-profile litigation and a cascade of municipal bond work. After he went off to New York in 1985 to help Ronald Perelman try to take over the world, Gittis's clients, who reached far beyond the litigation department, were split up among three of the firm's top lawyers--"the rich got richer," says a partner--Charles Kopp, Robert Segal, and William Rosoff, who would soon be known within the firm as "the troika."

Unlike Gittis, however, the members of the troika are not known for their leadership skills. Under Kopp and Segal, who are co-chairmen of the five-member executive committee, and former chairman Rosoff, who attends all executive committee meetings as the firm's "financial planning partner," Wolf, Block has developed a reputation within the city's legal community for in-house politicking and backbiting. One dispute cost the firm its West Palm Beach, Florida, office and led to an exchange of suits between the firm and the two partners who ran the office, one of whom, Paul Shapiro, was the son-in- law of a former chairman. Another dispute cost the firm its highly regarded environmental department.

Once resolutely democratic, with even the youngest partner having the same vote as founder Wolf, the firm is now divided into six tiers of partnership, only the top three of which get to vote. More than 20 of the 102 partners are in Group I, the firm's name for its top tier. All the partners in any one tier get the same draw--although the troika and a few others command special consideration. To move up a tier, a lawyer must convince the executive committee with a thorough, brief-like petition and then win a 75 percent vote of the partnership.

The firm's work is still respected, but even before Ezold started reading personnel evaluations in court, the internal discord had fueled a perception within the Philadelphia legal community that Wolf, Block has changed. "When I was there," says a former associate who's been gone ten years, "it was unthinkable that people who'd made partner would ever want to leave. Now, when I say to someone that I was at Wolf, Block, I no longer expect them to say, 'Oh, that's a wonderful place to have been."' WHETHER OR NOT Nancy Ezold was discriminated against, she certainly had some things working against her at Wolf, Block. Following college she spent 13 years working as an assistant or an administrator in U.S. Senator Edmund Muskie's office, the Philadelphia Model Cities Program, and a special prosecutor's office in Philadelphia. After graduating from Villanova University Law School in 1980 she practiced for three years with two small Philadelphia firms, Phillips and Phelan and Kirschner, Walters & Willig. By the time she joined Wolf, Block in 1983 as a litigation associate, she was 40, older than many of her superiors.

Perhaps more important, as Wolf, Block emphasized throughout the trial, she did not attend a first-tier law school, and her performance at Villanova was not exceptional (in the top third of her class of 194), even if she did give birth to her second son just before her third year. By most accounts the lack of an impressive diploma can be a hindrance at Wolf, Block, especially when partners are selecting associates. "There's a tendency to say, 'I don't want him. Give me X, the smart Jewish kid from Harvard,"' says Seymour Kurland, who was chairman of the litigation department when Ezold was hired. (Kurland is now at Philadelphia's Dechert Price & Rhoads). "She could never overcome the prejudice of her law school record, which is like walking around with a yellow star on your arm," adds Kurland. "You can't overcome that."

After several years of general litigation Ezold chose to specialize in white-collar defense work for Magarity, who, in the words of a departed litigator, may have been "the wrong rabbi." In part the former litigator was referring to a sense among his former colleagues that, in the post-Gittis era, litigation doesn't command the in-house respect it once did, mostly because the chairmen of the litigation department haven't been able to compete with the troika as business generators. There is also a sense in the department, says the same departed litigator, that the business lawyers who run the firm think litigators who try cases instead of settling them are dangerous. "If you try a case," he says, "you can lose, and you can be sued for malpractice." Magarity is Wolf, Block's preeminent trial lawyer. A former assistant U.S. attorney who handled some of the biggest corruption prosecutions in Philadelphia history, he now has a thriving white-collar practice, although he's not one of the firm's top fee-producers. And he does try a lot of cases.

It may also be worth noting that both Magarity and Nancy O'Mara Ezold are of Irish descent. While the firm remains predominantly Jewish, it's been a long time since it had its pick of Jewish Ivy League law-review editors. As the legal world opened to Jews, Wolf, Block opened to non-Jews, developing, in particular, a strong Irish Catholic streak. And yet, in recent years, several Irish lawyers have left the firm, and according to one former partner, there remains a widespread impression that if you want to make it to the top, it helps to be not just Jewish but German-Jewish. "[The Irish lawyers] would always get a couple kegs of beer on St. Patrick's Day," says one lawyer who has departed, "and all the Jewish guys would say, 'What's this? Beer? Why can't they drink Diet Coke like us?"'

Even some of its partners concede that Wolf, Block has never been known as a great place for women. It has something to do with philosophy--the firm has no formal part- time policy--and something to do with numbers: Of the 102 partners, only five are women. That does not compare well with other large Philadelphia firms, such as Pepper, Hamilton & Scheetz, where 20 of 159 partners are women. When Nancy Ezold joined the litigation department in 1983 it had one female partner. When she left five years later, although the department had grown from 34 lawyers to 55, and although year after year 25 percent of the associates had been women, it still had one female partner.

