Archive for ‘Women as Advocates’

April 22, 2011

Where are all the women SCOTUS litigants?

by Angela N. Johnson

At the time Tammy Sarver, Erin Kaheny, and John Szmer wrote The Attorney Gender Gap in U.S. Supreme Court Litigation, women occupied less than a quarter of the US. district court and courts of appeals seats, just one woman sat on the Supreme Court, and only 20 percent of law school deans were women (Sarver, Kaheny and Szmer 2008). Thankfully, the current statistics reflect some improvement, with women comprising roughly 1/3 of all judgeships (including 3/9 on the U.S. Supreme Court).  However, the number of women attorneys arguing in the United States Supreme Court continues to lag and the “leaky pipeline” seems to be at fault. While one may hastily conclude that the problem plagues only those women who have an interest in litigating in the highest court of the land, a closer look reveals that this disparity impacts all women (even nonlawyers, too!)  According to the authors, “Because the Supreme Court makes policies that affect the entire nation, and the attorneys that participate in litigation before the Court, in turn, influence the justices’ decisions, the makeup of the Supreme Court Bar is of paramount importance” Id. at 239.  To investigate the gender gap, the authors collected data on all attorneys participating before the Court over the 1993-2001 terms. Moreover, the authors explore some of the possible explanations for their findings.

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April 15, 2011

An Experiment on Jurors’ Perceptions of Women Advocates

by Angela N. Johnson

Cartoon by Stu's Views

This article reports on an experiment conducted at a program sponsored by the ABA’s Woman Advocate Committee entitled “He Said/She Said: Jurors’ Perceptions of Women Advocates.” The program was designed to test the reactions of male and female mock jurors during two 10 minute closing arguments, both made by women attorneys using contrasting presentation styles (one aggressive, the other more fact specific).  The results were analyzed based on the jurors deliberations and careful post-experiment questioning.

Interestingly, the survey revealed that male jurors liked the aggressive approach.  Some of the women, on the other hand, viewed the aggressive approach as “scary.” Women jurors also commented on the clothing worn by the presenters, stating they found a mid-calf length skirt with a side slit slightly above the knee and a silk blazer with a high sheen “distracting” (Mahoney 1999).

After the experiment, jury trial experts spoke on establishing credibility.  While the statements given did not seem empirically tested, they are worth considering.  For example, one panelist said that jurors typically view male attorneys as more competent but that a female litigator who demonstrates her competence is viewed as having more credibility.  One way women litigators can establish credibility is to demonstrate command of the facts, law, and if appropriate, technology.  Their first “speaking roles” can demonstrate competence by making well placed objections, responding convincingly to objections or question from the Court (Mahoney 1999).  Another panelist noted that jurors take their cues from the manner in which the judge and male co-counsel treat women litigators.  This means that using a woman litigator as a “bag carrier” is risky because a juror may view the behavior as sexist and hold that against the client when weighing the evidence (Mahoney 1999). In sum, the program demonstrated that female litigators still have an initial hurdle to overcome at trial but “once jurors determine a female litigator is competent, they are more likely to accord her and her client greater credibility than an equally competent male litigator” (Mahoney 1999).


Source Citation: Mahoney, Kathleen M. “He Said/She Said: Jurors’ Perceptions of Women Advocates.” The Woman Advocate (American Bar Association Section of Litigation), 1999: 4-6.

April 15, 2011

Women Judges Advise, “Woman Up”

by Angela N. Johnson

Lose the "bow ties to look like men."

According to a panel of women judges at the ABA’s Women in Law Leadership Academy in May 2010, one of the distinctions between men and women lawyers is that “women in general lack the confidence that men seem to have in the courtroom” (Passarella 2010).  U.S. District Judge Norma Shapiro advised the group of 500 attendees that women must exude confidence even if it means faking it.  Shapiro further said that “if the attorney doesn’t have confidence in herself, neither will the judge or jury” This means women litigators must take any trace of fear out of their voices and speak so they can be heard, “You have to ‘woman up’ when those moments happen”said U.S. District Court Judge for the Northern District of Texas Barbara M.G. Lynn.

