Legal Mystenigmary

My First Trial

is on Monday. Consequently, I am in my office preparing.* And quietly cursing under my breath, praying for a plague of locusts, a scourge of killer bees, a giant tidal wave to hit the jurisdiction of the trial in the next two days and magically harm no one but injure the courthouse enough that a trial can't possibly be held there on Monday and this damn thing has to be adjourned until next week, when one of the *real* trial lawyers in my office can handle it. No, it's not just nerves. Well, nerves are a huge part of it, but, as I may have mentioned, I NEVER WANTED TO GO TO TRIAL.

The words "Hey, Baby Lawyer, we're sending you to trial" do not inspire excitement and anticipation in me (unlike most of my law school acquaintances, who were raring at the bit to go to trial and took every trial advocacy/moot court/tear a witness to shreds class and activity offered at the school). It's not a stage fright thing -- I'm actually (if this blog wasn't a dead giveaway) a fan of having a platform upon which to express my views to a large group of people. It's just -- trial is all about FACTS, really. Yes, law is involved, but only to provide vague structures in a general outline form. And I'm not so excited by facts. They kind of bore me, actually. I avoid writing statements of fact at all costs, where possible. Which is weird, because, in real life, people-watching is one of my favorite sports; figuring people out, why they do things, how they do them, how the results affect them, is completely fascinating. But put that in the context of a lawsuit and I'm napping under my desk. I don't know why. That's just the way I think. On the flip side, I'm fascinated by the part of the job that allows me to jump into a particular doctrine, its origin, application and permutations, and figure out how to twist it into addressing a situation. (I think that distinction makes sense, but if it doesn't, tell me.)

So I never intended to get into trial work. When I was applying for clerkships, I refused to even consider a trial judge, because I hated the idea that the bulk of the job was dealing with people and discovery issues and factual twaddle. I wouldn't be working as a trial lawyer now if a) I wasn't ready to take ANY legal job by February that didn't involve getting naked or something (are there any legal jobs like that? I have an ex who'd love to know...) and b) I didn't have so much respect for the partners I work for and a belief that there was a lot I could learn from them that would be valuable no matter what I did. But really, the only reason I was even looking to be employed as an actual lawyer was because I didn't go to Harvard and so couldn't be a professor my first year out of law school. Because, really, that's about all I want to do. I love the ivory tower. I love the thinking that happens there, and the type of work that's expected of you. I love the environments in which these towers are typically located. I love the kind of people that work in those towers (except for Rapunzel. She's freaking annoying, with all that sighing about her damn prince. bad joke? yeah, you're right.). So, for me, while there are parts of being an actual practicing lawyer I really like, it's not my actual passion. And since it's not, I'm much less likely to get excited about doing a part of the job that I never wanted to be responsible for anyway. So there!

And now, I must go and crankily read about what a cross-examination is, anyway. yeah, this trial's gonna be great. I can just tell. hmph.

* note that this is only upside of living in hell -- I really don't care that I'm working on a saturday, because, since I didn't plan to go away this weekend, the only alternative is sitting at home and literally murdering some of the best years of my life. At least this way, I'm (theoretically) advancing my career, so there's SOME benefit to being in this should-be-wiped-out-by-a-WMD place.

I Don't Want to be Gloria Steinem's Doppelganger...

but, at least professionally, I'm starting to become attuned to certain gender... issues, shall we say... to a much greater degree than ever before. And I don't like it. I don't have a lot of respect for those women who run around screaming about how white men dominate the business world, saying "Oh, but I'm a minority, I'm underprivileged, I need special consideration because I'm a woman." (Okay, I have little patience with anyone who whines about such things... suck it up people. suck it up. whatever your "minority" status, in this day and age, there are always certain other benefits that, if you're smart, can balance out whatever your deficits are. The fact that you've historically suffered whatever wrong you claim is not an excuse that should be used to cover your own incompetency or unwillingness to do actual work. Oooh, I'm nice and intolerant this morning. To determine my true feelings on this subject, take this rant and dial it back to a less Limbaugh place.)

Anyway. The point is, I was never one of those girls who ran around crying discrimination when my (male) lab partner got a better grade than I did on the same project for which we turned in one paper. And I don't feel uncomfortable asserting my opinion in the company of men (for which I should probably thank those otherwise torturous years of a single-sex private education). I don't feel intellectually intimidated by a person merely because they happen to be male. And I'm not a feminazi -- I don't hate men, I'm actually quite a big fan of the species, personally and globally.

