[TAPE 1, SIDE A]

[START OF TAPE 1, SIDE A]

KRISTEN L. GISLASON:

Good morning! It's February 18th, 1992. I'm Kristen Gislason of the University of North Carolina School of Law, and I'll be interviewing Ellen Gerber of High Point.

ELLEN W. GERBER:

All right, it's moving. It's doing something.

KRISTEN L. GISLASON:

Well, we have to start off with background information, so do you want to just take it from there, where you were born, what your parents did for a living, and siblings, family life.

ELLEN W. GERBER:

I was born and brought up in New York City. My parents were both public school teachers, and I had a very conventional middle-class Jewish childhood. I think the only thing's that's remarkable in retrospect is that with both of my parents teaching, they both as Jewish families tend to do, helped in the housework. My father did his share, just as much as, again, Jewish men do. And so I grew up not even knowing what the proper role of women was in life. I grew up being expected to go to college, being expected to have a career, and this was, you know, I was born in '36 so, you know, that is remarkable.

KRISTEN L. GISLASON:

That is, that is. My parents aren't that much, I mean they're in your generation and I know my mom was not that encouraged to pursue a career, but I was expected to.

ELLEN W. GERBER:

I was expected to. My mother worked, and of course it didn't occur to anybody that that wasn't just part of life. I went to college in Boston, Boston University, at this point it was called Sargent College which is the school of Physical Education, and I became a physical educator.

KRISTEN L. GISLASON:

Were you involved in sports when you were in high school?

ELLEN W. GERBER:

Some, some, yeah. I, ah, you know it was just a weird choice for me you know when I look back on it. My father wanted me to be a lawyer but at that time I didn't want to be. And so I became, when I graduated from Sargent College I began teaching at the University of Pittsburgh, so my first job was at the college level.

KRISTEN L. GISLASON:

Physical education?

ELLEN W. GERBER:

Physical education at the college level. And I did that for about 17 years at various colleges and universities. Along the way I got a PhD, a masters in English and a PhD in …

KRISTEN L. GISLASON:

[unclear]

ELLEN W. GERBER:

Right, yes, right, in sport, the history of sport and the philosophy of sport. And so I worked in that area for all those years. I had one break in that time and that is I went to Israel and lived in Israel. When I went I went with the possible intention of living there forever.

KRISTEN L. GISLASON:

What year was this?

ELLEN W. GERBER:

That was '60-'61. And that was, in those days and probably still today you could go down to the south of the country and see enemy territories to the south, to the north, to the east, literally see three enemies' countries from one spot in the desert.

KRISTEN L. GISLASON:

What prompted you to go over there?

ELLEN W. GERBER:

Well, it's a search for your roots, you know. It was the Alex Haley story, but I was a Jew. It was like, why was it that my grandparents had bags of sand from the Holy Land that they were to be buried with, you know. Every year Jews recite a prayer that says next year in Jerusalem, [unclear]

KRISTEN L. GISLASON:

Did you have any family in Israel?

ELLEN W. GERBER:

I had turned out to have a cousin, one cousin. Most of my family, my extended family, was wiped out during the World War II concentration camps. There was one cousin who escaped and went to Israel.

KRISTEN L. GISLASON:

What part of Europe was your family from?

ELLEN W. GERBER:

My mother's family came from Hungary and my father's

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family came from what was Poland and then became Russia, and now is Poland again. So they were wiped out as well, except this one cousin. And another one, who had emigrated to the United States. So anyway, I went to Israel and I spent a year there and in the course of it I really came to conclude that I was an American. So I came home, continued on with my career, and stayed teaching physical education at the university level until 1972. In that time one of the things I was known for, I had written several books and articles, I was I guess you'd call it a scholar in the field. I was known for my advocacy for women. So I wrote a book, I wrote, co-authored the first text on the American woman in sports. I did the history section and concentrated in that area, made a lot of speeches about it, and I was responsible for on the 50th anniversary of Women's Suffrage, getting a PE convention that was a woman's college physical education convention, was meeting at that time to pass a resolution endorsing equality for women and things like that. So everyone in the field knew me. So when I retired, or left physical education in '72, I spent about a year and a half before I went to law school, running around the United States and even Canada by invitation, generally giving speeches urging women physical educators to pay attention to the rights of women athletes. In those days there wasn't much in the way of women athletes in college in the sport.

KRISTEN L. GISLASON:

My grandmother competed internationally in track and field—

ELLEN W. GERBER:

And when was that?

KRISTEN L. GISLASON:

In the 30's. She was married and my grandfather was a professional soccer player in Czechoslovakia. Unfortunately, their atheletic genes have not been passed down to me at all.

ELLEN W. GERBER:

Well, that's interesting. There was not much going on for women in those days. [laughter] After the 30's the colleges just shut off athletics for women on any real competitive level. They had intramural events, but, and at most for these school play days where you sort of went with other schools and mixed the

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teams.

KRISTEN L. GISLASON:

When did they start giving equal money to, you know athletes…

ELLEN W. GERBER:

In 1972 Congress passed what was called Title IX, it was an amendment to the Higher Education Act. From '72 to '75 Title IX mandated sexual equality in the school systems, and of course that affected sports more than anything. From '72 to 75 they spent three years wrangling over what the regulations would be, but that department, well, in those days education was in HEW, Health Education and Welfare. And so they spent all that time wrangling, and I knew the woman who was working on that and that whole process, I followed it. When '75 came and the regulations were published and HEW started enforcing that, that is when they began to get equal money. Now, remember, I, from '72 to '73 and a half so to speak, was when I was running around, '74, that I was running around the country. Most of the women in the colleges teaching, who would be doing the coaching and running these sports programs, were opposed to this, to doing it. They were opposed because they had been brought up in an era that said this was no good. And they kept, their main theme song was this is like we don't want to be like the men, we don't want to have our sports programs to be these horribly distorted, overly competitive programs like the men.

KRISTEN L. GISLASON:

Did you find that frustrating, that kind of attitude that you were going to cross, have to in turn battle women who were supposed to be…

ELLEN W. GERBER:

Right, ah, I don't think I found it frustrating. I found it, I thought of it more, I understood where they were coming from, but I felt they hadn't thought it through carefully, and that's sort of what I was doing. I would go to a university, they would invite me to make a speech, I would stay, spend two or three days there, I would often meet with a department, I'd have a newspaper interview, and I would try to urge them to see that first of all 90% of men's sports were wonderful. I mean, you know, what they were picturing were these football teams or

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basketball teams that were just in the top ten schools, you know, that were just sort of grossly manipulated. But when you think about the cross country teams, and the tennis teams, and the track teams, and the lacrosse teams, and the even the basketball teams in some of the other kinds of schools, you realize that there was an awful lot of very good sports programs going on for the men. And the women had by refusing to have top level sports hadn't set any role models, hadn't set anything to aim for, and so they had a very, very, very small percentage of women competing in sports. Anyway, in the course of running around and doing all this, I was, again we're talking about in the early '70s, it came, and you had to think about the Civil Rights movement and its activities at that time, it, it really became apparent that all the action was in the courts. You know, and I realized that I could make 100 speeches that wouldn't do what one good legal case could do.

KRISTEN L. GISLASON:

And then I knew there was a story behind there.

ELLEN W. GERBER:

And so I, so largely because of my interest in the rights of women, which was very strongly a part of my philosophy and way of thinking, and for some other personal reasons, I decided I would go to law school. And so I left physical education and I was on a leave of absence during that time I was doing that speaking, and I left physical education and I started law school at …

KRISTEN L. GISLASON:

And your father was happy.

ELLEN W. GERBER:

My father was happy, yes, my father was very happy. So I started in the fall of '74.

KRISTEN L. GISLASON:

How did you choose Carolina?

ELLEN W. GERBER:

Well, during all this period starting in 1966 I was living with a friend and sharing her home; and she took a time at UNC-G in '71, and so we moved our home down here.

KRISTEN L. GISLASON:

Did you find it difficult going to law school as a, I imagine you were probably not the only older woman in your class, but …

ELLEN W. GERBER:

Well, in my class we were approaching 25%, and I

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certainly was an older woman.

KRISTEN L. GISLASON:

Well, you're certainly not old.

ELLEN W. GERBER:

Well, that's fair. At that time I was only in my mid-30s I guess.

KRISTEN L. GISLASON:

Which is not old, but I think, somebody, I actually believe 24 is the average student.

ELLEN W. GERBER:

Well, I wasn't the oldest person in my class; there were a few older people, but yes, but, yes I was amongst the oldest. And no, I did not feel strange doing that. For two reasons. First of all, I liked school. Remember I was an academician so it wasn't as if I had to worry about, "Gee, how am I going to succeed? You know, it's been so many years, is my mind too rusty?" and all of that. I didn't have any of those worries. As a matter of fact, it was completely the reverse. It was such a pleasure to take the time to study and read. You know, I used to say during exam periods … my friend, who is still teaching at UNC-G, she spends that time period grading papers, and grading papers is the most miserable experience you can have. You see totally what a failure you are.

KRISTEN L. GISLASON:

[laughter]

ELLEN W. GERBER:

You're right … and what they write is such dribble, and so wrong, and you see yourself misquoted and misunderstood, and so that's a depressing experience. And I used to say, gee you're sitting there, you know, I'd much rather spend an exam week thinking through, organizing my thoughts, outlining my course materials, learning, you know in order to take exams, than to be grading them and at the end all you have is depression and a bunch of letters that you've given out that everybody's going to be unhappy with, you know. So I sort of like that freedom to go to school. And I also liked getting up if I was down or tired, so what, I'm going to sit in the class. As opposed to when you are teaching you have to get up for that class somehow. So it was much easier for me in many ways. I commuted between the law school and Jamestown where I was living at the time. It was a long commute but I didn't have to worry. Basically I

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maintained a social life at home and it wasn't like, gee, how am I going to make friends with these 22-year-olds? But I had a good circle of friends in the law school.

KRISTEN L. GISLASON:

Did you have a definite goal in mind with Legal Aid, did you know exactly what you wanted to do?

ELLEN W. GERBER:

No. Actually I wanted to open what I had in mind as a southern women's law center, and I was going to emphasize women's law. I had this whole vision of it. That changed for a couple of reasons. One of which is, I think every law student must go through this; you suddenly realize there's no way in the world you know how to practice law. And you know you're coming out of law school and you're totally incompetent. And that was even worse for me. That was probably one of the biggest negatives of going back to school and having a second career. You have a certain standard of competence that you expect of yourself; you know you see yourself as a knowledgeable person who knows what to do about things, and suddenly you're an utter idiot and you can't find your way to the court house. You go to the court house to file a complaint and you realize you need two checks, not one check; one for the sheriff and one for the file. And you know, you have a bunch of papers you're carrying with you and you don't know where to take them, you don't know which ones to leave with the clerk and which ones to take back. You know it's one of those sort of stupid little things. But those kinds of trivial things bother me, and so I, I, you know, I tell new students as they come out now because I've had a lot of dealings with law students over the years in the clinic programs; you will not feel competent for at least two to three years, so don't worry about it. You know, you have to accept it, you're not going to. And so that's easier for a 24-year-old who has never had a job. It's much harder for an older person who really hates feeling stupid.

KRISTEN L. GISLASON:

Were you involved in the clinic program at Carolina?

ELLEN W. GERBER:

I was involved in helping to get a clinic program —

KRISTEN L. GISLASON:

Oh, I see.

ELLEN W. GERBER:

I was amongst the group of rebellious students that

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fought very hard to have one. We never had one when I was there, but we were certainly in the midst of that fight and in fact we ran into a lot of trouble with some of the faculty who were very opposed to one.