During the trial Ian Strogatz, chairman of the associates committee, proudly noted in The Philadelphia Inquirer that the firm had named its first woman partner back in the 1940s. He did not point out that the woman was the daughter of a name partner or that it took 30 years to select another.

The second was Judith Cohn, whose reputation within the firm was the opposite of Nancy Ezold's: Cohn was considered an "intellectual cripple," a brilliant lawyer who couldn't get things done. She was also considered a snob and a troublemaker. "She would say to Charlie Kopp," says Kurland, "'Let's face it, Charlie, you're not in my league intellectually. You just go around sucking up to people to get their business.' Well, you just don't say that."

Was she wrong?

"No, she wasn't wrong."

In 1986, at the age of 43, Cohn died in what was rumored to be a suicide. By all accounts she had been miserable both personally and professionally, but few would deny that one of the things that made her unhappy was that Wolf, Block had never promoted her to voting partner, Group III, even though roughly 70 percent of all partners vote. (In the firm's history only two women, one still active, have been allowed to vote.) Ezold's lawyer, Judith Vladeck, a prominent plaintiffs employment discrimination specialist at New York's Vladeck, Waldman, Elias & Engelhard, made no mention of Judith Cohn at the trial. "I decided not to touch it," says Vladeck.

Since dozens of women, including two former partners, have left Wolf, Block in the past decade, the firm's female alumnae are scattered around Philadelphia. Not one of the more than ten approached, including both former partners, would speak to The American Lawyer for attribution, and not one testified for Nancy Ezold. "My preference," says Vladeck, "is to avoid asking people to put their heads on the block."

One Philadelphia headhunter, Larry Cesare, president of Personnel Resources Organization, says that while he has heard good things about Ezold and would welcome the opportunity to place her, he is not reluctant to send female lawyers to Wolf, Block. "Absolutely not," says Cesare, who placed Roma Young, one of the firm's female partners, as an associate. "I would have no problem whatsoever. I don't believe that women are treated badly at Wolf, Block."

But it's not hard to find people who say the treatment of female lawyers has long been an issue at Wolf, Block--and it's not hard to find people who take Ezold's charges seriously. "The women at Wolf, Block certainly feel there is discrimination against women," says former real estate associate Stuart Maron. "I don't think there is any question about that among the female associates."

"My only guess [for why Ezold didn't make partner] would be sexism," says a former partner who worked with Ezold. "There is no rational basis for saying she was not a capable lawyer. If somebody says she's no good and not capable and not bright, that is just nonsense. Wolf, Block would not have kept her if she wasn't good."

At the trial one Wolf, Block witness after another would tell the court that while Ezold was "good on her feet," she did not have the analytical ability to write the briefs necessitated by the firm's "high-powered commercial litigation practice." By the time the trial ended the firm wouldn't even concede she was good on her feet. "She wasn't bad on her feet," says co-chairman Kopp, who says he's relying on his partners' impressions. "It's like the ugly girl. Everybody says she's got a great personality. It turns out, [Ezold] didn't even have a great personality."

The firm's unabashedly elitist defense took some observers by surprise, especially those familiar with Judge Kelly's background: He went to law school at Temple University, never worked for a big firm, and probably couldn't have gotten in the door at Wolf, Block--facts that must have been driven home every time a partner took the stand and was asked, "Where did you go to law school?" and "Were you on the law review?"

The judge, amiable, silver-haired, and of Irish descent, did seem impatient at times, but the cause may simply have been the length and repetitiveness of the proceedings. As the trial neared the end of its second week an issue arose over whether a certain comment should remain on the record. "It is on the record," said the judge, "but I'll probably never read it. If you think I'm going to read this record . . ."

TO OPPOSE VLADECK, 67, Wolf, Block selected Mark Dichter, 47, a soft-spoken partner at Philadelphia's 664-lawyer Morgan, Lewis & Bockius, in part because Strogatz- -who as chairman of the associates committee had overseen the process that rejected Ezold and who was overseeing the litigation--didn't want anybody "beating up" on witnesses. Throughout the trial Dichter would have the full-time support of four Wolf, Block partners, including Strogatz and Roberta Liebenberg, the lone female partner in the litigation department.

Day after day Ezold, a tall, dignified woman with short blond hair, came to the eighth floor of the federal courthouse on Market Street and testified about her experiences at Wolf, Block, including the reaction of Alan Davis, who succeeded Kurland as chairman of the litigation department, when she was passed over. "This is a bad day for you," she recalled Davis saying. "But it is a worse day for Wolf, Block. It's time that this firm learned that there is room for lots of kinds of people, and this is a disgrace."

