A woman’s place in the courtroom
Women lawyers are caught in a double bind, said Lara Bazelon. They have to battle sexism from judges and other litigators, but can’t risk alienating a jury when a client’s life and liberty are at stake.
Last year, Elizabeth Faiella took a case representing a man who alleged that a doctor had perforated his esophagus during a routine medical procedure. Before the trial began, she and the defense attorney, David O. Doyle Jr., were summoned to a courtroom in Brevard County, Fla., for a hearing. Doyle had filed a motion seeking to “preclude emotional displays” during the trial—not by the patient, but by Faiella.
“Counsel for the Plaintiff, Elizabeth Faiella, has a proclivity for displays of anguish in the presence of the jury, including crying,” Doyle wrote in his motion. Faiella’s predicted flood of tears, he continued, could be nothing more than “a shrewdly calculated attempt to elicit a sympathetic response.”
The judge denied Doyle’s request, saying, in essence, “I expect both parties to behave themselves.” Afterward, Faiella confronted Doyle in the hallway. “Why would you file such a thing?” she demanded, noting that it was unprofessional, sexist, and humiliating.
“I don’t understand why you are getting so upset,” she says Doyle replied. (Doyle denied that gender was the motivating factor behind filing the motion; he said he had filed such motions against male attorneys as well.)
When I asked Faiella for a copy of Doyle’s motion, she said that she could send me examples from more than two dozen cases across her 30-year career. She said that at least 90 percent of her courtroom opponents are male and that they file a “no-crying motion” as a matter of course. Judges always deny them, but the damage is done: The idea that Faiella—who told me “I have never cried in a trial. Not once”—will unfairly deploy her feminine wiles to get what she wants has been planted in the judge’s mind. Though Faiella has long since learned to expect the motions, every time one crosses her desk she feels sick to her stomach. “I cannot tell you how much it demeans me,” she said. “Because I am a woman, I have to act like it doesn’t bother me, but I tell you that it does. The arrow lands every time.”
For the past two decades, law schools have enrolled roughly the same number of men and women. In 2016, for the first time, more women were admitted to law school than men. In the courtroom, however, women remain a minority, particularly in the high-profile role of first chair at trial.
In a landmark 2001 report on sexism in the courtroom, Deborah Rhode, a Stanford law professor, wrote that women in the courtroom face what she described as a “double standard and a double bind.” Women, she wrote, must avoid being seen as “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’”
If the courtroom were merely another place where the advancement of women has been checked, that would be troubling, if not entirely surprising. But the stakes in the courtroom aren’t just a woman’s career development and her earning potential. The interests—and, in the criminal context, the liberty—of her client are also on the line.
I began my career as a trial lawyer in 2001, the same year that Rhode published her report. I worked in the Federal Public Defender’s Office in Los Angeles. When I took the job, I had braced myself for the stress; almost immediately, my caseload included clients facing lengthy prison sentences for serious felonies. I did not expect to be told in explicit terms that my gender would play a significant role in how I could defend my clients, and that learning this lesson was crucial to my success and by extension to my clients’ lives. “There are things I can do that you can’t, and things you can do that I can’t” was the way one of the male supervising attorneys in my office put it.
Let’s start with the clothes. In my office, and in the U.S. Attorney’s Office, where the federal prosecutors worked, the men stuck to a basic uniform: a dark suit, a crisp button-down shirt, an inoffensive tie, and a close shave or neatly trimmed beard. If they adhered to that model, their physicality was unremarkable—essentially invisible.
Women’s clothing choices, by contrast, were the subject of intense scrutiny from judges, clerks, marshals, jurors, other lawyers, witnesses, and clients. I had to be attractive, but not in a provocative way. At one trial, I took off my suit jacket at the counsel table as I reviewed my notes before the jury was seated. It was a sweltering day in Los Angeles, and the air-conditioning had yet to kick in. The judge, an older man with a mane of white hair, jabbed a finger in my direction and bellowed, “Are you stripping in my courtroom, Ms. Bazelon?” Heads swiveled, and I looked down at my sleeveless blouse, turning scarlet.
It wasn’t just men who taught me what to wear and how to act. Later in my career, I had a female supervisor who told me in no uncertain terms that I should wear makeup and color my graying hair. In fact, she told me I needed a complete makeover, and offered to pay for it. I didn’t take her money, but I did take her advice, and I’ve borne the significant cost of these expectations since. My supervisors also reminded me to smile as often as possible in order to counteract the impression that my resting facial expression was too severe. I even had to police my tone of voice. When challenging a hostile witness, I learned to take a “more in sorrow than in anger” approach.
In the seven years I worked as a deputy federal public defender, I fought hard for my clients, and I had my share of victories. But I was practicing law differently from many of my male colleagues and adversaries. They could resort to a bare-knuckle style. Most of what I did in the courtroom looked more like fencing. Reading over my old trial transcripts, I am taken aback by how many times I said “Thank you”—to the judge, to opposing counsel, to hostile witnesses. And by how many times I apologized.
In 2017, after nearly a decade of holding jobs that offered limited opportunities to go to court, I took a position as a clinical professor at the University of San Francisco School of Law. I’m now training students to become trial lawyers by supervising their representation of criminal defendants in San Francisco Superior Court. During my first semester, all five of my students were women. Four were women of color. Eighteen years earlier, I had been sitting where they were. I wondered what had changed.