KRISTEN L. GISLASON:

Why were they opposed?

ELLEN W. GERBER:

Well, they just didn't believe; the major reason was they didn't believe in a clinical program. Now you have to understand this was before Dean Broun, this was when Dean Byrd, and he was not in favor of it. And there was in those days a faculty alliance between Dean Byrd and Dan Dobbs, who was a fine torts professor and remedies professor and had been around a while, very intelligent.

KRISTEN L. GISLASON:

He wrote the textbook.

ELLEN W. GERBER:

Also wrote the textbook and was a very intelligent man and very close to Dean Byrd because he too taught torts, and they were very close. And they just were opposed. On the, again on the grounds law school was the place where you learned and studied the scholarly aspects of the law. And not learned the practitioners' way of doing …

KRISTEN L. GISLASON:

Getting back to the competency — it seems just like clinic would be the most obvious way to get that experience.

ELLEN W. GERBER:

Ahm, yes, it should have been. But they were worried. They had Duke in mind. And they were worried, that was the model of a law school. Oddly enough Duke had a clinic thing. But they were not the kind of clinic I'm talking about, they had a different sort, but they, they were looking to make a law school second to none intellectually. And they, to them the clinical part, and to them, to everybody, to this day clinical programs are the stepchild of a law school. I mean, you know, you're probably not aware of this because it wouldn't concern you, but you know most clinical faculty are not tenure track faculty. They're treated like second-rate faculty. And I recognize this because that's how physical educators are looked at by the university. Clinical experience is the practical side; that's not the real life of the university. And so that's where the

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opposition lies, and I understood that very well having come through the route I came. But so we lobbied to have students on this faculty curriculum and that was a second point of contention. People like Dan Dobbs did not appreciate having to sit down and negotiate with students over curriculum decisions; he thought those were faculty decisions to be made. Very traditional view that was out of step at the time. And you know, again we talking back in the mid-70s and the revolution in education comes slowly, and he just wasn't … he left, he left, and they always said he left because of our little group that fought for these …

KRISTEN L. GISLASON:

He left while you were there?

ELLEN W. GERBER:

He left when I graduated, that year I graduated, and never came back.

KRISTEN L. GISLASON:

What do you think helped bring it about?

ELLEN W. GERBER:

I left, I graduated in '77 and I think it was formed in either '78 or '79. The change in the law school, Ken Broun became the dean sometime about then and he was a big clinic supporter, and that was probably what brought on the whole change.

KRISTEN L. GISLASON:

What other classes did you, or what things did you enjoy to …

ELLEN W. GERBER:

I did take trial advocacy, yes. That was one of the first years that they had it and that was excellent; it was really a wonderful course. And I had Ken Broun for evidence. And that was just a treat, really a treat. Unfortunately Dan Pollitt was on leave my second year, which is the year you get to have him if you're going to have him for a course on labor and common law, and so I got to my third year and I had already had those courses, and I had no way to have a class with him, and so then I asked him if I could do an independent study with him, because I knew he was the one professor in the law school I really would like to know. And he at that time had come back and he was getting all these requests from prisoners for some assistance. And he said what you can do is, you can answer these

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prisoner requests and that will be your independent study. You've got these letters and you can answer these requests, and another woman who was coming in at that time was Margot Freeman, and she was a year behind me, she started to do that as well and there was another student who came along and wanted to work with us, and there were three or four of us doing it. Margot then organized that into the prisoners' rights project, and so that flourished and continues to flourish to this day. And so that was the inception of that too; Dan getting somebody to deal with his things. That was a large part of my law school.

The other thing was, Susan Lewis; do you know her? She came to the law school as a faculty member the same year I started. She had graduated from the University of Texas two or three years earlier, and she taught contracts and family law, because of course you had to give the woman the family law course when there weren't very many on the faculty at the time. And I was her research assistant my second year when I did a research scholarship or something. So I wrote memos on family law for the next couple years. And that was helpful to me in learning that area of the law. And I had thought that's what I wanted to do because I was so interested in women and those issues; but when I came out and started to practice I realized what a miserable area of the law that is.

KRISTEN L. GISLASON:

We've already found that out.

ELLEN W. GERBER:

Well, there are no winners, there are sort of only losers. You know, if you have a couple and they're living together and they have children and they're going to divorce, by definition they're going to be worse off economically. Your children are going to be worse off, separated — I mean emotionally they may feel happy because they have finally separated from each other and they don't want to be there, but basically …

KRISTEN L. GISLASON:

It's not a positive experience.

ELLEN W. GERBER:

That's not a positive experience in any way, and even if the guy is a drunk and violent bum, you recognize that

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probably he's got a disease, an alcoholic or compulsive addiction of some sort, and he really can't help himself all that well, and the best you're doing is, you know, making it right for your client as best you can, but to me there was no satisfactions in that. It was just miserable situations dealing with those things. Whereas the area that I got really interested in, in consumer law, consumer law, the consumers wear the white hats and creditors wear the black hats and everything is clear and no matter what, no matter what you always know where right is and wrong is, and you can fight for your client with 100% sense of doing justice.

KRISTEN L. GISLASON:

Was there a consumer law class at the time?

ELLEN W. GERBER:

No.

KRISTEN L. GISLASON:

That's one of those classes of the 90s.

ELLEN W. GERBER:

That's one of those classes of the 90s. I didn't even know you had one. Yeah, consumer law was always a stepchild. You have to understand that law schools go by what the Bar tests, and that was even more so in the 70s.

KRISTEN L. GISLASON:

Did you feel obligated to take, I found myself last semester taking a lot of classes that were on the Bar, and …

ELLEN W. GERBER:

Sure, you have to take the Bar courses. I waited till my third year to take most of those for what I thought was a smart reason, that if I was taking them so I could pass the Bar, I should take them as close to the Bar as possible, and so I took most of those courses in the third year and passed. As it turns out, the UCC course that we had, which was the hardest and most miserable course in law school, turned out to be the most valuable one. And the one professor I have ever called at the law school for assistance, and I still do to this day, is Don Clifford, because the UCC informs all of consumer law and when you take it you say I'm not interested in this at all because who cares about commercial law, who cares about how these widgets are sold and not sold, and whether the bills of lading are whatever, and you know whatever is in the UCC, and so it's hard to understand to begin with but you're totally uninterested in it

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because you think you're never going to work in this area. Then it turns out that's the heart of consumerism - the UCC. You know, it governs all transactions and so it's a very, very important area.

KRISTEN L. GISLASON:

What did you do in the summertimes between those school years; did you do research?

ELLEN W. GERBER:

No, I was very fortunate that because I did have a reputation in physical education, I was invited each summer to teach at various campuses. So one summer I taught at the University of Texas at Austin, and one summer at the University of Houston, and some of these were concurrent, like I would do two places in one summer. I taught at the University of Minnesota, the University of Iowa, and up in Strasbourg, PA. So I did that and I was able to earn enough money to fund my way through law school. Because even though tuition was next to nothing at Chapel Hill, I still had to pay my share of living expenses, so I was very fortunate. So I did that, I therefore had just about no practical experience; I mean I had hardly been inside a law office when I graduated. That did not add to my confidence.

KRISTEN L. GISLASON:

So when graduation rolled around did you have a legal …

ELLEN W. GERBER:

A job? [laughter] I had no …

KRISTEN L. GISLASON:

Those are questions people are asking now with the recession and everything.

ELLEN W. GERBER:

Right. No, I actually didn't have a job when graduation rolled around. I had a job interview the day after graduation, which was the job I got eventually. But I did not have a job.

KRISTEN L. GISLASON:

The legal aid position?

ELLEN W. GERBER:

Yes, I had applied for that in December; well, in December they had posted it, and it was, oh gosh. It was April probably before they even got around to it. What they did was send someone to the law school who interviewed 20 people or whatever, went around to two or three law schools, and I was

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invited for an interview at the office. I was one of two or three people that were invited to interview. And that interview was the one that was a day up after commencement. So, fortunately it was the only job I interviewed for that I wanted. I mean that was probably the one year of my life that I was in a real depressed state.

KRISTEN L. GISLASON:

Did you do the big firm interviewing?

ELLEN W. GERBER:

I did the big firm interviewing on campus. It was clear to me that they didn't want me, and I didn't want them. Now one of the reasons they didn't want me, was because in those days those firms still were not hiring women very much. If they had one woman, they thought they had done their duty. They had no blacks and one woman per large firm. And the one woman they would hire would be young and cute, not an old lady who was a former physical educator and who boldly proclaimed on her resumé women in law, women's rights, and so forth. And I must have had enough …

KRISTEN L. GISLASON:

Spelled trouble to them -

ELLEN W. GERBER:

Right, spelled trouble to them and at every interview virtually they would say things like, "Well, now, some of our clients we represent are employers. Suppose some women sued these employers, our clients, on a Title VII law suit? Could you represent the employer?" And I would say, "Of course I could; if they were my client I would do what I had to do." And this went on for months it seemed like, and finally I said to myself, what am I doing? I didn't go to law school to sell out my sisters. Why am I saying this? As if I want jobs with these firms that, where I'm going to wind up representing the employers in a Title VII suit. This is ridiculous. You know, so I sort of, you know, I was very depressed about the whole thing. I was wondering how am I going to get a job, how is this going to work out, you know I've gone through this big career turnabout and maybe it's not going to work. And then, as I said, I got, I finally had this interview and it was probably not until April when they came to the law school and the director of the office, a senior attorney,

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and I knew, I was with him 20 minutes and by the time I walked out of that room I knew that's the job I want; that's the place I'll feel comfortable.

KRISTEN L. GISLASON:

Did you know anything about them?

ELLEN W. GERBER:

Really, very little, practically nothing. Today I couldn't have gotten it. We wouldn't hire somebody like that. We would expect someone to have demonstrated commitment to the poor, but in those days, you know people weren't so eager to work for legal services. And I, the pay was not very good; but anyway, I just knew this was the kind of work for me, and I was right. So, fortunately, so what I did is then after that short little interview, I used all the skill and knowledge that I had about how employment works because you remember I had had plenty of experience on the other end of it and I knew about things like that. And I did everything that would have pleased me to get that job, you know, writing, sending things. That's one of the famous, I was telling Dan Pollitt about this interview and how I wanted that job, and he said, "Oh, I know Thorns" (Craig, that was the director of the office), and he said, "Here, I'll write him." He took a piece of paper out and he wrote: "Thorns, hire the bearer of this note. Dan Pollitt."

KRISTEN L. GISLASON:

That's a Pollitt maneuver. [laughter]

ELLEN W. GERBER:

Isn't that a Pollitt maneuver? [laughter] I took that piece of paper with me to that interview, and I gave it to Thorns, and I later learned that was the thing, you know, everyone respected Dan Pollitt so much. And the fact that the next year Margot Freeman, the one who had organized the clinic, she brought a similar note and it got to be, who's getting this year's bearer-of-the-note award? So for several years, we had the bearer of the note. When we had openings, we called Dan and said "Dan, who you gonna give the note to this year, Dan?"

KRISTEN L. GISLASON:

So were you offered the position right after the graduation?

ELLEN W. GERBER:

No, no, and what happened is I had the interview and then I, then after that I went up north to Ithaca and along the

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way I taught at Ithaca College and there was a conference, a physical education conference up there, and my friend that I was living with, that I am living in, was in, is still in physical education. So she wanted to go and I wanted to go to Ithaca. So we went up to Ithaca and while I was up there I made a phone call and found that Thorns had called my family in New York looking for me to offer me the job. And I called right away and said I accept. Came back, studied for the Bar, and started working.