But even that statement--about which Davis wasn't asked at trial--did not specify that Ezold was rejected because she was a woman. And in fact, her allegations of sexism at Wolf, Block were remarkably skimpy. It is conventional wisdom, especially among nonlawyers, that sex discrimination suits are hard to prove because smoking-gun evidence is hard to find. "To think someone would say in a memo, 'Don't hire her, we have enough women,"' says a Wolf, Block partner, "is to think we hire morons." But under Title VII of the Civil Rights Act of 1964 a plaintiff can win a sex discrimination suit without presenting any direct evidence of sex discrimination. (Last May Price Waterhouse, the accounting firm, lost a sex discrimination suit to a woman who'd been rejected for partnership; in 1979 Atlanta's King & Spalding settled a similar suit.) To show a prima facie case Ezold needed only to establish that she was a woman, that there were men who got the position she wanted, and that she was at least arguably qualified-- which wasn't difficult, since Wolf, Block acknowledged it had offered her a partnership if she were willing to take over the domestic relations practice.

The defense then had the burden of articulating an alternative explanation: If it wasn't sex discrimination that stopped Nancy Ezold, what was it? The firm's answer was intellect: She didn't have the academic background of the typical Wolf, Block lawyer, and her performance at the firm betrayed serious deficiencies in legal analysis and writing ability. As part of its defense the firm had to explain why so many of its partners, including some of those who would testify against her, had given her positive evaluations-- because if the judge didn't find the defense credible, even without a smoking gun he could find for the plaintiff.

The final burden of a Title VII case falls on the plaintiff to show that the defense is, in fact, a pretext. That can be done either by poking holes in the defense or by offering evidence, direct or circumstantial, of sex discrimination. Ezold attempted both, with mixed results.

Paralleling the strategy used by the plaintiff who beat Price Waterhouse by presenting evidence that the accounting firm's partners considered her insufficiently feminine, Ezold attempted to depict an atmosphere of sexism at Wolf, Block. She said that during an argument partner H. Robert Fiebach had yelled at her, "Don't be so Irish about it!" She testified that she considered the statement bigoted and "something that he would say to a woman because he thought he could get away with it."

But she could not entirely rule out the possibility that Fiebach had said, as he would later testify, "Don't get your Irish up." She was asked on cross- examination, "What led you to believe that he would say it to a woman and not to a man?"

"He said it to me," said Ezold. "I'm a woman."

The man who took the brunt of Ezold's sexism accusations was the man who had hired her, Seymour Kurland. Though he'd been chairman of the litigation department, Kurland, not unlike Ezold, had never quite fit in at Wolf, Block-- he wasn't German-Jewish, and he wasn't afraid to speak his mind. After he lost the litigation chairmanship in a power play he left to become city solicitor and then joined crosstown rival Dechert Price & Rhoads-- "Sy fits in at the Dechert office," one of his former partners told The American Lawyer at the time, "about the same way as Buddy Hackett would fit in on the board of directors of Chase Manhattan Bank." He was gone from Wolf, Block by the time Ezold came up for partnership, but she testified that, among other things, he used to stop her in the halls and say, "Nancy, you've got to smile more. Didn't you get laid last night?"

After the line was quoted in the Inquirer Kurland says he started getting funny looks-- "especially [from] the women. They say, 'Isn't he the sexist one?"' But Kurland, who testified he used the remark as an icebreaker, said the same thing to a lot of people--male, female, even his son-in-law. "Nancy knows that, too," says a former partner who is generally sympathetic to Ezold's case. "If you know Sy, you know that statement was totally innocent."

At the trial not one person, male or female, corroborated Ezold's testimony about sexism at Wolf, Block. In fact, Ezold and partner Magarity, her rabbi, were the only witnesses Vladeck called.

Vladeck was more effective with circumstantial evidence, raising questions about whether Ezold was treated fairly. She was, for example, paid less than a male associate hired at the same time who also was three years out of law school. Yet several partners testified that the firm valued the male associate's experience, three years with Skadden, Arps, Slate, Meagher & Flom, more than Ezold's three years with small firms.

In her early years at Wolf, Block Ezold also had trouble, as did another female associate, getting assigned to complex matters, a fact Kurland and another partner, Robert Boote, had acknowledged in a meeting in March 1985. "We told her," Boote later wrote in a memo, "that we did not view it as her fault that she hadn't had the opportunity to demonstrate these abilities yet, since her work was in large measure a product of the assignments she got."

Several partners testified that she'd been hired despite a mediocre academic record only because the firm was desperately short of litigators, and that the real reason she had difficulty getting assigned to complex matters was that the partners had good reason to doubt her competence. That was not, however, reflected in several early evaluations. In one evaluation Boote warned against the self-fulfilling prophecy of assuming she couldn't handle complex issues. In an evaluation written during Ezold's first year Kurland wrote, "She has not, in my view, been getting sufficiently difficult matters to handle because she is not the Harvard Law Review type. However, I think she too will be an outstanding litigator. . . . We must make an effort to give her more difficult cases."

