The Unsticking Point
How Miriam Barish arrived at the intersection of law and gender
Published in 2019 Pennsylvania Super Lawyers magazine
By RJ Smith on May 16, 2019
Miriam Barish was enjoying a thriving career as a personal injury lawyer at Philadelphia’s Anapol Weiss when a specialty presented itself at the intersection of law and gender.
The horrific breakthrough case involved two women who shared an apartment and wanted to hire a cleaning service. The management agency for the property recommended a man, who suggested he work directly with the women rather than through the property-management company.
“It was fairly assumed the agency had vetted these workers—especially if they’re going into homes,” says Barish. Not long after he began working for the women, the cleaner tied one up and left her in the basement while he sexually assaulted and killed the other.
Representing the survivor and the family of the murdered woman, Barish sued the cleaning company and the property management agency.
The problem she faced in court was that the cleaner was not employed by the firm when he committed his crimes.
“Because the perpetrator no longer worked [for the property management firm] when the heinous sexual assault and murder occurred, I could not argue a typical theory of agency liability,” says Barish. “Instead, relying on the Second Restatement of Torts, I persuaded the court to impose liability based upon the cleaning company’s negligent conduct in introducing my clients to the worker without conducting a criminal background check, which would have revealed the perpetrator’s violent criminal record—he had been arrested and imprisoned for aggravated assault. And had they done a criminal background check, they would have known he was on probation at the time he was hired.”
She calls it a “negligent introduction theory.”
Barish doesn’t balk at the idea that her theory was unorthodox—she embraces it.
“Other lawyers might have turned my client down,” she says. “I take creative and tenacious approaches to every case. I’m not looking for flawless liability to bring to a case.”
The case, a first of its kind, was tried successfully before a Philadelphia jury, and Barish says she was able to get “a significant amount of compensatory damages.”
“I think the living victim was comfortable sharing this horror story, these intimate details, with me, and they resonated,” she says. “These things made clear to me this was somewhere I could be effective.”
After that case, Barish’s practice “sort of just evolved,” she says. “I don’t only represent women, but I’ve developed something of a niche. Women do feel comfortable sharing stories [with me] that are not just injurious, but can be intimate. I’m able to put them at ease as a woman, and probably from my own compassionate and somewhat disarming way about myself.”
Barish grew up in Northeast Philadelphia; her father owned a retail clothing store and her mother was a teacher. Her grandmother told Barish’s mother she could not go to college and earn a teaching degree because her brother was heading to law school and she was expected to help pay for it.
“And she said, ‘Are you kidding me?’” says Barish, laughing. “She felt women should pursue their dreams and goals, too, and she instilled in me to be an independent woman. If you have a passion to do something, do it.”
Barish has four children, three are girls. “I’m perpetuating this in them now: That women should be able to rise and fall on their own,” she says.
Growing up, Barish says the dinner table talk was lively, and debate a given. “I was never the quiet type and always had a lot of opinions,” she says. Yet it’s her listening ability that she credits with her success.
“A lot of injury victims are stuck,” she says. “They are stuck and need to tell their story. Do they want to be compensated? Absolutely. But it doesn’t put them back together by itself. A lot of people want to know, ‘Can you fix it so nobody else goes through this?’”
Her gender-specific premises liability niche also includes work for a woman who was sexually assaulted as a patient in a psychiatric hospital; a woman robbed and assaulted in a parking lot; and a girl who was assaulted on a school bus.
“I recently had a workplace discrimination case,” Barish says. “My client wanted the job she was entitled to and was not granted on the basis of gender and race. But she wanted her sisters in the workplace to have better opportunities, too. And as lawyers you have to firmly believe—and I do—that when things get corrected, we have bettered the world.”
Have a potential niche on your hands?
Barish’s best advice for cultivating it:
- Assess your strengths and weaknesses.
- Be specific when considering the area of law in which you have a strong interest.
- Immerse yourself—the more CLEs, seminars and conferences the better.
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