As trial attorneys, we know that our actions, choice of language, and even appearance can affect how the finders of fact view our cases, weigh our arguments, and make decisions for or against our clients. We are all aware of the costs of overt sexism, racism, or any other -ism; it is why we have legal remedies against such bias in the courtroom such as a Batson challenge. But what about implicit bias? What we know about implicit bias in the courtroom and its impact on female attorneys is troubling. In particular, male judges hold significantly more negative stereotypes than female judges about female lawyers, including that “female attorneys lack the competence of their male colleagues” and that “a woman who is outspoken or strongly adversarial is obnoxious.” Patricia Yancey Martin, John R. Reynolds & Shelley Keith, “Gender Bias and Feminist Consciousness among Judges and Attorneys: A Standpoint Theory Analysis,” 27 Signs: J. Women in Culture & Soc’y, 665–701 (2002). It is fair to assume that similar biases exist for court staff, other lawyers, and even jurors. Knowing what we know about implicit bias, what does it mean to be a woman trial attorney?
Implicit biases are, as Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa eloquently described, “the fears, feelings, perceptions, and stereotypes that lie deep within our subconscious, without our conscious permission or acknowledgment.” Scholars tend to agree that implicit biases are driven by limited information about and firsthand experiences of working with others outside one’s own self-identified gender, racial, or ethnic group. In contrast, explicit biases are concerns, feelings, and stereotypes that a person is aware of and self-reports.
Implicit bias is a particularly tricky subject for a woman trial attorney—as a feminist, I want to ignore any concerns regarding sexist implicit biases. I want to complain to the U.S. Senate about confirming only nine female judges ever in the Eastern District of Pennsylvania (yes, you read that right), where I practice. And I want to exhort my fellow women attorneys to get in the courtroom so judges, juries, and opposing counsel have firsthand experience working with us. But, as a lawyer representing clients who want to win, I don’t have that luxury. Instead, I must plan and indeed strategize around such predispositions. To note: I am a white, abled, cis woman. My colleagues who are women of color and/or trans and/or disabled are even more severely impacted by such implicit and often explicit biases. The challenges they face I can only imagine; they are without a doubt on a steeper and more treacherous path than the one I have laid out here.
In 2018, Lara Bazelon wrote an article in the Atlantic, “What It Takes to be a Trial Lawyer If You’re Not a Man.” Bazelon, an experienced criminal defense attorney who also teaches a law school legal clinic, discussed her experience and those of some of her colleagues that led her to conclude (and teach her students) that women trial attorneys must act “in a traditionally feminine and unthreatening manner” to be successful in a courtroom. This includes wearing traditionally feminine clothing, such as high heels and skirt suits, as well as softening one’s tone and generally being less aggressive than male trial attorneys.
In response, Cris Arguedas, a noted criminal defense attorney, authored a piece in the ABA Journal suggesting that Bazelon’s conclusion is essentially capitulation. Arguedas has never appeared in court “wearing anything other than pants—including the United States Supreme Court. Pants, flat shoes, socks.” Bazelon, Arguedas continues, should be teaching her students to win their cases with “their preparation and skills—and not worry about their attire.” For Arguedas, the idea of being anyone other than who she is—i.e., someone who wears pants, flat shoes, and socks—would be a disaster. Arguedas puts it beautifully: “The most important thing is that an attorney maximize her power and authority in the ways that are most natural and authentic to her.”
Both perspectives resonate with me. Women trial lawyers should wear what they want and win cases and arguments because of their preparation and skills. But in my experience, setting aside physical appearance, taking a more “traditionally feminine” approach in tone, perceived attitude, and behavior has helped at times, not just in the courtroom but also in other circumstances, such as helping a client reach the right decision regarding trial strategy. To disregard the impact our presentation may have (clothes or not), as Arguedas seems to do, is to deny the role implicit bias plays in every decision humans make, be it what to eat for lunch or whether a criminal defendant is guilty. I routinely counsel clients that the moment we get into a courtroom, their behavior and appearance will be scrutinized by the judge or jury and opposing counsel. That goes for my behavior and appearance as well. However, to pin all our focus on these factors is to ignore the most important skills of a lawyer—to reason and to convince.
We have all cycled through in our heads the way in which we can play a trial. Do I open hard or soft? Should my client testify? How do I play objections? And don’t my physical movements also play into these decisions as well? Sitting down when conducting a cross-examination instead of standing. Focusing on the jury or the court during an argument over an objection. Why would we not also strategize with all the tools in our arsenal, including others’ predispositions and perceptions of us?
Imagine a civil trial in which the plaintiff is a female former employee alleging sexual harassment by her boss, the chief executive officer (CEO) of a company—a true she said/he said situation. In the #MeToo world, a smart trial attorney would never assume the boss will be believed simply because he is the boss, but what if the client’s thinking has not similarly evolved? In addition, a female judge whose reputation indicates she will sympathetic to the plaintiff is assigned to the trial. As a female defense attorney for the company preparing for trial, how do you plan and strategize around such predispositions?
As defense counsel, I would advise my clients to be studious in manner and facial expressions in the courtroom and to treat the plaintiff’s case with all gravity, and I would do so in no uncertain terms. However, when opening, perhaps I would be softer, less forceful, if only to take the jury’s temperature before I saw how the plaintiff presented. During direct examination of the CEO, I could be more aggressive, pushing him on what he said happened for two reasons: first, to take the wind out of whatever cross-examination would come next and, second, to make sure women, be it on the jury or the bench, feel he is being asked the hard questions. Would I have to take off my high heels and change into pants to be this assertive attorney? Of course not! Part of being a successful trial attorney is being versatile and having different speeds and styles—in essence, being a chameleon.
Yet, we cannot simply play a part. Arguedas’s words ring true. For a trial attorney, authenticity matters. Regardless of your sex, gender, and gender presentation, you have to be authentic with the finder of fact. Indeed, studies have borne this out. Female attorneys “who seek to emulate male aggressiveness will not be as successful as a man in the courtroom.” Connie Lee, “Gender Bias in the Courtroom: Combating Implicit Bias Against Women Trial Attorneys and Litigators,” 22 Cardozo J. L. & Gender 229 (2016). It’s the emulation that’s the problem, not the aggressiveness. Authenticity is key, but that doesn’t mean being a female archetype all the time (either timid or shrill); it means choosing which parts of yourself to bring to bear in a given situation.
In drafting this article, I contemplated suggesting women should confront a judge’s or jury’s implicit bias—essentially, be disruptive when confronted with sexism. And then I thought a bit about the late great Justice Ruth Bader Ginsburg, who single-handedly changed the lives of every working woman in this country. Without her advocacy, I might not be able to have a credit card without my husband’s written permission. I might not have retained my job while pregnant twice. And I might not be a member at a Am Law 100 law firm.
And I think about the impact of this mother of two, who never abandoned her “overtly feminine” style; who wore gloves and collars on the bench and yet somehow managed to change every working woman’s life in America. And she did so through her powers of persuasion, reason, and quite possibly her ability to be radical while still fitting the dominant culture’s version of what a woman lawyer “should” look like. Reason, argument, evidence, and, yes, even carefully cultivated appearances and presentations are our tools to convince the finder of fact that we are right.
We live in a world where we want men and women to be treated equally. In reality, that is not how the world works, and it is certainly not how the legal profession works. But our job is to represent our clients to the best of our abilities. So we work with what we’ve got and what works for us, even if it means different styles for different days. That’s what it means to be a woman trial attorney.