KRISTEN L. GISLASON:

Did you take the Bar that summer?

ELLEN W. GERBER:

Took the Bar that summer.

KRISTEN L. GISLASON:

So when did you begin work?

ELLEN W. GERBER:

In August. End of August, middle of August.

KRISTEN L. GISLASON:

Was it overwhelming at first, I mean since you did not have that much practical legal experience?

ELLEN W. GERBER:

Oh, terrible. Just terrible. As I said, you know, you feel so incompetent. So unable to deal with whatever it is. I knew nothing. I mean it was just amazing. I mean because you study for the Bar, and you take the Bar review course, and that doesn't teach you anything, and I didn't take the practical skills course. As you know in the big firms they pay for those; that course is very expensive. I now teach the practical skills course and have for the last several years. But at the time, you know, I hadn't taken it, so I knew nothing. But my colleagues at Legal Aid were wonderful and they understood that. They had gone through it themselves and they were very helpful.

KRISTEN L. GISLASON:

What about the other people that were hired in your class? I mean the other attorneys that were hired at the same time; had they had it?

ELLEN W. GERBER:

In my office?

KRISTEN L. GISLASON:

Right.

ELLEN W. GERBER:

I was the last. There was one other that started work the same time I did. And he, as it turns out, was a Brooklyn boy, another Jew who had gone to Rutgers. And he had had a career in city planning, a masters in city planning and a career in city planning and again was a little older. We became like

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brother and sister. In fact, he came to my retirement party. He now lives and practices in Atlanta. He came. He walked down the steps and I said, "My God, Ben." And he said, "I started with you and I'm gonna see to it that I'm here at the finish."

KRISTEN L. GISLASON:

Oh, how long had it been since you'd seen him?

ELLEN W. GERBER:

I see him from time to time, you know.

KRISTEN L. GISLASON:

Sounds like a nice surprise.

ELLEN W. GERBER:

it was a nice surprise, you know. But, anyway, so he and I started together with the same lack of experience, but he was a very bright guy. We stumbled through things together. That helped to have somebody else who was sort of similarly situated.

KRISTEN L. GISLASON:

What kinds of assignments were you given, I mean initially, the first few months there?

ELLEN W. GERBER:

Well, the way our office worked, you sat down and, about every two weeks, and did what we called intake, and it still works that way. And they interview clients on a first-come first-served basis, maybe you would see 17-20 people in a day. And then with the help of the group you make some sort of group decisions and some individual decisions. You might take five to six cases out of that. And they will be your cases. So whatever the areas were that we covered, if you took the case it was yours. Now in the first couple of intakes that I did, someone sat with me and assisted me. After that I was on my own. And you know you could get help by going around the office and saying, can you help me on this, can you show me how to do this? For example, we had a man in the office who had graduated Carolina a couple years before me; his name was Jim Gulick, and he is now the Assistant Attorney General who heads the Consumer Affairs division, and he knew a lot about consumer law even then, and you know, I would go to him about consumer cases, go to somebody else about some other kind of cases. So I got help in doing them. And in that first intake, the first case that came in the door was a juvenile driving, some kind of driving problem case. And I tried that little trial to a judge, and in fact the

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last day I was in the office, the mother of that boy was in the waiting room. And she said, "Ms. Gerber, don't you remember me? I'm so-and-so's mother." And that was really weird.

KRISTEN L. GISLASON:

Right before, last day before you retired, oh.

ELLEN W. GERBER:

Last day, that's right. And that was almost 15 years later. And the second case I had that day turned out to be my first jury trial. So I had a jury trial the next summer, within one year of working, and that was my first jury trial. It was pretty exciting to do those things.

KRISTEN L. GISLASON:

Did you get a real high off going - I mean, I know you're a very well respected trial attorney. I mean, what was it about that trial that…

ELLEN W. GERBER:

Oh, jury trials are the cream, is the cherry, the cream and everything else.

KRISTEN L. GISLASON:

That scares me to death!

ELLEN W. GERBER:

Well, you know, it is scary. And it's not for everybody. I mean if you don't like to think on your feet and if you don't like to, if you're not liking to be confrontational, then there are other aspects of the law that are fine. You can be a negotiator; you know you can negotiate, you can do a lot of things that don't require this confrontation. But trying a jury trial is performing. And the first time I got up and started to voir dire the jury and and I was scared, I mean I was dying. I lost about eight pounds. You have to understand, I mean it wasn't like it was duck soup for me. I got up and I asked the jurors a question, and I remember the question: "Have you ever served on a jury before?" And this one guy raises his hand, and he must have been about 75 years old, and you are taught the follow-up question is "What kind of case was it, civil or criminal?" You know, you're trying to find out if they went for the plaintiff or not, because if you're representing the plaintiff you certainly don't want people who served on a jury recently and who have found for the defendant, right? So I looked at him and he said, I asked him that question, and he said, "I don't remember; it was so long ago." And a quip came to

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my mind, because like I say he was so old I forget what the quip was that came to my mind. And I thought, can I say this, can I do this? And then I made a crack about his age, and everyone laughed, and then I realized it was OK. I knew that you could do that. You could be yourself. And I was frightened. As much as anything I was frightened. How can a New York Jewish Yankee stand, come down here and stand in front of a jury, and, and win them over and connect with them? And I won that jury trial, and it was not an easy case, and I won it.

Oh, by the way, I wore then and I still do to this day, pants. I've always worn pants in court, every place. I have not worn a skirt but once in 20 years. And so there I was, not only the New York Yankee Jew but I was in pants, in 1977; 78 was this jury trial. And it worked. And I won. And then I knew I could be myself and do, and that that was part, that would be part of my success in being a lawyer. I didn't have to be somebody else. And so that was wonderful, and that was very, very freeing. And after that, juries, like I say, they're like performing, they're like teaching. You know, you work, you're literally teaching the jury. You're teaching them about the case, about the law, and I've developed a style and taught it to the people in my office, of being a teacher. And so, in our voir dires, for instance, you always do a voir dire that's aimed more at teaching the juries about the law and about the case than it is at weeding out people. Because, weeding out, you can't do a whole lot. I mean you're not talking about million dollar cases where you have jury panels and experts.

KRISTEN L. GISLASON:

How much latitude are you usually given with a potential jury?

ELLEN W. GERBER:

Depends on the judge. But what I've been saying to trial ad groups, if you don't get objections, you haven't asked enough questions, you know. There's no reason not to go right up, tiptoe up to the line and if you get stepped on, you get stepped on. If you don't, you don't. I don't think you should ever knowingly ask a question you know is offensive. In my view,

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as long as you're not asking questions that say to the jurors, what would you do in this situation, then you haven't crossed over that line. And so, what I think you should do and what we always do, we always ask jurors - for example, if you're trying a landlord-tenant case - "Did you know that under North Carolina law, as the judge will instruct you, a landlord is required to make all the repairs that are necessary to keep the place habitable. Does everybody know that? Is there anybody here who thought that it's a tenant's responsibility to fix a leak, or mow the lawn, or do something? Huh?" So then, usually, someone thinks that. And that's the kind of thing you can educate them about.

I had a jury trial once where the real estate agent would go to the courthouse, look up people who were in foreclosure, write them a letter and say, I can help you. And then do something that I now know is an equitable mortgage; say I'll get you a loan, process papers where the house is actually deeded over to the investor and then you supposedly pay the investor back over about 18 months, and then the house is supposed to be deeded back over to you. There is an actual transfer of the property, but the law would regard that as a mortgage. Anyway, I did a voir dire on such a situation, "Did you any of you know that someone could do this? That someone could go to the courthouse and look through the records, find out that you're in trouble and contact you? In other words, your personal business is in this courthouse?"

KRISTEN L. GISLASON:

I didn't know that.

ELLEN W. GERBER:

"And it's available to the public. Anybody could walk off the street and find out this stuff. Did you know that? Did you know that?" And you know by the time you're finished educating them about how, you know, you've got them. You've taught them something. People are very fond of people who teach them something. Jurors respond to learning. They want to. They're interested in the experience. And so if you teach them, reach them in that way, you really can connect with them. So I

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found all that very thrilling and it built on my prior career.

KRISTEN L. GISLASON:

Were there any particular cases that come to mind that were very, very frustrating, or that you were lost, or you felt that you weren't able to hit the nail on the head, or connect, or whatever, that still to this day just stick in your mind?

ELLEN W. GERBER:

Right, well, the most frustrating loss I had was at the Court of Appeals. And to this day, that just bugs the heck out of me. I feel that I somehow missed the boat although it was, I, it was also I thought politically a problem. There is a law called the Consumer Finance Act in North Carolina. And it allows creditors to charge enormously high interest, as much as 36%; Sherlock would have been jailed for that; but 36%. The idea of that act was to allow people who were very risky credit, not creditworthy at all, to borrow money. And so there were high penalties on the creditor if they didn't get a loan and very strict regulations within the statute, but it did allow this high interest rate. Well, at some point along the way, they put a section in that act called Motor Vehicle Lenders, and they put a maximum interest rate of 16% on motor vehicle lenders within this act. And to me, and to this day I still believe, the act requires that if you take collateral in a motor vehicle as the statute points out, you cannot charge more than 16% interest. And the reason for that is that that's good collateral. So even if the person isn't creditworthy, the creditor is well protected. But it doesn't say it explicitly … the Court of Appeals, anyway, I took a case up to the Court of Appeals. We had won it a summary judgment at the trial level, and the motor vehicle industry really fought this, and the Court of Appeals eventually said a creditor lending under this motor vehicles section can only lend at 16%, but they could lend under a different section of the statute that allowed 36% interest, and there's nothing in that other section which is a prior written section that says that if you lend under this section you can't take motor vehicles as a collateral. So basically they said a creditor could choose to lend under this 36% section, take a motor vehicle for

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collateral …

KRISTEN L. GISLASON:

Which they would all do …

ELLEN W. GERBER:

Which they would all do then, so that was the end of Motor Vehicle Lenders. You know, it didn't matter, you know, so I thought that was ridiculous interpretation, because that rendered nugatory that Motor Vehicle Lenders section, and the legislature couldn't have put it in there for no purpose. And it was written afterward and they didn't go back and amend the other one, and it just makes it evident, self-evident it seemed to me, that if you took motor vehicle out, it said so in the statute, you were limited by the 16%. But the Court of Appeals disagreed and the Supreme Court refused to take review, which is probably the next most frustrating aspect of the law. The Supreme Court does not review very many civil cases. And they can't. I understand their case loads are so huge; but that means if the Court of Appeals rules wrongly, you don't have another shot with a civil case of getting it overturned, because you can't get review. So sometimes that has happened to us. But the most frustrating is this one case, it is called Riddle v. Barclays American, and it's annotated in the statutes. And it's a terrible case.

KRISTEN L. GISLASON:

What about a bad client, or a good client?

ELLEN W. GERBER:

Well, this equitable mortgage circumstance I was telling you about, I had one of those cases where I got my client back all the money, you know, back about $18,000 and that went all the way up to the Supreme Court. And in the process, we also had to pierce the corporate veil, and that issue was the issue the Supreme Court considered, that was in Glenn v. Wagner, and they came up with a decision that made us one of the most liberal states in piercing the corporate veil. It was a terrific decision on that issue. That was my case and it was kind of fun to have a Legal Aid case be the piercing the corporate veil case.

