Dec 1234 – Gender Bias in a Trial / Career & Family – gtg


I have written, been published and won awards for the paper I wrote on gender bias in the selection of trial counsel. This is an area that matters to me, that matters to our clients, that matters to our success and should be at front of mind, not behind closed doors, when trial counsel is selected. Looks matter, not a shocker. But, the question is, as with all information, what do we do with this news? How do we factor it into the analysis of how we pick our trial teams and how do we prevent unconscious beauty bias from preventing the selection of the most qualified, most persuasive, most deserving trial lawyers?

If you read the National Law Journal, and who doesn’t, you probably saw Tresa Baldas’ article, “A pretty face bolsters the defense, Cornell study finds”, where she reports that unattractive defendants are convicted at a rate that is disproportionately higher than attractive defendants in criminal matters, evincing a clear beauty bias as it relates to belief in criminality. This issue, however has many dimensions and cuts across many lines within our society generally and our profession particularly. For those of us not personally involved in a criminal trial as a defendant, the beauty bias phenomenon is also covered by Deborah L. Rhode in The Beauty Bias: The Injustice Of Appearance in Life and Law, who scientifically explores the relative difference in life experience, including in professional opportunity, for the attractive few and the not-so-attractive majority.

If you are surprised to hear that attractive people have it easier than those who have gifts and talents in other areas, then you may want to read up on this. Most of us, however, are not shocked, are we, to find out that when looked at as a whole, attractive people make more money and they get more opportunities? That the business of the practice of law is reflective of society generally, is not surprising to anyone either is it? But, as with everything, the fact that a fact is a fact is not as interesting as what we do with it. So, I would imagine that some of you who are reading this (but disproportionately few) are overwhelmingly attractive. Don’t stop reading. While there was a time when it was not true, in fact, it was profoundly not true; I do not harbor any ill will toward the “hot” among us. They have a gift of genetics, usually supplemented by social and financial advantage that I believe it is fair to say is given to few, wished for by many, and noticed by all. I would be a profound hypocrite indeed to make overwhelming generalizations about pretty people. People, I have learned, are people. They are all wonderful and all flawed. They all need to be viewed as individuals and judged on their relative merits by other individuals. Prejudice is a word with roots in the concept of “pre-judging” and I don’t think it is fair to pre-judge anyone, pretty or not. But, as the studies show, general advantage is afforded to those of beauty and how that affects firm decisions about associate training development and client decisions about staffing trial teams is a topic of new interest to me. I have not consulted a jury consultant on this issue. (But I think any jury consultant who studies this would be spending their time wisely-and any who has is invited to comment). I have not done much of a literature search. (But, I wasn’t finding much on this specific issue.) So, what I have to offer today are my observations about trials, juries and trial teams. This is something I have personal experience with and so I offer my musings as a thought starter and hope for input and challenge and debate and progress in this area.

First, I would offer the notion that it is true that people notice beauty. Sometimes an attractive person is the perfect platform upon which to place your message. (Yes, that was my Captain Obvious point, but I didn’t want to leave it out.)

Second, people notice beauty, but they also notice favoritism. They also notice unfair advantage. You have all been in the room, in the family, or in the conversation where it is mentioned that the person, generally a woman, did not get there on merit, but rather she got it, whatever it is, because of her looks. (But, I must say that I have had many experiences lately where I have seen this same analysis applied to men, so I do not think this is exclusively a gender issue.) This is true in every aspect of our life. This is true in the PTA. This is true at the cocktail party. This is true at the office. This is true in the partnership. This is true in the boardroom. This is true at the grocery store. This is true at the nightclub. This is true in high school. This is true in the nursing home. This is true when people are selected to pitch for new business. This is true when people are selected to try cases. This is true when lawyers are considered for elevation within organizations. People are suspicious of the beauty bias. Juries are made of people, so I would assume they would be suspicious as well. Where this suspicion takes them I am not certain. But, the idea that a jury could be thinking, “If they are giving us the set of facts that are the truth, why do they need such a good looking team to do it…easy facts/truthful facts tell themselves?”, must be considered and accounted for in sophisticated staffing.

Third, people who are not attractive have a different set of life experiences than people who are. They may have gone to all the same schools, worked at the same law firms and attended the same functions, but the quality of those experiences has been different. For this reason, a mixed trial team that includes all types of people will bring the most diverse perspective and most balanced approach to problem-solving and communication. This is a proven method for success.