Former New York Court of Appeals Chief Judge Judith S. Kaye recalled “enduring” 21 years of private practice before taking the bench.  According to Judge Kaye, the secret is “agonizing privately.”

As far as appropriate courtroom attire for women lawyers, the panelists unanimously agreed that women often go wrong with clothing that is too short or too low cut, “The goal isn’t to be noticed by your outfit but for your argument” said Judge Lynn.  But it doesn’t have to be like the days when “women would wear these bow ties to try to look like men” adds moderator Fernande “Nan” Duffy, an associate justice of the Massachusetts Appeals Court.

Source Citation: Passarella, Gina. “Judges Give Perspective on Female Litigators.” The Legal Intelligencer, May 3, 2010.

April 5, 2011

1989 Article Reveals Little Change for Women in Private Practice, yet Prosecutor as a Women-Friendly Role

by Angela N. Johnson

According to Raggi’s 1989 article, women lawyers are not achieving positions of professional prominence in the private sector “in nearly the percentages that their numbers and class rank would indicate” (Raggi 1989, 975).  The current inequality of women lawyers in the private sector is similar to Raggi’s article, written back in 1989.  It is discouraging to realize not much has changed for women lawyers in the private sector.  However, Raggi reports in 1989 that women were well-represented as the best and brightest prosecuting attorneys in New York.  Women achieve equality in prosecuting? This is astonishing when taken into account the need for prosecutors to be among the toughest and most aggressive lawyers who must prove themselves to their “clients,” (the government investigators and police).  Though Raggi’s article is mostly anecdotal (and written 22 years ago) it provides a great snapshot of at least one woman’s experience as a prosecutor. For example, Raggi notes that when she left the prosecutor’s office in 1986, every unit in her office had been, at one time or another, headed by a woman Id. at 976.  Additionally, during her years as a prosecutor, she “encountered virtually no gender discrimination” Id. at 975. Why might this be?  Raggi credits the fact the employer is the government and required to enforce a wide variety of laws enacted to ensure equal opportunity for women.  Many women lawyers turn to prosecuting to avoid the less-than-welcoming environments in other areas of practice.

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March 30, 2011

Surprising Research on Women Lawyers’ Likeability v. Competence

by Angela N. Johnson

The authors open their article arguing that although women in politics “seem to face a choice of being seen as likeable or as competent, but not as both . . . [women] lawyers do not seem plagued by this same double bind . . . there is no difference between how female and male lawyers are perceived” (Schneider, et al. 2010).  The authors reflect on the 2008 “Palin v. Clinton” “Likeable v. Competent” model as an example of the struggles women politicians have in balancing competent but “hard” and unlikeable with not competent, but good looking and likeable (they can’t have it both ways, the authors argue).  Part of the problem stems from socially constructed (and maintained) steretypes of what is feminine.  According to the authors, this handicaps women who engage in assertive behaviors.  This continues despite women comprising 49.8% of the U.S. Workforce  (Schneider, et al. 2010, 367).  According to the National Association for Legal Career Professionals (NALP), the 2008 statistics show that while women make up 45.3% of associates, they only make up 18.7% of partners Id. at 368.

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March 18, 2011

Why Care About the History of Women in the Legal Profession?

by Angela N. Johnson

Mary Clark’s article, “Why Care About the History of Women in the Legal Profession?” considers what theoretical frameworks are useful for evaluating the sigificance of women’s service in the Supreme Court bar and how the history of women in the Supreme Court bar and in the larger profession fit into the broader history of women (Clark Spring 2006).

