Lawyering While Female

Lara Bazelon has a beef with God. You see, she’s a trial lawyer, a former prosecutor. We do not know how good she is at her job. We do not know her won-loss records. Apparently, she does not care about such minor matters. What really bothers her is the rampant sexism in the criminal justice system. And in the world outside the criminal justice system.

You see, male attorneys do not have to worry about which heels to wear and whether or not to wear pantyhose. It is an appalling injustice, don’t you think? Besides the male voice and male demeanor command more respect. Hmmm. Sounds like blatant discrimination and prejudice. The poor darling. If lawyers won their cases by complaining and whining, Bazelon would be a champion. One suspects that her bad attitude has been as much of an impediment as anything else.

Now, Bazelon has taken to the pages of The Atlantic to complain about sexism. She never considers that it might have something to do with human nature. She attributes it all to bad attitudes, to social constructions, to cultural injustice. In truth, she ends up sounding unprofessional. It’s what happens to you when you see the world through ideological lenses. You suffer from what the psychologists call confirmation bias. You only see what conforms your ideological prejudices. Bazelon seems to believe that men and women are really equals, as in, the same. Any whiff of unequal treatment sets off her injustice alarm system… and she whines.

I trust that this will not come as too much of a shock, but the courtroom is a place where attorneys compete against each other. When attorneys compete they use whatever advantage they can muster, the better to defend their clients. If that involves throwing some shade at opposing counsel, they do it. If you do not like the game, do not play the game. In competitive sports (and even wars) opposing teams and players try to undermine the confidence of their enemies.

It takes a certain amount of toughness to deal with such situations. Bazelon does not manifest such toughness. When opposing attorneys file motions requesting that a female attorney not cry in the courtroom, Bazelon complains … about sexism. The female attorney in question never cries. Besides, no one ever files such motions against men. And yet, merely raising the issue gives the male attorney an advantage… why not use it to provide the best defense or the best prosecution?

It’s sexism all the way down. According to Bazelon, sexism is everywhere. She might have considered that since men and women are not the same, people are correct to treat them differently. She does not:

What makes the issue especially vexing are the sources of the bias—judges, senior attorneys, juries, and even the clients themselves. Sexism infects every kind of courtroom encounter, from pretrial motions to closing arguments—a glum ubiquity that makes clear how difficult it will be to eradicate gender bias not just from the practice of law, but from society as a whole.

When Bazelon began working as a trial lawyer, she learned, for the first time, that, being a woman meant that there were some things she could do and some things she could not do:

I began my career as a trial lawyer in 2001, the same year that Rhode published her report. I worked in the Federal Public Defender’s Office in Los Angeles. When I took the job, I had braced myself for the stress; almost immediately, my caseload included clients facing lengthy prison sentences for serious felonies. I did not expect to be told in explicit terms that my gender would play a significant role in how I could defend my clients, and that learning this lesson was crucial to my success and by extension to my clients’ lives. “There are things I can do that you can’t, and things you can do that I can’t” was the way one of the male supervising attorneys in my office put it.

The issue is: why had no one told her these things before. She had been female for her entire life. If no one told her that men and women are different, a lot of people had been lying to her.

She goes on about female dress codes, proper female hairdos and necessity to wear pantyhose. Apparently, male dress codes are not the same, so Bazelon finds evidence of systemic sexism.

When she wears high heels she cannot swagger as men do. It’s grossly unjust. And she finds that her voice elicits different reactions:

This isn’t just dated wisdom passed down from a more conservative era. Social-science research has demonstrated that when female attorneys show emotions like indignation, impatience, or anger, jurors may see them as shrill, irrational, and unpleasant. The same emotions, when expressed by men, are interpreted as appropriate to the circumstances of a case. So when I entered the courtroom, I took on the persona of a woman who dressed, spoke, and behaved in a traditionally feminine and unthreatening manner.

In some ways, this was easy. I had been raised to be polite and to show respect for authority. In other ways, this was difficult. When I got angry, I had to stifle that feeling. When my efforts failed, I feared having come across as strident—or, worse, as a bitch. When I succeeded, I felt as if I was betraying my feminist principles. But if there was a sliver of a chance that the girl-next-door approach would deliver a more favorable outcome, not taking it would be wrong. I told myself that my duty was to my client, not my gender.

Other women have uttered similar complaints. They fail to notice that male and female voices are not the same.The male voice is roughly two octaves lower. This produces a different emotional response in listeners. Not because the world is full of sexist bigots, but because these people are human.

Amusingly, Bazelon seems most torqued at the fact that she is required to act ladylike in the courtroom, to act like she is traditionally feminine. Of course, this is just a lot more whining. Ask yourself this: if you were a trial lawyer what would your goal be? I suspect it would be: to win the case. You would, if you were a great trial lawyer, spend all of your time optimizing your approach, doing your best to win. You would not be complaining about high heels and pantyhose. And you would not pretend to be a man. Juries do not like phonies.

Bazelon was discovering that her feminist principles were not very helpful in the courtroom. Winning the case and being true to her ideologically-driven principles were in conflict. She did not solve the problem. She complained about it.

Keep in mind, one of America’s most successful prosecutors, Anna-Sigga Nicolazzi never lost a case.