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On the Basis of Sex (Gender)

Amanda Lorentson


  • It is clear that gender is used strategically in the practice of law. Gender is woven, for better or for worse, into the fabric of our society and, at least for now, influences much of how we humans navigate the world around us.
  • Bias plays into archaic gender roles as well. The notion that women can better connect with victims contains an inherent assumption, that only women are capable of empathy, and it stereotypes men as cold and lacking compassion.
  • As we push toward a legal field that is as diverse as it is capable, we should keep this in mind when we assemble our legal teams.
On the Basis of Sex (Gender)
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I recently attended a deposition of a target defendant, an orthopedic surgeon, that my colleague was taking in a medical malpractice case we have together. My colleague, also a woman, pointed out to me before we started that all the lawyers in the room—us, the doctor’s attorney, and counsel for two other defendants—were women. In fact, the only other man in the room, besides the doctor, was the videographer.

And while this was probably the first time I’ve participated in a deposition in which all the attorneys were female—partially due to me being a rather junior attorney, partially due to the fact that only one in three lawyers are women—I am certain that this gender breakdown was merely coincidental and just a by-product of whomever happened to be assigned to this case and whomever happened to be available that particular Tuesday morning.

However, this is not always the case. In fact, I have found quite the opposite to be true. In the paragraphs that follow I discuss the various ways I have witnessed “gender strategy” during my practice. I would like to make the following qualifier: This article does not fully address the complex issues of sexism, cisgender privilege, and gender bias, all unfortunately very much present in the legal field. I certainly have my share of these stories. This article addresses what I call gender strategy—the conscious choice to leverage gender to get an advantage (perceived or actual) in litigation, much as one might leverage venue, forum, or any other demographic an attorney might perceive as giving the attorney an edge over the other side (e.g., a lawyer at a high-profile national firm hiring local counsel to cochair a case to appeal to the jury in a small rural county).

Earlier this year, I settled a sexual assault case involving a woman I will call “Jane.” Jane was a client of mine in her mid-30s who was drugged and raped at a hotel by a fellow traveler she encountered at the hotel bar. When Jane woke up the morning after the assault, she had barely any memory of the night before but was able to piece together, based on spotty recollections and the bruises and cuts covering her body, that she had been sexually assaulted. A sexual assault nurse examination (SANE) about 24 hours later indicated that she had been vaginally and anally raped.

We sued the hotel and the security company for their negligent conduct and brought claims on both her and her husband’s behalf. Although I cut my lawyer teeth (I still have baby teeth, I’m afraid) on sex abuse and assault cases, this was the first such case that both of my opposing counsel—both men, one a managing partner of the local office of a white-shoe firm and the other a partner at a smaller regional practice—had handled. One of these attorneys, whom I’ll call John, and I became close during the course of litigation. Workwise, he was a consummate professional and, personally, he was just a nice guy with a good sense of humor that made a three-year litigation process as painless as possible.

Due to our friendship, John confided in me how deeply unsettled he was, not just with the facts of the case he was defending, but that he was a man tasked with doing it. He did not want to depose my client, a female rape victim, as a male attorney. John told me that he did not want to make my client feel uncomfortable by asking her intimately personal questions or to make it look as though he was doubting that she experienced a sexual assault. I’m sure, although he never confirmed as much, that John was also worried about how the video of the deposition, if replayed in court, could make him look like a bully or a victim blamer. I felt his concern was irrational—a feeling I communicated to John. From what I knew about John after a year into the lawsuit, I felt that he would come off as likable and genuine during all parts of the litigation, not just during depositions but also at trial. John had always treated me, the case, and the client with incredible respect and showed as much sensitivity around the topic of my client’s rape and ensuing trauma as one could hope to expect from someone with interests diametrically opposed to our own. Not to mention that John was highly familiar with premise liability cases and had the facts in the case file down cold, which made him a formidable opponent as well. But John just could not get over the gender dynamics and soon brought in a series of female attorneys whose participation in the case he would limit to taking depositions of female witnesses.

This tactic felt odd to me, if not a little sexist—even though I knew John’s intention was the exact opposite. I had never once made my gender, my client’s gender, or John’s gender an issue. Gender did not even cross my mind in terms of this case except when it came to the obvious dynamic that Jane was a woman and her rapist was a man.

So what does one do? What is the correct approach when opposing counsel makes gender an issue? I cannot say what the right answer is; I can only say what I did. I decided that I would be intentional about the role of gender in how I managed my case, where possible. Instead of seeing it as a negative value-add, as John did, I embraced it.

My case theory shifted ever so slightly from strict premises liability to including women’s issues. My case involved a woman who was raped while traveling. Women are more likely to be victims of sexual assault, and this is especially true when traveling alone. It should go without saying that women should feel safe when traveling—this became a theme of my case. Many of the defendants’ employees made choices based on my client’s gender. For example, they assumed her rapist was her boyfriend or husband, so they didn’t intervene when they saw her stumbling after she had been drugged. A few also made comments about the “type of women” who go to hotels alone. Where I may have only touched on these issues before, now I zeroed in wherever possible during examinations on the disparate treatment my client got because she was a woman. I was able to elicit testimony that my client certainly would have been treated differently (better) if she had been a male guest. I also got press by leaning into the gender dynamics, connecting with women’s safety and travel organizations, and I published an article about women’s safety—news that opposing counsel got wind of and one that I’m sure made them anxious about the optics if this case went to trial.

