In a 2015 ABA research report, more than 70 percent of female attorneys reported experiencing gender bias in the courtroom.
It seems like every few years a new study confirms that gender bias is still rampant in the American courtroom, even though most new lawyers are women. And when it comes to actually arguing at trial, women are still a small minority.
From being accused of attempting to manipulate the jury with emotional displays (even before opening arguments begin) to being addressed in a condescending manner, having their clothing scrutinized, and dealing with inappropriate and sexist comments, female litigators face challenges far beyond the actual lawyering work.
Here we look at how gender bias manifests itself in the courtroom, the attempts being made to address that bias, and how female lawyers can advocate for themselves.
Shrill and Emotional
A 2018 article in The Atlantic shined a light on a particularly insulting manifestation of the problem: “no crying” motions.
In these motions, a male litigator will assert that his female opponent has had a history of emotional displays designed to manipulate the jury. While the motions are always denied, one never knows if a seed has been planted that might create bias against the female litigator or create doubt as to her sincerity or capability. “No crying” motions send a message: She’s not just a lawyer, she’s a Woman Lawyer.
And it’s not just crying. Women who show anger are called “emotional” or “shrill” or said to be lacking in control. They are faulted for doing their job well.
According to A Career in the Courtroom: A Different Model for the Success of Women Who Try Cases, from the DRI Task Force on Women Who Try Cases, “when a woman litigator strenuously advocates her point she is more often than not viewed as overly aggressive, whereas a male litigator acting in the same way is perceived to be zealously representing his client.”
A study at Arizona State University asked participants to view re-enactments of attorneys giving closing arguments. The actors followed the same script, performing once in a calm tone and once in an angry tone. When the men spoke in angry or aggressive tones, they were viewed as “powerful” and “competent,” according to an interview with Jessica Salerno, the Assistant Professor of Psychology who led the study. However, when the women gave the same performances, they were viewed as “shrill and obnoxious, biased, overly emotional ….”
But what can be done about what essentially becomes a penalty for being female? The frustrating thing here is that the burden shouldn’t be on the women to learn to contend with these biases, but rather on the men to stop exploiting sexism for personal gain and on firm leadership to discourage and even penalize this kind of behavior. However, under the heading of “you can’t always control what other people do,” one option is to try to lean on, and learn from, more experienced colleagues. Several firms offer mentorship programs, where a younger female attorney is paired with a more practiced partner.
“As a practice group leader, I view it as my responsibility to shield junior‐level women from the same sexist encounters I experienced earlier in my career,” Hollis Kaplan, a senior partner at Robins, Kaplan, Miller & Ciresi L.L.P., said in a 2014 interview with Law360. If your firm doesn’t have an official mentoring program, but you’ve encountered someone who you feel can show you how to navigate “institutionalized gender nonsense,” to quote Tina Fey, work to cultivate a relationship.
Skirting the Issue
When it comes to courtroom attire, men have it easy: Dark suit, white shirt, conservative tie, loafers or wingtips. Women have a lot more to consider: Is a dress not professional enough? Is a pantsuit too masculine? Is my skirt too short? Is my neckline too low … or not low enough? Do I need to wear pantyhose with my skirt? Is it okay if I wear flats? These questions aren’t fair, but they’re nothing new. Prior to the ‘80s, women lawyers wearing pants was virtually unheard of. Ladies are often still advised to choose a skirt suit for the beginning of a trial while they get a reading on the judge. They’re told they won’t be taken seriously if their hair is too long, their heels too high—but don’t wear flats—their makeup too heavy—but a bare face won’t do. It’s enough to make your head spin. It is particularly disheartening that the bias can also come from other women, proof that it is ingrained in our society, no matter who you are.
Even Supreme Court justices are not immune. A 2017 study at Northwestern University’s Pritzker School of Law found that the three women who sit on the Supreme Court—Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—were interrupted by their male colleagues about three times as often as the male justices interrupt each other. Ginsburg, the most senior of the female justices, has reduced the number of interruptions against her by eliminating certain niceties from her speech, such as “May I ask,” “Excuse me,” or the dreaded “I’m sorry,” opting instead to go directly into a question or statement. Rather than asking for permission or apologizing for speaking, she simply speaks.
In addition to being interrupted, women also report being addressed in a way that is, at best, less respectful than the way male counterparts are addressed, such as being called by their first names (or pet names!) while men are called “Mister” and “Sir.” Inappropriate comments aren’t necessarily blatant sexual harassment. Sometimes just referring to a female attorney as a “young lady” in court is meant to imply that she is inexperienced, even when this is not the case. Indeed, numerous female attorneys and justices have reported being mistaken for court reporters or paralegals.
You may be pleased to learn that The American Bar Association in 2016 passed a resolution stating that using sexist or derogatory language (like calling a female litigator “honey”) is professional misconduct and subject to fines.
Solutions, Suggestions, and Resources
While the sexism that exists in American courtrooms is undeniably frustrating, you should never feel like you simply must endure it. Fortunately or unfortunately, you are not alone. The following resources and suggestions may help:
- The American Bar Association’s Commission on Women in the Profession, particularly the Zero Tolerance initiative.
- Bias Interrupters toolkits, which help businesses make adjustments to the implicitly biased culture and practices that may exist.
- The ABA’s Woman Advocate Committee, a dedicated resource for female litigators.
- The National Association of Women Lawyers, which includes a Women in Litigation Practice Area Affinity group, a Mentorship committee, and collected relevant news stories and blogs.
- Lady Lawyer Diaries (@LadyLawyerDiary, #LadyLawyerDiaries) on Twitter. According to the bio: “A forum celebrating and promoting women in the law and their war stories. And occasionally outing stupid sexist stuff.” For a lighthearted look at the bias female attorneys encounter, both in and out of the courtroom, search #LadyLawyerValentines.
- Your colleagues and peers. According to a 2017 study by the Proceedings of the National Academy of Sciences by the United States of America, having an inner circle of high-achieving women helps women to succeed.
- The human resources department at your firm. Hopefully, you’re not experiencing courtroom sexism from a colleague, but office culture can contribute to how your male colleagues behave in court. If you don’t tolerate comments about the tightness of your skirt in the office and you push for HR to deal with it, hopefully (fingers crossed) the message will be sent that that kind of behavior isn’t tolerable anywhere, including in the courtroom.
- Ask to go to court. A 2015 study titled “First Chairs at Trial: More Women Need a Seat at the Table” found that women comprise only 24 percent of lead counsel in civil cases and 33 percent in criminal cases. Be a part of normalizing female attorneys in courtrooms.
- The GOOD Guys program of the National Conference of Women’s Bar Associations. After all, who tends to perpetrate, and perpetuate, most of the sexism that female litigators endure in courtrooms? Men. So rather than women carrying the burden all alone, encourage your firm to initiate programs to ensure your male colleagues aren’t part of the problem.