From the Bench: Moving Beyond Gender: Effective Deployment of the Legal Arsenal

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After spending most of my career as a litigator, I have realized there is good reason litigation is often likened to battle. Most obviously, the practice of the law carries with it enormous stakes, and the consequences of a single case matter deeply to the parties and can reverberate through countless lives. But there is a link, too, between law and combat when it comes to how we attain a successful outcome—one that is instructive for the training we provide our cadets in the law and for breaking down barriers to success as they progress through the ranks. Whether standing before a jury in a courtroom or sitting at the deal table in a boardroom, we must master the strategies that make us effective in face-to-face showdowns with opponents, as well as those that let us make effective use of the deterrent force of might.

In drawing an analogy between law and combat, I deliberately choose an aggressive metaphor, for my point is that aggressiveness—by which I mean initiative and decisiveness about which tools in the legal arsenal to use, and the confidence and leadership to actually use them when needed—is precisely what success in the law requires. Yes, empathy and effective interpersonal skills are also important legal tools, and without a doubt, there is value in endeavoring to bring parties together where appropriate. But just as diplomacy often benefits from the credible threat of force, lawyers’ efficacy as negotiators often turns on whether they are perceived as having the confidence, skill, and resolve to follow through—for example, to break off negotiations, to file that complaint or motion, or to go to trial and command that courtroom.

The particular aggressiveness that I describe as vital to success in the legal profession has no gender. For there is nothing inherently male or female about strategy and focus, confidence and initiative, decisiveness and intelligent follow-through. Unfortunately, however, recent studies tell us that this aggressiveness is neither equally encouraged nor equally respected in men and women.