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August 01, 2012

Trial Practice: Women Lawyers at Trial and on Appeal

Charles L. Babcock

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I have long thought that women and men often (not always) see things differently in the real world. But the following is a stark example of how those differences can come into play in the courtroom.

I was getting ready to argue an important case on appeal and assembled a group of appellate lawyers from my firm to act as judges in a mock argument. My only criteria for choosing them were that they were available and good appellate attorneys. One was the chairman emeritus of Jackson Walker’s appellate section, a man who has argued hundreds of cases and is revered by the appellate bench in our state. The other two gentlemen were former law clerks to judges on the U.S. Court of Appeals for the Fifth Circuit and experienced appellate practitioners in their own right. During our mock argument, it became apparent that none of the three cared for one of our main arguments, which had been crafted and written by my partner (and wife), Nancy Hamilton. They counseled that I deemphasize that point when I got to the real argument, which I did with Nancy’s concurrence.

At the oral argument, however, when opposing counsel started to argue his case, a curious thing happened. The two women judges on the panel (one of whom ultimately wrote the opinion) peppered him with questions on the very point my mock panel had advised that I downplay and I nearly ignored in my opening. When it came time for rebuttal, I smoothly started by saying, “I am glad the court has focused on this point (barely mentioned by me) and let me expand. . . .” We won the appeal, and Nancy’s argument played a prominent role in the opinion.

This experience taught me that if I know the identity of my panel at the time of mock argument and if it includes one or more women judges, I will, for sure, include one or more women on my mock panel. This is no criticism of my male appellate colleagues, whom I have practiced with for more than 30 years and who are right most of the time, but having a female perspective can be immensely helpful.

Having an experienced woman trial lawyer on your team isn’t a bad idea either. Recently, I tried a federal court case against a prominent, very successful lawyer who was old school. He was likely practicing when Justice John M. Harlan II wrote for a unanimous U.S. Supreme Court that a state law excluding women who did not volunteer for jury duty was constitutional, saying that “[d]espite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.” Hoyt v. Florida, 368 U.S. 57, 62 (1961).

My opponent, in closing argument, referred to our two key defense witnesses (one a former manager since retired and the other the current general counsel of the public company defendant) as “nice girls” who didn’t really know anything about the facts of the case. He questioned why our side had not brought any of the male executives to testify. My co-counsel (a woman) wrote me a note before I got up to argue. “Make him pay for that,” was all it said.

The eight-person jury consisted of six women (all of whom worked full time) and two men. I don’t know whether or not I succeeded in making opposing counsel pay, but I sure tried. We won the case.

One final story. I had a case that went on for years, and early in the case, I felt that the male trial judge and I were on the same page. I was winning most of the motions, especially the important ones. Then our judge was reassigned and a new judge came onto the bench. She had not served on that court previously but had good credentials and was well regarded. Suddenly, just about every motion we presented was denied until my female co-counsel started framing the issues and arguing the motions. Complete turnaround.

These are all anecdotal stories, but I think they reveal some truths or at least raise some things to consider:

  • First, on many (not all) issues that arise during litigation, men and women see things differently.
  • Second, since 1975, when the Supreme Court held that “it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions [from jury service] based solely on sex . . . ,” Taylor v. Louisiana, 419 U.S. 522, 537 (1975) (reversing Justice Harlan), we see many more women serving as jurors. In fact, it is rare, in my experience, when women do not outnumber men on jury panels.
  • Third, many more women are serving at all levels on the bench than was the case just 20 years ago.
  • Fourth, to have a robust and well-rounded trial team in important cases (large and small), it is prudent to have one or more experienced female trial and/or appellate lawyers as members. They may be lead or second chair, but they should be there.
  • Fifth, law firms of whatever size should ensure that they have experienced women litigators and appellate lawyers to call upon in the future by getting them into the courtrooms—both trial and appellate—now.

Charles L. Babcock

The author is with Jackson Walker LLP, Houston.