Carol Simpson

Playing “the gender card” in the courtroom

This past week I attended court for the first time in my three years in law school. Actually attending a real court has not been part of any of my courses to date, so this was an event that was particularly interesting. I was attending an evidentiary hearing in federal court, after having written the analysis of an important change of facts in the case. The hearing was before a female judge, and both the plaintiffs’ attorneys are female, as well. When the defendant’s attorneys arrived, there were two men and one woman. It was obvious that their plan was to have the woman speak for the group. It was also obvious that she was the less-experienced attorney of the team, and her male colleagues essentially fed her arguments as the hearing progressed. While every young attorney must have her first chance at first chair, I couldn’t help but wonder if this strategy was playing “the gender card.”

I wasn’t at the first hearings in the case, but I know that the defendants fared poorly. Why would they put forward an uncertain attorney in a case for which they were already behind unless they felt they had something to gain by the assignment of this particular attorney? In this case, it could be a matter of believing that the female judge somehow favored female attorneys, and having a male spokesman would put their team at a disadvantage.

The plaintiffs’ attorneys in this civil rights case are very smart, and well prepared. I’m certain that the government defendants also have smart and well prepared attorneys of both genders. What seems to be amazing is that the legal staff honestly believes that the gender of the lead counsel would make a difference in the outcome of the case. Unfortunately, the attorney who was put forward was not very well prepared, and obviously ill-at-ease. Every time the judge would ask a question of the defense, this attorney had to turn around to ask one of her male associates how to respond.

Had she been able to weather the hearing on her own, I might not even have noticed that there were three women as key players in this legal drama. I’m used to women in influential positions, and don’t usually take notice unless there is something odd. Her obvious discomfort with either the case or the venue drew my attention.

I know that a defendant wants to get every advantage possible in court, but I find it hard to believe that putting forward an ill-prepared lawyer simply because she wears a skirt is the type of advantage they expected. The judge was impatient with the constant consultation, and eventually the male attorney in the second chair began answering the judge’s questions. Not only did this plan backfire in that it failed to curry the favor of the judge, it put their own case at a potential disadvantage. I’m quite sure it did little for the confidence of the woman attorney.

I’m old enough to recall the brouhaha generated when the race of the opposing attorneys was in issue in the O.J. Simpson trial. The legal strategies were dissected ad nauseum. Since then, “playing the race card” has become the hallmark of low-class legal strategy. When will “playing the gender card” achieve the same status? Have women not been used as pawns long enough?

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