But. I'm beginning to get twinges of a feeling that seems to suspiciously resemble an "oh poor me I'm but a historically undermined minority" kind of feeling, and I'm not sure if the genesis is a change in my own thinking or if it's something organically arising from the experiences I've been having lately. I'm leaning toward the latter, for the following reasons. First, there was that oh-so-unpleasant deposition experience a few weeks ago. Then, there was another deposition in which opposing counsel, of the generic macho-Italiano variety, saw fit to verbally pat me on the head for being "a pretty little girl" -- which, in a social setting, I would have thought was a little funny and a little sweet, but in a professional setting, just served to again set me apart from the "real" lawyers. Then, a slew of other individually-tiny-but-overwhelming-in-the-aggregate incidents in which my voice was too quiet, my stature too slim, my ingrained manners (i.e. not cutting people off when they're talking) a detriment, thus causing far more effort to have to be made on my or others' parts for my "piece" to be heard. And I do not want special treatment. I don't. But I also don't want to change who I am. I don't want to become a loud butch girl. I don't want to be a domineering powerhouse. I want to keep my good manners and my quiet but firm speaking voice, because these are things I like about myself. I just don't know how to keep them in a world that increasingly seems to hear only those with loud deep voices and rewards pushiness and demandingness.

Just how distressed I've become over the issues that my feminine qualities have caused only became clear to me yesterday, when I discovered that not only was the only other female associate in my firm leaving for good, but that the two summer associates that were hired were both men. (and they're not even that good-looking, damn it!) And I was momentarily quite upset over the losses of the current female law clerk and associate, as if I thought they were my allies or something just because we all had a common gender. This is weird thinking for me, and I don't like it. I refuse to allow a few comments and reactions by neanderthals to upset me to such a degree that I get sucked into stupid "us and them" thinking. I will find a way to make my "girly" voice and feminity work for me, not against me. I'm not going to allow myself to become the uber-feminist by doing the whole "I'm as good a man as any real man" butch thing.

But first, I'm not going to allow myself to get fired. Meaning, it's far past time to stop driveling on about myself, and go drivel about my clients.

Delirium Born of Exhaustion

Does anyone else out there ever have a wild irrepressible urge, when writing a lengthy brief with all those necessarily repetitive sentences and sections and finally arriving at "Conclusion," to just write "As the foregoing discussion demonstrates, I win. Finis." 'Cause I do! 'Cause I'm exhausted! (Then again, even when I'm not exhausted, I have this urge -- sometimes, all the formalities associated with "proper filings" just make me nuts, as evidenced by frequent bursts of hysterical laughter engendered by pondering just how many .1s of an hour are spent repeating essentially the exact same sentence over and over again so that you can get to oral argument so you can repeat that same sentence at least once or twice more in front of a judge.) Between the many hours I spend puzzling out the non-repetitive parts of my job (of which, surprisingly, there are many) and two damn nights per week for three damn hours of damn continuing damn legal damn education (can you tell I'm LOVING it? no. no I am not.) and the half-hour commute to work, plus the half-hour commute to class, plus the 45-minute commute home again, and that pesky need to eat dinner and occasionally run an errand or two and hit the gym, I'm but an empty shell of my former vibrant self. (Apparently, a shell with logorrhea. How fun for you, dear reader.)

Granted, I would feel considerably more awake if I had not gone to visit my college roommates this weekend, which resulted in forty-eight hours of continuous drinking, shopping, eating, dancing and running around one of my favorite cities on the planet. Which was awesome at the time, but then created an unbearable 16-hour sleep deficit. Ooops.

I would write more (and more lucidly), but I have to curl up under my desk a la Costanza because otherwise I shall be too tired to even drag my sad little carcass home...

Sex, the Single Girl and the Deposition

I'm not the kind of girl who finds insults in all harmless flirtatious comments. I'm a fan of the harmless flirtation, in fact. I'm not a ball-buster or a man-hater. And I've been fortunate, I suppose, in not having encountered men who lack the social intelligence to refrain from making inappropriate comments at inappropriate times, especially in a professional setting. (Again, another reason  Also, to some degree, I cultivate a certain air of being "not that sort of girl" -- I dress with an eye to looking attractive but not "available," and don't make innuendo-laden comments, um, ever. Being in a profession that is still dominated by men rather older than myself and lacking any desire to be appreciated or promoted for my looks or sexuality over my intelligence, I try to err on the side of being less rather than more provocative, especially in comparison with some of the girls I went to law school with (the most memorable of whom went to an interview in a three-inch skirt, a completely sheer camisole and strappy stilletos. Very professional.) And this approach, combined with the happy fact that all the men in my firm are very much gentlemen in their working lives, has let me be free from anything in the harrassment family.