At Wolf, Block every partner is expected to submit annual or semiannual reviews on all 100-plus associates. Even partners who indicate having had little or no contact with an individual often report impressions that they may have picked up in the hallways or in conversations with lawyers at other firms. ("Attitudinally, she's the pits," wrote one partner who had never worked with Ezold.) The evaluation forms are remarkably detailed, with opportunities to rate associates on, among other things, legal analysis, writing ability, research skills, formal speech, judgment, creativity, promptness, reliability, growth potential, ability under pressure, ability to work independently, and dedication.

Space is also left for written comments and for two key questions: Would the partner feel comfortable turning over a significant matter for one of his own clients to the associate? And would the partner view the eventual admission of the associate as a partner with enthusiasm, favor, mixed emotions, or negative feelings? In 1988, the year Nancy Ezold's name came up, 59 partners had no opinion about her admission as partner, 21 recommended her with enthusiasm or favor, six had mixed emotions, and four were negative. Of the ten mixed and negative evaluations, only four came from partners who had ever worked with her (two mixed, two negative), and only one of those was from a partner who had had contact with her in the previous year.

That information was first compiled in an extraordinary memo to the executive committee written by Magarity. In November 1988, after the associates committee had recommended against partnership for Ezold, Magarity spent a Sunday poring through her personnel file and writing the memo, in which he ranked Ezold "among the top three or four associates with whom I've worked, in every category." The four-page memo also stated that the partners with whom she had worked the previous two years were "uniformly" in favor of her partnership and that the perception that she could not handle complex cases could be traced to Kurland's view of her role when she was hired. "Nancy was literally trapped in a catch-22," wrote Magarity. "The chairman of the litigation department would not assign her to complex cases, yet she received negative evaluations for not working on complex cases."

Magarity, who says he never showed the memo to Ezold and intended it solely for the executive committee, then listed some of the complex matters she had handled for him. "In all these matters," he wrote, "Nancy has played more than just the traditional role of the senior associate in litigation. She has literally been an alter ego, having to step up to actually do many of the negotiations, depositions, hearings, and even trials that I was unable to [do] because of scheduling conflicts. Most importantly, the reason clients praise her is because she does excellent work and gets them great results."

Conceding that he had a personal stake in trying to avoid the inconvenience of restaffing clients and cases, Magarity urged the executive committee to reconsider. He also attached an evaluation written by litigation chairman Davis that could hardly have been more favorable--something Davis in his testimony would attribute less to Ezold's talents than to the firm's need to lower its standards. "Her ability to become so useful and so effective in so short a time was truly amazing," wrote Davis, who had just used Ezold on a complex matter and who was known as one of the firm's more intellectually demanding partners. "Opponents respect her. The [client's] officers and directors are crazy about her and have said so. Nancy is another one of those people who is here weekends and nights--and she has difficult family responsibilities. She never complains about work load and is always available. She is one of two or three people who will march into court and handle a preliminary injunction on an hour's notice. . . . I could handle any case with Nancy, and she will soon be able to handle major cases independently."

ON THURSDAY, AUGUST 9, Magarity walked past the plaintiffs table, winked at Nancy Ezold, and took the stand. Throughout his testimony his answers were cool, crisp, and terse, a clear attempt to walk the line between his partners and his friend. While Vladeck took him through his direct examination, which focused on his memo to the executive committee, two of Magarity's partners sat on the other side of the room preparing his cross-examination.

Not surprisingly, they kept it gentle, but throughout the trial Wolf, Block would work hard to undercut Magarity's testimony, to try to show that he either didn't really like Ezold or was simply an easy grader. "Mr. Magarity," testified Davis, "had a reputation in the firm for tending to evaluate people uniformly highly on an uncritical basis, and therefore his evaluations tended to be discounted."

That came as news to Magarity, as did testimony that his evaluations were given less weight because the firm tries to avoid departmental bias, to prevent partners from supporting associates for reasons of convenience or ego rather than merit. "If I was being discounted," says Magarity, "I didn't know it. . . . If you don't give more weight to people who know more about the associates, you're giving more weight to people who know less about them. I don't understand that."

In his memo Magarity had stated unequivocally that he wanted Ezold, as a partner, to work full time in his white-collar criminal defense practice. And yet, during the trial, several partners testified that while Ezold was an associate Magarity had balked at suggestions that he take 100 percent of her time. "Mr. Magarity said to me that Ms. Ezold would not be satisfactory to him," testified Bob Fiebach, "that she was fine for hand- holding witnesses before a grand jury, but he was looking for someone who could handle criminal cases on their own, and she was not capable of that."

"If he said that, he's mistaken," says Magarity. "I never had that conversation with Bob Fiebach."

Associates committee chairman Strogatz also testified that, in light of Magarity's positive reviews, he had encouraged Magarity to use Ezold full time. "I can tell you," says Strogatz, "there were a lot of people here who began to wonder [when Magarity didn't take Ezold full time], 'What the hell is he talking about in his reviews?"'

