by Tyeesha Dixon

Ever wonder if the rumors that male law students get cold-called more frequently than female students is actually true? Or whether firm hiring partners will actually dock points if you wear pants to an interview?  ”Working your Womanhood” highlights common (and not-so-common) issues that women face in the legal arena, and effective ways that women have coped with these issues.  From the classroom to the workplace, I’ll explore the experiences of women in the field who have dealt with balancing their femininity with their legal careers.

Effective cross-examination takes particular and specialized skill—a delicate balance of aggressive questioning and knowing where to draw the line with a potentially sympathetic witness.  But do female attorneys face an extra hurdle to overcome when it comes to giving a good cross—just because they’re women?  Two experienced female litigators–Mary Kennedy and Esme Caramello–give their take on the topic:

Q:  Have you encountered challenges in conducting cross- examinations that you would consider specific to women litigators?

Kennedy: I do not think I have encountered challenges that I would consider specific to women litigators but I could have been oblivious to gender-based treatment.  I was lucky enough to get most of my litigation experience at the Public Defender Service in Washington D.C.   PDS was a wonderful place for any lawyer to learn and grow and perhaps was particularly special for women attorneys.  The entire time I was at PDS, the agency was headed by a woman.  My first trial chief was Michele Roberts, a wonderful mentor, role model and now friend.  She is the best trial attorney I know and I was fortunate to learn from her.   My training director was Kim Taylor-Thompson, another incredibly talented, smart and strong attorney.  I was surrounded by examples of effective lawyers who were women.

Caramello:  Women can find it more difficult to assert power over a witness without alienating the trier of fact (or the witness).  We can also have a harder time finding positive role models, since the most well-known trial lawyers, real and fictional, have predominantly been men.  In some cases, judges or jurors may have lower expectations for women lawyers than they do for male lawyers.  All of these challenges, however, can be overcome by effective advocacy over the course of a trial.

Q:  Do you feel that jurors perceive you differently than they do male attorneys?

Kennedy: I definitely think that jurors perceive me differently from male attorneys and that can work for me in some cases and against me in others.  Jurors’ perception of me are as random as human nature.

Caramello: We can’t avoid the fact that men and women are perceived differently by jurors and everyone else.  A hostile question or tone by a woman might be perceived as shrill or mean, while the same question by a man might be perceived as smart and powerful.  On the other hand, women can be perceived as more appropriate questioners for certain witnesses, like those who seem vulnerable (because of the societal expectation that women are more caring) or bullying (because the jury may sympathize with a female lawyer who is seen to be under attack).  The key is being aware of the stereotypes and trying to adapt while not overplaying their importance.  A well- prepared, skillful woman will fare just as well as a similarly situated man.

Q:  Cross-examination naturally requires aggressive questioning.  Over the course of your career, how have you dealt with stereotypes that aggressive female lawyers are bitchy?

Kennedy: With charm and grace.

Caramello: Refusing to be a pushover and being “bitchy” are two very different things, so finding a strong, assertive style somewhere in the middle is key.  For me, this means keeping my emotions in check, not getting irritated at the witness, and making sure my face and posture communicate a sense of calm.  Any lawyer, regardless of gender, can use a calm, straightforward style to best most hostile witnesses, who themselves lose credibility as they squirm and fight.

Q:  How did you develop your personal cross-examination style?   Why do you think it has proven effective?

Kennedy:   I LOVE cross-examination.  By the time you reach the courtroom, you know your case backwards and forwards.  I work and rework each cross-examination before the trial starts and as the trial progresses.  By the time I stand up to face the witness, I know exactly the points I hope to make.  The better prepared I am, the better I am able to respond to the witness’s answers, including the witness’s tone, attitude and demeanor.  Over the years, I have learned that I am much more effective when I keep things short, simple and sincere.  The louder the witness or opposing counsel, the quieter I try to be.  When I show the fact-finder that I will be fair to the witness or other lawyer, I gain credibility.

