Sunday, December 20, 2009

The Strengths of Women Trial Lawyers

   Every once in awhile, I watch a movie about men in war, or men in sports, and the captain, or coach, is upset with the men and makes a statement to the men like, "What do you think you are doing, ladies?"  .  This statement is supposed to be a put-down.  I have wondered not only why this statement is an insult,but also  why I see no one objecting to this common "insult."
   Biologically, men and women commonly share different characteristics.  Several years ago, my husband and I went on a safari in Tanzania and we observed natural wildlife.  In the lion communities, males and females have very different functions.  Lions travel in prides, with several females and youths, and one male.  The function of the females are to kill the food and raise and nurture the offspring.  The function of the male is essentially to procreate.  Procreation is obviously very important.  But so is eating and nurturing the young.  In the lion "kingdom," the females engage in most of the violent activity, killing the prey for subsistence.  The males kill only rarely; killing other rival males, either older or more infirm male lions to take a pride, or younger male lions or male cubs to prevent those other males from taking the pride from the dominant male.  The females kill all the time to feed the young, the male and themselves.  The females protect their young.  The males protect themselves.  What the males do is important in establishing an order to further the existence of the species.  What the females do is the day to day necessary work to exist.  The females are more fierce more often than the males.  In the grand scheme, both the females and males are fierce in furtherance of the existence of the species.  Yet, the females are solely responsible for the lions' day to day nuts and bolts existence.
   Mothers are thought to be nurturing and caring.  Women are considered to be more "emotional" than men.  These are great characteristics.  Mothers fiercely protect there offspring.  Also, an admirable quality.  Women have always had to fight for a greater good, the good of their children.  The majority of whistleblowers I have represented are women.  That is not surprising.  Whistleblowers speak out to protect the common good, even though they are at risk, personally.
   We generally think of trial lawyers as men.  However, women lawyers are naturals as plaintiffs' trial lawyers.  Who better to fight for someone with less power?  Society pegs trial lawyers as bombastic and egotistical, out for themselves.  And there is a rush in winning a nice jury verdict and trial law does attract the most self-aggrandizing in society.  But that is not what our legal system is about.  Women are naturals as protectors of the less powerful in society.  Females fight for those in their charge.  We need more women representing plaintiffs.

Thursday, December 10, 2009


  For the past couple of years, I have tried to listen more.  I am not always successful.  At the Trial Lawyers College, the psychodramatists have coined the phrase, "Listening With The Third Ear."  I think what that really means is that listening is more than hearing.  The "third ear" is really a combination of the mind and heart.  To truly listen to someone is to empathize, to understand.  In order to understand someone, we have to reverse roles, or understand in what context he or she makes a statement. A statement is not merely what is said, but in what context it is made. When a person talks, oftentimes they are sharing their perception of an event through their eyes of the world.
    It is hard to listen with the third ear.  It takes all of one's attention and focus.  It's like meditation because you must be in the moment, in the here and now.  You cannot listen and multi-task.  You must totally focus on the speaker.  As Joshua Karton says, most communication is non-verbal.  Listening involves not just hearing, but also seeing and perceiving, and feeling.
    When you truly listen to a friend or loved one, it can be an act of love because when you listen, you give up yourself to the other person.  It is all about them, not you.  Your ego cannot get in the way; in fact one's ego cannot even exist if you are truly listening.
    This last year, I have tried to revamp how I handle cases.  I want to listen more than talk.  As I said in the first paragraph, I am not always successful.  Sometimes my ego or my insecure feelings interfere.  I have found that I am at my best when I don't care if I am at my best, when I am listening and in the moment.
     For instance, in preparing for depositions, I read everything in the case.  I may jot down notes.  I may have some questions in mind.  But in the deposition itself, I want to listen, to learn.  I want the answers to my questions, but the answers lead to areas I did not know even existed before the deposition. I go where the witness takes me.  I try to listen without judgment.
     I know when someone is truly listening to me and interested in what I say.  Witnesses know when we listen to them.  I feel honored when someone cares about how I feel. My clients have told me that they feel the same way.
    The most important person, outside of those in my personal life, is my client.  If I cannot empathize with her or him, there is a problem and that problem stems from me.  Something in my life experience is getting in the way.  I need to deal with what is inhibiting me and preventing me from listening to and understanding my client.
     What I have found when I really focus and listen, I learn things that were not in my preconceived script.  For instance, in one deposition, the witness told me he was not angry with my client for complaining about sexual harassment, but there was this "tone" in his voice.  I listened not to his words, but to what he was communicating.  I prodded, "Well, if not ticked, then what?"  He opened up that he was disappointed that she had come to him because it would put a "muzzle" on the workplace because he liked to "joke" with women, too.  That admission was important to the case, and it let me understand where he, and the company was coming from, how they did not understand the purpose of their policy because they let their insecure feelings get in the way.
     I am not saying that listening is a tool to trick adverse witnesses, but that it is a way to understand many of the multitudinous layers of a story.  Lawyers often ignore others in their quest to be kings.  The "downside" of empathy is that it is impossible to hate someone with whom you empathize.  In lawsuits, do we need to hate the other side?  Can we muster righteous indignation without hatred?  Yes, we can.
    A by-product of my quest to listen to others is that it makes me feel good to honor others.  When I feel good about myself, I am less insecure and I do a better job for my client.  I am less likely to see conduct as an affront, even if intended as an affront, since I try to understand where that person was coming from who tried to hurt me or my client.  Usually, the other person, or lawyer, is lashing out from fear.  To understand this is power.  Listening to others is an act of giving, to the other and to oneself.

