May It Please the Court

In more than a decade as a trial lawyer, I’ve watched in frustration as male attorneys rely on a range of courtroom tactics that are off-limits to women. Judges and juries reward men for being domineering— and expect women to be deferential. This cultural bias runs deep and won’t be easily overcome. I have the trial transcripts to prove it.

- Lara Bazelon

LAST YEAR, ELIZABETH FAIELLA took a case representing a man who alleged that a doctor had perforated his esophagus during a routine medical procedure. Before the trial began, she and the defense attorney, David O. Doyle Jr., were summoned to a courtroom in Brevard County, Florida, for a hearing. Doyle had filed a motion seeking to “preclude emotional displays” during the trial—not by the patient, but by Faiella.

“Counsel for the Plaintiff, Elizabeth Faiella, has a proclivity for displays of anguish in the presence of the jury, including crying,” Doyle wrote in his motion. Faiella’s predicted flood of tears, he continued, could be nothing more than “a shrewdly calculated attempt to elicit a sympathetic response.”

Faiella told the trial judge, a man, that Doyle’s allegations were sexist and untrue. The judge asked Doyle whether he had a basis for the motion. Faiella says that he replied that he did, but the information was privileged because it came from his client. (Doyle told me the information had, in fact, come from other defense attorneys.) Faiella called his reply “ridiculous.” She told me: “I have never cried in a trial. Not once.”

As Faiella listened to Doyle press forward with his argument, her outrage mounted. But she had to take care not to let her anger show, fearing it would only confirm what Doyle had insinuated— that she would use emotional displays to gain an advantage in the courtroom.

The judge denied Doyle’s request, saying, in essence, “I expect both parties to behave themselves.” Afterward, Faiella confronted Doyle in the hallway. “Why would you file such a thing?” she demanded, noting that it was unprofessional, sexist, and humiliating.