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PrintThis monthly series will highlight people from Western Pennsylvania who are on the forefront of new ideas in their fields.
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Robin Rombach, Post-Gazette M.J. Tocci in her Highland Park home. M.J. Tocci Age: 52 Title: Partner, Trial Run Inc., a national legal consulting firm; founder, Chrysalis Partners Ltd., a consultancy working to improve retention of women lawyers at major law firms Education: University of Connecticut, bachelor's degree in anthropology, 1975; University of San Francisco School of Law, 1981 Previous work: Deputy district attorney, Alameda County (Calif.), 1981-1996, specializing in child abuse homicide cases and major white collar crime cases; adjunct professor of law, University of California, University of the Pacific and Stanford University; professor, Duquesne University Law School, 1999-2001 Professional honors: Named one of California's most effective prosecutors, California Lawyer magazine; numerous teaching awards The Series |
During jury selection, she recalled, the lawyers representing the ministers made what turned out to be a fatal error.
Knowing Ms. Tocci would have to explain a complicated series of financial transactions to prove her case, the defense attorneys worked hard to make sure the vast majority of the jurors were less-educated women.
"They made the mistake of thinking that if these women weren't educated, they weren't going to come down as hard on their guys, and were going to be more easily influenced by these preachers," she said.
Bad move.
"These were 10 of the toughest women I had ever met in my life," Ms. Tocci said. "Most of them ran their families' finances. They weren't educated, but they were plenty smart enough" to understand the details of the scam.
The jury convicted the ministers on all counts, and Ms. Tocci had the satisfaction not only of winning her case, but also of knowing the defense had "made a gender miscalculation."
M.J. Tocci is a decade and thousands of miles away from her days as a prosecutor in Oakland, Calif., but the issue of gender and the law is still a major part of her life.
Today, she is one of the partners in a national legal consulting firm called Trial Run Inc. Working out of her Highland Park home with partners based in Chicago and Washington, D.C., Ms. Tocci helps large law firms, government agencies and others prepare for major trials and learn high-level litigation skills.
Much of Trial Run's work involves major civil court cases, so helping clients make the best use of expert witnesses is critical. When the expert is a woman in a traditionally male field such as engineering or forensic medicine, she said, there are special challenges.
Even if it's subconscious, some jurors may have trouble believing a woman has the same expertise as a man, and that belief can be reinforced by the way in which many women express themselves.
"Linguists have been writing about this since the '60s, about what characterizes women's language," Ms. Tocci said, "and it is equivocation, hesitation ... a less forceful way of speaking."
If a lawyer has a woman expert witness who speaks in this way, the lawyer's job is to "build a bridge" so that the witness' substance triumphs over her style.
One technique for doing that, Ms. Tocci said, is to ask the witness a series of uncontroversial questions -- where she went to school or where she grew up -- and point out to the jury that she answered the questions with the same speaking style she used to talk about the evidence in the case.
Another is to get the witness to tell the jury early in a case why it should believe her instead of the other side's expert.
That's exactly what Ms. Tocci faced in one lawsuit on which she served as a consultant.
The case involved who was to blame for construction problems with a bridge, she said, and her client had a female engineer "who was very diminutive, spoke very softly, was very hesitant in her speech, but was really, really smart and really knew what she was talking about."
"She was up against a male engineer on the other side who was larger than life and had a big personality, and who was going to be louder and just create a perception of greater competence."
In helping the client prepare for the case, Ms. Tocci told the woman engineer: "You know, the jurors are just going to think this guy is better, because he's louder and he sounds like he's more confident, so why should they believe you?
"And she just looked at me and said, 'because I did this and I did that and he doesn't know this and he doesn't know that,' and all of a sudden I said, 'I need that on the witness stand.' "
The witness didn't like Ms. Tocci much for confronting her, but the tactic worked, and her client won the case.
A personal lesson
Ms. Tocci learned about women's speech patterns in an eye-opening way when she was a young prosecutor and had a job for her secretary to do.
"I said to my secretary, 'I would really appreciate it if you could get this thing done for me by noon, I really need it.' What I thought I was communicating was 'I need this by noon.'
