To Be or Not to Be: The Problem With Gender Roles & Sexism in the Courtroom

I just finished reading two articles that I recommend people read about women litigators and issues they face at work. One is from The Atlantic and the other is a response in the ABA Journal. Each article tackles how women, who make up a dismal percentage of lead counsel/first chairs in trials, can push back against sexism in the courtroom to win for their client.

The article in The Atlantic, written by Lara Bazelon–a former Federal Public Defender and Clinical Professor, suggests that women face such systemic sexism in every area of the courtroom that it behooves us to abide by gender roles so that we’re not seen as too aggressive, shrill, or emotional (all bad things that could lead to bad results for our clients). The ABA Journal, written by Cris Arguedas, responds that this is hogwash. Arguedas has won countless of cases and says she’s never once had to worry about what she wore, how she sounded, or acted to get those wins.

Before I continue, there are two points that are important to consider:

1. It’s easy to say fuck the system and gender roles, but when we’re in the courtroom, our duty is to our client. There may be times in your career where you get a win in a way that feels gross, but you take the win. One time, at work, I had to talk to an official to make something happen for my client and the official said some really inappropriate things to me. If I pushed back, I would have won a point for feminism (and my dignity), but I would have risked losing the case for my client. I took a deep breath and decided to take the win for my client. Unfortunately, this is a common experience for women attorneys (and The Atlantic article certainly has enough examples to prove this).
2. Location matters. In the ABA Journal, the attorney practices in California. I can’t imagine her experience would be the same if she practice in a more conservative state. Maybe I’m wrong, but I know many women like her, with her strong demeanor, and yet we are lagging in leading cases. So something is most definitely up. When deciding your approach, the reality of where you practice has to come into play.

With that said, I agree that there is a double-standard/double-bind women have to deal with in their practice. There is an impossible standard placed on us where we can’t be too nice or too aggressive in order to be taken seriously. This is a standard that male attorneys do not have to worry about.

It almost seems like you have to pick between being a demure attorney or a ballbuster–and each personalities have serious disadvantages. So what is the right answer?

Neither? While I appreciate Bazelon’s perspective, Arguedas sums it up perfectly: People are drawn to strength, power, and authority. And that’s what we need to focus on.

We’re conditioned to see power and authority in male behavior, but rather than emulating them, ask yourself: what does strength, power, and authority look like on you? At work, when do you feel most like you’re in control and in charge?

For me, I feel like I’m totally in my element when I’m super prepared, know the theory of my case inside and out, and feel good about how I look (I’m a little vain, sue me). When those things are in place, I command my witness and the argument. It feels second-nature, and I don’t worry about the tone of my voice or whether I sound too nice or too mean, because if things are going according to plan, my tone is exactly as I’ve planned it.

Maybe your elements are different, but you should learn to recognize what they are so that you can manage them appropriately and gain that sense of control.

Arguedas also says that you win through preparation and skills, which I completely agree with; that will lead to confidence and authority, which will make people want to listen to you.

So you don’t have to be a yeller if you’re not (I’m not) or pretend to be a damsel, which few of us truly are; instead, focus on your skills and that will lead to your authority.

Finally, and most importantly, Bazelon mentions how men overwhelmingly occupy positions of power and it is their rules and expectations that further the systemic sexism women face in the courtroom. And she’s right. Enough is enough. While in the courtroom clients must be the number one priority, outside of that room, we should focus on opportunities that will lead us to positions that can create change. Look at your own career and identify opportunities that will lead to positions of power. And support other women of color who are working towards those goals as well.  Because the sooner those opportunities and positions are more equitably distributed the sooner we can stop worrying about our “shrill” voices and instead focus on our trial wins.