KRISTEN L. GISLASON:

Would you say that most of your cases help individuals resolve their small problems, or were they usually more broad cases that affected…

ELLEN W. GERBER:

Well the cases …

[TAPE 1, SIDE B]

[START OF TAPE 1, SIDE B]

ELLEN W. GERBER:

Collectively I have in my office a number of cases in the area of landlord-tenant law. In 1977 the legislature passed the Residential Rental Agreement Act, Chapter 42, and that was the year, remember, I started practicing law. And so since then we have developed the law in that area, and of the, oh I don't know, six or eight or so published opinions on Chapter 42, most of them, not all, but several of them come from our office. Some of them were my personal cases. Now that collectively we've established a good interpretation. The Court of Appeals has bought our arguments and we've put a great spin on that statute, and we've been, you know I feel as if I have made a real contribution in helping to have that statute become a very important and strong tool for the tenants.

Prior to that time there was no warrant of habitability in this state. A case, also out of our office as it happens, had established that, you know the great Washington, DC case that everybody learns about in law school, Judge Skelly Wright's case; you know that just wasn't so in North Carolina. And so until the legislature enacted Chapter 42 there wasn't any warrant of habitability. The rain could come in on the tenant's goods in the middle of the house and the tenant had no right to require repair. And so, you know, I think that's probably one of the biggest impact type thing we've done.

The other statute that was passed then in 1977 was the unfair debt collection act statute. We, again, we had a number of cases, not so much at the Court of Appeals level, although we've got one right now waiting for a decision, hasn't been argued, but we've used that a lot in cases and managed to leverage very, very good negotiated settlements. And sometimes the trial court wins on using that statute which has now a $2000 statutory penalty. Those are, those are two areas that were, you know, virgin when I started practicing because the legislature

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had just passed the statute and we were able to really run with them and make consumer law and landlord tenant law enforceable in this state.

KRISTEN L. GISLASON:

How did Legal Aid grow while you were, over the 15 years that you were…

ELLEN W. GERBER:

Our office or as an institution?

KRISTEN L. GISLASON:

Both.

ELLEN W. GERBER:

Well, let me start with our office. In 1980 I became the managing attorney. Now, at that time we hadn't had one. We had somebody who was a litigation coordinator and he had not done that good of a job because of his personality; he left. And then nobody wanted any leader, any boss to supervise their case. Everybody was doing their cases, walking around and saying give me some help here or there to their colleagues, but there was no effective system for supervising.

KRISTEN L. GISLASON:

Did your colleagues come to you and appoint you, or did see a need and fill it?

ELLEN W. GERBER:

Well, what happened is we had a fellow there who was going to take another job, and he was made the managing attorney briefly, sort of a half-time position. And he held it for about a half a year or so, and then he left anyway, a year maybe. And he was a black fellow and at that time we had a lot of racial tension in the office and he was wonderful at resolving that and getting us all together; again you're talking about the end of the '70s and there were a lot of issues going on. And then so the office said, well we want to have a managing attorney; we like that, that worked well and we want to have one. And people urged me to apply. And we had an affirmative action plan that required the office to consider women or minority applicants internally, and if they took one, fine. If not, then they had to advertise the position, which meant that males or white males could not apply for the position internally. So I was urged by my colleagues to apply. My first instinct was no. I don't want to, I don't want to get it this way. If I get it I want to … and I really wasn't ready for that. I had only been active eight

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years and I was still learning. But then I realized that that denigrated the notion of affirmative action, I mean, which I believed in. Then you're saying that the people who get jobs under that aren't worthy of them. So that didn't square with my philosophy either, so I applied and I did get the job.

KRISTEN L. GISLASON:

As manager

ELLEN W. GERBER:

As manager. And so at first my colleagues were people who were my colleagues. So it was a very soft approach. And as they left and I helped to hire people - our office hired people very democratically, and new attorneys would come in and I took on the role of supervisor. And within a few years I had developed a very strong supervision system in the office. And over the next decade I developed a system where I supervised every case. And I mean by that that every pleading that left that office had crossed my desk — I mean every pleading. That includes sometimes a 20-page; a 20-page package of discovery, interrogatories, request to admit, request to produce. It includes all briefs. It includes all complaints and answers, counterclaims, case strategizing. I worked on every case in that office; I supervised them. And I feel it was successful because after a while I never had to urge people to come to me. Even to this day I've retired and I went to the office and they said, "Oh, you're here, could you sit down with me and strategize on this case?"

KRISTEN L. GISLASON:

I see, so it's like old times …

ELLEN W. GERBER:

"Could you look at this pleading that I've written?" And people want that help; you need it. And as I was finally saying to sort of more senior people who might feel, hey I don't need to have somebody looking over my pleadings, I am gonna submit everything I write to someone else. The only difference is I have to go find someone in the office who will look at them, whereas you have as a right somebody, and whom you're not bothering. And so I became a full-time managing attorney although I maintained a caseload, a small caseload over the years, and continue to co-counsel, try cases and do things. For

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the most part my work was as managing attorney and I developed forms.

We have form books that are unbelievable. For example, we have a discovery package. It's divided into one section definitions; you know there might be 100 definitions in there, or whatever, because nowadays you have to put a lot in definitions because you can only ask a single question, because you're limited to the number of questions you can ask. And on landlord-tenant law, for example, we have it divided into condition of the unit, the lease agreement, and other sections. There might be 20 questions under each section; maybe 200 landlord-tenant questions. So then when you're doing a case and you want to do discovery, you pick up the dictaphone and say, give me question 2, 5, 9, 11; modify question 12 in the following way; here's one that's not even in there, add it. And you can do a whole thing in 15 minutes that comes out that's 10 pages long, because we have every conceivable thing. What I had to do then was make sure that people didn't go overboard, and so when I would review these things I would have to say, "Why are you asking this question? That's not an issue in this case." You know, I had to teach people that even if a question sounded good you still had to keep them focused on the case.

But then I did the same thing with pleadings, just pages and paragraphs of pleadings. And you just have to pick'em. Pick the issues: I have facts, I have defenses, I have counterclaims, and each one has case and statutory citings, all divided by category, prayer for relief, the whole thing is in there. Now what that, what that does is first of all it sets a standard and allows people to trace things and do things at a pretty high and consistent level. Second, it reminds people of things they might have forgotten as they're working on a pleading. They say, oh yeah, that's an issue here I hadn't even thought about that. It sort of jogs their memory. Third, as a supervisor it saved me a lot of time because I didn't have to work on that rewriting, grammar, you know, awkwardness. And so when someone is creating

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something they don't have to spend their time thinking about how to phrase it.

And again, remember, Legal Aid often has new lawyers. You get a fair amount of turnover, although in our office less than a lot of places. But even experienced lawyers, they may not have worked on this kind of case or that kind of case. So by having these "go by's", it's sort of taking these "go by's" to a higher level and putting them altogether in some organized fashion. By everyone having this on their desk, they were practicing on a higher level and focusing on the substance rather than "how do you do this, how do you say this?" And it's like, you know, it's like computers in public schools; it frees the teacher, it doesn't replace the teacher, it just frees the teacher to concentrate on what she needs to be concentrating on. And that's what these form books do, and I developed them for the office. My God, they have three of them; by the time I left each one more monstrous than the next. But you know, our office grew. And that way we were able to focus on litigating. And everybody, I liked jury trial so then we would, everyone would get onto jury trials. And, that's, in our office we kept hearing, all you care about is when we're doing our first jury trials. Everybody's scared to death of it, but it's one of those things that one should do to see how much fun it is. And when we do do a jury trial, everybody comes down and watches and cheers you on and learns, and people say "I wanted to see cause I've got one on the calendar next month, I want to see how you do that voir dire, see how you do that opening argument."

KRISTEN L. GISLASON:

What type of people when you are about to hire do you look for?

ELLEN W. GERBER:

Well, first of all we look for people who have a dedicated and demonstrated commitment to the court and nowadays that means we look for people who have either worked in a clinic or did some things for the poor or worked for organizations, you know something that shows that you care, that you just don't want this job because your girlfriend lives in Winston-Salem…

KRISTEN L. GISLASON:

Or it looks good on a resume.

ELLEN W. GERBER:

Right. Secondly, we look to people who are well recommended by people we know. I wouldn't think of hiring someone who went to Carolina without talking to Dan Pollit, for example, and you now, Dan Pollit over the years has been very candid, you know about, this person is not for you, good person, lovely, not for you, not up to your standards. Walter Bennett, Alice Ratliff, those are people we know, and you know these are people we trust. And if they come here from the law schools in this state, its easy enough to find that, we've got a connection. We try to find to find people who has had some prior legal service and experience, during the summer or in a clinic situation or as a volunteer. You know if someone is applying from Wake Forest, for example, and we've never seen that person, never seen them, they never showed up, they never called our office to volunteer, we hire summer clerk, I am very skeptical. If you're so dedicated to legal services, why didn't we see you in three years? So we look for people who have shown a commitment either to the clinic or coming to us.

KRISTEN L. GISLASON:

You said that there is a high turnover rate, do you know what that is attributed to? Is it easy to burn out?

ELLEN W. GERBER:

Well, in some offices that's what it is, burn out, not our office, our office is real careful about that for the most part. I think the real reason there is a high turnover, there are two basic reasons. First of all, everybody who is coming, pretty much, is taking their first job, and people don't stay in their first job forever. You know there is no reason to beat yourself over the head, you know about, why are we failing to hold on to these people. It's natural to move on, and its particularly natural if their first job is a job that pays less than other jobs and that has no basic promotions because in most offices there is no place to go but doing more of the same. Now, over the years, since I became that managing attorney, other offices have had managing attorneys. They've seen that that's a good system, around the country, so that's a slot. But that

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leads to the institutional issue of growth or no growth.

In 1977, when Jimmy Carter was, in the years leading up to Jimmy Carter's presidency, legal services was in its heyday so to speak. I don't know that you know this, but it became what it is today, the Legal Services Corporation Act, it was literally the last act signed into law by Richard Nixon of all people. It just shows you how far to the right the country has moved in some ways, because, in those days, even though Richard Nixon didn't begin to match the conservatism of a Ronald Reagan or George Bush, and you know, there were reasons he was forced into it but regularly never signed it.

KRISTEN L. GISLASON:

But still it got done.

ELLEN W. GERBER:

It got done. O.K., so Congress began to mandate at some point in the mid 70's, '76, Congress mandated that there should be access to legal services for the poor for everyone in the United States. So they upped the budget, increased the budget in order to provide for them. They set an arbitrary and very funny figure of $7.00 per poor person. The sort of formula by which they appropriated money. But at any rate, that was Congress' idea, and so at that time then in the late 70's, well, it must have been about '76 or so, that we got legal services in North Carolina. The bar worked on and founded it. So in the late 70's legal services of North Carolina opened offices all over the state under their auspices so that there were the three original offices that had been funded even before the corporation act, under the old OEO, Charlotte, Winston-Salem, the Office of Economic Opportunity and that was under one of the original antipoverty programs and legal services fell under that in the Johnson era. We were and the bars were able to apply and that's how the bars of each of those cities applied for a grant, started a legal services office in their city. So those offices have to this day remained independent in the sense that they are funded directly from Washington.

Legal Services of North Carolina is the fourth grantee of the state, and it's funded, and then it funds and oversees all

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the rest of the programs in the state, Burlington to Asheville, all of those. Those are all under aid service in North Carolina with which we are affiliated but we're still funded. So that has all grown in the state, since I've started practicing, you know, we had developed offices all over the state. We developed consistent training programs throughout the state. There were national training programs that were wonderful. As a new lawyer I went to new advocate training in Atlanta with others from the Southeast region. There were office support back-up centers established; consumer law, housing law, family law, welfare all over the, you know that you call on to assistance and then do publications aimed at legal services. There was a training coordinator in D.C. There were all these things that were established based on this money that Congress was appropriating and supporting and the bar supported it, everything was well immersed.

