In 2015, I was lead defense counsel in a trial in which Ellen Pao, a junior investing partner, sued Kleiner Perkins Caufield and Byers, a highly respected venture capital firm in Silicon Valley, for gender discrimination and retaliation.
When the jury returned a defense verdict, exonerating Kleiner, the courtroom was packed, including with reporters, many of them there every day of the trial.
Nothing in my many years of experience prepared me for the crush of media or the attention I received during that five-week trial.
Descriptions of my clothing, jewelry, and hair were included in many articles.
And I was described as “ferocious,” “razor tongued,” “intimidating,”, “notoriously tough,” “aggressive” and “imposing.” One report even said I made “Darth Vader look timid.”
I shouldn’t have been surprised by the constant media focus on the gender makeup of my trial team.
That team, including those in the courtroom each day, was almost all women. Reporters questioned whether this was calculated, although my entire team of employment litigators was then and is now over 90% women. I am extremely proud of that.
Not many women lead high-profile jury trials and all-female teams are very rare. Regrettably, this is still news.
But it should not be acceptable that women make up only 36 percent of all U.S. lawyers and about 20 percent of private practice law firm partners or that lead roles in high-stakes trials typically go to men. According to a study of randomly selected federal cases released by the American Bar Association a couple of years ago, men led 76 percent of civil trial teams. Of the criminal cases in that study that went to trial, 79 percent of the lead counsel were men.
This must change. That said, the challenges are real. Trial work is intense. It can be very hard to balance children and family responsibilities. And it can take decades build a practice and hit your stride as a trial lawyer.
But, as a client, a role I have also played, I’d want women leading my trial teams.
Here are some reasons why:
- Juries pay attention to our arguments. I’m going to make a generalization here: Women typically grow up keenly conscious of how we appear to and make social connections with others. We are taught to want to be liked and accepted. We think about how we look and act and how we come across. This sensitivity can make women uniquely qualified to do well in front of jurors, who watch trial lawyers like hawks looking for field mice. Most women trial lawyers can tell stories of jurors in post-trial comments remarking on something innocuous about their appearance—a pair of shoes, a pink shirt, your grandma’s brooch. The upside is their eyes rarely leave us. That can work in our favor.
- Our often high EQ can carry the day. Women trial lawyers are particularly conscious of whether they are connecting and building credibility with a jury. This keen Emotional Intelligence Quotient allows the lawyer to understand when a point has been made, even subtly, and when reinforcement is necessary. Maybe most important, this awareness allows a woman trial lawyer to determine how far to push an aggressive cross examination, especially one which dismantles the credibility of a key witness or party. Obviously, an overly aggressive witness examination can backfire. Women trial lawyers are especially sensitive to where to draw the line.
- Women just get more leeway from a jury. In my opinion, women lawyers are able to conduct an aggressive cross examination, especially with witnesses who may appear fragile, or muddled, or even possibly disabled. It is doubly true for a party who appears to be lying or manipulating events. Having absorbed years of television and movies showing lawyers dismantling bad guys, jurors tend to think that someone suspected of lying deserves to be dismantled on the stand. Women, generally, are less likely to be labeled as bullies or overly aggressive, especially if we’ve shown ourselves to have credibility and to have behaved respectfully to the judge.
As gender-equity issues take center stage in corporate America’s boardrooms, the time for gender equity in the courtroom is now.
So what will it take for more women to become first chair trial lawyers? Those of us who have trial chops need to train women in the skill-set. Women who want the role need to push for it, and law schools should teach women how to navigate implicit bias in the courtroom.
We need innovative policies that enable women (and men) to stay in the job while having a family. We need firms and partners who will support their careers for the long haul.
And we need more at-bats for women. It is fantastic that 38 law firms, including my own, committed this summer to the “Mansfield Rule.” It’s named for Arabella Mansfield, the first woman admitted to practice law in the United States.
They’ve agreed to include 30 percent women and minorities in candidate pools for all major leadership and governance roles as well as for promotions to equity partner and for hiring.
I’d proposed that companies also adopt a version of the Mansfield Rule when hiring your trial team. Interview at least one female lead trial lawyer for every case. You don’t have to hire her, but give her a shot. At the very least, I’ll bet you’ll gain some fresh insights into your case strategy.
Supreme Court Justice Ruth Bader Ginsberg once said: “Women belong in all places where decisions are being made. I don’t say [the split] should be 50-50. It could be 60 percent men, 40 percent women, or the other way around. It shouldn’t be that women are the exception.”
I couldn’t agree more. Women have great advantages leading teams in jury trials and it’s beyond time these skills are put to use.
Lynne Hermle is a partner specializing in employment law at Orrick, Herrington & Sutcliffe) Ten of the eleven trial lawyers on her team are women.
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