Caramello: I learn well from watching other people, especially other women lawyers, in action. I also highly recommend the mock trial programs run by NITA and many bar associations.  They provide a great opportunity to experiment with different styles in a relatively low stakes environment

Q: If you could give one tip to young women litigators regarding cross-examination, what would it be?

Kennedy:   I firmly believe the best way to control a witness is with short, short, short questions.

Caramello: Find your own style and stick with it with lots of practice.  There is no single right way to do a cross-examination.  If you are comfortable, you will connect with the witness and the trier of fact and be effective at using the examination to tell your client’s story.

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Mary Kennedy is Trial Skills Counsel at Arnold & Porter LLP.  Ms. Kennedy has over 25 years of litigation and training experience. Before joining Arnold & Porter, Ms. Kennedy served as the Litigation Trial Mentor at Finnegan, an intellectual property firm in Washington DC.   Prior to that, she was the Director of the Federal Defender Training Group.  She spent 11 years at the Public Defender Service for the District of Columbia (PDS), where, during her last four years, she was Training Director.  Ms. Kennedy has taught full-time at the Georgetown University Law School Criminal Justice Clinic, and has been an adjunct professor at George Washington Law School.  Ms. Kennedy now teaches trial skills to the Prettyman Fellows.

Esme Caramello serves as Deputy Director for the Harvard Legal Aid Bureau, where she also works as a Clinical Instructor teaching trial advocacy skills and ethics to second and third year law students in the classroom and in context in the Bureau’s poverty law practice.   After graduating from Harvard Law School in 1999, Esme moved to San Francisco to work as a litigation associate at Baker & McKenzie.  She then clerked for U.S. District Court Judge Charles P. Kocoras in Chicago. After serving five years as a Chesterfield Smith Community Service Fellow and litigation associate at Holland & Knight, Caramello joined the Housing Unit at Harvard Law’s WilmerHale Legal Services Center, and then Suffolk Law School’s Housing and Consumer Protection Clinic in Boston.

by Victoria Baranetsky

Stories of Ms. Law: Every lawyer loves a good story. From the complaint, to the brief, throughout the closing argument and up until the final decision, everything begins with the facts, the details, the story. Everyone knows exactly what happened to Ms. Palsgraf on the train platform, Dred Scott after he crossed state lines, and Captain Thomas Dudley and first mate, Edwin Stephens after their twentieth day marooned at sea. Certainly, lawyers extrapolate, twist and turn the facts when applying them to procedural and theoretical rules but the story remains the starting point, that wields undeniable power. Similarly, feminism has held out stories as having a primary importance. The entire feminist movement of consciousness raising in the 1960s and 70s applauded women for sharing their individual stories, believing they were the key to social change. In this blog, as a former journalist, a former storyteller, I hope to tell the real life stories of women in and related to the law and through their narratives revive a form of consciousness raising.

Heroes matter. As a rising 3L about to enter the legal profession, I have been on the search for a female legal hero, but the search has been difficult. All too often the “greats” in law have been men and the future prospects don’t seem to be much more encouraging. Certainly, people and their heroes need not be of the same sex. For example, Ruth Bader Ginsburg’s self-proclaimed hero was Justice John Marshall Harlan. But the more similarities you share with your hero, sometimes the more empowering it can be, especially when those similarities are immutable characteristics. For instance, it is undeniable that the election of President Obama, to the highest position in our country, was important for the African American community. President Obama serves as a hero to that community, in particular, in addition to others. Similarly, women in the law may benefit from looking at the highest positions in their field and seeing them filled with persons who share their same ethnicity or gender. The concern, however, is that women are nowhere to be found at the top.

The importance of heroes is undeniable; they aren’t just for the fledgling attorney. Even the most seasoned veterans within our profession have icons that provide them with a standard to live up to. For example, in his book, Letters to a Young Lawyer, Alan Dershowitz lists his personal heroes: Clarence Darrow, Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter, Hugo Black, William O. Douglas, Thurgood Marshall, and William Brennan.

