January 01, 2017

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

Hon. Cheryl Ann Krause

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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.

The problem cuts across professions. Researchers at the Clayman Institute for Gender Research at Stanford University recently analyzed hundreds of performance reviews of female and male employees and found that women were almost twice as likely as their male colleagues to be described as “supportive” or “collaborative” or “helpful,” and more than twice as likely to be praised by reference to team achievements rather than their individual accomplishments. Meanwhile, men’s reviews contained twice the number of references to technical expertise and were more likely to contain praise of exceptional abilities or talents. Forming a backdrop to these findings was this one: The concrete feedback women did receive often related to their communication styles, and women were criticized for being “too aggressive” at about three times the rate of men. In short, the study suggests that women who behave assertively are criticized and penalized in ways that men generally are not.

I understand that encouraging women to be more “aggressive” in professional arenas might come across as somewhat dated. It’s the kind of plea that has been replaced with nuanced calls for professional women to “lean in” or for changes in our culture and workplace infrastructure so we can finally “have it all.” I invoke the term, however, because I believe that aggressiveness plays a special role in the practice of law. And if aggressiveness is treated as an asset for our sons but a liability for our daughters—if even the terminology with which we celebrate the strengths and talents of women is coded language—little wonder, then, that women in the law sometimes feel uncomfortable handling conflict or stepping outside support roles, and those aspiring to be generals may find themselves navigating a more complex course than their male counterparts.

Indeed, despite making up roughly half of new law school graduates and a third of all lawyers, women account for only about one out of five law firm partners and one out of four general counsels of Fortune 500 companies. Likewise, the National Women’s Law Center reports that only about a third of all active federal district and appellate court judges are women, and six federal district courts have never seated a woman judge.

These numbers are all the more sobering when we consider how much society stands to benefit from women generals on every front. We benefit from women like Ann Dunwoody, the first woman four-star general in American history, and Kristen Griest, Shaye Haver, and Lisa Jaster, the first-ever female graduates of the army’s legendary Ranger School. We also benefit from women generals in the law, and many of the leadership qualities we associate with top brass should be actively encouraged and cultivated in both our female and our male lawyers.

So if law is in some ways like combat, how can we ensure that, on and off the battlefield, there are fair opportunities for both men and women who seek to build meaningful careers? The military offers some useful points of instruction.

First, in both war and law, how we accord recognition is no small matter. Our armed forces use badges and awards to recognize the qualifications, accomplishments, and, most importantly, service, of every soldier, sailor, airman, and marine. The legal profession too has its own epaulets, but ours are predicated on an exceedingly narrow definition of success. We need to expand it.

We too often measure “success” on a single axis, like billable hours, discounting the critical long-term investment that women and men make every year in the development of the legal profession, community service, and the next generation of citizens and leaders, that is, our children. We too rarely express admiration and appreciation to those lawyers, male and female, who choose to undertake the challenges of childrearing and working simultaneously, and we too often disapprove instead of supporting those who sequence their professional and personal lives, perhaps leaving an exciting practice to devote time to family or other important causes, and returning years later to continue their professional ambitions. Indeed, how we frame success in the law is itself a reflection of what kind of work we think matters. If we are truly to build an inclusive profession, we must expand our conception of what success looks like.

Another relevant point of comparison between the law and the military is the essential role of our partner, and here I mean life partner. The wingman, shipmate, or battle buddy gives his colleague support, covers his back, and provides real-time feedback and perspective. My husband, who is a fighter pilot and colonel in the air force, often serves as the wingman, not only at work, but also on the home front. For devoted parents who also aspire to successful careers, the close support of a good partnership is mission-critical, and with it, dare I say, the sky’s the limit.

There is wisdom here that crosses generations. I spoke recently with Judge Dolores Sloviter, whose active seat I had the privilege of assuming. Judge Sloviter joined the U.S. Court of Appeals for the Third Circuit in 1979 as its first woman. She was only the fourth on any federal court of appeals and remains the only woman to have served as chief judge of our circuit—at least so far. When I asked her about her achievements, she said the best thing she ever did was marry her husband and adopt her daughter, and none of the rest of it would have been possible otherwise.

Thanks to pioneers like Judge Sloviter, the course young lawyers and parents must navigate today is far easier than it was in decades past. Many firms have paternity leave policies, and many young fathers are using them and coordinating work schedules with their working spouses so that, if they choose to, both can continue in their careers and participate in the sometimes overwhelming responsibilities of parenthood. That’s not to say there aren’t times when you’re called to arms in the law—trials or closings, for example—when the commitment to get the job done needs to be full-time. But with a supportive and flexible partner with whom you can chart out your joint strategy for the challenges of a dual career, your capacity can be more than doubled. In short, our choice of life partner is not only a matter of the heart; it is also the bedrock of our professional lives.

No doubt there are many more points of comparison between the legal profession and the military, but I’d like to touch on just one more, and that is their exceptionally hierarchical organization. We are constantly told, mostly by our friends in the tech world, that flatter is better, and that eliminating top-down management encourages creativity and collaboration. But I’m not convinced that a vertical structure per se is the problem. Indeed, it may be part of the solution. In the military, for example, hierarchy not only enables the unit to function in an effective, efficient, and versatile way; it also presents opportunities for the members of that unit to learn specific skills from others expertly trained, to appreciate the integral roles of other units, to observe effective leadership, and to distinguish themselves as they work their way up the ranks. So, too, in the law. Whether in the context of law practice, academia, or judicial clerkships, good mentoring and apprentice-type relationships offer similar opportunities to young lawyers.

Our military and legal professions are united in their commitment to preserve and protect our laws and Constitution and in their love of country. But whether we battle with the sword or the pen, our rising young professionals, to be successful, must be able to engage others with confidence, to take initiative, to strategize, and to act decisively—in short, to be aggressive when it is needed. And we, in the senior ranks, can support those skills and enable the next generation of leaders to reach their potential so long as we take seriously our obligation to be good role models and mentors. Law may be combat, but at least part of the battle lies within each of us.

Hon. Cheryl Ann Krause

The author is a judge on the U.S. Court of Appeals for the Third Circuit.