In 1980 when Reagan was in office, Reagan and Meese, collectively and individually, hated legal services. They hated them because when they were out in California, trying to do their dirty work in California, and to cut programs for the poor, legal services, CRLA, California Rural Legal Assistance, which is what legal services was called out there, legal services out there fought them bitterly and won in the courts and prevented them from doing these cuts. And the net result was that they were implacably opposing legal services when they came to Washington. I read an interview with Ed Meese in the American Lawyer and the chief said, in his view, legal services offices were run by lesbians who used their power to recruit so they could seduce young women attorneys. That was in print, that's in print. Those guys were really something. So from Reagan's first budget on, they recommended zero funding for legal services. When Jimmy Carter left office, the funding nationally was something around $316,000,000. It was cut back in 1982 to $277,000,000 nationally. You're talking about inflation, think of inflation. It just reached in 1991 the level it was when Jimmy Carter left

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office. So, and in addition to cutting off funding, so, again not only are the numbers cut absolutely, but if you think of what inflation was during that decade, the numbers are cut more in half and worse.

In addition to cutting the funding, they also installed in Washington, a corporation board that was opposed to legal services, hated us. And so they restaffed the office with people that hated the programs and they changed their focus, instead of assisting programs by providing training and publications and you know you'd have a monitor visit, the monitors would come down and check you out, and they were there to help you, to make your program better. Under Reagan and now Bush, the monitors were out to sabotage you, their whole focus was how they could dig up dirt to hurt you. They never had any helpful suggestions. Just the most awful stuff like the tax IRS fund while they would pick a program that was particularly effective, like a farm workers program and they would monitor them to death, hoping to reduce their effectiveness. They hated farm workers most of all. This is again the hangover from what California did against the farm workers. The farm workers are the most vulnerable minority in this country, this little group of migrant workers. You know, they were minorities to begin with and secondly they're "vagrants" in a sense. You know, they have nobody to speak for them, so legal services all over the country where there are a lot of farm workers, including North Carolina, is very effective in enforcing laws that Congress and the states have passed to protect these people, which always went unenforced because of such difficulty. And legal services would go to court and have the farm workers plan to be slaves and that they're not getting the minimum wage. That sort of thing, the housing doesn't meet the standards of the state, the drinking water isn't, you know there are all kinds of those things and so if there is ever a hot spot that the critics focus on is its farm workers. So you have all that sort of problem going on and in '82, '83 our office, like every office all over the country, had to face the fact that

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our budget had just plummeted.

KRISTEN L. GISLASON:

How did that affect your office? Did you have a hiring freeze?

ELLEN W. GERBER:

A hiring freeze would have been wonderful, that didn't work. In a lot of offices, people quit, Reagan was very, very successful. What happened was the top staff bailed out while the bailing was good, you know they said, "I've got to get a job, this is going down the tubes," and so even though the offices wouldn't have had to cut those staff out necessarily, they left and our ranks were decimated, nationally, of the most experienced people and our back-up all was gone. To this day, you don't get much in the way of regional training, national training anymore. But, what happened is, in our office, for some reason or another, people didn't do that. We have always had a very good office and a very tightknit staff, and they just didn't do that, and so we had a difficult problem, we actually had to fire people, and there was another reason why we had to do that. A lot of offices in the course of this expansion, to provide access to the people, established satellite offices, so, you know, Charlotte has one in Gastonia and, you know, each of these offices, Raleigh has Smithfield, and at some point they had a lot of them, they had more satellites than you see now. So, one of the first ways they could cut back on their budgets was to close the satellite offices. We never had any satellite offices, our director didn't believe in it, he said the people who serve the satellite offices were the youngest, least experienced attorneys and paralegals because nobody wants to be there, one or two people in an office.

KRISTEN L. GISLASON:

What is your territory?

ELLEN W. GERBER:

North-West North Carolina. So the satellite offices idea was sort of poo-pooed in our office and we just provided by going and driving around. Anyway, so we didn't even have that efficiency, we were efficient, we were lean and we were hard and we were mean and we didn't have any place to cut and so the place we had to cut was salaries. You know, in an office like that 80-85% of your budget is salary. We had to do what was called,

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there was a word nationally that was used, not only by legal services but by others, and that was called, rifing, reduction in force, and you had to rif people, it was better than say fire them I guess. So, we had a rif.

KRISTEN L. GISLASON:

What if you reduced the level of pay to save money?

ELLEN W. GERBER:

No, no we had to lay them off, and in our office, we did something that was unbelievable, we did a paired comparison in each of the categories in which we compared each person with each other person and then basically one, you know you say, as between Lenny and Gwen, who would you retain, as between Gwen and Kristen, as between Kristen and, and you compare each person with each other person, each lawyer with each other lawyer and then, so, you add them up. And then, what we did, we brought in a consultant who did it all, consulted with us, and helped us through that process. That was pretty depressing, but we worked our way through it, we lived through it, and Reagan is gone and Bush, while hostile, is not as hostile, he doesn't have an ideologically negative bent. And with Meese gone from the justice department, it isn't as bad. And then, in the meantime, the Corporation has been unbelievable, they have acted like such fools. They have had one executive after another and one was caught with Twinkies and Spam in his back pocket, he was shoplifting and he was supposedly a respected attorney. And one scandal after another, and, you know, they've tied themselves up in knots up in Washington. They haven't been such a bother.

KRISTEN L. GISLASON:

How do you determine what people are eligible?

ELLEN W. GERBER:

Well, of course a client at legal services has to be eligible, meet certain financial criteria, and that's the bottom threshold.

KRISTEN L. GISLASON:

How are they informed about legal services in these civil cases?

ELLEN W. GERBER:

That's something the community knows these days. Of course, judges, and social workers, and even sheriffs will send people, if they don't think to come on their own. And they come to a legal services office, the first thing they have to do, they

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have be checked for eligibility. If they are eligible, they are served free, at least for their attorney costs, they have to pay a court cost, but they're eligible for free services. Then the question is, what kind of case they have, whether they have a case that's fee-generating. By law we're not allowed to take it, you know, if you can get a private attorney to take that case, they'll take a tort case. Private attorney will take that case in the hopes that he or she will collect a third, and if that's the case, we don't take it. And there are certain cases we are not allowed to take, we don't do abortions rights cases or immigrations rights cases or homosexual rights cases. We're fond in our office of saying when we really want to violate the law, we represent lesbian Mexicans who want to get abortions.

KRISTEN L. GISLASON:

Really shock them.

ELLEN W. GERBER:

Right, and that's the kind of nonsense. But anyway, they pass those laws, as fast as they pass them, we figure a way around them because basically all they can do is say what you can do with your Legal Services Corporation. Because they've been so stingy, because they've been so difficult, we have had to find other sources of funding. Fund raising has become a part of legal services today, it never was when I first started. The state starting two years ago and the legislature has actually appropriated a million dollars for legal services in North Carolina in each of the last three budget cuts and we hope it continues to do so. Now that money has its own restrictions, you know, not so much restrictions, but it's pointed towards certain uses, but that's money that isn't Corporation money, so you can do things with that money that you can't do with Corporation money. And then everybody raises money. Most offices now get money from their local United Ways. IOLTA gives legal services about a million dollars a year, more next year, and that money is virtually unrestricted. And so forth, so we've been able to use other money to do things that would not otherwise be allowed, like voting rights cases. So that's the way its been dealt with.

Now a client comes in, and if they pass the eligibility

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threshold, then the next question is what kind of case it is, got to pass that threshold. Sometimes they'll come in with traffic tickets and we don't handle it. So then an office can restrict its own cases and most do. Most do not do family law, most offices, that's just going to eat you alive with custody battles and both sides are probably poor, so you're in that problem. Anyway, so you've got to get to the type of case. And then we turn away cases that are not winnable, maybe the client does not have a good case, you know, every wrong does not have a right. The most typical example of that is the person who comes in and says, I was fired unfairly. You know, they fired me for such and such a reason, it wasn't my fault, the real reason is, the boss didn't like me and I want to sue. And you know, under North Carolina law, you have no remedy under most of these circumstances. So you have to say, I'm sorry. And we have controlled our case load by controlling our intake, so we only do intake two days a week, whereas once we did it four and we only do it two days now. So that kind of cuts it in half, so we only see half as many people and therefore, and by nature we're going to get about half those cases, and that's how we control the cases coming in. If you get to see us and you meet all those thresholds and you've got a worthy case, you'll do fine.

KRISTEN L. GISLASON:

Now that you're retired are you still, in and out of the office?

ELLEN W. GERBER:

No, no, I've been down. I'm weaning myself from them.

KRISTEN L. GISLASON:

Any plans to do anything legally related?

ELLEN W. GERBER:

Yes, I expect to, well, mostly I'm setting up to do, very locally, wills and powers of attorney and things like that for the lesbian/gay community as a group that is always looking for the lawyers, who are on the stand. I will do that even though I haven't managed to get myself together enough to get out letters and have business cards printed which I expect to do.

KRISTEN L. GISLASON:

Come on, you just retired though.

ELLEN W. GERBER:

Right, take some time. I already have clients coming who want me to do legal work [unclear] I don't know yet. I

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also expect to do some writing and if the legal services wants me to do training, I'll do stuff like that. I've been on the faculty for the NITA negotiation of Chapel Hill every year, for the last couple of years and Walker Blakey's [unclear] . I expect to do that for a few years and there's a triad health project which has a lot of free legal services there [unclear]

KRISTEN L. GISLASON:

Looking back, is there anything you'd change about your life - knowing what you know now?

ELLEN W. GERBER:

Kristen, I just don't think that way, you know.

KRISTEN L. GISLASON:

Well, neither do I.

ELLEN W. GERBER:

So, I just know, I did what I did, I did what I did, it was a fun first career and I enjoyed my second career. I think in all honesty that I was cut out to be a lawyer [unclear] . But I also am cut out to be a teacher, and I think having a field to teach, you know, that was a silly thing for me to do physical education - I think there are other things that I could have enjoyed better in the long term, say, like history, and I actually did do that because I was working with graduate students, I think that's the one thing in that respect. I think I got into it because I was influenced by some camp counselors who I wanted to emulate. Gym teachers who I got influenced by, but that wasn't, I really wasn't all that interested in sports. Anyway, [unclear]

KRISTEN L. GISLASON:

What about any advice for a young female attorney entering the legal profession?

ELLEN W. GERBER:

Well, we haven't talked about one area, and that relates to this advice and that is, law schools almost all have women in law organizations. I think they're very important. The fact that we have almost 50% women in law schools, does not obviate the need to have a group that you can identify with and start building systematic ties. I am a big, big believer in being part of the regular bar, you know, I go to bar meetings, I've taken part, I serve on committees, you know I think that's important for anybody and it's part of service. And, you know, I believe that if you're a professional, that you have to relate to

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your profession as an institution in addition to doing your work for your clients.

But the need for people to focus on women's issues is still there. Sexism has not disappeared and the legal status of women, while it's improved a lot, there are still many things, many issues of importance, that are more important to women than to others. Choice is a good example. You know, issues of choice? Issues of family law, I mean God knows that in the next two decades we're going to be focusing on this issue, of when is a parent a parent. And while that of course is an issue for the male and the female, it is primarily a woman's issue, because its women who are bearing these kids, whether they're inseminated, or surrogate parents, or the person who wants the custody, and the child, you know, those are enormously interesting issues. Interesting lesbian issues, you know, what happens now when you've got two lesbians and one of them has a kid? I mean there are all kinds of lawsuits these days about visiting rights to these, you know, two lesbians getting together, and they decide, we'll have a kid, and one of them has it, and the other one thinks, I'm a co-parent, and then they split up. What are the rights and obligations of that co-parent? These are women's focused issues and they've got to be dealt with. And so, we need this now.

