Missing Pieces

There was a time not long ago when, if asked to think of a trial lawyer, one would conjure up a visual image of only males. Men such as Abraham Lincoln, Johnnie Cochran, or even the fictional Atticus Finch from “To Kill a Mockingbird” might come to mind. Today, things have changed, yet in many ways, the change has not been significant enough.

Despite their increasing numbers in law schools and in practice, women first-chair trial lawyers are still grossly underrepresented in courtrooms compared to their growing presence in the legal field. For example, in 2022, 38.3% of all lawyers were female while 61.5% were male, according to the ABA National Lawyer Population Survey. While the percentage of female attorneys has grown steadily, up 5% over the last decade, men still outnumber women as first chairs in trials by a factor of nearly three to one.

Minority groups have also made strides; the percentage of lawyers of color has grown 7% over the past 10 years. Lawyers of color now make up 19% of the legal profession, according to the ABA survey. Meanwhile, the percentage of white lawyers has declined slightly, but they are still overrepresented in the legal profession compared with their presence in the U.S. population.

While inclusion of women and minority group trial lawyers advances diversity, there are additional substantive reasons to proactively incorporate these essential members when building your next trial team.

Jurors Are Increasingly Diverse

A skilled and talented trial team can win or lose a case. It is not just about the facts or the law. Many times, it is who is delivering the evidence and making the case to the jury that makes the difference.

As Justice John Marshall observed in Peters v. Kiff, “[The] exclusion from jury service of a substantial and identifiable class of citizens has a potential impact that is too subtle and too pervasive to admit of confinement to particular issues or particular cases…[w]hen any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”

This logic also holds true when identifiable segments of the legal community, such as women trial lawyers, are excluded from counsel table in our courtrooms. Inasmuch as jury selection is a trial lawyer’s only opportunity for a two-way conversation with potential jurors before the verdict is rendered, the lawyer having that conversation needs to be able to speak the jurors’ language and relate to their experiences. Jurors have internalized gender norms and behaviors, and may converse differently—or feel more comfortable conversing—with a female versus male trial lawyer.

A woman or minority group trial lawyer may be more aware of the code-switching (conscious or unconscious, adjustments to language, syntax, grammatical structure, behavior, and appearance that a member of an underrepresented group uses to fit into the dominant culture) jurors use to be accepted by the jury panel group and others in the courtroom. If the goal of jury selection is to get jurors talking in order to better know them and to assess their expectations of the litigants, a trial lawyer who is representative of actual people on the panel is one of the very best resources at your disposal.

Women Trial Lawyers Connect With Diverse Jurists

Consider the adage: “While it is the jurors who deliver your verdict, it is the judge who gives you your trial.” Trial and appellate judges are increasingly female and include more minority groups. In Las Vegas (Clark County), the jurisdiction in which some of this article’s authors practice, a majority of the sitting trial judges on the district court bench are women. In 2023, two of the three Nevada Court of Appeals judges are women. And five of the seven Nevada Supreme Court justices are women.

No case gets to trial leapfrogging the procedural step of pre-trial motions. Those motions should be well briefed and the oral argument well crafted and specifically tailored to your trial judge. Researching your judge is a must, including cases she argued and tried as a lawyer, as well as her past decisions rendered from the bench. The next step is to select the trial lawyer most capable of resonating with that judge to deliver those well-briefed, well-researched, and well-crafted arguments. Developing trial strategy should include consideration of whether a female lawyer is more likely to have a superior result before a particular female judge. This strategy is significant for purposes of increasing the likelihood of success, as well as ensuring that your lawyer is able to make a full and proper record.

Nevertheless, in January 2022, The New York Times reported that just 18% of U.S. Supreme Court arguments were presented by women, even though one third of the bench is composed of female justices. In addition to the notable dearth of women lawyers arguing before trial and appellate courts, studies of the U.S. Supreme Court show that women lawyers there are interrupted earlier and more often than their male counterparts. Disturbingly, studies also show that female justices are interrupted at higher rates by both male colleagues and male attorneys. Anecdotally we have heard several women trial judges complain about being interrupted on the bench, particularly by male attorneys.

