Co-Authors: Lisa Dunkin and Alexis Knutson
This is the second article in a series on women in trials by Corporate Counsel and members of Faegre Drinker Biddle & Reath’s products liability and mass torts practice group. Part one discussed best practices for multi-law firm trial teams and is available here.
What does a lawyer look like? If you ask a group of prospective jurors that question you might hear references to business suits or briefcases, or you might hear lawyers described as serious or intimidating. But the legal industry is striving for a much different answer, and an answer that applies equally to people of varying genders, races, sexual orientation and backgrounds—indeed, the industry is striving to recruit, retain and promote lawyers that jurors will agree “look like me.”
Now more than ever, corporate litigants want representation that embodies the spirit of diversity. Jurors want to see and hear from lawyers who look like them, and litigants want representation that brings a diverse set of experiences and backgrounds into the courtroom. Particularly when representing a large corporation, the need for a diverse trial team is paramount to making a connection with the jury. In addition to aligning with a company’s goals for diversity and inclusion, a diverse trial team may help to humanize a corporation and combat the opposing side’s characterization of a large corporate defendant as “faceless.”
The legal industry has come a long way in accepting and embracing diversity, although more work should be done to reach a place of equity in the industry. Female litigants, for example, are all too familiar with the gender biases facing women in the courtroom—from discussions of Marcia Clark’s fashion style during The People v. O.J. Simpson trial to countless war stories from women attorneys who have been mistaken for court staff or administrative personnel. These historic experiences illustrate the unique challenges facing women in the courtroom, but with every challenge comes an opportunity—to embrace the very characteristics that set women apart and utilize those skills to listen to and connect with others on a deeper level.
By way of example, many women have an inherent ability to utilize communication and interpersonal skills from a wide continuum—from being assertive and direct, to evoking emotion and forming a genuine connection with others. “Research shows that humans’ need to form connections is neurologically hardwired into our brains. But people don’t just want any connection, they want authentic connection,” says Alexis Knutson of Tsongas Litigation Consulting. Women have the opportunity to capitalize on their inherent communication and interpersonal skills to create the authentic connection jurors want to feel during a trial.
Indeed, the characteristics typically associated with women—ability to connect, empathy, understanding—can benefit trial teams in all aspects of a trial, from the opening statement to the examination of important witnesses to the closing argument. But a key component of trial that can greatly benefit from the skills that come naturally to women arises even before opening statements—voir dire. As any good trial attorney knows, voir dire can present a unique opportunity (and really, the only opportunity) to engage with jurors in a less formal setting, where a free flow of information is not only permitted, but encouraged (depending on the jurisdiction, of course). A well conducted voir dire is vital to the success of any jury trial, not only to enable the parties to select an appropriate jury, but also so the trial team can make a good first impression and gain the attention and trust of the jurors. “Soft communication skills like showing true empathy for the other party while still passionately defending your own client, encouraging open and honest responses, and allowing jurors to feel comfortable speaking up are all skills that women hold in spades,” says Knutson. “Having a female attorney lead voir dire will allow her to capitalize on those skills to learn the most from the jury.”
With respect to the first goal of voir dire—selecting an appropriate jury—a woman may be able to connect with and gain the trust of jurors sooner and with more ease, resulting in jurors opening up about key issues that will help the parties evaluate the jury on a deeper and more thorough level. Women tend to communicate in ways that express inclusion. Using the shared “we” to describe a shared event brings others into the conversation. “While I would not necessarily recommend a female client use ‘we’ to describe work only she did, using ‘we’ to describe the trial team shows unity and cohesion,” Knutson says. It is also important to ask open-ended questions and do more listening than talking during voir dire. According to Knutson, “This is the same advice we give both male and female clients, but are skills that we’ve seen come more naturally to women.”
Women also tend to have a larger capacity for empathy, which means women have a greater ability to understand and share the feelings of others. “Women are better able to reflect the experiences they hear from jurors. Showing genuine empathy goes a long way toward forming the authentic connection we hope for during voir dire,” Knutson says. The empathy factor means that jurors may be more willing to open up to women, particularly when talking about sensitive topics, such as personal or emotional matters. Thus, having a woman make the introduction and lead the first interactions with jurors can establish goodwill that will carry over into trial.
Of course, the connection made during voir dire will be of little to no value if that connection is lost during trial. As the trial progresses, the presence and active participation of the female attorney who conducted voir dire will serve to remind the jurors of the reasons they trust and feel connected to the trial team (and therefore, the party represented by that trial team). It would be a mistake for a female attorney to conduct voir dire and then take a backseat or disappear from the trial altogether. Jurors are perceptive—they will notice the absence of the voir dire attorney, and if they formed a true connection with that attorney (which, after all, is the goal), they might even hold her absence against the trial team and party.
The above information and discussion illustrate the benefits of diverse trial teams—to bring different perspectives into the courtroom, to connect with jurors, witnesses, and the judge, and most importantly, to celebrate and embrace the differences between all of us. At the heart of this message is an important reminder (and perhaps, a caution): be yourself. Trial lawyers, and in particular, women, may feel tempted to play a character that fits the perceived expectations of the jurisdiction, the jury pool, or the opposing lawyers in order to attempt to form a connection with the jury. This desire comes from a good place—wanting to connect with jurors and show that you are just like them—and is for a good reason. But the more important goal should be to present your authentic self to the jury—avoid trying to fit a mold of what you presume the jury expects, and instead capitalize on the high-credibility and open communication skills that come naturally to women leaders.
Making the case that female attorneys should lead voir dire provides just a glimpse into the many benefits that come from the diversification of trial teams and the diversification of the legal industry in general. With litigants and their outside counsel working together to honor and promote the growing diversity of the legal profession, the answer to our opening question “What do lawyers look like?” may very well become, “Lawyers look like me.”
Lisa Dunkin is the vice president & associate general counsel, litigation at Zimmer Biomet. Tarifa Laddon is a partner at Faegre Drinker Biddle & Reath in their products liability and mass torts group, and Lexi Fuson is an associate in the group. Alexis Knutson is a consultant with Tsongas Litigation Consulting, Inc.
Reprinted with permission from the September 12, 2022, online edition of Corporate Counsel © 2022 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or firstname.lastname@example.org.