When I saw the title of the recent article in The Atlantic by Lara Bazelon, “What It Takes To Be a Trial Lawyer, If You’re Not a Man,” I couldn’t wait to read it. I’m a trial lawyer. I’m also a woman. Everyone loves to read about themselves, right?
Bravo to Bazelon for taking on a tough and seldom-covered topic.
My excitement, however, turned to dismay when I read the article. Bazelon’s thesis is that “the courtroom [is] merely another place where the advancement of women has been checked.”
That hasn’t been my experience, and I’ve tried cases across the country for the last 15 or so years. I’ve found courtrooms to be the great equalizer.
Do Clothes Matter?
Bazelon’s first argument is that female trial lawyers’ clothing is an issue. She posits:
Women’s clothing choices, by contrast [to men’s], were the subject of intense scrutiny from judges, clerks, marshals, jurors, other lawyers, witnesses, and clients. I had to be attractive, but not in a provocative way.
Every day I’m in trial, I wake up, pick either a dull dress and jacket or dull pants and a jacket, and start worrying about the stuff that really matters like my examinations. The only comment I ever received on my clothing was from one client who thought my clothing choices were “too boring” and urged me to wear some bright colors. I didn’t take offense, and I didn’t change my wardrobe to suit him.
We won the trial.
My goal is to have no one notice what I’m wearing. You don’t win a trial by being the best dresser. Sure, if you want to be cutting-edge fashionable and a lawyer, then you’d better put some thought into what you wear to make sure “fashionable” doesn’t mean “sexy.” But outside of lawyers on television and maybe in Los Angeles, fashionable is not our domain.
The Right Courtroom Style
Bazelon’s next point is how hard it can be for a woman to straddle the line between being tough and being traditionally “feminine.”
So when I entered the courtroom, I took on the persona of a woman who dressed, spoke, and behaved in a traditionally feminine and unthreatening manner. . . .When my efforts failed, I feared having come across as strident—or, worse, as a bitch. When I succeeded, I felt as if I was betraying my feminist principles. But if there was a sliver of a chance that the girl-next-door approach would deliver a more favorable outcome, not taking it would be wrong.
I agree with Bazelon that it’s a challenge to be a woman who engages in a truly bare-knuckles courtroom style. I do think that people (read: jurors) are probably a bit more comfortable with a male lawyer doing that than a female lawyer. But I’m not sure a bare-knuckles approach works for anyone, and it’s not my style at all.
I’ve never felt pressure to have a “traditionally feminine” or “unthreatening” style.
Picking the right tone in the courtroom is a struggle for both men and women. As trial lawyers, we spend our days viciously fighting for our clients within a very restricted set of rules. Those rules govern when we stand up, how close we stand to witnesses, the types of questions we ask and even the very words we choose.
How hard we fight, the tone we adopt, the facial expressions we use—they are all tools in our arsenal. It’s up to a good trial lawyer to use those tools well. Spend a few days watching trial lawyers, and you’ll quickly see some lawyers who use them well and some who don’t.
Bazelon’s article gives the impression that male trial lawyers are allowed to beat a witness into submission with shouted questions and chest pounding inches away from the witness stand, while female trial lawyers may only meekly ask timid questions from the podium.
Every good trial lawyer I’ve seen has a different style. Some men are quietly confident as they cross-examine the key witness; some women are louder and more strident. A good trial lawyer doesn’t imitate anyone else’s style. You have to find a style that fits your own personality. Loud may work or quiet may work —I often use different styles depending on how the cross-examination goes. If the witness is cooperative, I’m calm and methodical. If the witness decides to fight me, then I’m a bit more pointed.
You know what doesn’t work in the courtroom? Not being yourself. Credibility is everything, and a juror will sense a faker in a hot minute.
Plus, any decent trial court judge keeps a tight rein on what’s going on and the jury is always watching. Unlike in the millions of little interactions in boardrooms and conference rooms, there’s someone watching. The snarky, sexist comments are gone (or kept to a minimum) because there’s a risk that the judge or jury will not take kindly to them.
Does the Jury Have to Like Me?
At one point, Bazelon uses her sister’s experience as a juror in a civil case to support her thesis. In a case brought by a woman injured by a vaginal mesh device, her sister was impressed by the female attorney (Kim Bueno) representing the medical device company.
[My sister] told me she had been impressed by more than just Bueno’s command of the law. Jill had related to her. She was the only woman lawyer in a courtroom packed with attorneys. The men were dour and dull; Bueno was personable and dynamic.
