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There's very little difference in the way great men and great women lawyers conduct themselves in the courtroom, U.S. District Judge Norma L. Shapiro told a group of about 500 women at the ABA's Women in Law Leadership Academy in Philadelphia Thursday afternoon.
But there are some things women could do better, the three judges on the panel agreed.
"Women in general lack the confidence that men seem to have in the courtroom," said Shapiro, who sits on the federal court for the Eastern District of Pennsylvania.
And that's a problem. If the attorney doesn't have confidence in herself, neither will the judge or jury, she said. The trick is to exude confidence -- something Shapiro and the other panelists agreed was difficult to do without first some successes under their belt.
So what to do if a lawyer is new to the courtroom and doesn't have the confidence in her skills?
"You pretend. You fake it," Shapiro said, adding that being prepared helps.
She recounted a story from her private practice days in the 1950s at what is now Dechert. She said Mr. Price, as the then-name partner was always known, came back to the office on a Friday afternoon after losing a request for an injunction for his railroad client on an issue that was costing the client $1 million a day.
Shapiro was the only attorney in the office as the male partners all had Friday lunches and the male associates wouldn't eat lunch with her for fear their wives would think they were having an affair. With a sigh, Price said she would "have to do." He asked if Shapiro knew how to take an appeal to the appellate court. Shapiro said she should have said no, but instead said, "absolutely."
A woman in the court offices who herself couldn't get a law firm job at the time helped Shapiro dictate the petition for appeal and got her a panel that afternoon. Price got the injunction, told the newspapers Shapiro had helped him on the case and asked for her help on future cases -- including one in which he wanted to know whether a woman wearing high heels when getting on a bus was contributory negligence.
"So that's how you show confidence," Shapiro told the audience who erupted into applause and laughter.
Former Chief Judge Judith S. Kaye, who recently retired from the New York Court of Appeals to join Skadden Arps Slate Meagher & Flom, said she saw upon her return to private practice after 25 years on the bench a much friendlier environment for women with clients even demanding more diversity on their matters.
But she said the numbers can't be ignored and women can't show confidence in the courtroom if they are leaving the practice of law altogether.
"If you don't stay, then the rest of this conversation becomes kind of academic," she said.
Before becoming a judge, Kaye "endured" private practice for 21 years. When moderator Fernande "Nan" Duffly, an associate justice of the Massachusetts Appeals Court, asked Kaye how she succeeded while being an attractive woman with a soft voice and kids at home, Kaye said the secret is "agonizing privately."
"You don't have to share that do you?" Kaye asked.
U.S. District Judge for the Northern District of Texas Barbara M.G. Lynn said the secret to exuding confidence is finding your own style in the courtroom that you are comfortable with and that isn't one you are trying to adopt from someone else.
Lynn said years ago women would wear these bow ties to try to look like men. After Duffly pointed out for the audience listening via audio that Lynn was in red with a colorful floral shirt, Lynn took off her red high heel to show to the live audience -- but she quickly followed that hers was not an outfit women should wear in the courtroom.
Duffly said that, in surveying her fellow judges in Massachusetts, all said they never remembered a man's outfit but did remember what a female lawyer wore, and usually for the wrong reasons.
Lynn said men wear uniforms, whereas women can go wrong with something too short or too low cut. The goal isn't to be noticed for your outfit, but for your argument. Shapiro said being disheveled or having a noticeable hairdo or piece of jewelry could also distract the jury from your argument.
One jury sent a note to Lynn asking that the female attorney at the end of the table keep her legs together. Lynn said the attorney was sitting inappropriately -- so Lynn sent her law clerk to let the lawyer know.
"Please do not well up in front of the judge," Lynn said, adding that it won't make a tough judge stop peppering you with tough questions.
"You have to 'woman up' when those moments happen," she said.
The judges said women seem to take it personally when a judge challenges their argument.
Although soft spoken, Kaye said the best compliment she ever received during her years as a trial lawyer was when she found out the opposing counsel referred to her in notes as "DL" -- dragon lady.
"I might look like this, but I can be dragon lady, too," she said.
In terms of differences in oral argument styles, Shapiro said "women are more scared of their own voices than men." She said speaking up is important.
When she meets with the court's summer interns, she asks for their name and where they go to school. She said the men will confidently say their first and last name and their law school where as women often barely utter their first names. She said she knows all of these women are smart or they wouldn't have been hired, but said she'd never know it by hearing them talk.
"Speak so you can be heard," she said.
The judges suggested practicing arguments before colleagues to know how to tweak things. Duffly said women should take control of the space rather than stand firm behind a lectern.
Lynn said she rarely sees any attorney come to the courtroom before a trial to learn the space. She said men will ask her if they can leave the lectern when addressing the jury, but women never ask.
"Ask what you want to do," she said. "Be courageous."