This list is no great surprise; these are the names that are often cited in articles, award dinners, law books and on courthouse buildings. They are the paragons of our profession. And, they are all men. Dershowitz advises students to be careful not to idealize their heroes. Because hero-worshiping, he explains, always leaves one devastated when one’s hero’s imperfections are inevitably revealed. However, for many women the concern is not whether they will become disillusioned with their hero, rather, the concerns lies with whether they can even find one.

Although the nation’s law schools have their classes almost evenly split between men and women, something unusual happens to most women after they begin to climb into the upper tiers of the legal profession. They disappear. For example, women compose only a meager 17% of partners at major law firms (only slightly higher from the 13% in 1995); 24.7% of the federal bench (19% of all Supreme Court clerks); and a mere 29.3% of law school professors (even though 53% of assistant professors are females). In fact, according to an American Bar Association study, women only compose 31% of all practicing attorneys. This phenomenon is in no way endemic to the legal profession but is unsettling all the same.

Whatever the reasons*, the paucity of women in the highest tiers of our profession is not a new observation. But what is new, what this post argues and reveals, is that having fewer women at the top creates not only a disturbing asymmetry within the profession with fewer female attorneys but more importantly it creates a dearth of female heroes. For the past decade, studies, speeches, and articles have repeatedly reported on the phenomenon of the “glass ceiling.” Other articles catalog the sticky floors, clogged pipelines, and on-and-off ramps that women face today – creating fewer female attorneys. This most detrimental game of chutes and ladders, that women face not only offers less legal brain power to the world, means less reached potential, and less satisfaction for women (Sylvia Ann Hewlett- finds that 93% of women who have left the labor force want to return) but importantly, and often gone unmentioned, it means fewer idols for women to look up to. Without heroes, there is no script, no story to imagine for yourself. So without female heroes, future women professionals are less likely to reach the top. It is cyclical.

In 1971, the magazine ArtNews published an essay whose title posed a similar question for the field of art history. The essay, “Why Have There Been No Great Women Artists?” written by Linda Nochlin, explored the reasons why this shortage existed within the realm of art and “eventually spearheaded an entirely new branch of art history.” Nochlin argued that art education was generally gendered-male and that “the entire romantic, elitist, individual-glorifying, and monograph-producing substructure upon which the profession of art history is based” systematically precluded women. But Nochlin’s most important point was not just why there were not great women artists but what effects that had. Without any great women artists, Nochlin argued, budding female artists had no one to look up to – and frame their own career on. So the question became a self-fulfilling prophecy. The same can be said of law.

In law, certainly, some great lawyers exist. The most popular example is the current triumvirate on the Supreme Court: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Additionally, you could name another select few: Myra Bradwell, Sandra Day O’Connor, Constance Baker Motley, Janet Reno, Hilary Rodham Clinton, Diane Wood, Catharine MacKinnon, Pamela Karlan and Elizabeth Warren. But, these are the exceptions, not the rule. Few women make it to that tier. Moreover, just as when Nochlin was writing her piece, a few great female artists had existed then, but they were sparce. For example, Mary Cassatt, Frida Kahlo, Georgia O’Keefe and Berthe Morisot had all made their claim to fame by the time Nochlin wrote her piece – but the bounds and reams of paper written about the many more great men dwarfed these women in comparison. So too, exists the story for the legal profession.

Like Nochlin, I refuse to admit that men have some inherent proclivity for “genius,” rather I believe, “specific and definable social institutions… academies, systems of patronage, mythologies of the divine creator, [lawyer] as he-man or social outcast” must have a hand in why there is a want of women at the top. Whatever the reason, it is time for a change. I need me a hero.

* Trying to understand these statistics, observers have enumerated several potential causes. For years, before the last half-century, animus was the defining factor. For example, Justice Brennan stated in the sixties that he might have to resign if a woman ever got nominated to the Court. (He also refused to hire female clerks). But this attitude has all but receded from the mainstream view. Only extremists on the fringes still hold such ludicrous perspectives and are often ostracized if they choose to voice them. Instead, today, firms compete for female attorneys and law schools boast their equal admission rate. So other factors have been suggested. First, far fewer women than men apply for jobs in the legal market. Second, childcare is of course cited as a major reason. But third, some people explain it is simply because “[w]omen self-promote in a different way than men, and because women don’t get their success acknowledged in the same way as men who more aggressively self-promote.”