Following years of active lobbying by Belva Lockwood, congress in 1879 amended the rules of the Supreme Court bar to allow admission of women. Until the turn of the twentieth century, most women of the bar were suffragists – though they were not involved in cases regarding women’s rights (Clark Spring 2006, 59). Most cases heard by women related to contract or property disputes and such women were either in solo practices or practiced with their husbands. Women of the bar in the 1900’s to 1920’s served as government attorneys atlocal, state and national levels. From 1921 to 1929, Mabel Walker Willebrandt of the Justice Deparmtent participated in twenty-two cases on the merits and argued ten of them. Then, not until the 1960’s and 1970’s were women regularly present in the court. This time period brought Constance Baker Motley of the NAACP Legal Defense Fund and Ruth Bader Ginsburg at the ACLU Women’s Rights Project. Ginsburg briefed and argued the leading women’s rights cases of the 70’s as Director of the Women’s Rights Project. “In contract with historical patterns, a growing number of women advocates have argued feminist causes before the Court, pressing for expanded recognition of sexual harassment, family leave rights, and gay rights. Overall, women have comprised eight percent of Supreme Court Advocates” (Clark Spring 2006, 60-61).

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March 17, 2011

Women Lawyers at the Supreme Court

by Angela N. Johnson

The title would lead you to believe I am referring to Justices O’Connor, Ginsburg, Sotomayor, and Kagan. With all but O’Connor now serving, 3 of the 9 justices of the highest court of the land are women. 3/9 or 33.33% is a pretty phenomenal number considering it wasn’t until 1981 that there were any women on the bench at all.  Yet, just 15% of the court’s cases are argued by female litigators. According to an ABA Journal article, the most appearances by any female lawyer are those of Beatrice Rosenberg who served as a Justice Department lawyer in the 50’s and 60’s. Washington litigator, Lisa Blatt has the most appearances (30) of any living woman litigator.Moreover, women have represented just 1/3 of Supreme Court law clerks and six of the 20 lawyers in the Solicitor General’s Office are women.

For more statistics, be sure to check out my “Stats at a Glance” page.

December 29, 2010

Women Lawyers Discuss Their Role in 1987

by Angela N. Johnson

ABA Journal May 1987

I enjoyed this 1987 edition of the ABA Journal which included articles on “senior lawyers shaking their heads about those young lawyers” and “how computers made us better lawyers – what the new technology can do for you.”  Most useful was the article, “Superwoman is Alive and Well” in which Yates and Benson Goldberg interview five women who discuss the joys and jolts of practicing law.  This article is useful despite being rather dated because it is written at a turning point in the legal profession when women are becoming widely accepted but harassment, discrimination, and inequality are still commonly feared.

Diane Geraghty, an associate professor of law at Loyola University feels fortunate to have graduated law school in the ‘70’s.  Geraghty states, “If you talk to people who graduated 10 years before we did, they knew what real discrimination was” (Yates and Goldberg 18).  She thanks the civil rights movement and a critical mass of women who pushed to open up the profession to include women.  Miriam Miquelon a business litigator, “It’s changed, but in the beginning you had to make sure you didn’t come off as a hysterical female and that you could be as businesslike as everyone else.  And once you were recognized as competent, the client could get past the sexuality issue, and accept you as his counsel” (Yates and Goldberg 18).  For Patricia Bobb, a graduate of Notre Dame Law School and a former Cook County prosecuting attorney, she decided “Early on that I would develop a tough exterior and a good sense of humor” (Yates and Goldberg 18).  She recalls working with “probably the most macho group of men in the world – not just the state’s attorneys but the cops” and how her humor fit nicely with her personality in such a way she never had problems with harassment.  However, Candace Fabri, who worked for the U.S. Attorney’s office, found greater resistance.  “For my first month on the job, there was a parade of agents from my office to my supervisor’s office: ‘Can’t we have a man prosecutor?’ . . . Over the years I got a lot of satisfaction out of seeing the agents come to prefer women prosecutors.  They would come to me when I was a supervisor and say ‘We find that the women take these cases so much more seriously.  They’re willing to work much harder and longer and they don’t pooh-pooh a case as not being significant’” (Yates and Goldberg 18).

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