In the years since I got out of law school, and I was part of this group, we founded the North Carolina Association of Women Attorneys and that group has become very vital over the years. It is an important group, it has lobbied the legislature-equitable distribution. I personally sat in Marissa Schoolmaker's office with another woman attorney and drafted the original legislation of that now. It was modified of course, but, you know, and I did that as then president of the North Carolina Association of Women Attorneys. We lobbied that issue successfully, and that was ours, the women attorneys, we're the ones that got that passed and there are other issues like that. In North Carolina up until a couple years ago, if you owned

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property in joint tenancy, the male was entitled to all of the rents and profits. It's absurd, you know, a man in jail could throw his wife out of the house and install his girlfriend, which is what happened in this state because the law gave him the right to control that home, so we got that abolished by legislative lobbying.

That organization has been important to say on judges. It supports people who judge, endorsements and all kinds of things. My advice to women graduating from law school is to be active in organizations like that, both locally and state-wide. Don't say, I've made it, I'm here, I'm equal, there's no such thing as a woman lawyer, I'm a lawyer. I believe that in the logic, important sense, but in the political sense of getting the kind of solidarity and support that makes us count, that gives us a bigger voice than the legislature, that allows us to do something, you've got to have groups. I mean, that's why you have an AMA, you know, doctors are people too, right, but they have a strong lobbying organization in Congress, everybody does, and women don't have a lobbying organization, except for us. You know, we need to work on things like that, and so you can't come out of college, [and say] I made it, I wasn't discriminated, I got here on my own, I'm a bright young woman and I've got a career ahead of me, and why do I need women's organizations for?

The answer is you need them because we open the doors to begin with, and we're going to open other doors, the battle isn't over and women have to learn that the same way that blacks have to learn it. Some of the most noted black activists I know mourn that their children are uninterested in these causes. They say, well, we don't have those laws that didn't allow us to walk on the side of the street, and you know, they're all gone, those Jim Crow laws. But the truth is, it isn't just laws, laws have to be interpreted, they have be enforced, they have to be changed, you know, its an evolving process that will never stop. And maybe in a century we'll have more equality than we do now, but we do not have it yet by a long shot. And these large numbers of very

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bright wonderful women graduating from law school owe it to their foremothers to keep on fighting for us, and that means banding together and getting in place to do that sort of thing. It means running for the legislature, it means really stepping out in front and realizing that in addition, and this is the kind of speech that the judges like to give to lawyers, you know, you owe service. When you get sworn in in the ceremony and in most counties, they have a big ceremony for everybody at once in the fall so, you know, 40, 50 lawyers get sworn in at once, and the presiding judge always makes nice speeches about service and stuff like that. Well, that's real. That is real. That is something lawyers, professionals have an obligation for service, maybe everyone does, but I can't speak to everyone. I think we would have a better country if we all were more community minded. But I would speak to the women and say, when you're coming out of law school remember that obligation of service, and if you don't care about women, who else is going to? So others may do something else, others may build houses for the poor, others may serve on corporate boards, and that's fine, I have nothing against that, and maybe women ought to do that too, but don't forget our special needs.

KRISTEN L. GISLASON:

Well, thank you. I …

[TAPE 2, SIDE A]

[START OF TAPE 2, SIDE A]

ELLEN W. GERBER:

'74, about a quarter of our quest, that was a big jump, you know, that was just the beginning of a lot of women going to law school. And the law school wasn't all that old then; it was just a few years old, but it had been not designed to have women students. That's right. Well, let me tell you what it was like then. On the first floor, not the downstairs, but the first floor, there were two stalls on the left side. You walked in, I think there's a men's room there now, there were two stalls. There were no other bathrooms, there were no bathrooms on the second floor, there still aren't and there were no bathrooms on the top floor, and then there was the basement bathroom near the

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lockers and that was it. Those two stalls on the first floor were all you had and we used to wait in line. You know you could not, you virtually, between classes you'd run downstairs, you could not get to the bathroom and get back up on time for class.

So we started lobbying, the Women in the Law group started lobbying for the university to do something about it and so, we had a meeting one day, and the law school said, the then associate Dean Morris Geldman who has since died, and somebody else, and they came to hear our proposals, and I proposed, and the group had agreed on this, that the big bathroom on the second floor, the urinals be taken out and they put more stalls in so that everything was stalls, and then make it co-ed. Which is the way they do it in Europe, and after all, you have co-ed bathrooms at home, you know, there's no big deal. They were outraged, outraged, and they said, this is so absurd, you're not being serious about this, you're not being helpful. And they walked out and they refused to do anything about it because they were so angry that we had made such a silly proposal. Now, ultimately, of course, they took the top floor and put some bathrooms in there and then they switched the ones on the second floor to make it somewhat better, but it's still a problem. And the other thing about the law school which you may or may not know, and this was another Dan Dobb's special, is that law school was deliberately designed to keep the faculty and the students apart.

KRISTEN L. GISLASON:

The wing that locks off now…

ELLEN W. GERBER:

Well, the wing that locks off now, when I was in law school, the faculty, I had a mole in the faculty meetings, so I learned this, the faculty debated endlessly about whether or not to keep that door locked, from the second floor classroom area that went past the faculty lounge into the faculty area. They wanted the students to go downstairs through the library, come up the stairs and go back. The students unfortunately, people like me, trounced right through past the faculty lounge if they had to go to a faculty office. I mean after all, there's a little hallway there, and walk through it to the faculty offices, and

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they hated that. And they wanted the students to be too timid to do that, but they weren't and the faculty didn't like confronting them, saying, you can't do this, so the best solution would be to lock it. The trouble is that when you go to, when the faculty would go to the classroom, they always had books. So that means that they always had to have their key, they had their key to open their door to get through when class was over; they didn't like that either. So they debated that for at least two of the three years I was in law school, what to do with it, to lock it up, not to lock it up, how to keep the students from marching through the…

KRISTEN L. GISLASON:

With this bathroom issue and the faculty issue, there must have been some professors that were happy to see you march in 1977.

ELLEN W. GERBER:

Very happy, oh yes. It wasn't just me, there were about half a dozen of us and they…

KRISTEN L. GISLASON:

Well, I always joked that when I'm a wealthy alum, but if I ever am, rather than donate a plaque or a bench, I'm going to donate a huge, huge bathroom for women on the main level.

ELLEN W. GERBER:

That's a great idea.

KRISTEN L. GISLASON:

Well, thank you again.

ELLEN W. GERBER:

You're welcome, it's a pleasure, it's a pleasure.

[TAPE 2, SIDE B]

[START OF TAPE 2, SIDE B]

KRISTEN L. GISLASON:

The first thing I wanted to ask you is if you could give me the title of some of the publications or books that you have written? Looking at the tapes, you had mentioned that you had authored and co-authored a couple.

ELLEN W. GERBER:

Well, the books that I had done were in my prior career in physical education, and the first book I wrote was a book on the history of physical education and it was called Innovators and Institutions in Physical Education, and it basically investigated the people and the institutions over time, starting back in ancient Greece, who were really important to the history

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of physical education and went up through, primarily in the United States in the 19th and 20th centuries. And the second book was a collection that I edited and did introductions and bibliographies for each section called Sport and the Body: A Philosophical Symposium, and it was a collection of papers, including some of my own, on why people are involved with sports, the meaning of sports, values inherent in sports and so forth, and the body. And the third book was a book called The American Woman in Sport and four of us did the book, I did the history section and there was also a section on the philosophy, I mean on the sociology, and one on psychology and one on the physiology of women in sports. This was the first book out on women in sports and it was a textbook, and I'm still getting royalties on that. That book, I think came out, it came out before I went to law school, and I'm still getting royalties on it so that's twenty years later.

KRISTEN L. GISLASON:

I also wanted, just before I ask you, there's one area I do want to pursue about your interest in women's issues. But before we get to that, I just wanted to get a little more background on your family because when my classmates in class have been doing their oral reports that's one of the little, and I realized listening to the tapes that I don't have that much. I know you're from New York, but what part of New York?

ELLEN W. GERBER:

O.K., I grew up in Brooklyn.

KRISTEN L. GISLASON:

In Brooklyn, O.K. And your parents taught, didn't they?

ELLEN W. GERBER:

O.K., both of my parents were public school teachers in Brooklyn. My father taught in a section called Greenpoint, a junior high school, he was a history and civics teacher, that was a largely Polish section in town, and my mother taught in a section called Bensonhurst. She was a third grade, fourth grade teacher.

KRISTEN L. GISLASON:

Siblings?

ELLEN W. GERBER:

I have one sister and she lives now in Florida and has two children and both of them are married and have children, so I

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have nieces and greatnieces.

KRISTEN L. GISLASON:

Are your parents still living?

ELLEN W. GERBER:

Both my parents are still living.

KRISTEN L. GISLASON:

Are you in pretty close contact with them still?

ELLEN W. GERBER:

Yes, as a matter of fact, I just came back from a visit where I did their taxes.

KRISTEN L. GISLASON:

Oh, well, they must appreciate that.

ELLEN W. GERBER:

My father's 92 and he's in a nursing home right now. He had a stroke about a year and a half ago and my mother's in good health, thank God. She's going to be 90 in June.

KRISTEN L. GISLASON:

My grandmother's 80 today, I just mailed off her gift. What did you admire most about your parents? I mean what qualities did …

ELLEN W. GERBER:

Well, my parents were, and perhaps they are, typical middle class Jewish Americans.

KRISTEN L. GISLASON:

Well, look at me shaking my head like I know what that means.

ELLEN W. GERBER:

Well, what it means to me, amongst other things, is they lived a marriage of equality pretty much, and that is very typical of the Jewish family. Where both parents have a role to play in the house as well as outside of the house. My father, for example, helped clean the house. He did what was called the heavy work, the vacuuming, washing the floors; he helped do the grocery shopping; he did the laundry, although that was not so typical of other families and they did things together all the time. You know, on a weekend we might all go to Prospect Park and walk, or the Botanical Gardens or some museum, or something like that. That was not atypical of them and their friends. And it was not until I got out of college that I came to understand how atypical that was in the world at large. But among Jewish families, that's very common, that men take a much more active role in the home chores. And they both were public school teachers, so they had a sense, there was an equality of money and everything else. I remember one thing, my mother, when we were going clothes shopping, she said to my father, I need two hundred

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dollars or whatever, sometimes she'd ask for a hundred dollars, and he'd just opened up his wallet and gave it to her, and I said, Gee, Daddy, it's generous, you're good about that, and she said, well, why shouldn't he be, it's my money too, I earn it. You know, and I grew up that way, so that was an important quality. They both, again typically, typical middle class Jewish, they were very liberal; you know, I was taught that it would be death if I crossed a picket line and they was at one point a petition my mother took around to have something about an Asian family living in the neighborhood. I mean, you know, they did, they were not prejudiced against blacks or any other ethnic group and they taught me to be that way. They also were interested in education. The expectation that I would go to college and do something professional was there from day one and I was just brought up that way. It never occurred to me that my life could be different.

KRISTEN L. GISLASON:

Did it shock you later when you did reach college and you were around other students, and you realized that you didn't have similar upbringings?

ELLEN W. GERBER:

Yes. I think it may be typical of New Yorkers, you know. There is a wonderful New Yorker poster, I don't know if you have ever seen it; it is sort of in the foreground, there's like Fifth Avenue and then the …

KRISTEN L. GISLASON:

Oh right, then the other side of the world.

