Good Thing I'm Not Concerned About How I'm Judged!
Deborah Rhode, director of the Center on the Legal Profession at Stanford Law School, has a favorite New Yorker cartoon that shows a king and queen in the throne room. The queen turns to the king and remarks, "But when a woman has someone’s head cut off, she’s a bitch."
The cartoon gets a laugh when she shows it to women, Rhode says. Women lawyers can identify with the feeling that when they take the same action as a man, they may be judged differently. And research backs up their perception.
The research suggests that women lawyers are more likely to be judged in a harsher light than men when they display assertiveness, self-promotion or anger, according to University of California at Hastings law professor Joan Williams.
The double standard is highlighted in Williams’ soon-to-be-released survey of nearly 3,000 lawyers, as well as a separate study of courtroom closing arguments.
The survey was performed by Williams’ Center for WorkLife Law for the ABA Commission on Women in the Profession and the Minority Corporate Counsel Association.
The survey asked male and female lawyers whether they felt free to express anger at work when it’s justified, whether they are rarely interrupted at work, and whether they felt penalized for assertive behavior.
Their answers differed based on gender, and sometimes based on race.
Fifty-six percent of white men felt free to express anger, compared to only 40 percent of women of color and 44 percent of white women.
Two-thirds of men said they were rarely interrupted, compared to half of the women. The results didn’t differ by race.
Sixty-two percent of white men said they are not penalized for being assertive, compared to only 46 percent of women of color and 48 percent of white women.
“Women aren’t making it up,” says Williams, who co-wrote the book What Works for Women at Work with her daughter. “Women do more often face a penalty for showing anger or dominant behavior as compared to white men.”
The study shows, however, that the penalty isn’t an absolute. It’s a matter of differential percentages, Williams says. The report, expected to be released in September, is called “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession.”
A separate study led by Arizona State University psychology professor Jessica Salerno looks at anger in the courtroom. It concludes that gender bias affects the way people perceive a lawyer’s effectiveness when showing anger in closing arguments.
In the study, nearly 700 people watched videos of male or female lawyers delivering an actual closing argument in a gruesome murder case using an angry tone.
The study participants were asked whether they would hire the lawyers. The participants used positive aspects of the angry closings to justify hiring male lawyers but referred to negative aspects of anger to justify not hiring the female lawyers.
The women lawyers who showed anger were deemed to be less competent, as well as shrill, hysterical, grating and ineffective, according to the ASU Now article.
Salerno told U.S. News that the study shows female lawyers can be penalized for showing the same characteristics as male lawyers. “Talking to female lawyers, we have seen that many feel like they cannot rely on behavior and passion to win a case and often find themselves working harder than their male colleagues to win a jury,” she says.
Patricia Brown Holmes, the managing partner of Riley, Safer, Holmes & Cancila in Chicago, has courtroom experience as a litigator and a former judge and prosecutor. “The double standard is alive and kicking!” she tells the ABA Journal in an email.
She is about to begin a six-to-eight-week federal trial in another state and has heard the advice: Wear dresses, low heeled shoes, little to no jewelry, smile a lot but don’t appear to be laughing. “Would a guy receive any of that advice?” she asks. “I think not.”
The courtroom double standard is also examined in an Atlantic article by University of San Francisco law professor Lara Bazelon, a former public defender who interviewed more than two dozen female trial lawyers about their experiences.
Bazelon says that women lawyers have to deal with sexism and biases by judges, lawyers, jurors and clients. She cites a 2001 report by Rhode, who said women lawyers face a double standard, double bind in which they must avoid being seen as too soft or too strident, and too aggressive or not aggressive enough.
After interviewing women lawyers, Bazelon concluded the double standard still exists. Every woman interviewed told Bazelon they tried to succeed without abandoning traits associated with being female. “It is a devilishly narrow path to walk,” Bazelon wrote, “and can severely hinder the ability to offer a client the best and most zealous defense.”
Bazelon spoke with a lawyer who said that male lawyers had filed motions in more than two dozen cases asking judges to ban her from crying at trial, even though she never cried in court. Another woman lawyer said that a judge slapped the back of her hand after chastising her for asking for a brief delay in trial proceedings. The undertone, the lawyer said, was that she was being punished for being a bad girl.
Bazelon says she tells her law students “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.”
Rhode tells the ABA Journal she agrees the double standard still exists, and it affects women in any leadership role. She describes the problem as a “likability confidence tradeoff,” in which women need to be assertive enough to command confidence but not so assertive as to seem abrasive.
Both Rhode and Williams would modify the advice Bazelon gives to her law students.
Rhode, author of Women in Leadership, agrees that women who want to be effective in particular settings do better if they are perceived as likable. An effective strategy, she said, is for women to be “relentlessly pleasant,” even as they fight to press their position.
Rhode adds that women who are confronted with sexism by judges often decide to complain after the case is over, when the client won’t be affected. Judicial systems now have mechanisms to make such complaints, and they should be used if the profession wants to eliminate courtroom bias, she says.
Williams advises women lawyers to “survey the climate” to determine whether there will be a backlash for assertiveness or other traits traditionally perceived as masculine.
If the answer is yes, Williams advises using a strategy used by “literally every prominent woman” she interviewed for her book. When they did a masculine thing, they took a strategy from “the toolbox of femininity” to diffuse the backlash. Williams termed the strategy “gender judo.” One effective strategy is to combine a hard-driving argument with a sense of empathy, she says.
Williams cautions against choosing a strategy such as deference, which will undercut an assertive message. The strategy should not undercut effectiveness or authenticity, Williams advises. “In that way, you can use gender judo without feeling like you need to go take a shower,” she says.
Authenticity is important for Holmes. “I do not believe we must bow to the stereotype,” she tells the ABA Journal in an email. “But I do think we have to earn the trust of the judge and jury and show them that their stereotypes are wrong. One way I do that is authenticity. The lawyer who screams or is angry at trial but is normally not that way is not often well-received. But the lawyer who shows the jury their true self—whether that is passionate, angry, sincere or otherwise—will be better received.
“I often use an opponent’s bias against them simply by allowing them to have their views and then showing up in a way that is inconsistent with their beliefs or stereotypes. Instead of being the stereotype they anticipate (especially as a woman who is also black), I show up extremely prepared, professional, articulate, knowledgeable about my case, friendly and authentic. I’ve found that it works in gaining the opposing side’s respect and it helps educate them so they don’t disrespect other women lawyers or me again.”