"I don't have a recollection of talking to Ian about it," says Magarity, who claims he didn't want a full-time associate because he liked having access to lots of associates and because he thought it would damage Ezold's partnership chances to work exclusively with one partner. "I certainly did not mean to give him the impression that it was on the basis of competence. She continued to work on major cases for me. Why would I have kept using her if it was on the basis of competence?"

Without question, the Magarity memo was Ezold's strongest piece of evidence, but even the memo had said nothing about sex discrimination. "Was there anything," Magarity was asked on cross-examination, "that you saw in any of her reviews that would lead you to believe that any of them were influenced or based in any way upon the fact that Ms. Ezold was a woman?"

"No."

"Was there anything that any partner said to you or you heard any partner say that would indicate to you that their view of Ms. Ezold or their judgments concerning Ms. Ezold were influenced by the fact that she was a woman?"

"No."

Q: Where did you attend law school?

A: University of Pennsylvania Law School.

Q: Were you on the law review?

A: Yes.

Charles Kopp, on the second day of the trial's second week, was the first of 15 Wolf, Block witnesses to take the stand. One after another, at great length, the co-chairman and his partners testified that Ezold's writing and analytical abilities were lacking, that she had been given the opportunity to stay with the firm as either an associate in litigation or a partner in charge of domestic relations, and that she had been warned from the beginning that partnership was a long shot. The standard for partnership at Wolf, Block, Kopp testified, was that a partner should be able to handle any case the firm gets, "no matter how complex, no matter how difficult, no matter how sophisticated."

One goal of the defense was to bolster the male associates whose performances Ezold had highlighted. For every negative comment she had pulled from their evaluations, Wolf, Block pulled a positive one, with special emphasis on writing ability and legal analysis. By contrast, many of the positive evaluations partners had given Ezold were now dismissed: The reviewers hadn't wanted to be overly critical or hadn't expected much from an inexperienced associate. The firm also noted that at the same time it had denied Ezold partnership, it had also turned down a male litigation associate and accepted a female in real estate.

Barry Schwartz, a former partner who was once one of her biggest supporters and has since left the firm to work for Howard Gittis in New York, testified about his evaluation that Ezold's judgment "can be clouded by oversensitivity to what she misperceives as women's issues." Schwartz cited her opinion that paralegals would be better paid and better treated if they weren't predominantly women.

He also told of a 1986 meeting with Kurland and Ezold. Unlike most firms, Wolf, Block tells its associates in writing what their partnership chances are two years before the decision is made. As a result, most of those who aren't going to make it leave--which means the firm loses the most productive years of the associate's tenure--and most of those who stick around until their partnership year do make it. In the last 15 years there have been only five exceptions, including Ezold. It was at the 1986 meeting that Ezold was given a sheet of paper on which, next to a question about her partnership chances, the box marked "unclear" had been checked.

"Both Sy and I," Schwartz wrote in a memo right after the meeting, "urged Nancy to seriously consider looking for employment elsewhere, as she may not be able to turn the tide. Nancy acknowledged this advice and stated that at this point she would like to hang on to see if she can't turn the consensus to her side." Before he stepped down, shaking hands on both sides of the aisle, Schwartz recalled a conversation he'd had with Ezold, shortly after she was denied partnership, in which she attributed her rejection to sexual discrimination.

"And did you respond to her at all?" asked Dichter.

"Yes," said Schwartz, "I told her I thought she was dead wrong." During her cross- examinations Vladeck hammered away at the personnel evaluations, hoping to leave the impression that a male associate could do anything and still make partner. She also suggested that the partners were under great pressure to follow the party line and not answer yes to any question that implied sexism existed at Wolf, Block.

"Ma'am," said partner Fiebach in response to that implication, "I take very seriously my oath as a witness in this case. When I walk to the federal courthouse from my home . . . I walk past Independence Hall, and . . ."--at which point Nancy Ezold turned away from the judge and mouthed the words, "Give me a break!"--"I'm always in awe as I walk past that, and I'm very much aware of our justice system. And I would not answer any question intentionally untruthfully. If my answer to that question had been yes, I would have answered yes."

THE FIRM PUT FOUR WOMEN on the stand. The first was Judith Widman, who had been a nonequity partner, specializing in domestic relations cases, before moving to a smaller Philadelphia firm, Hoyle, Morris & Kerr. It was the departure of Widman with the firm's other divorce specialist, David Hofstein, that had prompted Kopp to make Ezold an unusual offer: If she would take over the firm's divorce work permanently, Wolf, Block would guarantee her partnership in a year. She rejected the offer as demeaning.

Now, in putting Widman on the stand, Dichter had to walk a fine line. He had to refute Ezold's contention that there was something demeaning about divorce work, but he also had to explain why Ezold was qualified to be a domestic relations partner but not a general litigation partner. In the end, though Widman had come in support of her old firm, it was hard to say whose questions were more insulting. It was Dichter, trying to walk that line, who asked her, "To what extent did your practice in the domestic relations area at Wolf, Block require you to write briefs?"

