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There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says ‘Morning, boys.  How’s the water?’  And the two young fish swim for a bit, and then eventually one of them looks over a the other and goes ‘What the hell is water?’ – David Foster Wallace, Kenyon Commencement Address, 2005 (later published as This is Water)

Where is the line between what we should and shouldn’t ask of the female members of our bar?  What responsibilities do and don’t people in positions of power have to help women lawyers combat gender biases and outright sexism?  In a continuation of a conversation that started a year ago about what the legal profession – including the judiciary – can and should do to reduce gender bias against women litigators, the Women Attorneys Advocacy Project hosted another important panel called “When Judges Talk, Lawyers Listen.”

The panel centered on what lawyers can do to gain trust and win arguments in front of judges and juries – from a pithy, adverb-less brief to a conversational oral argument to inconspicuous fashion.  That’s right.  The panel of judges unanimously agreed that odd or sloppy outfits can detract from lawyers’ arguments.  While some are critical of male lawyers who fail to put on the minimum blazer or suit jacket, the buzz of criticism around courtroom dress tends to land on women lawyers.  People tend to pay more attention to and be more critical of women’s dress. 

To illustrate, Chief Judge Hamilton recounted that when a woman litigator in her courtroom wore the same two suits on alternating days during trial, jurors noticed and even asked the judge why that lawyer was wearing the same two suits.  But when men wear the same two suits, they can get away with it.  Unlike in previous judicial panels on the topic of fashion, Judge Hamilton did not tell women lawyers in the audience what (or what not to) wear.  She simply drilled in the fact that jurors pay attention to what you wear, especially if you are a woman. 

After the panel, I was relieved that the discussion did not evolve into yet another crash course on how to dress for court and instead focused on the point that jurors (and law clerks) still to this day talk about what we wear.  To minimize distractions to our arguments, we should probably take it upon ourselves to dress inconspicuously. 

But my friend pointed out that one way the judiciary can and should help women combat this form of sexism is to call out their jurors and law clerks the next time they quibble with a woman litigator’s clothing rather than the substance of her argument.  This behavior is sexist in that it holds women and men to different expectations and gives men much more leniency – in the amount of effort, budget, and attention they need to spend on their outfits in order to not get smack-talked and in order to get their arguments heard.  These behind-the-scenes comments implicitly demand women to do more to get heard and respected.  By commenting on women attorneys’ outfits when they strike us as odd, flashy, or conspicuous, we are requiring them to be ever more attentive and careful about their dress, when that same energy and attention can instead be focused on preparing their substantive argument. 

This form of sexism is a problem.  But the larger problem that really strikes me is that sexism has become so pervasive that it has sometimes become invisible.  I had not thought of the occasional juror or law clerk comment about a litigator’s outfit to be “sexist” or creating and perpetuating kind-of-very-important gender inequalities until my friend said the equivalent of, “Morning, boys.  How’s the water?”  In so doing, she helped me realize the pervasiveness of sexism in our community and our default tolerance of it.  Like water to fish, sexism has surrounded us that we don’t even see it as reprehensible or outrageous or something we must collectively stop anymore. 

As Wallace said in his 2005 Kenyon commencement speech, "The point of the fish story is merely that the most obvious, important realities are often the ones that are hardest to see and talk about."  His point applies here.  

Edited:  January 6, 2018