Saturday, December 5, 2009

Relationships and Being a Trial Lawyer

  When I first started practicing law, 26 years ago, I read a book about how female lawyers could be in the game with the men.   Several of the women said that they had decided to forgo families and essentially be "married" to their careers.  At the time I thought, are they crazy?  How can you sustain interest in the law when you have nothing else?  At the time, my son was four, I had been married for nine years and I wanted another child.  I decided to practice law my way, taking my kids to depositions and on out of town trips, including them whenever I could.  It seemed to me life is what you make it.  It wasn't an issue of having it all, it was an issue of knowing what was important.  That's not to say I didn't make mistakes from time to time, but in the end (or hopefully, closer to the middle), I am who I am because of my relationships and my experiences with others.  I wonder what happened to those women who "lived" the law; if they got burned out, if they developed meaningful relationships, if they fell satisfied.  I hope they found what they sought.
   I bring this up because I have been thinking about relationships.  I was on the staff of the second week of the Graduate Seminar at the Trial Lawyers College back in August.  Fredi Sison was in charge of the curriculum and she developed an exercise that was quickly named "Discovering the Characters."  We explored a case and the relationships between the important people in the Plaintiff's life.  I thought, and think, the exercise was brilliant.  Our relationships tell so much about us and who we are.  In movies and books, I gravitate to stories where there is more character, rather than plot, development.  I want to identify with other people.  I think most of us do.
   I have also been thinking about one of my former clients and how I could identify with her.  We settled her case the day before trial.  I remember her talking to us about her kids.  Two were in college and one had moved away.  When she talked about her kids, she lit up.  She spoke to each of her children several times a day.  When we met her kids, they shared humorous stories about our client.  Every Saturday morning, when they were home, they tried to arise before their mom, because Saturday was her cleaning day and she would go on a rampage.  My client's son, in a teasing tone to his mother, said she was like a quarterback getting psyched for the big game.  The easy way in which my client and her kids traded good-natured barbs reminded me of my own smart-mouthed, sweet children.  I fell in love with my client that morning.  She became so real and someone with whom I could identify.
   We are the product of our relationships, whether good or bad; regardless of whether we rebel against those relationships or accept them.  I believe Fredi's exercise is beneficial not only in preparing for trial, but also in living life.  Thanks, Fredi.