"I almost never wrote briefs," said Widman, smiling uncomfortably.

And then, on cross-examination, she was forced to read some of the evaluations her old friends at Wolf, Block had written about her, the same guys who'd asked her to come testify that there was nothing demeaning about domestic relations work. One of the comments had been written by Strogatz, who was seated on the other side of the room when Widman gave voice to his bottom-line evaluation of her work: "bright enough in her area."

After a young litigation associate who had recently moved to California testified about how much she hated to leave the firm, Roberta Liebenberg left the third seat at the defense table to climb into the witness stand. The only female partner in the litigation department, she testified that she, too, had opposed partnership for Ezold. She had had only slight contact with her, but Liebenberg's evaluations stated that Ezold had an "antagonistic attitude" and was "not a team player."

On cross-examination Liebenberg testified that though she was the third woman partner in the firm's history, she had not yet been allowed to vote. She was also asked if she had ever been the lead lawyer in any case that went to trial.

"Mr. Fiebach and I were going . . ." she began.

"It's a simple question, Ms. Liebenberg," interrupted Vladeck. "I asked if you have ever tried a case, not whether you had ever gotten ready to go to trial."

"No."

Vladeck later asked Liebenberg about being the only female partner in litigation: "Have you ever heard . . . about the queen bee syndrome?"

"No."

The last woman to testify for Wolf, Block was Francine Griesing, a litigation associate on maternity leave, who said she would come up for partnership in 1992 and that she had no reason to believe she had ever been treated unfairly at Wolf, Block because she is a woman. In an interview after the trial she emphasized that the firm had been exceptionally supportive during a difficult pregnancy and that she would recommend the firm to any lawyer, male or female, who is willing to work hard.

"Would your testimony be any different," Griesing was asked on cross-examination by Vladeck's partner, Debra Raskin, "if you were aware that [partner Leonard] Goldberger had called you hysterical, nervous, unable to do more than one thing at a time?"

"No, it would not, because I think all those things apply to Mr. Goldberger just as well as they apply to me." "And would your testimony . . . be different," asked Raskin, "if you knew that Roberta Liebenberg had described you as very volatile and too strident in an evaluation?"

"No," she answered without looking at the defense table, "but I have never worked with Roberta Liebenberg, so I don't know what she would be basing it on."

Q: Where did you attend law school?

A: Harvard.

Q: And were you on the law review?

A: Yes.

Alan Davis, the litigation chairman, had pushed harder than anyone other than Magarity for Ezold. It was, after all, Davis's glowing evaluation that Magarity had chosen to attach to his memo. But that was not readily apparent in his trial testimony. During his direct examination he criticized Ezold's research, writing, and analytical ability and stated that the male litigation associate who had been rejected for partnership the same year stood "head and shoulders" above her. He attributed his support for her partnership exclusively to his sense that Wolf, Block had no choice but to lower its lofty standards.

Davis, who called the firm "an artificially created intellectual ghetto," launched into a monologue about what Wolf, Block had once been: "It was a creature that we will never see again. . . . If [a Jewish lawyer] wanted to do what Harvard or Penn was training you to do, namely, practice high-class corporate law, you couldn't find a job, except at a few isolated pockets of places like Wolf, Block. . . . "We had people who were absolute geniuses in the law. The atmosphere of the place was constant legal discussion. At that time we were required to work three nights a week, and if you were smart, you would work four, and you would work on Saturdays. We were always having lunch together, dinner together. The discussion would always be about the law. We would write briefs. We would spend hours on a sentence. We would turn out product that was worthy of General Motors for Sam's Gas Station, because that's who we represented. The place was indescribably brilliant. And it just isn't that way today. With all deference to some of my young partners who are sitting out there, and they are very, very good, you can't even imagine the way it was in the 1960s. . . . "As time went by, instead of getting the officers of law review, we began to get people who didn't make editor at law review, and then we started to go off law reviews and then started going deeper into classes, and, thankfully, because discrimination started to relax and erode . . . we began competing in the market with everybody else. . . . And there were good people and bad people and mediocre people and medium people."

And there was Nancy Ezold. Soon after Davis concluded his speech the trial recessed for the day. Out in the hallway Judith Vladeck said loud enough for all to hear, "He should have tried being a Jewish woman who got out in '48 if he wants to know what exclusion is about."

Curiously, Vladeck chose not to cross-examine Davis, who, of course, had said nothing about lowering standards in his evaluations and had recommended Ezold for partnership not just "with favor" but "with enthusiasm." After the trial Vladeck said she thought the contrast between Davis's evaluations and his testimony spoke for itself and that his speech on anti-Semitism was an "apologia" for the firm's discrimination, calling it "offensive in suggesting that victims of discrimination can be excused for discriminating against others who are not clones of themselves."

