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Archive for August, 2011

Gender Still Matters, Unfortunately

 

I just finished a trial with Mike McKasy in which we got a $2.2 million verdict against Pierce County and three dog owners who were responsible for a vicious pit bull attack on our client.  In most respects, I am extremely pleased with this result and really had fun working with Mike as a trial “team.”

 

But there is one thing that bothers me about the trial.  Afterwards, when we talked to the jury, Mike was told that he did a good job presenting the evidence.  Even though I took half of voir dire, handled the examination of our client’s surgeon and psychotherapist and the three dog owners, and created and ran the Powerpoint that we used in opening and closing arguments, the jury’s comment to me was that I had the best suits in the courtroom.

 

I’m not saying that I’m not thankful for the compliment; it is nice to know that my attire did not offend the jury.  What was disheartening was that I was clearly being judged by different standards than my male counterpart.  WHY?

 

Women of my generation (“X”) like to think that we are living in an enlightened age, where men and women are treated equally and there is no longer a problem with gender discrimination, sexual harassment, or other forms of gender-based oppression that have plagued female workers in the past.  It is true that women have made some gains in the legal profession.  The number of female law students is now roughly equal to that of male law students; it is also generally accepted that women can have careers as attorneys and judges.

 

On the other hand, some studies show that women have not come as far as they may think.  In a 2010 study by Catalyst, women made up only 32.4% of all lawyers in 2009.  In a survey of the best 50 law firms for women, only 14% had women managing partners, and only 20% of the equity partners were women.

 

Similarly, in a 2009 survey by the National Association of Women Lawyers and the NAWL Foundation, women make up nearly 1 out of every 2 law firm associates, but only 1 out of every 6 equity partners.  Ninety-nine percent of law firms reported that their highest paid lawyer was a man.

 

An even more depressing statistic is that in 2008, women lawyers’ salaries were still only 75% of what male attorneys earned.

 

The problem is not confined to the office.  Perceptions about female lawyers affect juries, too.   Research shows that women who have succeeded in traditionally male positions are assumed to be cold, manipulative, unfeminine business women.  (Think of Glenn Close as the strangely masculine litigator Patty Hughes in Damages.)  The traits typically associated with successful male attorneys (toughness, confident decision-making, leadership skills) are not attributed to successful female attorneys.

 

So how can I as a female attorney convey confidence, competence, and credibility to a jury without completely sacrificing my gender?

 

In a 2008 article published by the American Society of Trial Consultants, Elizabeth J. Parks-Stamm says that “reasserting one’s femininity” is a way to prevent jurors from seeing a female lawyer in a negative light.  A female lawyer who shows that she is helpful, supportive, and caring can block negative inferences about her character.

 

Unfortunately, “reasserting one’s femininity” can cause its own set of problems.  When a woman’s competence is not known, markers of femininity (communality, attractiveness, motherhood status, etc.) can increase perceptions of incompetence.  So a female lawyer concerned about her perceived intelligence may want to minimize her femininity, whereas a female lawyer concerned that she will be disliked for appearing too aggressive may want to highlight it.

 

So what does that mean for me?  Not quite sure….  For now, I will continue to improve my trial technique so that jurors see that I am just as competent as the male attorneys in the courtroom.  I will also continue to treat others courteously and professionally, and show that I am a “team player” wherever possible.  And of course I will be mindful that the jury is still judging my appearance along with everything else, so I will continue to dress in conservative but comfortable pant suits like the ones I wore during my last trial.  Dress Barn, here I come….

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What is a “frivolous” lawsuit?  When people use the word “frivolous” in conversation, it usually means that something is inconsequential or not worth much consideration.  But in a Washington courtroom, the word “frivolous” has a more specific meaning.

A “frivolous” lawsuit has been defined as “one that cannot be supported by any rational argument on the law or facts.”  See Layne v. Hyde, 54 Wn. App. 125, 135 (1989).  This definition goes hand in hand with Civil Rule 11, which requires a party and his or her attorney to conduct a “reasonable inquiry” to ensure that any document filed in court is supported by factual evidence and the law.  Civil Rule 11 also prohibits a party from filing a document for any improper purpose, such as to harass, cause unnecessary delay, or cause a needless increase in the cost of litigation.

Currently, if a “frivolous” lawsuit is filed, Washington state law allows judges to award attorneys fees and costs against the party that filed the frivolous lawsuit.  RCW 4.84.185.  A judge can also award monetary sanctions under Civil Rule 11 or even dismiss the lawsuit under Civil Rule 56.

But statistics show that “frivolous” lawsuits may be less of a problem than people believe.  The National Center for State Courts reported that tort filings steadily dropped by 9 percent between 1992 and 2002.  In California alone, the rate of filings dropped 45 percent.  Assuming that at least some of the tort filings reviewed in this study were “frivolous,” then the numbers suggest that “frivolous” lawsuits are being filed less often.

The incentives for filing “frivolous” lawsuits may also be disappearing.  According to a 2005 study published by the Bureau of Justice Statistics, the median damages awarded in general civil jury trials was only $28,000, down from $72,000 in 1992 (a decrease of 40 percent).  In cases involving motor vehicle collisions, the drop was even greater:  the 1992 median award of $41,000 dropped 60 percent to $17,000 in 2005.  Almost two-thirds (62%) of all winning plaintiffs in 2005 were awarded $50,000 or less.  Contrary to popular belief, only about 4% of plaintiffs were awarded $1 million or more.

So if there are already rules in place to keep frivolous lawsuits out of court, and if fewer lawsuits are being filed, and there are fewer incentives to file frivolous lawsuits, why do we still hear about them

Consider where stories about “frivolous” lawsuits come from, and who they benefit the most:  big insurance companies for the most part, as well as other powerful corporate interests.  The truth is that the fear of “frivolous” lawsuits is great for business.

Jurors who believe that “frivolous” lawsuits are a problem are less likely to award fair compensation for injuries suffered by accident victims.  Juror by juror, case by case, insurance companies and big corporations get the benefit of the misinformation they spread.  The less money they are required to pay on claims, the higher their profit margins.

And they are doing it at our expense.  If we get to a point where citizens are so distrustful of what happens in courtrooms that they can’t give fair consideration to evidence that is presented, we will have lost our right to justice.

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Ladenburg McKasy Durkin, Inc. P.S.
6602 19th Street West, Tacoma, WA 98466
253-777-1900

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