Women -- and men, too -- can win with 'smart aggression'

Never before had I heard jurors using a lawyer's credibility as evidence.

But by the end of the "lady lawyer" presentation in our jury research, surrogate jurors concluded that if the "lady lawyer" said it, it must be true.

That was quite a feat by a lovely, young attorney facing a tough, working-class jury. As it happened, we were actually working for the other side, and this research taught us a great deal about the case, which we later won at trial.

It also taught the clients what an amazing trial lawyer they had in their second chair. The first chair was proud as punch, as he had mentored the young woman from the beginning of her career.

I later saw her in court in a different case defending the same client from five plaintiffs at once. Their cases fizzled out one after another.

An international corporation involved in multi-district litigation decided to test its lead trial attorneys in a jury research project. Three attorneys participated: one of national fame, one of regional fame and a woman litigator of no fame. Surrogate jurors rated the attorneys, and while they liked everyone, the woman got the highest ratings and persuaded the largest number of jurors. She made extremely complex matters sound so simple and interesting that jurors felt lucky to be there.

These are just two examples of outstanding presentations by female attorneys I have witnessed over the years. Such inspiring performances make you wonder why there aren't more women in the role of lead trial counsel. It seems like a natural fit for women, given jurors' predispositions.

Jurors believe that women are just as intelligent, articulate and persistent as men. They grew up with female teachers, principals, mothers who advocated for them, journalists and TV lawyers.

In talking to jurors (in jury research and in states where it is allowed), I do not hear them pick on women lawyers more than they pick on male lawyers.

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Occupation, class trump gender

Jurors mistrust attorneys of both genders equally at the start but come to respect them if they do a good job.

Regardless of your gender, to jurors you are first and foremost a lawyer: someone with higher education and higher pay than most jurors, with training in persuasion (or spin) and willingness to represent "bad guys."

I believe that the class divisions and the nature of an attorney's job overshadow gender issues. Sure, there is more to discuss when looking at women's clothing, shoes and hair, but I have never seen a female lawyer's appearance in court change the outcome of a case.

Marcia Clark, whose hair was a much-discussed topic of conversation during the O.J. Simpson trial, did not lose the case because she changed her hair. Nor did she lose because she was too aggressive or not aggressive enough. She lost because she refused to understand jurors' concerns and perceptions.

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Aggression: appearance vs. substance

When jurors reflect favorably on attorneys' styles, they speak about how persuasive, knowledgeable, well-organized, to the point and easy to listen to they are. "Aggressive" is not a characteristic that jurors often identify when they explain why they liked a trial lawyer.

"Aggressive" appears more often as part of a critique, as in, "He was too aggressive." The most aggressive team I ever saw lost "bigly." After the trial, the jurors complained to the judge about the team's badgering attitude.

Some of my most successful consulting experiences had to do with channeling aggression into demonstrations of the opposition's superior knowledge, control and thus responsibility. The best male trial attorneys I saw appeared not the least bit aggressive as they decimated their opposition.

And yet, when we ask our very same real or surrogate jurors what kind of lawyer they would want if they got into legal trouble, they all say that they want an aggressive one. The same person seems to want different things depending on the person's role. As a juror, this person wants clarity and focus. But as a litigation party, the same person wants "a fighting pit bull." When corporate clients come to law firms, they reportedly also ask for the most aggressive litigator.

On an emotional level, prioritizing aggression for a client makes a lot of sense. Being in litigation often feels like war. You want a warrior, a champion, an attack dog - someone strong enough to vanquish your opposition.

I think this is partially why it is so hard for female litigators to win a lead role as a trial counsel. Whether based in fact or not, both women and men believe that women are "naturally" less aggressive, so both prefer males as their champions.

The exception that proves the rule is that defendants with a reputation for aggressiveness (gun and tobacco companies, for example) sometimes look specifically for female litigators, hoping to soften their image.

However, if we unpack what productive aggression looks like in court, we see that it has less to do with aggression and more to do with strategy, attention to detail and acting.

A good trial attorney is not an aggressive person but instead a person who relishes challenge in a battle of wits. Or as one litigation manager put it, "A trial attorney should be nice and polite and then cut your heart out with a spoon while you are not looking."

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Effective aggression

Here are aggressive strategies that work:

- Formulate themes and case strategies that are focused on the opposition's actions, knowledge and choices. Zeroing in on the opposition is both effective and aggressive compared to a more defensive strategy.

- Make it personal. Zero in on responsible players and make them look bad rather than simply going after an entity.

- Be the jurors' advocate. Formulate themes that show them that standing up for your case would be standing up for values important to people other than your client.

- Repeat the same organizing themes throughout the case. They are the slogans that keep your constituency engaged.

- Discuss themes with your witnesses so they find ways to articulate them. Teach them to say "yes" or "no" first and then provide explanations.

- Be a good listener. New opportunities to challenge and exploit another's mistakes arise all the time.

- Train your voice so you can maintain a conversational tone and be heard across the courtroom. This way, you can relate the appropriate emotions that would otherwise get lost if you had to strain your voice.

- Direct aggression often backfires, while smart aggression comes off as a search for truth, a nice conversation and a job well done.

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Boston-based Galina Davidoff is a litigation consultant. She can be contacted at galinadavidoff@gmail.com.

Published: Wed, Jun 28, 2017

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