ELLEN W. GERBER:

May be this is true for everybody. You grow up thinking that the way of life you know is the way of life of the universe. I mean, for example, it shocked me when I went to a city and discovered there were no subways. It didn't occur to me that subway systems were relatively rare cause I grew up in New York.

KRISTEN L. GISLASON:

Had you traveled much outside the New York area?

ELLEN W. GERBER:

We have traveled through the south. That was another very informing experience in my life. My family had taken me to Florida, I think I was probably about 13 years old. We drove down the coast, then we stopped and we visited Williamsburg and

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Richmond, Virginia, and things like that. I remember we went into the capitol building in Richmond, Virginia, and there were signs over the water fountains, white, black, Indian, and I said what is that? My father explained it to me. I said, but this is a government building. I couldn't understand then, as I can't today, how any government could ever segregate that way. And I remember from that time on driving south from that moment in Richmond, you know, noticing it. First understanding the notion of segregation, which of course, again growing up in New York, it was not apparent although I have come to think that it was there in other ways. I was just shocked; in fact, I saw beaches that had signs white Protestants only; so I learned and I also in my …

KRISTEN L. GISLASON:

Sounds like something straight out of Capetown.

ELLEN W. GERBER:

Straight out of, straight out, right here in Florida it was, or Georgia. You know, they don't like Catholics; they don't like Jews; they don't like blacks. I mean, you know, it was at that time, all the prejudices were rampant and legal. And another time when I was 10 or 11, 12, that age group, my parents decide to spend the summer in the Pocono mountains and sent away for all these resort brochures. This was after WWII, and they would come and they had a big black mark like something they use when the price has been changed and they put a black mark to cover up the old price and if you held up to the light, you could see that it said, "No Jews allowed." The traveling we did was largely east coast, but I learned a lot from it and how the prejudices of the world really were very strong. Again, growing up in New York, which was probably about 20 to 25% Jewish at the time.

KRISTEN L. GISLASON:

How important was your faith to you when you were growing up? Did you have a batmitzvah?

ELLEN W. GERBER:

No I did not have a batmitzvah. My sister did. I did not and that's odd because my sister was in reform temple that we had moved when I was very young, but she continued to go that. I was an orthodox, brought up orthodox; and my parents kept a

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kosher home and I was not allowed. I was a girl scout leader. I was a girl scout honor scout and went to meetings on Friday evening, which they were not strict about riding in a car. Sort of outside the house you could do things, but not inside the house they weren't allowed. So then I had a troop on Saturday morning and I was an assistant, and I felt my uniform had to be pressed. To my mother, the notion of using an iron in the house on Saturday morning was just absolutely forbidden, and I used to get up at 5:00 in the morning and iron my uniform so she wouldn't

KRISTEN L. GISLASON:

Do it on the sly.

ELLEN W. GERBER:

Do it on the sly. But I went through stages when I was a…I did go to Hebrew school unlike most girls. I did do what the boys did, but then I never was, of course, again I was in an orthodox temple. In those days, which would have been in the forties and early fifties, you didn't…orthodox temples didn't batmitzvah. I don't know if they do now because women are not that important in an orthodox temple. You are supposed to sit separately upstairs behind a curtain.

KRISTEN L. GISLASON:

After listening to the tapes, one of the things that really struck me, this is moving away from your childhood, but that is the issue of your interest in women's issues kept popping up over and over again. I was wondering what, was it a childhood experience or just the way you were raised or your educational experiences? What made you so passionate about that particular area because I know today there are so many women who are apathetic or feel powerless or just don't - you know, why was that?

ELLEN W. GERBER:

Well, it's hard to put my finger on it, but there are two things that probably are relevant here. One is that I was brought up in liberal environment so when I was faced with the reality that women were put down in many ways, it was a shock to me. I didn't sort of just accept it because you know, it's like carrying a very heavy weight. The old story of the Greek who carries the calf. As the calf grows, he can take on the weight, take on the weight; you don't notice so much if the change is

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gradual. But for me it was sudden to realize what was going on and when I was in, probably it was the early 60s when Betty Freidan's Feminine Mystique came out. That really put a name and a face and a understanding to, you know, sort of set out what the reality so that I was able to use my intellectual skills to understand. Thirdly, I was in a field, physical education, where in those days it was still segregated. Women's physical education and men. The gym classes were separate. That was changed, of course, by a law in the middle 70s.

When I grew up they were separate and the teachers of course then were all women teachers and I went to a school that educated women to be physical educators. So I was in a group of women who all were professional and strong. So it was important to me to contrast that again with the world at large and see that women could be that way and why shouldn't we fight for it? Then finally, and I don't know, it's appropriate I think at this point for me to say I'm a lesbian. And so I identify with women and I see them as equal to anybody in the world and [I] lived a life of equality. I don't see any reason why everybody else shouldn't have that opportunity if they want to. I can see that as something to fight for.

KRISTEN L. GISLASON:

What problems do you feel are the most serious facing women today — the ones that are still unaddressed or under-addressed?

ELLEN W. GERBER:

There is no question that we have not resolved the basic issue of pay equity. That's really, women are never going to be equal if they can't earn salaries commensurate with their skills. I don't know how much you've studied about pay equity personally, but for example, women who take care of children like in a daycare center or kindergarten are paid so much less than let's say zookeepers who take care of the animals. You think of the difference in the skill level and when they do these pay equities, that's the kind of thing they look at. What skill is demanded, what training, what education; and the idea is that jobs that require skills, training, and education should be paid

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more and jobs like collecting garbage by contrast are paid less because they require no training, no skill, no education. So you look at the jobs that have been handled by women such as working with young children which should be one of the most important functions of our society and those people are paid less. Librarians, another very important job, most librarians are women; so librarians get paid practically nothing. But it used to be when men cleaned buildings or garbage trucks, they would get salaries twice as much in any given city than the city would pay its librarians. So that's what I'm talking about when I talk about pay equity and I think that's a real important problem. I think the family issues and how to resolve them has made a lot of progress in the last decade or 20 years. It has got a long way to go still. I think men still think they are helping out. A good man is a man that really helps out a lot.

KRISTEN L. GISLASON:

What a catch for anybody that finds one.

ELLEN W. GERBER:

Right. As opposed to sharing in the responsibilities. I think there is a big difference in saying this is my job too. I went to a meeting the other day and a man was saying how busy he had been and why he had not been able to do something because he's busy playing "doctor mom" because his wife has been ill. You know, I thought what do you mean "doctor mom"? First of all, doctor is so presumptuous, he's a PhD, so it's doctor mom rather than Mr. Mom. But worse, it seemed to me and that was the notion that because he was taking care of his daughter he was doing the mom function, as if the father didn't have the exact same responsibility. That's a realization that society is a long way from accepting. Those are two of the larger problems.

KRISTEN L. GISLASON:

In your career, both of your careers—your teaching and your legal career, did you experience any discrimination because you are a woman or harassment? Would you know of people that did?

ELLEN W. GERBER:

You know, I thought about that question for years because I think it is one that people ask, you know. Well, why you acting as if women are harassed if you're not harassed? They

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asked Hillary Clinton that the other day and it was hard for her to put her finger on why she did. I think it's not easy to know when you've been discriminated against. If you compete with somebody for a job, a male and he gets it and you don't. Is it because you're a women or because your credentials were less good and so forth? For the most part, because again, my first career I was a woman in a woman's field, women's physical education. I didn't experience personal discrimination vis à vis the others, but as a whole we got less than the men. The women athletes got next to nothing to run our programs. Our offices in the last place I worked, every woman shared a office and no male did for example. We would go to a conference, I remember this was in 1970 I went to a conference in Asheville from Massachusetts. I was teaching at the University of Massachusetts and we went to a conference in Asheville. The conference was like a week long and I got x amount of dollars from the University to help pay for my expenses, and the men in December had a conference in Asheville at the same place and their conference was five days long and they all got, each got more money than we did.

So, you know, those little incidents, what we used to call clicks, would come up and you would notice it. Those were minor points, but they add up to many, many, many major points. So, yes. When I got out of law school, the big law firms were beginning to hire women. One. You could see that Womble had a woman, not a partner at the time. Petree had a woman. Everybody had a woman and it was very clear to me that they would never hire me. Because if they were going to hire one woman, she was going to be young and cute. I think that was obviously a form of discrimination. I was asked many times about my interest in women's issues because that was on my resume that I was in [the] Woman in Law [organization], and it was clear to me that they were negative to me because I had those interests. It was like a good team player that merely focused on those things. When we first founded, and I was one of the founding members of the North Carolina Association of Women Attorneys, the largely male at that

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time bar — the standard bar — was very aggravated at the notion of having a woman's bar. And many of the women, especially those who were successful and who were working for largely male law firms and who had been accepted would say, "Why do we need a woman's bar? See I have this job. You can get one."

KRISTEN L. GISLASON:

Well, you had mentioned earlier that that's one of your warnings to a young female attorney starting out is don't turn your backs just because you personally have not suffered from it.

ELLEN W. GERBER:

That's right. Because first of all you don't realize there are still these glass ceilings and these types of quotas and there are still these sort of very subtle put downs, you know. I think it is beginning to change enormously. In the law, for example, there are just so many women graduating that you couldn't say, well, women can't be litigators for example. And so then of course once women go out and they are successful litigators, then it helps to pave the way for somebody else. But that's still a battle that is being fought. There are still people who are doubtful. There are still clients who aren't necessarily comfortable because they have a woman representing them. Big fat cat business men and that kind of thing. They just sort of assume that women aren't interested, and I think that's an ongoing problem. We had to fight to have the regular bar accept the women attorneys as being important and worth supporting and having a function. My view always was and most of my colleagues who founded the women attorneys always was, we weren't saying join the women attorneys and don't join the North Carolina Bar Association for example. That isn't the point, it is that the North Carolina Bar Association is not going to spend time and energy essentially worrying about women's issues. They are not going to send people to lobby on those issues. They are not going to focus on things that are of special interest to women. And as long as we live in a society where things are not 100% equal, there will always be women's issues.

KRISTEN L. GISLASON:

How did you go about organizing the group?

ELLEN W. GERBER:

How did that start? Well, a handful of women got together. I was not one of those few. One was Carolyn McAlister, who graduating a year ahead of me at Carolina, and Sharon Thompson, - so those two were very actively involved and two or three other women who decided we ought to have such a group.

KRISTEN L. GISLASON:

When was that?

ELLEN W. GERBER:

That was about 1978 or thereabouts. So after talking about it, they invited a number of women to join with them in sort of an internal governing body and we met for about a year or two. Oh, about eight or ten of us were working on a constitution and bylaws and an organization, drawing up the outline: what should this organization look like, who should be members, should men be allowed to join if they wanted to, should students be voting members, what kind of committee should the committee have, who would comply to the executive board.

KRISTEN L. GISLASON:

What was the vote on male members?

ELLEN W. GERBER:

We agreed to have male members. We agreed to have anyone be permitted to join, any practicing attorney could join if they wanted to because we realized that if you were interested in the organization and its goals, you should be allowed to join, and we have always had some male members in the organization. Sid Eagles, for example, was a member. He is running for the Supreme Court now and has asked for the organization's endorsement. Unfortunately, he is running against a woman. Going to be a tough decision — Sarah Parker. But some of our members' husbands joined, for example, as a gesture of solidarity. We agreed, we have Murph Archibald, who is a lawyer in Charlotte, has been a member and comes to our meeting every year, our annual meeting. On students, initially the organization voted against students being full voting members. I think they had in mind groups like the National Lawyers Guild which was so student-oriented that the students had virtually taken over the organization. They were afraid that the students would join in large numbers, but not women attorneys and that

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somehow would be leaning toward student interests. I opposed that strongly. I urged students to be full members and after a few years when the organization got going, they went back and redid the bylaws and students are now full voting members. The people who opposed me on that have been gracious enough to say that they were wrong. But I have always been a great fan of students, so I was one of those when I was teaching at the university who always wanted students on committees and that sort of thing.