"Fortunately for me, I had a no-nonsense secretary who said, 'M.J., do you want it by noon or not?' I said, 'Didn't I just say that?' and she said, 'No, you didn't say that at all. You said you'd really appreciate it, and then I put it to the bottom of the list and then when noon comes around and it's not done, you're angry at me.' "
When Ms. Tocci told her secretary she was just trying to be polite, the secretary said, "Then say, 'Kathy, I need this by noon -- thank you.' "
The secretary set her straight, she said, "because she had worked with a lot of women bosses who were less than decisive in giving instructions."
Ms. Tocci's finely honed sense of gender dynamics goes back to her childhood, when she was raised as the only girl in a family where her father was a high school and college basketball coach, including a five-year stint as an assistant coach at Penn State University.
"I often describe my life as having grown up in a men's locker room," she said, laughing. Among other things, it sensitized her to the times when male lawyers use sports references in talking to jurors.
"My dad and I discussed the merits of the sliding zone defense at the dinner table, so I can hang with sports metaphors," she said, "but there is a gender exclusivity to that."
After graduating from high school in Trumbull, Conn., she earned an anthropology degree from the University of Connecticut. She then spent three years working on civil rights issues for nonprofit organizations in Connecticut and Massachusetts, focusing on housing discrimination.
Becoming a prosecutor
This whetted her appetite for law school. She attended the University of San Francisco law school in the late 1970s, where women made up 42 percent of the enrollment, an exceptionally large proportion in those days.
After graduation, she spent 16 years with the Alameda County, Calif., district attorney's office, eventually specializing in child abuse homicide cases, and then major white collar crimes.
It was during that time that she met family physician Jonathan Rest, and it was his unusual personal journey that brought them to Pittsburgh.
Dr. Rest had attended Carnegie Mellon University as a drama major, and only went back to school to become a doctor after experiencing the privations of trying to earn his living as an actor.
After they married, Ms. Tocci discovered he had never lost his yearning for the theater, and when he was accepted into Carnegie Mellon's directing program, she was pleased, too, because her parents had retired to State College.
For three years, Ms. Tocci taught courses at Duquesne University Law School, and then, in 2001, she joined Trial Run, becoming the third leg of a consultancy that includes founder David M. Malone, a former federal prosecutor and private practice lawyer in Washington, D.C., and Warren S. Radler, a former chairman and senior partner of a major Chicago law firm.
While much of Trial Run's work involves helping clients prepare for major court cases, Ms. Tocci has begun to develop a complementary business called Chrysalis Partners, in which she works with large law firms to help them deal with a growing national problem -- how to keep their women attorneys.
In the past 20 years, the percentage of U.S. law school graduates who are women has risen to 49 percent, from 39 percent, and they soon will become a majority. Yet only 17 percent of the partners at the nation's largest law firms are women, according to the National Association for Law Placement.
Ms. Tocci uses her own skills and those of other experts -- from architects to social researchers to executive coaches -- to help firms figure out how to retain their highly skilled women lawyers.
These law firms, she said, "are losing women in tremendous percentages when they want to have families. And they're not losing them so the women can be full-time mothers; they're losing them to [work] environments in which they can raise families."
The tyranny of billable hours
A major reason the legal profession faces such a big dropout problem with women lawyers, she said, is that compensation still is based largely on billable hours, which puts a premium on logging long days at the office and being on call all hours of the day and night.
She cited an American Bar Association study in 2001 that said billing by the hour is an "inaccurate measure of talent, inspires competitiveness among lawyers, doesn't encourage efficiency and doesn't encourage communication."
There are new compensation models, she said, that are much friendlier to women or to any lawyer who wants a decent family life. One is to get clients to pay lawyers a flat fee for a particular project, or to pay a combination of a flat fee and a contingency fee, in which the lawyer gets a percentage of any settlement that is reached.
She said some major law firms face a growing philosophical gap between their top partners and the rank-and-file lawyers who do most of the work.
"I have been having parallel conversations for a decade with the managing partners who hire me and the associates who work for them," Ms. Tocci said.
"Some of the managing partners are saying, 'If the associates can't cut the mustard, they don't belong here. If they can't put in the face time, if they can't be on call 24/7 to a client, they don't belong here.' And the younger associates are saying to me -- men and women -- then it's not worth it to me.
"I think change will only happen in big law firms when they start embracing the fact that people have to have a life."