She also says she believes Davis was "clearly under pressure" from his partners. "That's pure nonsense," responds Davis, who says his evaluations and his testimony noted both Ezold's strengths and her weaknesses, "her weak points being her intellectual ability." (One former partner agrees with Vladeck that Davis was under pressure to emphasize Ezold's weaknesses at trial. "He had to do it," says the lawyer. "They came to him and said, 'We're in a fight here.' I don't blame him for that.") "One last question," said Dichter before Davis stepped down. "Did Mr. Kurland ever make a statement to you, something along the lines of, 'What's the matter, didn't you get laid last night?"'

"From time to time."

Q: Where did you attend law school?

A: University of Pennsylvania.

Q: Were you on the law review?

A: Yes, I was.

Until he took the stand on the trial's tenth day Ian Strogatz sat in Wolf, Block's second chair doing precisely the same thing day after day: filling a legal pad with elaborate geometric doodles, folding the sheets twice, and placing them in a pile. In many ways Strogatz is everything Ezold is not. Male, Jewish--German-Jewish--a business-generator with a reputation for brilliance, he had shot through to Group I faster than anybody. Still only 43, he wears ventless Italian suits and practices the kind of "scholarly" litigation, as he puts it, that emphasizes research, motions, briefs, and out-of-court settlements.

Although Strogatz can be charming, he has never been popular among associates, perhaps because of the power he wields as chairman of the associates committee. He had never worked with Ezold, but year after year he filed evaluations that criticized her attitude. He had fought her candidacy, he had taken charge of the litigation against her, and when he took the stand he delivered some of the firm's strongest attacks. Despite the constant criticism of Ezold's writing ability, Wolf, Block did not submit even one of the hundreds of briefs she had written--they couldn't find any that hadn't been edited, said Strogatz. Instead, he and his partners focused on two cases she had handled.

The first was one of the key junctures in Ezold's career, a long-awaited chance to handle a significant matter for a demanding partner, Steven Arbittier, who had opposed her hiring. The case began in March 1985 when one of Arbittier's most important clients put down a $165,000 deposit on some real estate in Palm Beach, Florida. It turned out the property wasn't what the client thought it was, and he decided to break the agreement. When the seller kept the deposit the deal wound up in court, and Arbittier asked Ezold to write a motion demanding summary judgment.

"The bottom line," Arbittier testified, "is [that the motion] was a disaster." He called it "stilted," "unimaginative," and "sort of off-the-wall," mostly because she'd emphasized unimportant issues and ignored crucial ones. She had also taken "forever" to write the motion, he said, and his next evaluation commented, "She is not up to our minimal Wolf, Block standards." Asked at trial why he'd never worked with her again on a complex matter, he replied, "I'd had it."

On cross-examination Vladeck made no attempt to challenge Arbittier's assessment of Ezold's work. Instead, she asserted that the real disaster had been that one of the firm's real estate associates, a male, had permitted the client to add a clause to the sale agreement that essentially allowed the seller to keep the deposit if the sale were broken for any reason; that, Vladeck charged, ultimately cost the client the suit and his deposit. Did the male associate, Vladeck asked Arbittier, make partner?

"I believe he did."

The second case started with a dispute between a manufacturer of crypts and one of its salesmen over terms of their business arrangement. Oddly enough, the case began as Ezold's greatest triumph. Representing the salesman, Ezold went to federal district court for the first time as lead attorney on a jury trial and won a $350,000 jury verdict in the summer of 1987. A year later, however, the court of appeals threw out the verdict.

In front of the jury Ezold had done everything right, including getting a priest to admit he'd been lying on the stand. But she'd failed to make sure the judge told the jury precisely what it should do if it bought her case. For one thing, there were two defendants, the crypt corporation and its president, but the jury charge neglected to mention the president. The charge also failed to specify whether the punitive damages awarded in the case were for a tort claim or a contract claim, which was significant, since Pennsylvania law doesn't permit punitive damages for a contract claim.

Worst of all, as Strogatz testified, Ezold failed to request a "participation" charge, a ruling that the president of the corporation should be individually liable for whatever the corporation has to pay. The appellate opinion asserted, somewhat tartly, that there had been "ample evidence" to support such a claim but that nobody had bothered to make it. The issue became pertinent when the corporation filed for bankruptcy before the case could be appealed.

It had been Strogatz who took the court of appeals's opinion to the associates committee, several months before Ezold's partnership decision would be made, and threw it on the table. "This troubled me," he testified, "because it was my own view that this was something that was so fundamental and so obvious and so simple. . . . To me, it was just a confirmation in my own mind that what Nancy's detractors were saying about her legal ability . . . was correct."

Nonetheless, there were others at the firm who wondered how bad her legal analysis could have been if she'd been able to get a $350,000 verdict from a jury. And at least one litigator wondered if Strogatz, the scholarly litigator, had the credentials to question a trial lawyer's work. On cross-examination Vladeck asked Strogatz if, in the past decade, he'd taken one case to verdict or judgment.

