Navigating Through The Art of Litigating: Style Conscious
By Tina Georgieva

“Man is defined as a human being and a woman as a female - whenever she behaves as a human being she is said to imitate the male.”

- Simone de Beauvoir

While I would not characterize myself as a feminist, I have always had a very deep interest in the ‘social condition’ and the inherent differences in behavior between men and women.  Naturally, my curiosity led me to the works of Ms. Simone de Beauvoir, who adopted existentialist philosophy in advancing her theories of the intrinsically unequal position of women in society.  Although the concepts she presented were intriguing theoretically, I must admit that, in reality, I have always preached that a combination of determination and hard work trumps all.  Some will probably think that my optimism crosses into slight (or not so slight) oblivion, and to a certain extent, you might be right.

So far, as a practicing first-year associate, I cannot say that I myself have felt the obstacles of being a woman in the male-dominated world of litigation.  I consider myself lucky to work among very successful litigators and to have mentors, men and women alike, who treat me as their equal.  Considering their experience and recognition in the legal community, I was pretty amazed to find such comity in an area of law that has a reputation for extremely goal-oriented, self-centered, superstar-type personalities.  That is not to say that women in the industry, generally, do not have to overcome gender stereotypes, as subtle as they may be.  There have been a number of publications in recent years commenting on those issues, such as “The Attorney Gender Gap in U.S. Supreme Court Litigation”, “NY Judges Want Answers on Lack of Women Litigators”, and “A Different Model for the Success of Women Who Try Cases.”

It seems that Ms. Beauvoir might have been onto something.  Is it the case that the term litigator has an inherent male connotation, and are we – female litigators – just imitating our male colleagues?  If that is in fact the reality, then it is no surprise that simply adopting the style of the male litigator will not work for most women.  For example (and I am not making a generalization about some kind of nature vs. nurture behaviour theory), I can think of a number of personality traits that are seen as male-typical, and if displayed by a woman, might brand her as the B-word. I realize that it is just a matter of time before I, too, face some kind of subtle gender bias whether it comes from a judge, opposing counsel, a client, or even a juror.

With that long prelude, this is how I got the idea about Navigating Through the Art of Litigating. I need to find a way to not only gain experience as a litigator, but to also develop my own style, as a female litigator.  So, each month I’ll be sharing the ways in which I attempted to achieve my goal and I will be reflecting on the lessons that I learned from each of those experiences.

This month I attended a practice seminar held by my local bar association.  The panel of speakers included practicing attorneys and judges’ staff attorneys.  It was a good mix of insight into the procedural, behind-the-scenes functioning of the court, and important practice pointers that one would not find in their copy of the Rules of Civil Procedure.

The one specific piece of advice that I will share from that day has to do with one’s style as a litigator, and the strategic choices we must make along the way to improve our chances of success at trial.  During the break, two of the attorneys were catching up and I overheard one of them say to the other:  “If you’re doing things right, you’re not spending a lot of time in court.”  I must preface my reaction to this statement by saying that, like many type-A personalities, the last thing I want to do is admit my flaws, but in order to be as candid as possible in my learning process, I will have to do just that.  This was possibly a product of my inexperience, or my tendency to be rather reactive to things I disagree with, but I immediately scoffed at that statement (in my head, of course).  Then I wrote it down, as an example that I could use in one of my blog entries to advance the theory of the ‘dying breed of trial attorneys.’  For those of you who might have figured out where my reasoning went wrong, you will be glad to know that I also figured it out and it takes me to this month’s “litigation how-to” lesson:  the correct strategy is indispensable to achieving success at trial.

This might sound simple enough, but how does it relate to spending less time in court?  The speaker was referring to his own style and how that factors into his trial preparation strategy.  In his opinion, a lot of ‘face time’ in court over the course of pre-trial proceedings is not good for an attorney’s reputation, and consequently – for his chances of success at trial.  For example, if an attorney shows up in court, week after week, with the intent to bicker about insignificant things, he/she might gain a reputation for having a tendency to overstate and overreact.  On the other hand, if an attorney tries to resolve issues with opposing counsel by extrajudicial means, and seeks the court’s assistance through motions only when it is actually necessary, then by default – it makes the judge think that the issue before him/her might be, in fact, significant.  That does not guarantee success, of course, but it is a point in the plus column of that attorney’s reputation.  It is, like I said, a personal style and some people might disagree with this approach.  For me, it gave me food for thought in terms of how I want to be perceived by judges and other attorneys, and whether an aggressive-type style would be of benefit or detriment to my practice.  The underlying lesson is that an attorney’s reputation in the legal community does not exist in a vacuum, but is a key factor that could influence the success of one’s cases.

Next month, I will be participating in a Motion Day Mentoring program at the Michigan Court of Appeals.  I will observe arguments on appellate motions, which will be followed by an interactive discussion with judges who will share their insight into what approaches worked and what to avoid, so stay tuned for my February blog entry.  In the meantime, what do you think keeps women from being equally present in the courtroom?