Over the past year, I’ve interviewed more than two dozen female trial lawyers from across the U.S. Their experiences bear out the grim finding of studies that show that female attorneys make up only a small fraction of the lawyers in court—and the more complex the civil litigation, the less likely a woman was to appear as lead counsel.
Beth Wilkinson, a lawyer based in Washington, D.C., told me that the number of women who litigate “bet-the-company cases”—in which millions or even billions of dollars are at stake and a corporation’s ability to survive absent a win at trial is in doubt—is “abysmally low.”
Wilkinson enjoyed a formidable reputation at Paul, Weiss, Rifkind, Wharton & Garrison, a white-shoe firm where she was a partner, winning cases, bringing in new clients, and earning a high salary. But she told me she was “never in the inner circle. Big Law is a male-dominated place, and it is very hard for women to thrive in an institution built that way.” In 2016, she co-founded her own firm, Wilkinson, Walsh & Eskovitz, which represents a roster of major clients, including the NCAA, Pfizer, Duke Energy, and Georgia-Pacific.
The situation is worse for female litigators who are not white. Kadisha Phelps is a 37-year-old associate at a Miami-based firm. She worked her way up to first chair in part by bringing in her own business: She’s built a cottage industry representing former NFL players who claim that they were scammed out of their earnings by unscrupulous financial advisers. Phelps, who is African-American, describes herself as “a pit bull in a skirt.” But she told me that when she goes to court, she often has to bring one of her male partners along—even if he knows little about the case. “That older white man at the table carries some kind of credibility,” she explained. “It gives judges the assurance that it’s not just some little black girl out there on her own.”
Romany McNamara is a public defender in Alameda County’s Oakland office. In 2011, she had just started litigating felony trials. One morning, a trial judge called two of McNamara’s cases before she’d had a chance to introduce herself to her new clients or explain the legal process to them. When she asked for a brief delay in the proceedings, she says, the judge berated her in front of the packed courtroom. “He likes to humiliate young female trial lawyers,” she told me.
McNamara had a third case that day. The judge waited until the end of the calendar to call it. When the courtroom emptied and McNamara started to walk out, she says, the judge beckoned her to approach the bench. As she stood before him, he offered a lukewarm apology, emphasizing the importance he placed on running his courtroom efficiently. Then he leaned in and said softly, “Don’t do it again.” McNamara says the judge then struck her on the back of her hand, hard enough to leave a mark.
For women litigators, justice is not blind.
“I could see the outline of where he hit me in white before it turned bright pink,” she told me. “There was nothing overtly sexual about it,” she said. “But that was absolutely the undertone, like, ‘You’ve been a bad girl.’”
Every woman I interviewed said she had experienced Deborah Rhode’s double bind: the imperative to excel under stressful courtroom conditions without abandoning the traits that judges and juries positively associate with being female. It is a devilishly narrow path to walk and can severely hinder the ability to offer a client the best and most zealous defense.
I know this because in the middle of a case in 2013, I consciously stopped trying to walk that path. My client had been convicted in 1979 of a murder he did not commit and had spent 34 years in prison. The case against him was preposterous, and the refusal by the Los Angeles County District Attorney’s Office to concede error infuriated me. Just days into the evidentiary hearing that would determine his fate, what was left of the state’s case fell apart.
For the first and only time in my life as a litigator, I knew we were going to win. As the hearing had gone on, I had grown angrier. Now I had nothing to lose. When I went after the police, who I believed had lied and covered up evidence, I was by turns angry, sarcastic, and, yes, aggressive. My cheeks were red, not from shame but from righteous indignation. My voice shook as I questioned my client, not because I was being hysterical or manipulative but because the travesty of his stolen life broke my heart. In closing, I raised my voice and slammed my fist into my open palm as I argued to the judge—a woman—that the case had been a colossal miscarriage of justice. It was exhilarating to allow myself to feel the full range of emotional responses and to use the full array of tactics available to men.
The judge threw out the conviction. Afterward, my client’s 76-year-old mother paid me what I consider the greatest compliment of my career. Gripping my wrists, she looked at me and said, “You are a trial beast.”
It would make for a tidy ending to say that I am training my law students to be trial beasts. But it would not be true. The case I just described, tried before a female judge, and in which I was armed with overwhelming evidence of my client’s innocence, comes along once or twice in a career in criminal court—if ever. My students will litigate murkier cases in courtrooms controlled by men, facing juries who will be more willing to listen to and be convinced by a traditionally feminine woman.
So I tell my female students the truth: that their body and demeanor will be under relentless scrutiny from every corner of the courtroom. That they will have to pay close attention to what they wear and how they speak and move. That they will have to find a way to metabolize these realities, because adhering to biased expectations and letting slights roll off their back may be the most effective way to advance the interests of their clients in courtrooms that so faithfully reflect the sexism of our society.
Sometimes I worry that I am part of the problem, that I am holding my students back by using valuable class time to pass on the same unfair rules that were passed on to me. And then we go to court.
Excerpted from an article that appeared in The Atlantic. © 2018 by The Atlantic Media Co. All rights reserved. Distributed by Tribune Content Agency, LLC.