It’s been more than 20 years since Marcia Clark squared off against the very high profile and very male “Dream Team” in the O.J. Simpson trial. As FX’s The People v. O.J. Simpson reminded us last year, during the trial Clark’s hair, behavior, and appearance were under constant scrutiny by the media. She was mocked for her perm, labeled “a bitch,” and shamed for dowdy suits.
Sadly, not much has changed for female litigators in the courtroom.
Inappropriate and stereotypical comments from opposing counsel, judges, and other court personnel seem to be just a day in the life for women trial lawyers. Approximately 70% of female attorneys surveyed by the Defense Research Institute reported experiencing gender bias in the courtroom, according to an American Bar Association (ABA) research report.
Jacqueline Harounian, a partner in a family law firm in New York can relate. At the start of her career, male lawyers didn’t hold back on weighing in on her appearance or whether she was fit for the job. “I often heard, ‘You look cute,’ ‘Are you married?’ ‘You’re too nice to be a trial lawyer,’ and ‘This is a job for the boys,’” she recalls.
Harounian’s experience is, sadly, not unique. In fact, a petition by female lawyers who complained of being regularly undermined during trials by the use of condescending terms such as “honey” or “darling” compelled the American Bar Association to amend its professional code of conduct in 2016. The amendment specifically bars lawyers from addressing women with sexist comments in the courtroom. It was the first time in 138 years that the ABA took such an official position regarding language in the courtroom.
Melissa Breyer, founder of a law firm in Atlanta, notes that while there is a sad pattern of women being sabotaged in the profession, it begins even before they’re even practicing attorneys. Breyer was in law school and trying out for the mock trial team. She proudly notes that she brought her “A game,” and spent a lot of time preparing her case because she wanted as much experience in the courtroom setting as possible.
“Despite all my preparation and excitement, though, it felt like the bulk of my comments were about my outfit,” Breyer recalls. “I wore a pant suit as opposed to a skirt, jacket, and hosiery combo. Some of the male students said the outfit was inappropriate for a woman; it was ‘too masculine’ and ‘distracting.’”
Lara Bazelon, professor at the University of San Francisco School of Law, recalls a similar incident during her career as a trial lawyer. As she wrote in a recent article in The Atlantic, “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.”
Female lawyers in the courtroom aren’t just scrutinized for what they wear. They are also unfairly judged for assertive behavior and expressing anger.
Deborah Rhode, a Stanford Law School professor, wrote in the groundbreaking 2001 report, “The Unfinished Agenda: Women and the Legal Profession,” that “a longstanding obstacle to equal opportunity involves the mismatch between characteristics associated with women and those associated with professional success, such as assertiveness and competitiveness.” What is considered “assertive” in a man is often criticized as “abrasiveness” in a woman.
Seventeen years later, the Arizona State University study, “Closing with Emotion: The Differential Impact of Male Versus Female Attorneys Expressing Anger in Court,” aligns with Rhode’s theory, highlighting how gender bias distorts the perception of an attorney’s effectiveness when expressing anger. Certain behaviors that may help male attorneys attain their goals in court actually tend to be detrimental for female attorneys.
Study participants—male and female test viewers—watched videos of both male and female attorneys using anger to emphasize their closing arguments in identical re-enactments of a murder case. Angry male attorneys were described as “commanding, powerful, competent, and hirable,” while angry female attorneys were considered “shrill, hysterical, grating, and ineffective.”
Jessica Salerno, an Arizona State University psychology professor and lead researcher of the study told U.S. News and World Report, “A good attorney is expected to show traditionally male characteristics in court—anger, aggression, power. But what’s happening is that men benefit from this, while we are penalizing women for showing these same characteristics.” She added, “We watch so many courtroom dramas where lawyers are expressing emotion, and there are fireworks in the courtroom. People expect attorneys to express themselves this way. This expectation sets men up well for success, but for women it backfires.”
So, what needs to happen to drive change in the treatment of female lawyers? According to Lara Bazelon, it’s a numbers game.
“We need to see more women in positions of power,” she explains. “There’s an imbalance of women making partner, running for lead prosecutor, or sitting as judges.”
Data collected from the annual National Association of Women Lawyers (NAWL) survey supports Bazelon’s stance.
According to NAWL, which has been tracking the position and advancement of women among the top 200 U.S. law firms for 12 years, there is a “consistent and relatively undisturbed pattern showing the absence of women in the upper echelon of law firm and legal profession leadership.”
The survey found that although women are recruited and enter the legal profession at rates similar to men, as female lawyers rise in seniority, their numbers drop substantially.
In fact, NAWL reports, “the data regarding the stalled career trajectories of many women in the legal profession, especially in the law firm, is indisputable.”
Another issue is the fact that—as a breakout panel at the 2018 Appellate Judges Education Institute (AJEI) Summit entitled, “#MeToo/Best Practices for Appellate Courts to Address Past and Avoid Future Sexual Harassment Claims” revealed— sexual harassment is rampant in the courts themselves. While that panel seemed to primarily focus on how law clerks and other court staff are treated, it did highlight the point that such behaviors in the legal industry as a whole are a problem that need to be addressed.
Despite the sobering statistics and stories shared, Bazelon for one, finds reason to be hopeful. After her article appeared in The Atlantic, a number of male law students emailed her and thanked her for shining a much-needed spotlight on what she describes as the “stubborn cultural biases female attorneys must navigate to simply do their jobs.” In addition, these men expressed a strong desire to serve as allies and work towards solutions.
A commitment to improving the current landscape of how female litigators are treated in the courtroom is without a doubt overdue and desperately needed today. Cultivating a legal profession that is based on equality and mutual support will benefit all of society.
Kristin Johnson is an executive and corporate communications professional, and founder of KSJ Communications, a communications and public relations firm. She consults with a diverse roster of clients spanning the technology, professional services, financial services, public sector, consumer, and healthcare industries. In addition to Rocket Matter, Johnson writes for various other publications as well.