Posted by: Jeffrey Owens on Apr 15, 2019


Check Your Backpack at the Door:
Acknowledging and Interrupting Gender Bias

In my last jury trial, I used a story in closing argument to remind jurors of the biases and prejudices that were discussed during jury selection and to invite them to accept those beliefs from the deliberation process. In this story, I explained that when I was a young student at Canfield Middle School, I often wandered across the street after school to the local convenient store known as Walden’s Market.  Given that this store was across the street from a school, the owners were accustomed to the slew of young student patrons, and for that reason had adopted a no backpack policy.  A sign on the front door read “Please Leave Backpacks at the Door."  With the temptation to cheat now sitting outside the front door we were each free to engage in an honest transaction spending whatever pocket change we had on Funyuns, Doritos and Mt. Dew.

At the end of my story, I asked the jurors to imagine leaving their own backpacks outside the door of the jury room and, together, we discussed what items they might consider placing in that backpack – insurance, sympathy, hatred of lawyers/lawsuits, evidence the judge had stricken, etc.  After a favorable and honest verdict was rendered a juror approached me concerned that one of the other jurors had tried retrieving an item from their backpack during deliberations.  Curious, I asked what happened.  He told me that all of the other jurors quickly reminded this rogue juror of my story and asked him to leave it outside.  It worked!

As lawyers and judges what are some of our biases and assumptions that might be better left outside in our backpacks?  I’m sure we can think of many things.  A person’s appearance, political beliefs, religious background, age, etc.  However, given that March is Women’s History Month, I want to discuss one bias in particular, one that is most pervasive in our profession, gender bias. 

A survey conducted by the American Bar Association revealed that female lawyers were eight times more likely than men to report that they had been mistaken for custodial staff, administrative staff, or court personnel.  Furthermore, female attorneys and judges are more likely to be interrupted; 65.9% of all interruptions occurring during oral argument in the U.S. Supreme Court happened to the three female justices – Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.  I was aghast after reading these statistics and thought surely I am immune from such a problem; after all, my two law partners are both women.  Not so…

Recently I attended a local conference that was open to both attorneys and paralegals.  During the lunch break, I approached a table where I recognized several male attorneys.  Sitting at their table were several females.  I said hello and then, turning to the women at the table, asked assumingly how long they had been paralegals.  The answer to the question occurred to me before they began answering – these women were not paralegals; they were attorneys at the same law firm.  While attempting to remove my foot from my mouth, I became acutely aware of an implicit bias I had likely carried with me my entire life.  

It is one thing to have an implicit bias activated, and often there is nothing we can do about it. We are merely the product of our society and cannot stop our brains from making assumptions based on our background.  In the story above, for example, I likely could not have prevented my brain from assuming that the women seated at that table were paralegals.  However, I did have a choice with regards to how I acted on my assumption, which in this case was incorrect.  This choice is known as bias activation. It has been suggested in several studies that to avoid bias activation both the person and the institution must adopt bias interrupters.  Examples of bias interrupters include adopting policies, relying on metrics and data, or simply acknowledging what our bias activators are and checking them at the door.   

This June in Sun Valley, trial attorney, law professor and writer Lara Bazelon will be presenting on the topic of what it takes to be a female trial lawyer.   I am thrilled that Ms. Bazelon has accepted my invitation to speak and I hope you will all join me in attending our June conference.  So why Ms. Bazelon and why now?  Because, only 28% of all attorneys in Idaho are women, and only 16% of the ITLA membership is female.  They are not widely represented in Idaho leadership roles.  For example, in 1983, Judge Deborah Ann Bail became the first woman appointed to the position of district judge.  Justice Linda Copple Trout claimed the position as the first female member of the Supreme Court in 1992.  These milestones happened not that long ago.

The gender ratio in recent years for law schools has greatly evened out and seems to be tipping in the other direction (where the women outnumber the men).  At the recent ISB Trial Skills Academy, in which I had the opportunity to participate as a mentor, there were just as many aspiring female trial lawyers in attendance as men.  To me, this fact bears out that ITLA should be increasing the number of women in our organization, and, as attorneys, we should be looking for opportunities to help female litigators excel.

In his book How to Argue and Win Every Time, Gerry Spence suggests that one of the keys to a persuasive trial argument is to live less in our heads and more in the heart zone.  He contends that overreliance on intellectual superiority and fancy words impedes our ability to effectively communicate with jurors and judges and is akin to "trying to make love with all of our winter clothes on."  There is, perhaps, an advantage given to women when accessing the heart zone, and even more reason to support and encourage female trial lawyers.  In her book Woman in the Nineteenth Century, Margaret Fuller wrote “[b]ut the intellect, cold, is ever more masculine than feminine; warmed by emotion, it rushes towards mother earth, and puts on the forms of beauty.” 

In conclusion, I challenge each of us to take an inventory of the items we choose to leave in our backpacks each morning as we enter our offices, our chambers and our courthouses.  After all, don’t our colleagues, clients and employees deserve the same honest deliberation and consideration that we expect from a fair and just jury?  If gender bias isn’t one of the items neatly packed away in your backpack each morning, perhaps it is time.