KRISTEN L. GISLASON:

What about the future?

ELLEN W. GERBER:

What's the future? It is also a voice, it's also a voice. It seems to me that if you're a part of a community, you have something to say. Your point of view is your point of view. You know, you come to it from a different stage in your life and it may be different for good reasons or it may be different for invalid reasons, but nevertheless, it is a point of view. It just seems to me that inclusion in any context is better than exclusion. If you have community members, I mean I would have the janitor's job, you know, why not? In my office for example, in our legal services office, we always had a hiring committee composed of anyone in the office that wanted to be on the committee.

KRISTEN L. GISLASON:

Oh, as you mentioned before, that person has an interest better that they should be …

ELLEN W. GERBER:

That's right, that's right. And while the committees have always been weighted with attorneys for when we were hiring an attorney, but we have always had at least one paralegal who chose to sit in. And if a secretary had wanted to, that would have been fine. As a result, we have done wonderful hiring through the years. I think that always works out always, if you trust people to do the right thing.

KRISTEN L. GISLASON:

Well, here's another question that popped into my head. How do you feel about the, what's the word I'm looking for? Well, it seems like now a days a lot of attorneys get a bum wrap, just public view of attorneys, public perception of attorneys.

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Over your many years of practice, do you feel that most of the attorneys that you came into contact with—I imagine the ones you work with were wonderful people and you have nothing but praise for them—but what about your average opposing counsel that you came up against, the counsel that represented perhaps a large corporate interest?

ELLEN W. GERBER:

I have two responses to that. First, I do think attorneys get a bum wrap as a general principle. The thing that people think is that they are greedy and that they have created a litigious society. I think that is absolutely an erroneously concept. I had an argument with some close friends the other day whose son-in-law is being sued and they kept saying it's the greedy lawyers' fault and I kept saying no. The person who is suing your son went to a lawyer. The lawyer did not stand in the middle of the street and say, hey, you know, I'm ready to sue if you'll come. The person went to the lawyer. Lawyers only represent their clients and most of these, when people talk about greedy lawyers, they are talking about tort suits and they think how much the lawyer gets. They don't understand that a lawyer might take five or eight tort suits and lose most of them and only win one or two of them. If they lose, they get nothing. They could put in hundreds of hours of work for nothing, especially these big medical malpractice suits. I've seen lawyers that locally lose and get zero. So I think that's a bum wrap and I don't think lawyers are greedy. I think they're hard working and for the most part and do their jobs in the way that the public would support.

But having said that, I must say that the shoddiness of people's work shocks me. I just cannot believe what poor jobs my fellow members of the bar do in most cases. They seem—the standards and I blame the law schools for part of this because clearly they are graduating without any standards for excellent work. That's partly because law schools don't teach them how to work. They only teach them how to analyze cases and basically they are not getting any models of what it means to really handle

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a case, to do discovery properly, to do a thorough job in researching and drawing up pleadings. They just don't do it, they just don't do it. They're trial preparation is sort of back of the pants, seat of the cuff. There's something wrong with that image, but you've got the idea. Seat of the pants.

As a matter of fact, the session I was doing yesterday was training new lawyers case management—from case acceptance up to the preparation of the trial. I was saying you must learn to do all of these things. These are not luxury things that you do on a rare case; these are something you do on every case. At one point, I was talking about formal discovery and I said the biggest mistake I see even in my office and I always have to urge people, you send out this fat package of interrogatories, and make a request to produce, and back comes a fat package. They put it in a file to look at some later date and I say that's just not acceptable because you need to review it. You need to see if you need a motion to compel, you need to see if everything is there, you need to see if there are follow-ups. The bar doesn't do that.

By and large, the vast numbers of attorneys practicing in one, two, three person firms, they represent too many people. They do routine things and they just don't spend the time in preparing and building a case. It's a whole lower standard and they learn that from each other because it has never been a point in time when they developed a habit of what a real case handler would do. I don't think the public understands that part, you know. I think the public's feelings about lawyers is based on what they see: big settlements and the feeling that smart lawyers get criminals off and things like that. They resent that, but what they ought to resent is the shoddiness of the work and they don't understand it when they have their own lawyers. I have seen people come with documents that have been prepared and they're just not thoughtful, they're not personalized in a sense. Lawyers tend to use forms and just use them. Often they have their secretaries fill them in. Creditor, I've seen creditor,

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what I consider debt collection violations, because the stuff in there is inaccurate and a mess, and it's because they just have a single formula for doing it. And they hand it to their secretary, they pay no attention, they don't keep file notes, you write them a letter and I'm representing the client, and therefore, you can't contact them again, and the next thing you know, your client gets a letter and you say to them, hey, that's a debt collection violation. Oh, it was a mistake and my secretary sent it out. Which is true, I mean, they don't intend to be bad, I believe that, but those mistakes should not happen. And they wouldn't happen if the lawyers take charge, and I could go on and on with that kind of story. Cases that we win, all the time, I can always count on lawyers to do a lousy cross-examination, making my client tell the story ten times over.

KRISTEN L. GISLASON:

Do you think that contributed in part, at least in small part, to your success, that you were so…

ELLEN W. GERBER:

Sure, absolutely, cause we're super prepared. And even though we represent, as Legal Services attorneys, clients who are not respected, and in fact are considered dead-beats not having paid their rent, not having paid their debts, we win because we're prepared and the other lawyers aren't. They haven't researched the law, they haven't looked at anything, so they get up there and assume they're going to win, and they don't.

KRISTEN L. GISLASON:

While you were practicing, did you have any role models in the legal community, I mean, anybody you especially look up to, male or female?

ELLEN W. GERBER:

Well, Dan Pollitt is high on my list, is probably number one, for somebody who has always devoted his life to public service. I think that's really one of the most important role models. If you're talking about role models in terms of skill development, no, I had to make, I had to become the role model for myself and others, and it was a painful lesson how to do it. I don't, and there were too few people. Certainly, Jim Gulick in our office, was a good …

KRISTEN L. GISLASON:

The interesting thing about Professor Pollitt, we had a

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large, you know a kind of spoof night at school, where we did a retirement tribute to Dan Pollitt, and while he was on stage, they showed slides and they played sappy music, and you know, he made a speech and everything. But I love him and what a wonderful feeling it must be for him to look back at this life that not only is he doing something that he loves, but to know that he is so well respected, also that he has been serving the people, and he hasn't pulled out.

ELLEN W. GERBER:

That's right.

KRISTEN L. GISLASON:

You know, look back at 70s, you know, he is…and I imagine you are a role model to some of the people you've touched, you know, in your life.

ELLEN W. GERBER:

Well, I hope so. And I think that people have been generous enough to say so, and I've tried to be, I really think that's important for them to understand that you can live in that uncompromising way, to do the job the way it needs to be done. There's someone else I want to mention too who was important, and that is Barry Nakell. Barry has had some hard times lately and but when I was a student, Barry was one of the few professors who was out there really doing good public service work. And he has been terrific, he had never stopped and never lost that. He's being punished for it at the moment, but we shouldn't forget - Lee v. Bounds was a very significant case, in North Carolina and nationally. And because of that our prisoners have representation on levels that he could find any input in any other state, and Barry Nakell brought that about.

KRISTEN L. GISLASON:

I'm thankful that he's coming back in the fall.

ELLEN W. GERBER:

Yes.

KRISTEN L. GISLASON:

For a while there the students were feeling that the school was just trying to sweep everything under the carpet, and like all the problems that have been following him didn't exist. But he was certainly missed this year.

ELLEN W. GERBER:

There are also some women who have made a wonderful mark here in North Carolina, I think we also grew up together and they weren't out there as role models for me because they were

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not fully developed then either. But there are some women attorneys in this state who have just made incredible differences, and would you like to know a couple of them?

KRISTEN L. GISLASON:

I sure would.

ELLEN W. GERBER:

OK, let's start with Leslie Winner, who right now is running for the state senate from Charlotte, I don't know if you know her. She has worked, she started out as Legal Services attorney and then for the last several years has worked for, what's the firm, Chambers, Stein, is now Ferguson, Stein & Watt, whatever, and she's the one who did all of the work, including right up to the trial, right up to the U.S. Supreme Court, when Julius Chambers did the arguing on Jingles, which is the redistricting case that really changed the face of North Carolina, and as a result of which, in the follow-up work she did, going around suing all of the communities across the state, we now have blacks on city councils, boards of education, and county commissioners, and things like that we never had before, and in the state legislature, larger numbers than ever. That's Leslie's work, the Voting Rights Act has just been applied to North Carolina because of her work. Sharon Thompson, whose first few years were spent as legislator and before and since then has represented Planned Parenthood and other groups like in the legislature as a lobbyist. Because of Sharon Thompson, North Carolina has always supported abortions, or that is, paid for them, when Medicaid stopped funding them. We are one of about 14 states in the country that fund abortions for poor women, and we have withstood all the challenges of parental consent, and all these other limitations that people try to put on them, and Sharon has single-handedly been responsible for that.

KRISTEN L. GISLASON:

Where is she located?

ELLEN W. GERBER:

She's in Durham, she's a terrific attorney.

KRISTEN L. GISLASON:

I'd love to speak with her sometime, I wrote a paper for Constitutional Law about parental consent and notification statutes.

ELLEN W. GERBER:

Well, you can find her,

KRISTEN L. GISLASON:

It's fascinating but also very scary.

ELLEN W. GERBER:

Yeah, very. Well, we just defeated that again in the legislature, this time because they brought in those parents of that women who had died. So she's been another terrific one. Angie Bryant, who was also in law school for about a year, a black woman, who had been on the industrial commission, and just worked really hard on the inside to bring women's, in particularly black women's, issues to the fore. When she was an industrial commissioner, then people would come and represent maybe a black plaintiff, and they would ask her, I mean a black defendant, and the lawyers who were representing the insurance companies when there was a black plaintiff or petitioner, would come along and ask her to recuse herself, because after all, she was a black woman on the bench, and she would be sympathetic, forgetting all the years that they were budsies, budsies with white males. Right, so Angie has been a very important person, right there in the middle of all of things. Right now she's not being an attorney, she's working on some other projects involving race relationships. And I should mention Laura Hays, Laura practices in Chapel Hill, the Southern Environmental Law Center, she heads the center there, they've done some really important law suits in this state. And she too started her career in Legal Services. I saw her when they were trying to decide whether the state, the Department of Human Resources, should pay to fund abortions for poor women. I saw her turn the Board around in five minutes, they said they would give her five minutes to speak, and not a second more, they really didn't want to hear, they had their mind made up they were not going to do it, and Laura stood up there and in five minutes changed them. That was probably 1978, and it passed, from that day to this we still have abortion funding for poor women. Ah, she has just a bang-up job as an environmental lawyer. So these are some of the women I came out of law school about my time, and they've just been terrific, just great people.

KRISTEN L. GISLASON:

I think I've mentioned to you before, that by

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interviewing you I'll be giving the only report on a woman, so you will be the first woman attorney included in the Southern Oral History Project, and thank you so much.

ELLEN W. GERBER:

I think it's a pleasure.

KRISTEN L. GISLASON:

I really do appreciate it, and I'll shut this off before I ramble too much.