Fourth, juries need a trial lawyer that they can relate to. The need someone who can tell them what the case is about. The extent to which that person is familiar, comfortable, and real may affect their ability to hear the same message in a different way. This ability to relate cannot be discounted. As a client, you need to strongly consider the value of having a “real person” tell your story. A real person is someone who is technically excellent and aesthetically flawed. They are brilliant and prepared and deliberate and convincing; they are overweight and bald and wrinkled and plain. Regular people are comfortable with regular people. They feel comfortable talking to them; they feel comfortable listening to them. They may not be attracted to them, but they understand that they are doing a job and respect that. They are reminded of their mothers, their fathers, their sisters, their daughters. They do not feel sold to, they feel related to.

After all, what is the true role of a trial lawyer? To convey the facts, the evidence, the story in a way that will be most likely to have the jury hear and accept the facts presented on behalf of their client. It is really that simple. Facts win cases; there is no question about that. Some times the facts are so overwhelmingly slanted in one direction that who is delivering them makes absolutely no difference. Oftentimes, however, the messenger matters.

So, where are we? I need to take a slight detour around the block between here and the end of my musings and say, you could put blinders on the jury or NOT and overwhelmingly the lawyer who will be most successful in a courtroom does not have a certain look, they have a certain recipe for success. The best messenger is the one that is prepared and rehearsed. There is no substitute for preparation, both in plan and strategic responses to things unplanned. Experience can help, but preparation wins the important fights, and in the real wars, the battles add up. Preparation has the Superman effect. No matter what kind of Clark Kent you are, in the court room you run, leap and see like you never thought possible.

Detour over. Some of the best lawyers I know are “hot.” They are excellent lawyers because they have excellent skills, not because of their genetic gifts. Some of the lawyers who have been given opportunities to be trial lawyer, but who should not have been are also “hot.” This is unfortunate for many reasons, but two come to mind. These lawyers are set up to fail and often do. Other lawyers who are better, have a better craft, have a better skill set, and lack certain aesthetic gifts have not had similar opportunities. I guess a third problem is that our system, our clients, our juries and our future generations, have suffered because the best lawyers have been unfairly prevented from getting the opportunities they deserve while others have taken their place

I think merit should win. When there are decisions to be made, merit should prevail. When selecting trial lawyers, don’t just look, but listen, think, remember this beauty bias and bring it from your subconscious to your conscious so you are not affected. Also, law firms, do better, offer our clients your best and your brightest and don’t limit this to your beautiful. It is profoundly disturbing that law firm decisions about client exposure, training, promotion and eventually compensation are based on genetic mutations. How embarrassing. But, to let this bias allow us to fail to provide what is clearly in our client’s best interest is unforgivable.

Fabulous idea, so now what? To stop it we have to talk about it. So, talk about it. When there is a decision and a “hot” beats out a “not so hot” ask about the relative merits of the candidates and the tracks and training they were provided. Ask why again. Bring in the criminal study above. Bring in the book. Ask about the beauty bias issue and whether or not it factors in to decisions made within your organization. One thing we have learned in the last 20 years — to deal with a problem, you have to talk about it. One thing I have learned, it is far more effective to ask questions that to cast aspersions, so ask questions.

If I were in charge, trials would be tried by diverse trial teams that reflected the population at large in age, gender, race, sexual preference, body morphology, socioeconomic upbringing, geographic origin, veteran status, parental status, and anything else I can think of that brings a different set of experiences to the table that will make it easier to see the story we have to tell and put it together in a way that makes it easy to hear by a group of diverse individuals who need to hear it.


The recent article A Labor Market Punishing to Mothers by DAVID LEONHARDT discusses the concept that although women have come a long way in the work force, men seem to be able to do it despite family life and women don’t. Attrition is still very high for women in the work force, including law (in particularly, women with children). And there appears to be a pattern, or at least anecdotal evidence, that the women who are most successful don’t have children. Take for example, Elena Kagan, Sonia Sotomayor, Janet Napolitano and Condoleezza Rice, among others. Although the article concedes many other successful women (including Justice Ruth Bader Ginsburg) have children, it suggests that those women have beat the odds that were stacked against them. Bottom line, the article notes, “Women do almost as well as men today, as long as they don’t have children.”