I was very impressed by the quality of the discussion and the depth of experience of the Panellists as well as the Moderator on the Women in Peacekeeping Panel organized this week by WLA focused on UN Security Council Resolution 1325. Having been a panellist earlier in the day I realized quite dramatically how difficult it is to structure a coherent, engaged and useful panel for all concerned and how much preparatory work goes on behind the scenes perhaps for a fairly long time before any panel actually faces an audience. After all, the fact that the audience, mostly composed of law students, was expected to attend a panel over the course of two hours in the middle of November late in the evening was a big-ask to begin with. The fact that most of the audience actually ended up staying till the end and then engaged in informal discussions with the Panellists as well as the Moderator long after the formal discussion had closed is a testament to how useful the audience found the panel discussion.

In trying to reflect on what made the panel so very good, one of the things that comes to mind is the sheer depth of diverse experiences that the panellists represented and on which they could draw to tell a coherent story. The other thing that goes perhaps to preparation before hand is the fact that the Moderator, Marcia Greenberg had asked them to speak to three points to which each Panel added more than overlapped. This had the effect that with each Panellist who addressed a particular issue the audience learnt of a new piece of the puzzle in which laws, norms, social cultures and systems of dominance overlap and co-mingle in complex ways that must be understood separately as well as holistically. The panellists did a very good job of unpacking these strands. One of the key tensions which they were able to tease out but which would have benefited from more discussion is that the fact that the framers of the Resolution were focused on the actual need for peace as broadly understood in the sense of freedom from war; in tension with this noble goal in the call for greater inclusion of women in for instance the police force as well as their inclusion in peacekeeping operations; the problem with this idea of course is that if women are trained for instance as part of a police force in much the same way that their male counterparts are trained we are not addressing the core issues of culture and social structures and the processes by which people are co-opted by a system of domination. In an international system of nation states upon which the UN system rests, this means that responsibility ultimately rests on national states to retool their training programs in ways that are more focused on building peace. In the final analysis perhaps we should be calling on retraining both women and men in new and more peaceful ways.

By Erum Sattar

On September 29, 2010, WLA presented a panel discussion Women in Law in My Country. The panel was comprised of LLM and SJD students representing various jurisdictions including Kenya, Hong Kong, Georgia, Pakistan and Germany. Apart from providing a brief introduction of the legal system in their respective countries and statistics regarding the position of women in the profession, the panelists highlighted difficulties impeding or harnessing equal rights for female lawyers, bringing to light the fact that regardless of territorial boundaries, women in the legal profession still face discrimination and unequal treatment compared to their male counterparts, though to different degrees. The panel closed with questions from the floor.

Special thanks to our panelists, Evelyn Tsao, Andrea Ernst, Erum Sattar, Aminu Gamawa and Maia Jaliashvili.

On November 12, 2010, WLA hosted a JD/LLM networking dinner giving JDs and LLMs an opportunity to connect and network. The dinner was especially meant to give JDs who are interested in working abroad over the summer an opportunity to talk to LLMs who come from the region where they want to go. With more than 80 guests the turn out was great.

Many LLMs who came to the dinner are happy to share information about their country. Following is a list with their contact details:

About The Women’s Law Association

The Women’s Law Association is an organization of women supporting women at Harvard Law School.

The WLA’s goal is to provide support for the women at Harvard Law School in academic, professional and personal respects. From career development, assistance and support for first year students, to social and volunteer activities, the WLA strives to be a positive factor for all students at Harvard Law School.

All individuals at Harvard Law School are welcome to participate in WLA activities and programs. Join us at one of the upcoming events or contact a board member if you have a particular question.

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Want the latest information about WLA events? Become a fan of the WLA’s Facebook page, and you’ll receive the inside scoop and reminders about our events throughout the year.

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