Knowing that the state in which this case was venued allowed opposing counsel to conduct depositions of expert witnesses, I wanted to see if I could recruit a team of all female experts who could speak to my newly emerging strategy. Gender was not a deal breaker—bottom line, I would hire whomever was best for the case—but if I could find the best and if the best were also women, that was my ideal outcome.

After vetting both male and female professionals, I hired a female security expert, a female toxicologist, a female SANE nurse, and a female psychologist. This strategy paid off in two ways. First, if John was hesitant to depose the plaintiff, I took a gamble that he wouldn’t want to personally depose any women. This proved to be a gamble worth taking. Although the women who were brought into the case are all highly skilled attorneys, they were not in the trenches as John and I were. So they were not able to be as aggressive with my experts by picking apart their knowledge of the file as John would have been. Second, I found that hiring women for a case such as mine allowed me to get testimony and opinions that I could not have gotten otherwise. Because my case involved a woman traveler, my security expert was able to speak to her own personal experience as a woman traveling and to the levels of safety she expects and the safety measures the defendants failed to provide to my client. My SANE expert spoke about the invasiveness of having a rape examination, having personally sat for one herself, and although men are evaluated by SANE nurses as well, she was able to speak about the uniquely traumatic impact such exams can have on a female rape victim’s ability to resume normal gynecological care post-assault.

John’s gender strategy also backfired in a particularly significant fashion when it came to my client’s deposition. John attended but did not take it, choosing to sit next to the partner he brought into the case specifically for this role. I watched John become visibly unsettled when his counterpart proceeded to engage in one disastrous line of questioning after another. And the failures went beyond just her not knowing the file—she was a great lawyer, just not great for this case. Her practice was mainly in big pharma, not personal injury defense, and it was clear it had been a long time since she had deposed a party in any sort of personal injury case. I could tell by the end of my client’s deposition that the case was over. I think opposing counsel knew that too because the last words she said to me as we packed up and headed out were “Have you sent us a demand?”

This is not the only time I have seen gender strategy while I have been practicing. I have been involved in multiple cases involving sexual assault in which defense counsel have brought in a female associate or partner for the limited purpose of conducting depositions or handling the examinations of female witnesses and parties. I also know of many lawyers from both sides of the bar who have had similar experiences dealing with gender strategy when it comes “sensitive” cases, i.e., using male attorneys specifically for product liability cases that involve male sexual dysfunction or, even more doltish, sending attorneys who are conventionally physically attractive to depose persons of the opposite sex.

In preparation for this article, I spoke to a good friend of mine, a defense attorney, who has lamented to me in the past about being stuck in the crosshairs of gender strategy. She told me that the worst part about gender strategy is that it makes her feel like the “bad guy,” that she is often asked to depose or cross-examine the children and women whom no one else wants to depose or cross-examine, i.e., traumatized victims of horrible abuse or assault. She noted that she is rarely called in as a “handler” when it’s a contract dispute or other complex civil litigation (see earlier mentions of the legal gender/power imbalance).

I asked her why she thinks this happens, and she had a few ideas. First, optics. The thought is that optics in court or at deposition (particularly if video-recorded) are better if a woman is grilling another woman on a sensitive topic. The same applies to children because women are generally seen as caretakers and thus any aggressive tactics needed are ultimately more palatable when coming from a woman instead of a man. Second, connection. The thought here is that women can connect with other women and with children in a better way than a man could and that this connection can make the deponent or witness more comfortable and thus more likely to give favorable testimony. Third, discomfort. The thought here is that the lead attorney is personally uncomfortable with the topic itself or perhaps feels it would be inappropriate for the attorney to address the topic with a woman or young person and would rather have it handled by someone more “suited” to the job.

It is clear that gender is used strategically in the practice of law. And to be fair, lawyers did not invent gender strategy. Gender is woven, for better or for worse, into the fabric of our society and, at least for now, influences much of how we humans navigate the world around us. The legal field is but one small, albeit powerful, thread of that fabric. Understanding this, there are indeed times when we are forced to make tactical choices that play into this binary—my case against John is a prime example. However, that example should be the exception and not the rule. Reflecting on my friends’ impressions of why gender is used as a chess piece makes it painfully obvious that the underlying concept might not really be strategic; rather, that it is based in bias plain and simple—a bias we should be conscious and cautious of. This bias is not just an anti-women or pro-men concept. I believe these biases cut both ways. For example, if a choice is made that male attorneys must be assigned to cases involving complications from a prostate medication, there is an inherent underlying and unfair assumption that the parties to that case, or that men in general, are not mature enough to discuss their anatomy with members of the opposite sex. This bias plays into archaic gender roles as well. The notion that women can better connect with victims contains an inherent assumption, that only women are capable of empathy, and it stereotypes men as cold and lacking compassion. This concept also completely disregards transgender people and people who identify as gender fluid or nonbinary. Of course, there are cases that absolutely are grounded in gender, for better or for worse, and times when it is appropriate to be sensitive to gender—if you have a female rape victim who is comfortable speaking only to a female psychologist for an evaluation. However, gender should not limit, regulate, or mandate choices in counsel. As we push toward a legal field that is as diverse as it is capable, we should keep this in mind when we assemble our legal teams.