"No," he said. Had he ever handled a jury trial that went to verdict?

"No."

Vladeck also asked Ezold if she was familiar with Strogatz's criticism. "No," she answered, "I never, in six years, ever had a substantive conversation with Ian Strogatz."

Q: Where did you attend law school?

A: University of Pennsylvania.

Q: Were you on the law review?

A: Yes.

Wolf, Block's last witness was William Rosoff, the third member of the Kopp-Segal- Rosoff troika. When Ezold was denied partnership the firm decided to ask a senior partner to conduct a review. That it was Rosoff who was selected probably didn't bode well for Ezold. "Rosoff's nickname at the firm," says a former associate, "is The Creature."

As part of his review Rosoff read through Ezold's evaluations and interviewed many of the partners who had written them. He did not, however, talk to Ezold--though she testified she had never seen her evaluations and had never had a chance to respond to the criticisms--nor did he talk to supporters Magarity and Davis. On the stand Rosoff testified that he knew what they would say, and he was trying to get beyond "parochial interests." After consulting the partners who had given Ezold negative reviews Rosoff concluded the firm was doing the right thing.

In January 1989 Ezold was told the decision was final. Choosing not to practice divorce law or to remain as an associate, she left the firm in June. She filed suit the following January. It was not until after Strogatz had retained Morgan, Lewis's Dichter and they had begun to plot defense strategy that Strogatz realized that Dichter, like Ezold, had attended Villanova. Dichter had, however, made law review. "He was very high in his class," says Strogatz. "Whether Mark Dichter could have gotten a job here in the first place, eighteen or nineteen years ago, I have no idea. I assume he could have."

THESE DAYS EZOLD is handling white-collar defense and government contract litigation for Rosenthal & Ganister, a five-lawyer firm outside Philadelphia, but she doesn't view it as a long-term situation. She has remarried--her first marriage ended during her tenure at Wolf, Block--and she is awaiting a decision that is not likely to come before Thanksgiving. Until then she is making no plans--other than to return to Wolf, Block. "My intention is to gain the partnership I was denied," she says. "That's what it's all about."

Meanwhile, these are not easy times for the firm. While rumors of layoffs, past and future, continue to swirl among associates, the firm's leaders deny them. They insist that the turmoil of the Ezold affair has prompted no changes at the firm. The associate evaluation process will remain the same, says Strogatz, and there has been no talk of taking steps to repair whatever damage may have been done to the firm's reputation among women. In fact, there seems to be little concern that the firm still has only five women partners and that only slightly more than 20 percent of its associates are female. "We have a lot of women here," says Kopp, who points out that seven of the sixteen associates in the class of 1990 are women. "If this is a bad place for women, why do we have so many women here?"

The price paid by both sides has been enormous. From the beginning, of course, Ezold knew she was risking her career. While many admire her courage, she knows few big firms will be lining up to hire her. But she may win the suit.

Regardless of what Judge Kelly decides, it's difficult to imagine what Wolf, Block can win. If the firm's partners were to fill out evaluation forms for the executive committee, it would be interesting to see the "legal analysis" grades for the committee's decision to try the Ezold case. "There was no disagreement about it," says Strogatz. "This was something that was well thought out and discussed at length."

The firm knew all along, says Strogatz, that the price would include the anger of the young partners whose evaluations would be revealed and the public exposure of the firm's internal conflicts. Magarity's standing may well have been damaged both among associates, who can hardly see him as a ticket to partnership, and among partners, some of whom will always believe that without his memo there would have been no trial. "I'm not upset with him for his evaluation," says Kopp. "I would have been just as glad if he'd been more temperate, but he's entitled to his view."

Likewise, Davis remains a member of the executive committee and chairman of the litigation department, but everyone knows that he went to the mat for two associates and failed. "It happens all the time," says Strogatz. "All the time."

Had the firm settled the case, it's possible no one would ever have known about it. Those who found out could have been told it was a nuisance settlement. Instead, the facts have been laid out for all to see. One reason the firm tried the case, says Strogatz, was that partners feared that if they settled the firm might have trouble recruiting women and others who might be offended by the appearance of discrimination. Won't that happen anyway? "We have no control over that risk," he says. "We know that whether we win it or lose it, with some people we will be guilty."

Now the firm may have a second recruiting problem: When it goes to second-tier schools such as Temple or Villanova, as it surely will, it may have to explain that, the Ezold defense aside, students there do have a reasonable shot at partnership.

Of course, if the firm's leaders really believed they hadn't discriminated against Nancy Ezold, and there's little reason to think otherwise, what choice did the firm have? "We felt this was a case where there was absolutely no sex discrimination whatsoever," says Kopp. "To settle the case for any amount of money would leave the impression that maybe there was sex discrimination." The only option left, one likely to confront many other firms as similar cases are filed across the country, was war.

"I'm pleased," says Kopp. "I would do it again."