Challenges to Women in the Courtroom

“Women in the Courtroom” is always an interesting conversation.   It can be very frustrating, and it can be very rewarding.  Certainly, it is not as challenging as it used to be.  However, you should not take anything for granted when you are in a venue where the judge is more likely than not to be a male, and your fellow litigants are more likely than not to be male.  That is just how the numbers work.

Just recently I was watching a lawyer TV program, and there was something that caught my eye about the female litigator.  It was hardly worth noticing, but it reminded me of how different things are today.  It also reminded me of a story.  Lots of things remind me of stories, but this one should be especially valuable to you in learning how to handle a difficult situation that is both unpredictable and unavoidable.

  This story is based on my own experience.  It started out very positively when I was asked to join the trial team for what might have been the first Toxic Shock Syndrome case litigated in this country.  Although I was only a second-year associate at the time, I also was the only woman in the law firm with any courtroom experience.  The lead counsel needed a woman on the trial team to take the depositions of the plaintiff and her mother on some delicate issues related to the illness and to cross examine them at trial.  He did not want it to appear to the jury that a male lawyer was being too aggressive and disrespectful to the women witnesses. 

That was a great opportunity for me.  I knew that I was selected as a “token,” but I also knew that this was going to be a chance for me to really grow as a lawyer.

 Well, I did grow as a lawyer on that case — in more ways than one.  By the time that the case was prepared for trial, I was pregnant, and I knew that was a problem.  I had to think like the the responsible partner on the case, who had the best interests of the client to worry about.  I knew that if anyone discovered that I would be visibly pregnant during the trial, there was a risk that I would be taken off the case.  Sounds outrageous, I know, but here is why.

The concern was not that I would deliver a baby in the courtroom.   That could be handled by paramedics.  The concern was not that I would let my pregnancy interfere with my responsibilities on the case.  I had proven myself well beyond any such concerns.  No, it was something quite different.  By that time I had learned to think like a trial lawyer, and I knew what I was up against.  The case involved issues of sexual promiscuity, and the real concern was that my “madonna-like” appearance might be viewed as an attempt to draw a contrast with the female plaintiff in order to gain favor with the jury.  Judges don’t like such things.

What to do?  As I said, this was a great opportunity for me, but I also understood the considerations that were not working in my favor.  It was complicated, and we did not have the workplace protections in those days that you have now. 

 What would you have done?  Would you have disclosed your pregnancy and risked forfeiting a great litigation opportunity?  Would you have stayed silent and hoped for the best, knowing that you risked being accused of compromising the case?  Which risk would you have taken?  Like I said, it’s complicated. 

I will let you think about it for a few days.  Follow my next blog to see how it all turned out.