I asked Senior United States District Judge John Kane (D.Colo.) his thoughts about Judge Jack Weinstein’s plan to push law firms to allow younger female lawyers the opportunity to speak in court. This is his response:
Just about anything Jack Weinstein does or says is great in my book. I admire him for this as well as a host of other actions he has taken. I must state, however, that I haven’t noticed a paucity of female lawyers in the cases before me. That is probably because our U.S. Attorney’s Office and our Federal Public Defender’s Office are about equally balanced between women and men. We also do quite a few Section 1983 cases because Colorado has the largest federal prison complex in the country and a very active and dispersed state prison system.
Many of the defendants are represented by insurance defense firms that have a fairly large complement of women, and so do the municipal governments and the state Attorney General’s office. Our Criminal Justice Act panel is comprised largely of former public defenders and I don’t see any gender disproportion there either.
Where I do see a disparity is in the large, multi-state law firms, principally those defending class actions and products liability cases. Recently, however, I’ve noticed an equal distribution, or perhaps a distribution slightly favoring females, in the rising number of patent cases we are getting. In sum, I think the kind of practice is a determinative factor as well as the size of the law firms involved.
Where there is more than one lawyer representing a party, I think it is almost always the case that the older lawyer leads and the younger lawyer fills the second chair, irrespective of gender. But that is to be expected.
We are all aware that law school enrollment has changed over the last twenty years to increase the number of women graduates. Our two local law schools are not unusual in having close to a 50/50 distribution. The University of Denver presently has more women than men students, about 53/47 %. As more women come into the bar, we will see an increase in their court appearances, but it takes time and experience, and I don’t think that is gender influenced. (When I went to law school in 1958-60, there were only three women in our class and no more than ten in the entire student enrollment.)
As a matter of fact, I am presently trying a 3 to 4 week SEC insider-trading case, and the defendant is represented by two excellent female lawyers. The SEC is represented by three men and a female paralegal.
What I notice more than gender disparity is the inability of lawyers to speak clearly and audibly. The younger male lawyers tend to mumble and talk into the floor, and their female counterparts tend to speak softly and not project. Also the frequency level of female voices tends to be slightly higher than that of males, so those of us who do not pick up as well on the higher frequencies have difficulty.
I think when the law schools stopped the tradition of students standing when called upon, a great deal of damage ensued. Also, high schools and undergraduate schools no longer require courses in public speaking. Even sadder to say, the law schools generally had oratorical contests, but they have morphed into more moot courts and mock trials. Those faculty members trained in oratory, debate, etc., no longer participate. As I frequently tell lawyers who do not stand and speak up, whether male or female, if the jury or I can’t hear you, it really doesn’t matter what you have to say.
The best women lawyers appearing in my court tell me they have “experience singing, acting or public speaking.”
Based on what Judge Weinstein is doing, I think I will say at the beginning of motion arguments that I want to hear from more than one lawyer per side and will welcome the opportunity to listen to the women lawyer sitting in the second or third chair. I have to think more about this, but I’m reluctant to say much about who speaks in a trial. Post trial, I will have no trouble in advising counsel that the young lawyer should be given some witnesses to examine and point out which witnesses would be appropriate for such on the job training.
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I’m old, but even I didn’t have high school or college classes, required or otherwise, in public speaking.
Did the good judge go to school with Cicero or Seneca?
Of course, there’s Toastmasters where the aspiring lawyer can master beginning cross-examination by noting that he just flew in from out of town and damn his arms are tired. (Disclosure: My entire connection to Toastmasters is that I was once an invited speaker at a luncheon.)
I’m much younger than you. Much, much younger. You’re really old, but I digress. I never had a class in public speaking either, but I never address the court without standing, and it’s always been clear when speaking to the judge or jury that you must be capable of speaking in a voice that can be clearly heard and understood. Did I mention you’re really old?
Stop picking on Gamso. Just because he’s older than dirt doesn’t mean he deserves your obloquy.
I thought it was more of a panegyric, myself.
Tread lightly, padawan. I have dirt older than you.
Huh. The lack of such classes surprises me, but I guess it shouldn’t.
Like many of my classmates I took an elective called “Logic and Oral Speaking” in high school. The class was about how to listen to an argument, then form and present a cogent counterargument. It’s one of the best classes I’ve ever taken, and I routinely use the lessons it taught me in technical discussions.
One of our current crop of snowflakes wouldn’t have lasted five minutes in there. People were routinely asked to present arguments with minimal preparation, and getting caught without evidence tended to be treated rather harshly – more so by the other students than the professor.
Of course this was at Groton School, which as we’ve already noted is a world unto itself, but I guess I’ve always assumed that other “good” schools had comparable classes.
Kinda sucks that apparently they don’t.
A final bit of trivia: A guy named Gula taught the class, and he was a true polymath: Classics scholar, concert pianist, for many years the author of a widely distributed general knowledge test, etc. Interacting with so many good minds is one of the pleasures of being in a place like Groton, but interacting with a great one like his was truly something special.