As a partner in a firm with 4 children who grapples with the work-life issue every day, I consider myself an expert on this subject. And I generally agree with the article: women can be successful with kids, but it seems to be easier for men. I realize this is a sensitive topic because there are male lawyers who are incredibly involved parents and may be offended that I’m focusing on mothers. To them I note that there are, of course, exceptions and that these comments could equally apply to you. But the evidence suggests parenting seems to have a greater adverse impact on women so that is my focus. When I agreed to do this blog, I told myself that although I had many thoughts on working and parenting, I would try not to overly personalize my comments, and, indeed, I would try to avoid this subject. But I cannot resist commenting on the realities of this article.

One word describes trying to advance your career as a lawyer (in particular, if you are a young lawyer) while at the same time having young kids: hard. Junior lawyers who want to be successful are faced with a job that includes a lot of stress and long hours – hours that start early, end late and more often than not, include the weekend. To be a young mother and be expected to drop off your child when it is still dark and not get home until they are in bed is brutal. And it just isn’t time spent with them but it is the time spent addressing their needs that can be equally all-consuming. I call it the “head game.” The time a parent – in my experience predominantly the mother – takes to figure out schedules, calendars, day care, summer camps, doctor appointments, shoes for the season, clothes for the season, play dates, birthday parties, extra-curricular activities (t-ball, basketball, soccer, swimming, skiing, skating, karate, gymnastics . . . I had to research, sign-up and coordinate rides for every single one of these activities this year between all of my kids). And then there is homework, reading, practicing piano . . . In addition to wanting to spend time with our kids, we want them to be involved and not miss out on opportunities. But these activities take time and somebody has to do it. And let’s not even talk about what it takes just to get out of the house in the morning . . .

Besides crediting my significant other, David, for helping extensively with life at home, I think I have survived the work-family time crunch to date because I chose to have kids later in my career. I had my first daughter the year before I made partner. I think that made it much easier. I had already proven my skills and work ethic. I had already earned the trust of those I worked with. The work intensity didn’t change, but I could be incredibly flexible in where I did it because people always knew I was available and would get the job done. I further was and continue to be willing to make sacrifices that others are not. I always worked through my maternity leave – not necessarily full time but I treated every day like a work day. In short, I didn’t want my clients going elsewhere and there were things that needed to be done. And I treat my job like it is 24-7. Doesn’t matter where I am, I am available to answer emails and phone calls.

I often say that I never could have made it if I had kids earlier when there is a different expectation about face time and a person has to answer to partners in the office according to their schedules. I recently wondered how one of our new associates was managing three kids and being a first year associate. She just gave notice she was leaving. I don’t want you to think we didn’t bend over backwards trying to convince her to stay – flex hours, part-time, work from home. But I think she felt that the exceptional associates give 100% effort, 100% of the time, and with 3 kids at home, she couldn’t do that. If she didn’t have those kids at home, there is no doubt in my mind she would have been leading the pack. I cannot think of a male associate that left our office related to fatherhood.

There are 5 senior women partners in our firm (I do not even count myself as one of them). Two do not have children, one has one child but she waited until she was already a partner, and the remaining two had kids prior to making partner. Of the two that had kids at a younger age, one only has one child (not that this still isn’t incredibly tough to manage), and the other has 4. If you asked the latter how she did it, I think she would tell you that she was able to “beat the odds” based on various factors including a very supportive and helpful husband. Comparatively, we have six males on our executive committee. All six have multiple children.

Now I don’t want to say it can’t be done. The flip side to my last paragraph is that three of the five most senior women in my firm have kids and I, also a partner, have four kids. In my view, at least in the legal profession, there is a hump you need to get over both with children and your career and then it gets a little easier. It is harder to be out of the house for extended periods with a baby compared to older kids. I don’t know why but as a mother I think it just is (I wonder if men feel that way?). It is further harder to adjust your own schedule as a more junior lawyer. But when you get over the hump and to the point where you are answering to your own clients, you are in control of your own schedule (so you can set the conference call after you volunteer in the class room). You can also delegate as opposed to being the person who must do the work being delegated. I’m not saying you don’t work hard or have stress as you go up in the chain of command, I just think it is easier to manage a family at the same time. So the issue is getting there and what we can do to help women get there.

Flexible hours, part-time etc., these things help, but they won’t solve everything (including that it will likely take you longer to get where you are going). Perhaps recognizing the issue will help the battle. Those of us more senior can be sensitive to the demands of family and those with families can realize it does get better. But undeniably, no matter what you do, there are no easy answers. It isn’t easy trying to manage children and a career. Some days it will be grueling.





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