Perspectives and Experiences

Failing to use women attorneys in oral arguments and trials, especially before women judges, leaves some of the best weapons in the armory. Excluding women from meaningful roles at trial removes their perspectives, perceptions, experiences, talents, and skills from the courtroom.

The unique and valuable input of women trial lawyers is likewise removed from the war room and roundtable discussions in the preparation phase. Take into consideration that a woman first chair will craft oral arguments, liability theories, and trial themes that are delivered and received differently because she experiences the world differently. A woman on a trial team can contribute her distinctive ideas, as well as act as a sounding board for how a particular argument may resonate with female jurists and jurors.

As an example, years ago, article co-author Karen Bashor served as first chair on a high-exposure case, and on the eve of opening statements when strategies were discussed, it was among mostly male adjusters, male client representatives, and other male attorneys. During those discussions, ideas were promoted that Karen pointed out ran the risk of offending and alienating a jury half made up of females and one third of immigrants. Karen fought to ensure that her perspective was heard and understood in the war room. It was a wrongful death case and Karen had deposed the mother who lost her son, an immigrant who tried to support his family back home. Karen had immigrated to this country with her parents and knew all too well the struggles of that experience. Karen’s advocacy for a more thoughtful presentation of the case won the day.

That said, never include a female or minority group lawyer on a trial team simply for “show” or to check a box. While representation and inclusion are to be applauded, tokenism can be destructive and undermine the very connections we hope to make with jurists and jurors. Everyone on the trial team should earn their place and have a meaningful role.

Using Trial Theater to the Client’s Advantage

“All the world’s a stage, and all the men and women merely players….” Years ago, article co-author Alex McLeod was serving as second chair in a negligent security case. It was determined it would be beneficial to have security officers demonstrate certain tactics from the fact pattern so the jury could see for themselves the physical maneuvers involved. These tactics had been used on the female plaintiff, and it was determined that the most effective presentation would be to have Alex, a young female attorney, question the security officer and then ask him to step down from the stand and demonstrate the maneuvers on Alex, rather than on a male counterpart. This strategy meant diverting from the tradition of having the first-chair trial lawyer handle examinations of the most important witnesses. On that case, the trial team tailored the trial presentation to the facts, to the particular parties, and to the individual jurors sitting in the box.

There is no denying that there are elements of theater in trial. Oration, like a monologue, must be delivered with projection, inflection, and vocal variety. Direct and cross-examination are the dialogue, and, depending on the tone, may be more socially acceptable coming from a female lawyer than from her male counterpart. Also, just like the theater, costumes are worn in the courtroom, and a woman trial lawyer has greater latitude in how she dresses and therefore more options in the impression she makes.

Kim Bueno, a trial lawyer and partner at the Texas-based law firm Scott Douglass & McConnico, explained it this way in The Atlantic: “A woman is able to cross-examine a female personal injury victim with greater sensitivity. She can probe a little further without coming across as attacking the victim.”

While in Shakespeare’s time it may have worked to have all the roles played by men, times have changed. Sometimes the best casting calls for a woman.

Outperforming Their Counterparts

To underscore the case for female trial lawyers, women lawyers win more cases, according to a 2018 Premonition Analytics study. The study states, “On average, female lawyers at every level of practice offer better value for money than men. They win more and charge less.” Whether superiority in performance is attributable to the cream rising to the top, survival of the fittest, or (real or perceived) being twice as good to get half as far, studies indicate that women lawyers outperform their counterparts.

Toby Unwin, chief innovation officer of Premonition Analytics, the world’s largest litigation database, describes the trend this way: “There is a double glass ceiling in effect where not only must women work harder than men to get into the field, but [also] once they get there, they must battle for the chance to work in the courtroom. The ones that survive are phenoms: cheaper, faster, and less likely to take a losing case to court.”

The bottom line is that diversity is good for business and the right thing to do. For all of the above reasons and more, inclusion of women lawyers on your team can provide a competitive advantage at trial. The time for female trial lawyers has come and having women try cases is no longer an option—it is essential.