Winning on Appeal

Redbook

July 1995

by Lois Romano

Marcia Clark isn't the only lawyer out there who's smart, strong, and female. These legal eagles aren't afraid to use what comes naturally to a woman ... and it's working.

A few months ago you probably saw 0.J. Simpson prosecutor Marcia Clark grill Brian "Kato" Kaelin into a sweat and reduce defense attorney F. Lee Bailey to a trembling fury. You re probably also familiar with lawyer Leslie Abramson, whose defense of Erik Menendez, who confessed with his brother to the murder of their parents, was so compelling that the trial ended in a hung jury.

When Abramson defended Menendez two years ago, she was one of few women to have achieved stardom in criminal law. But today some of the biggest names in criminal law—and civil litigation—belong to women. Although talented, ambitious women in other professions have had a tough time rising to the top, female lawyers have been landing more and more of the hot cases.

Their arrival in the forefront of the legal world is partly a result of numbers, Twenty-five percent of lawyers and 115 percent of law school students are women.

But unlike their counterparts of 20 years ago, many of today's experienced female lawyers are trusting what's often referred to as their female traits instead of copying those of male lawyers A number of these legal eagles believe that being a woman makes them particularly suited to practicing criminal and civil law, "Everything I am as a woman can work for me in the courtroom," says Suzelle Smith, a prominent Los Angeles litigator. "I have the advantage of having been better trained than my male colleagues in relating to people. It's easier for me to question a witness without being condescending, Juries pick tip on the tone of your voice and your body language. The model of a shoot-‘em-up aggressive courtroom style as a surefire way to win is a myth. I make just as much headway being firm without being threatening."

Many female lawyers say they have also benefited from what could be called an outsiders mentality, which has kept them focused on their clients best interests and riot on what their male colleagues think of them, Victoria Toensing. The Washington. D.C. lawyer who recently negotiated a landmark discrimination case for a female client against the CIA. claims that male lawyers are too caught up in being one of the guys,"Women do not have a stake in perpetuating the old-boy network," she says, "because the old boys are never going to help them. This empowers women to go for the jugular. All men do is pat each other on the rear end --and this does nothing for the client."

If the old boys tend to look out for one another, some also like to play out their egos in the courtroom. When this happens, according to University of Pennsylvania law professor Loni Guinier, it can distract from the issues of a case, "F. Lee Bailey is the classic male lawyer who, with enormous bravado, keeps the attention on him self," she says. "Some cases cannot be won if the jury is diverted from the evidence by lawyer theatrics."

Guinier, who recently cowrote a study that examined the effect of her law schools teaching methods on female students, believes some women have a distinct advantage in the practice of courtroom law. "Many have been socialized to do well as listeners, to establish rapport, and to be caring interviewers," she says, "Since all lawyers are trained to be performers and aggressors, empathetic women can have an advantage over those who have learned how to talk, but not how to listen"

And when it comes to dress, today s high-powered female lawyers have to some extent rewritten the code. Gone are the mannish pinstripes and bow ties. Now they wear bright, stylish suits and dresses that they believe send a positive message to the judge and jury. Nancy Hollander, a criminal defense attorney in Albuquerque, New Mexico, says that when she faces off against
male lawyers in blue suits, her feminine dresses "perk up jurors, and they pay more attention to what I have to say." Rikki Klieman. a Court TV anchor and longtime litigator, always wears white for her opening and closing statements, "It subliminally signals to the jury a certain purity, an innocence."

As women lawyers bring their own sensibilities to the profession. are the old boys running scared? Not exactly, but they are looking over their shoulders. As they should be. Because six women we talked to (and a good many others) are giving them a real run for their money in the courtroom.

The Right Touch
Suzelle Smith, half of the Los Angeles firm of Howarth & Smith. wins multi-million-dollar settlements for her clients by unabashedly playing the gender card. In a successful 1988 damage suit brought against a shopping mall from which a 26-year-old woman was abducted, raped, and later murdered, the civil litigator bet on a strategy that would make the jury identify her with the slain woman. A key move was to seat herself alone at the attorney's table and place her clients—the victim's parents and husband—behind her in the public seats.

When she recently represented workers at a nuclear plant who claimed to be contaminated by radiation, she relied on her experience as a mother.

"In legal circles, it s said that a lawyer should talk to a jury as if it were a class of sixth graders," she says. "That's not meant as an insult. The fact is juries have to deal with issues and technicalities of which they have little or no knowledge. Complex cases have to be broken down into their components—even for judges. As a woman and the mother of a 5- and 8-year-old, I am used to teaching and explaining."

Smith has also found touching to be an effective tactic. "I will walk around an opposing lawyer and put my hands on his shoulder" explains the 41-year-old Birmingham, Alabama, native. "I am signaling the jury that I am in control of this situation, it works for me, but could backfire for a male lawyer because men are seen as predators. His touching me is viewed as a violation of my space."