It sounds like Bueno was an excellent trial lawyer. But it wasn’t necessarily because she was a woman. It’s because she was good. I’ve seen male trial lawyers empathize with clients or victims, and I’ve seen female trial lawyers look bloodless and cold. I do think women have a natural advantage in this regard because we are so often encouraged to be warmer in our personal interactions—but that’s an advantage for women, not a hindrance.
Warmth is certainly not a character trait limited to women. That’s where Bazelon’s theory falls apart for me. Men can be plenty “personable and dynamic” like the lawyer in her example.
Noted trial lawyer Cris Arguedas wrote a wonderful rejoinder to Bazelon’s piece. She’s well known to be one of the best trial lawyers in the country. She notes:
My career has demonstrated that you can be aggressive to the point of causing discomfort for a juror if you are also effective. (I suspect the same is true for men.) Put simply, it is not the end of the world if a juror doesn’t like you.
Arguedas goes on to explain
If, as a juror once said to me, “I thought you were a bitch, but that witness was a liar”—I have won. Plenty of jurors who didn’t like me also asked me for my card at the end of the trial. People are drawn to strength, power and authority even when it makes them uncomfortable. Bazelon should be teaching her female students to use those qualities and tactics—not how to conform to the most conservative and stereotyped expectations of how a woman should behave.
Somebody’s Watching You
Bazelon says she spends some of her time in the classroom (where she’s a clinical professor) telling her female students “the truth: that their body and demeanor will be under relentless scrutiny from every corner of the courtroom.”
I’d give that advice to every trial lawyer, man or woman. Our demeanor (not our bodies, in my experience) is under scrutiny from the moment we enter the courtroom until we leave it.
Do we look worried about a witness’ testimony? Are we surprised by an answer? Are we anxious about a document being introduced into evidence? Are we angry about the judge’s ruling? Are we frustrated by opposing counsel’s objections?
I spend a lot of time in the courtroom not reacting to what’s going on. A poker face is a key part of being a trial lawyer, no matter your gender.
Look to Small Firms
Bazelon also makes the point that there are far fewer female lead trial lawyers than male ones. That’s partially true. In D.C., where I practice, there are plenty of female prosecutors and defense counsel in criminal cases. But when I practiced in BigLaw, most of the lead lawyers for big civil cases were men. That absolutely should change.
One place you can find amazing lead trial lawyers—who also just happen to be women—is in smaller firms. Unhampered by a male-dominated hierarchy, female trial lawyers like Arguedas and Beth Wilkinson (quoted in Bazelon’s article) abound and take on the biggest cases for the biggest clients.
There are so few opportunities for trials in big firms that the most senior lawyers — usually men — will snap them up. That leaves very few opportunities for women to develop as trial lawyers in big firms.
I was glad to have chosen a big firm where I was given plenty of chances to try cases. I progressed from third-chair to second-chair to first-chair by the time I left to start my own firm. But those firms are few and far between.
Sexism It Out There–How Will You Respond?
It’s possible, I suppose, that practicing in a metropolitan area like Washington, DC protects me from the worst sexism. Yet, I’ve tried cases in Birmingham, Alabama and Oklahoma City, Oklahoma and Harrisburg, Pennsylvania. I’ve never had my gender hinder my ability to try a case. I’ve seen plenty of sexism in the legal profession, but, like Arguedas, I either confront it or put it behind me.
One opposing counsel in Virginia called me “little lady” during a break in a deposition. It goes without saying that he was an older man. When I told him not to call me that, he feigned surprise that I was bothered by his comment. When I put his comment on the record after the break, he didn’t do it again. And when we tried the case, I won.
I love being a trial lawyer. I feel at home in the courtroom. In Bazelon’s world, that shouldn’t be possible. I should be spending my trial prep worrying about wearing heels and practicing precisely the right tough-but-warm tone.
That’s not what I spend my time doing. I prepare to ask the right questions on direct, have the killer impeachment document at hand during cross, and make the perfect legal argument to admit questionable evidence. I spend my time trying to win for my client. Not worrying about being a woman.
N.B.: Please don’t take this post to mean that women and lawyers of color aren’t subjected to discrimination and adversity in the legal profession. We certainly are. The pathetic numbers for female/minority equity partners in big firms are the starkest evidence of it, but there are plenty of other examples. I may disagree with Bazelon’s article based on my personal experience as a trial lawyer, but that doesn’t mean the legal profession is free of problems.