You were privileged. I was not as privileged. I wish I was. Then again, the art and science of debate is underappreciated these days, because reasons.
I did go to an exceptional (albeit public) high school. One with, among other things, a nationally ranked debate team. My college, too, had a nationally ranked debate team. But those were extra-curricular activities, not classes.
I did not indulge. I was too worn down from carrying around those clay tablets we had to use in those days for taking notes.
When you say “I did not indulge,” I assume you mean in extra-curricular activities, right?
You wouldn’t be the man you are today without all those Swanson TV dinners.
That was not only my foremost privilege, but the only way I could get dessert.
Swanson? That’s living the high-life. Banquet was the cuisine du jour in our household.
Oral speaking? What other type of speaking is there, unless you are speaking out your…
Public speaking can be an acquired skill, but it can only be acquired by doing it. Toastmasters is an excellent vehicle for those wishing to improve.
As an individual who has battled a lifelong stuttering problem, I feel far more comfortable and am more fluent in court or speaking to a large group of people than answering the telephone.
And as a wise old judge once told me about public speaking: “Be brief, be sincere, and be seated”.
I didn’t mean to sneer at Toastmasters. They gave me a very nice lunch.
And I always stand when speaking in court.
I certainly didn’t regard it as a sneer.
Most of the commenters write in a plain-spoken manner, one of the reasons I enjoy visiting here.
And then some seem to speak in parables, or in ways I can’t quite divine. They add something, too. Atmosphere if nothing else.
Did you ever hear the tragedy of Darth Plagueis The Wise? I thought not. It’s not a story the Jedi would tell you.
The Texas state court rule is that counsel stands when addressing the court, but sits when addressing witnesses. It’s not uncommon for both female and male lawyers having problems being heard the first time they have to examine from a seated position in Texas. And then there’s the tradition where we “pass the witness” at the end of our examinations. A Northern colleague thought that had something to do with football, which led to my explaining the sainted Darrell Royal’s philosophy of passing. But I digress.
I struggle to even imagine crossing a witness while seated.
I must respectfully disagree, counsel.
The CUSTOM in many (perhaps most) Texas state courts is to sit while questioning a witness. I do not think it is a RULE, however and I have cross examined witnesses in state court while standing (or walking), and do so whenever I can. In the end, it is up to the Judge. (Are you, perhaps, a Houston lawyer?)
Once upon a time South Texas College hosted the Tournament of Champions Mock Trial competition. A South Texas advocate finished her questioning with the standard “I pass the witness, your honor.” There was an awkward silence from the other team. After a pause, the advocate for the other team stood up and said “we receive the witness, your honor.” The volunteer “judges” (all practicing Houston attorneys) did not actually laugh out loud, but you could see they were amused.
SHG,
War stories and a bit of advice:
1. When the National Moot Court team from Nebraska (that somehow included me) made it to finals in New York City in 1972, the law professor (coach) who was guiding us sent me to a speech pathologist prior to our travels. He thought I spoke in a monotone. The pathologist confirmed that diagnosis. I was told my only salvation was to modulate the volume. It worked. Young female (and male) lawyers might try that solution as well. It takes practice, but it is not all that hard.
2. While traveling to a debate tournament at the Air Force Academy in Colorado Springs, our college debate coach was sleeping off a hangover and had me drive the station wagon. I got caught speeding at around 100 mph in western Colorado. Without a $100 bucks, I was told that it was a jail cell for me. My father wired the money to pay the fine, but I spent the rest of my life apologizing. Never join a debate team unless you have the financial ability to bail yourself out of jail.
3. In the courtroom, male and female lawyers should think about the following:
A. Examine your witness from the seated position (if allowed) since the focus should be on the witness and her story rather than the lawyer.
B. Anyone who crosses an adverse witness from the seated position rather than standing at the podium (if allowed) is a dolt. A cross is all about you, confidence and control.
4. Finally, the academic study of rehetoric–the ancient methods of persuasion–is worth the time for any college kid who thinks they might want to be a lawyer. The Greeks knew things (except for those awful gyros).
All the best.
RGK
It comes as no surprise that you can’t get a decent gyro in Lincoln. I wasn’t on the moot court team in law school. Law review either. I had to work to eat every night, and while some of my jobs were law related, others were pretty disgusting and awful. It must have been nice to be so financially secure in law school. But at least now, I can enjoy a decent gyro as a New York lawyer.
Judge Kopf; I am a public defender. My practice has always been to do a direct examination from whatever position will force the witness to look and speak in the direction of the jury when they respond to me (which tends to be a few feet from the jury box). It is very rare that I get to call a witness who has had more than minimal preparation or training in testify, which is why I perform a direct examination in this matter.
I didn’t always do things that way, and before I started doing the above, I had occasionally been told by jurors that they had trouble hearing me and/or the witnesses.
Courtrooms can have funny layouts. The most important thing is making sure the jury (and judge) can hear, regardless of positioning.