Until Friday. Not a good day. I was at a deposition, covering for a partner who couldn't make it. One of the other parties' attorneys, who position happened to be similar to our own, had made a point of chatting with me. He was in his early forties, and seemed initially as if he was quite friendly with several of the partners in my firm (which, I later found, wasn't true at all). During breaks in the deposition, he kept asking me for a "little chat," where he'd ask what I thought of what was happening, if I thought he was missing anything, or trying to give me tips on how to take a dep. All perfectly professional and having to do with the case. Fine. I wasn't a big fan of him personally, but I've been observing that there is a certain collegiality between all the attorneys whatever their position and I didn't want to be rude. So I didn't refuse his requests to "chat," even thought they seemed pointless. Anyway, around about hour six of the dep, the room had reached sweltering temperatures, and all the other (male) attorneys and the witness were in their shirtsleeves, while I was still wearing my sweater and suit jacket. So, as we break, I decide it'll be ok to take off my suit jacket, since no-one's wearing one anymore anyway, and since my sweater was the slightly shapeless, long-sleeved variety. However. As I stand to take off my jacket, the annoying attorney turns to look at me as if he wants another "chat," I make a "oh, do you want me to go with you?" gesture, and he says, while staring lasciviously, "oh, well, now I really want you to come with me after seeing that!"

At which point, I stare, shocked, the (female) court reporter and the other woman in the room stare, shocked, and he leaves. No one can believe what he just said. And, in retrospect, that may have been why I reacted to it as if it was such a major indiscretion -- social mirroring can be powerful, and sometimes, an event that someone would laugh off or assign no meaning to, can become a catastrophe if others react to it as if it is. Which is what happened -- both these women flew to my side, appalled that he said such a thing, which made me terribly upset. Not necessarily because of the comment itself, although that was fairly surprising and inappropriate, but because I keenly felt a loss of professional dignity, just by virtue of having a pair of breasts. With that comment, I was receiving outraged sympathy and morale boosting like a little kid who scraped her knee on the playground. And it was sweet of those women to "take up" for me so supportively -- but I'm a lawyer. I'm not a little kid. It's my job to project knowledge and calm -- to some degree, to be in control. I'm not being entirely clear, I can't find the words to describe exactly what I mean by "professional dignity," but that's the basic idea.

Anyway. At that point, I just knew I needed to calm down and regain my sense of professionalism -- what I really wanted to do was call my dad, but he's not the best of parents. So instead, I called back to the office to talk to the partner in charge -- at this point, I knew this guy had some issues and was concerned, too, that he was going to make this whole exercise a waste. Of course, since I was still upset, I blurted out that he had made some inappropriate comment, but quickly ended the sentence by returning to professional concerns. The rest of the conversation isn't important, and the dep finally finally ended without me saying one more word to this guy. I didn't get back to my neck of the woods until fairly late that evening, and so didn't return to the office that day.

When I came in this morning, though, the partners had all heard that something had happened at my dep, and three of them, including the one I originally spoke to. Two of them directly asked what the "inappropriate" moment was (one didn't and so I didn't bring it up). I told the story, with a preface that was a much shorter version of the preface to this post -- "I don't usually get upset about things like this, blah blah blah, this is what he said, I know it's kind of silly." And there the conversation died. In both cases. It was the oddest thing. Neither was unsympathetic, but just totally unreadable. I couldn't tell if they were thinking I'm a silly nitwit chick who made a big fuss over nothing, or if they were just uncomfortable with the subject matter, or what. But again, I felt like a little kid. I also felt like another divide just went up, because this is something that would never happen to them (ok, maybe there's a very slim chance, but men generally don't get the same kind of comments or have the same reactions. Generally.). It's just so frustrating.

Resolutions

(I make these every few weeks, and somehow they always melt away like so much ice cream on the sun, but here's to at least attempting to resolve. Resolving to resolve. Something like that.)

1. I will STOP being such a chick. I hate girly-girls. I mean, I'm all for being feminine, but I'm not for being grossly neurotic (unless it's Seinfeldian neurosis, and then it's just fun). Particularly, I will not be girly about things and events and persons about whom/which there is no sense in being girly. It is dumb. I have enough reasons to feel dumb, just in my professional life, there's no reason to add to it with my personal life.

2. I will stop making awkward conversation that makes no sense just to feel like I belong. This is silly. If I have nothing to say, I will not make up a story/question/answer to fill the space. I will just walk away. It's ok. No one will mind -- in fact, they'll probably welcome the not-having-make-inane-conversation gift.

