by Hon. Elizabeth D. Laporte (Ret.)
Five years ago, I attended the United States District Court for the Northern District of California’s annual conference along with other judges from the federal court, lawyer representatives to the court and other attorneys. There, professors Joan Williams of the University of California, Hastings College of the Law and Deborah Rhode of Stanford Law School—leading scholars regarding how women fare in the legal profession—spoke of the obstacles that, despite much progress, many still faced, including implicit bias. I was already familiar with studies in which reviewers of two otherwise identical resumes, except for one having a female-sounding first name and the other a male-sounding one, rated the male resume superior (as well as similar studies involving a name usually associated with African-Americans and a typically Caucasian one). Yet I was particularly struck by what Professor Williams termed “the tightrope” that women must navigate due to stubborn gender stereotypes between being seen as likeable versus being respected. See Joan C. Williams and Rachel Demsey, What Works for Women at Work: Four Patterns Working Women Need to Know (2014). When women attorneys are perceived as likeable, they are also often mistakenly perceived as less competent; but when they are perceived as competent, they too often get demerits for being unlikeable or worse. By contrast, men enjoy more latitude to be perceived as both, without being penalized for an authoritative stance. This bias runs deep in the unconscious of both men and women. Think, for example, of the two meanings of “stature” as “natural height” (women being shorter on average) and “importance or reputation gained by ability or achievement,” illustrating the traditional association of greater physical height, where men on average loom over women, with higher status and skill. Oxford English Dictionary (2020) (www.oed.com).
Wanting to do something to help, I gathered a handful of the excellent women attorneys at the conference to meet and brainstorm, thus launching the Women Attorneys Advocacy Project. Many attorneys (too numerous to list all) have generously volunteered their time to the Project, including Randy Sue Pollack who has worked tirelessly from the start and current members Jamie Dupree, Miriam Kim, Michelle Roberts, Charlene (Chuck) Shimada and Juliana Yee. With the full support of the court, including Chief Judge Phyllis Hamilton, we have put on a series of programs open to all at the federal courthouse, as well as at UC Hastings and Stanford Law School. Our programs have included panels of judges or judge moderators, including Judge Yvonne Gonzalez Rogers and Justice Teri Jackson, and outstanding attorneys giving tips on how to overcome obstacles and—at least as important—create and get the most out of opportunities. Other programs have featured outstanding coaches in effective styles of speech and presentation in the courtroom and other litigation settings. They focused on how to project confidence and competence without being perceived (too often unfairly) as tentative and uncertain on the one hand, or cold and overly aggressive on the other (i.e., walking the tightrope). Then, in March of 2020, we co-sponsored an Association of Business Trial Lawyers dinner program, which I moderated, featuring outstanding and diverse panelists: the Honorable Teri Jackson of the First District Court of Appeal; Ruth Bond of the Renne Public Law Group; Kate Dyer of Clarence Dyer & Cohen; Jan Little of Keker, Van Nest & Peters; and Quyen Ta of Boies Schiller Flexner. We had an excellent turnout, including both men and women.
Based on these programs, talking to many judges and lawyers (female and male; of diverse ages, ethnicities and backgrounds; straight and from the LGBTQ community), reading the research, and my own experience (first as an attorney and then over two decades as a judge), certain common themes and lessons emerged. One fundamental takeaway is that diverse teams that embrace inclusivity deliver better results, as numerous recent studies have shown, so attorneys and judges benefit when law firms enable women and ethnically diverse attorneys to contribute fully. Further, some clients are demanding such teams, with women and minority attorneys playing important roles, not just window dressing, and juries and judges are paying attention. See, e.g., David Rock and Heidi Grant, Why Diverse Teams Are Smarter, Harvard Bus. Rev. (Nov. 4, 2016). Seizing these opportunities requires leadership, by both men and women. As more women and minorities graduate from law school, they need mentorship, feedback and opportunities to learn and shine. Fortunately, many judges are actively encouraging oral argument and examination of witnesses by newer lawyers, which means more opportunities for women attorneys, as well as minorities, as the pipeline improves with a higher percentage graduating from law school.
Women can take steps to help themselves and each other, building their confidence and in some cases overcoming cultural pressures that have traditionally led some of them to voice opinions in a tentative tone or not to take up space. For example, if at a meeting a woman first makes a good point that is ignored, others can echo it; and if a man gets credit for later raising the same point, others can thank him for agreeing with the original comment. Many attorneys can benefit from training in effective vocal skills, posture, body language and eye contact to better project confidence and competence while successfully navigating the tightrope. See, e.g., Cara Hale Alter, The Credibility Code: How to Project Confidence and Competence When it Matters Most (2012).
Women also have to be prepared for the obstacles they may encounter. Courtroom behavior is generally more respectful under the eyes and ears of the judge, but on occasion we still observe an attorney (more often male) talking over and interrupting opposing counsel (more often female or younger). Attorneys must be prepared not to get knocked off their stride and to calmly but persistently have their say, enlisting the help of the judge if necessary.
More often, uncivil behavior occurs outside the courtroom (e.g., in the hallway, in meet and confer sessions and in depositions). And sometimes even lead counsel is still mistaken for a secretary or associate when female, young, minority or some combination thereof. (As Quyen Ta noted at the ABTL dinner program, she recently came to take a deposition and wondered why it was slow to begin, only to learn that opposing counsel was waiting for lead counsel—assuming that role could not be hers. And Justice Jackson in her courtroom, albeit without a robe, has been mistaken for a clerk.) Attorneys must be ready to calmly but firmly correct such mistakes and call out bad behavior, make a record, enlist help as needed and not back down. Many judges, including those in the Northern District, take calls during depositions and can rule when opposing counsel misbehaves, e.g., on obstreperous speaking objections, as well as in subsequent motions. In the alternative dispute resolution setting, the mediator can help ensure a level playing field, set a respectful tone and, if necessary, separate the parties and their counsel.
Traditionally, women have shouldered more responsibility for raising children and doing housework (“the second shift,” as sociologist Arlie Hochschild termed it in her book of the same name), although younger generations are sharing responsibilities more equally. Accommodating the need for flexibility (e.g., for school and doctor appointments)—and not just permitting but encouraging the use of parental leave by men and women alike, rather than stigmatizing it—helps retain valuable attorneys in whom law firms have invested. Openness to hiring attorneys who have left the workforce for a period of time to raise children and to non-traditional arrangements like job sharing also keeps talented attorneys in the work force.
Importantly, each of us needs to develop our own effective style that is authentically ours. As Oscar Wilde said, “Be yourself. Everyone else is already taken.” From my experience on the bench, calm, persistent (but not repetitive) advocacy based on solid preparation on the law and the evidence is far more persuasive than overheated rhetoric or interrupting opposing counsel or—worst of all—the judge. Therefore, do not give up your voice, do not bluster and be prepared to address the substantive issues and answer any questions from the judge.
Finally, working together to overcome bias, implicit or otherwise, is beneficial for all because law firms, clients and judges cannot afford to go without the full contributions that the skills and expertise of women attorneys bring to the table.
Hon. Elizabeth D. Laporte (Ret.) is an arbitrator, mediator, special master/referee and neutral evaluator at JAMS in San Francisco, after over two decades as a federal magistrate judge, and serves on the Board of Directors of ABTL Northern California chapter. She handles a variety of matters including antitrust, business/commercial, civil rights, employment, environmental law, insurance and intellectual property. She can be reached at email@example.com.