Friday, December 30, 2016

We Need More Women Lawyers Trying Civil Cases

Carrie Fisher, who famously portrayed Princess Leia, once said, "You are only as sick as your secrets."  A psychodramatist I know put it this way, "If you can't talk about it, "it" is out of control."
One of the reasons that lawyers fear going to trial is that once you stand up to talk to that jury about your client, you must also inform the client about who you are.  A good actor doesn't just pretend that he or she is the character he or she portrays.  Rather, a good actor becomes that character.  And in so doing, lays bare his or her soul.  The actor opens himself up, is vulnerable, and must trust the audience.  The same is true of the trial lawyer.  A trial lawyer, at least a real one, must believe in the case with all of her heart, must become vulnerable in releasing her love for her client or for her client's cause, must speak from not only the head, but also from the heart.  And the greatest risk of all to the client and to the lawyer is rejection from the twelve people seated in that juror box.  The jurors examine the lawyers, the clients, the witnesses.  Those of you who have been on juries know that talk about the personalities and presentation, and even looks, of the lawyers is common.  The client is an amateur and jurors know that the client does not make his living by appearing in court.  The client deserves sympathy, even empathy, but not so for the lawyer.  People say public speaking is the number one stress producer for most people, yet trial lawyers must face this fear and rise above it in service to their clients.

A trial is a zero sum game.  There is a winner and a loser.  Trials may be about jurors compromising, but the parties compromise not, or they would not be at the courthouse.  The acts of public speaking, having a client's case and maybe even his life in one's hand, competing in a public battle, and the risk of being vulnerable and rejected account for why so few lawyers actually try cases.  Trial lawyers are oftentimes egomaniacs, narcissistic and insecure. We are also oftentimes caring, magnanimous and generous.  But one thing is clear, trial lawyers are risk-takers. They are willing to suffer the valleys to experience the mountain peaks.

Women make very competent lawyers.  They work hard, sometimes harder than the men, but are often relegated to an "assisting" role in trial.  There are so many more female trail lawyers than there were over 30 years ago when I started practicing law.  But, I do not think women lawyers will will have real parity with men until they no longer assist, but command in their fields.  This is no more true than in trial.  I worry about implicit bias against women, that people, even women lawyers, but certainly the juries, implicitly believe that men are more competent than women. Yet, unless women are willing to take the risks of actually going to trial, we cannot combat implicit bias.  Social norms are created by what normally happens in society.  Whether or not a woman is the major child-rearer in her family is not as important as whether she is willing to take risks that male lawyers, with their egos and braggadocio, are willing to take. When people take risks they are open to more healthy risks.

People often quote the maxim that on our deathbeds few people bemuse that they wish they had spent more time at work.  That is probably true.  But, I believe there is a different regret that lawyers can have, when they look back on their careers, that they were too afraid to take risks that could not only benefit their clients, but could also make life exciting and satisfying.  Maybe someday women will earn as much as men, will be represented in government and politics as much as men, and will head major businesses as much as men.  Women, us, just need to dream and have the courage to follow those dreams.


  1. We need more women doing many more things, honestly, not least of which is being at least 1/2 of our government legislators.

  2. Did you see this article in The Atlantic?

    "Evidence of the Superiority of Female Doctors"

    New research estimates that if all physicians were female, 32,000 fewer Americans would die every year.