3. I will adjust to running outside, and not inside on the lovely happy treadmill, even though I intensely and deeply hate running outside. No one conducts marathons on treadmills (well. actually. I just found out that they do. But only in very strange places, and it does seem pretty silly. Then again, that whole "running to nowhere" thing also happens in a marathon -- think about it -- you start at point A, run either back to point A [in which case you've technically run to nowhere] or to point B [in which case you need a mode of transport to get back to point A, which is invariably where you've left your car/bicycle/spouse/mind] -- ipso facto, you've accomplished no true destination. Don't tell me that doesn't make sense. It does. I said ipso facto -- it's a clincher!)

Too Much Grey!

They say that the process of becoming a lawyer involves "learning to love the grey." Fine. I love the grey. I do. It's nice to know that it's almost impossible to be just categorically wrong, that no matter your position, there's some argument to be made somewhere. But. I'm having a problem with the fact that sometimes the "grey" extends not only to the difference between your position and your adversary's, but also exists within your position. It's making me completely crazy, actually. This is NOT how it was in law school -- even though there were countless hours of classtime devoted to lengthy discussion of how a rule changes slightly when it's applied to facts that minutely differ from other facts, there was always some general rule and an (eventually) clear way to understand its permutations.

However. In practice, I'm finding that this does not happen with the same lovely clarity. It's extraordinarily frustrating. At the moment, I'm working on a brief concerning an area of law completely foreign to me. I actually really enjoy learning about different areas, so I wasn't fazed by the mountain of research facing me. And I did it all -- I read the hornbook, found the cases, took notes on it all. It's safe to say there's no case in my jurisdiction on this particular topic that I haven't at least skimmed. Ok, great. Ready to write the brief, right? Wrong. I start out gaily explaining standards of review and am about to get down to the actual decision made by the municipal body, when I realize I don't actually have a clear rule to apply. See, within the same jurisdiction, and occasionally within the same court in the jurisdiction, the test for this issue is alternately stated as a two-part test drawing from the specific language of the statute; sometimes it's a three-part judicially created test; sometimes there's just one analysis that seems to sort of combine most of the elements of the three-factor but isn't quite the two-factor; and sometimes, there's just a general citation to cases on the standard of review before the court launches itself into an intensive consideration of the facts as applied to something only they know. I've tried for the last two hours to find at least some thread that connects all these cases, other than the completely irritating obvious one (they ALL purport to be deciding the issue I'm dealing with) -- I drew diagrams, made outlines, made a mobile, set up an elaborate diorama with the stuff on my desk symbolizing certain types of facts -- but no. I'm threadless. The bottom of this equation reads D.N.E. I do not understand. How is it possible that, within the same year, with no changes to the statute and no decision from the highest appellate court, the mid-level appellate court alternately applies the first kind of test and the third kind of test, without any explanation. I really have no idea what to do with this. Did I perhaps miss too many of those asinine legal writing classes? Did they one day announce some brilliant scheme for dealing with this sort of thing? Because I can't be the first person in the history of brief-writing to discover this sort of problem. Am I just supposed to take the formulation most favorable to my position and use that? Would that be flagrantly ignoring that ethical rule about disclosing unfavorable precedent? Can I just make something up? Dare I return to the partner that assigned it to me and once again reveal a fearful inadequacy in my knowledge and/or capability? Is it normal to feel like I'm an utter idiot? Dear God, It's Me, Margaret -- help!

