In 1995, I was two years old, too young to have known much about the OJ Simpson case from personal experience. So when American Crime Story aired their first season on the trial of a century in 2016, I dove right in.
At the time, I was 1L with aspirations to be a criminal defense attorney. I interned, took clinics, and wanted to soak up all the good habits of experienced defense attorneys, so I watched The People vs. OJ through the eyes of a student. But instead of learning from the tactics of Shapiro, Cochran, or Kardashian, I found myself drawn to one Marcia Clark.
The episode that stood out to me most was titled “Marcia, Marcia, Marcia,” a play on the popular refrain from the Brady Bunch. As a young woman, the treatment I watched the fictional version of the former prosecutor receive was personally hurtful and depressing. Clark’s case should have been just about the facts surrounding the murders and about the evidence and witness testimonies, but of course this was not what occurred.
Between fighting for custody of her children, being a good mother, and preparing trial, and having a personal life, Marcia was balancing more than most of her critics could in their own lives. And yet, amidst all of that, Marcia herself was put on trial in the court of public opinion.
The media attacked her clothing, her makeup, and her hair, until she decided to make a change. After all, the jury’s perception of her influenced her case. So she tried to make changes to her appearance, only to have the media throw it back in her face. They twisted the knife in, calling her a bitch for the confident personality that she exuded, an exoskeleton she clearly crafted to protect her from the swirling mass of critics who influenced the outcome of a murder case for the worse.
It’s clear in the episode that she is being torn apart simply for being a woman. At the actual trial, when opposing counsel described the real-life Marcia as “whining” or “overly emotional,” nothing was done by the residing judge, Ito, who himself made comments about the length of Clark’s skirt, and overall undermined her in front of the jury.
Though we’ve come a little ways since then, the sexism that is prevalent in that episode, though more subtle, still exists in the field today. Last year, in their September issue, The Atlantic published the article What It Takes to Be a Trial Lawyer If You’re Not a Man. In it, Lara Bazelon wrote of the experience of attorney Elizabeth Faiella in Brevard County, Florida, who was summoned to the court for a hearing on a motion filed by her opposing counsel David O. Doyle Jr., Partner at Pearson Bitman LLP. But what was the motion for?
Bazelon quoted the motion in her article. It stated the following:
“Counsel for the Plaintiff, Elizabeth Faiella, has a proclivity for displays of anguish in the presence of the jury, including crying,” … “a shrewdly calculated attempt to elicit a sympathetic response.”
https://www.theatlantic.com/magazine/archive/2018/09/female-lawyers-sexism-courtroom/565778/
It bothers me to think that public scrutiny over shallow features may have been a big part of what derailed Clark’s case and her reputation. It worries me for future clients I may have whose fate may be influenced by shallow or arbitrary characteristics of my presentation or appearance.
When going for a job interview, I have much more to consider than just my answers. I straighten my naturally curly hair for fear of being remembered in a negative way. I wear glasses to avoid being perceived as overly confident, and I put on makeup, but not too much so as to be provocative. I go back and forth between wearing a dress or pants to the interview, depending on how I believe the interviewer will perceive me one way or the other.
And although some may choose not to believe it, hair discrimination is real. It is so real that the New York City Commission on Human Rights released new guidelines early this year which will provide legal recourse for discrimination based on one’s hair: https://www.nytimes.com/2019/02/18/style/hair-discrimination-new-york-city.html
But law or no law, is something we will continue to face. In 2001, Professor Deborah Rhode at Stanford Law submitted a ground-breaking report on sexism in the courtroom. “The Unfinished Agenda: Women in the Legal Profession” explores the double standard women are held to to succeed in their careers.
http://womenlaw.stanford.edu/pdf/aba.unfinished.agenda.pdf
Aside from the preparation necessary to properly do their jobs, women also must work to avoid being perceived as “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’ ” Bazelon, an attorney herself, writes of a time when she was chastised for taking off her jacket while reviewing her notes in a courtroom without A/C.
https://www.theatlantic.com/magazine/archive/2018/09/female-lawyers-sexism-courtroom/565778/
In my trial advocacy course in law school, I was taught how to ask questions of the witness on the stand. I noticed that I was more successful in these simulations when I stifled my emotions, and that the volunteer jurors took to me more kindly when I smiled.
Arizona State University’s School of Social and Behavioral Sciences’ “Law and Human Behavior Journal” published a paper that followed an experiment related to expression of emotion in male and female lawyers. The experiment tested whether expressing anger in court influenced an attorneys ability to be effective.
https://www.usnews.com/news/national-news/articles/2018-06-27/study-gender-bias-can-blind-justice
Random participants viewed a male or a female attorney presenting a closing argument in using different tones of voice (anger, neutral, etc.). The neutral female attorneys were viewed in a more pleasant light, whereas the females who showed irritation were considered shrill or obnoxious. Males who showed similar emotion (anger) were considered to be powerful.
The abstract states “Women might not be able to harness the persuasive power of expressing anger in the courtroom, which might prevent female attorneys from advancing in their careers.”
Salerno, J. M., Phalen, H. J., Reyes, R. N., & Schweitzer, N. J. (2018). Closing with emotion: The differential impact of male versus female attorneys expressing anger in court. Law and Human Behavior, 42(4), 385-401. http://dx.doi.org/10.1037/lhb0000292
The bottom line is that women attorneys are being penalized for exhibiting the same behavior that make male attorneys successful. Recent studies also confirm that even judges aren’t immune to courtroom bias, tending to side with an attorney on the basis of their sex in cases where certain gender roles may appear significant (i.e. likely to rule in favor of women in child custody cases, likely to dismiss discrimination lawsuit for woman plaintiff denied a promotion after six weeks of paid leave to care for an adopted baby.)
- https://news.stthomas.edu/minding-the-gap-in-equality/;
- http://www.spsp.org/news-center/press-releases/gender-judicial-bias
The message is clear, sexism is alive and well in all aspects of life. It’s not going anywhere any time soon. We can’t escape it, not even in the courtroom. But if we are aware of it, we can overcome it.
Project Mansfield 