Why Perfectionists Shouldn't be Trial Lawyers

So I'm not quite sure what the motivation is behind the partners' efforts to give me "interesting work," whether it's because they want me to want to stay or whether they just want me to have a good experience before they kick me out on my arse in a few months -- since I'm not about to ask them, I'm going to look away from this gift horse's mouth and happily tackle the less formulaic, run-of-the-mill cases and issues we get. My favorite new file recently has been a zoning case -- favorite, because I never took a land use or municipal anything class in law school, and so I got to grab the land use reference book and tackle it from the beginning. I'm a geek. I love this stuff. I love learning new subject matter, I love pulling a concept apart and putting it back together so that it fits our problem, I love writing the carefully planned research memos and drafting the intricately argued brief. Amazing. It's my version of professional crack. However. I'm quickly learning that my penchant for spending half an hour finding the precisely correct structure for a paragraph is NOT considered a good thing here. Yes, the partners would certainly prefer a beautifully written, tightly constructed brief to a loose jumble of copied-and-pasted KeyNotes -- but only to a point. Well -- no one has actually complained about how long it takes me to do things. But that's the problem with being a perfectionist (NOTE: this appellation applies only to my professional/intellectual life -- my personal life is a mess of tangled clothes, lost books, and misplaced boyfriends) -- you don't need anyone standing over you as a taskmaster in order to feel the pressure of a taskmaster. And while I was in school and my time could be blithely applied anywhere as I saw fit, there was no real struggle with the inner perfectionist -- sure, I skipped nearly every class my 3L year, but I spent hours on end making sure every piece of written work, oral argument outline and exam was thoroughly researched, structured, composed and proofread. However, now that I have to account for my time ALL. DAY. LONG., I'm realizing two things: a) the net amount of total hours I used to spend in researching, writing, trashing, re-researching, re-writing, double-checking cites and Shepardizing for just one paper or brief would equal approximately a whole workweek here, and b) I'm not nearly as productive as I thought I was in school -- somehow, the ability to finish a paper that had been assigned at the beginning of the semester in the week before it was due hasn't translated into being able to turn over files or projects as fast as it seems most people in this office due. And the few times I've tried to match the times I've seen listed on others' timesheets, I invariably read over the work a few days later and am completely maddened by sentences that could be improved, arguments that could be supported better, facts in the file that I had missed the first time around, and I'm compelled to stay late or come in Saturday to "sneak" time I'm not expected to bill, in order to fix these things. Which leads to the ridiculous result of spending about 60 hours a week at work, but only billing maybe 30. I'm starting to think perfectionism is a habit too expensive for a trial attorney. Either that, or I need to figure out how Zach Morris did that "TV time-out" thing. Any suggestions?

Marriage: Love is not enough

Between the onslaught of engagements of my twenty-something friends and living and working in environments where 98.9% of the people are married, the concept of marriage has been a significant theme in my life lately. It's somewhat strange for me, because I've always taken a firm anti-marriage stance personally, particularly after watching my parents' ill-fated marriage crash and burn spectacularly in a divorce that was finalized almost seven years ago and insists on infiltrating all aspects of our family's lives.

It's not that I don't believe in marriage -- I think it's that I believe in it too much. I think that if you're going to get married, you have to be committed not only to your spouse but to the concept of marriage. You have to be completely willing to compromise, communicate and open your life and heart fully to this other person. Marriage takes effort, work, energy and neverending hope. The union has to be almost a separate, third entity, to which you devote attention and care and respect. The thing is -- it seems almost humanly impossible to do this. Look around -- we have a 60% divorce rate, we have an entire cable TV show devoted to the affairs married people have, we have craig's list personals packed full of married men (and sometimes women) blatantly seeking "extracurricular entertainment." And it makes marriage such a sham. Not to mention all the evidence I've personally gathered (no. not that personally.) about how many people do, in fact, cheat, and even if they don't cheat, they get close enough to the line to disrespect their partner and their relationship. And I think it's appalling. But it happens. All the time. There's only one marriage I know of that I can absolutely say is a true marriage, where both are committed, centered and understand completely the nature of their commitment. And that marriage is only a year old, so I don't even know if it's a fair example. I'm sure there are others out there, but even the ones that look happy have usually gone through their own share of unfaithfulness, or of threats to leave or to divorce. And it's not that I think that marriage should be a perpetually happy state -- but you can't cheat, you can't leave, you can't divorce.

And how can you say, especially at the ripe old age of 25 or 26, that you know someone else, or even yourself, well enough to know, absolutely KNOW, that you'll uphold your marriage vows for as long as you live, that you'll respect your partner and your marriage forever? I don't believe it's possible. I don't know if it becomes possible at some point in later life. And my worst fear is that you (not you. I don't know why I keep saying you. I mean me.) -- that I would decide at some point that, yes, I've found a man that I can trust and commit to as a partner in this unbreakable enterprise -- and then ten years later, I find out I've misjudged, or the world has changed, and he's not the person I thought he was, and we're miserable. Why would I invite that kind of misery into my life on the, what, 10% chance that I didn't choose wrongly, that he didn't choose wrongly, that circumstances never conspired to wreck us? Why do people keep getting married in the face of seeing the disastrous wrecks all around them? How are they so convinced that they're different? These aren't rhetorical questions -- if there are good answers, I do want to know them. I just don't think there are any. Of course, I can't say this to any of my happily engaged friends -- I just congratulate them wholeheartedly and pray I'm wrong, that all men, and more and more women, don't have wandering eyes. I do want to be wrong. But I don't think I am.