A Byrd’s Eye View

Lawyers call it “demeanor,” the appearance one gives in conveying a message. An aspect of an advocate’s persuasiveness, or distraction, is how one comes off while engaged in the effort. Sometimes it will be a serious look. Sometimes a pleasant look. Some looks work for one person but not another. Finding the right look for you, and for the circumstances, is critical to being the most persuasive advocate possible. And what better time to learn this than in law school during moot court?

But after the “resting bitch face” fiasco, moot court judges need to be circumspect in how they convey this message, lest the students take offense. Then again, if avoiding offense is more important than teaching students about the value of demeanor, has a judge done their best to help a student?

I put in hundreds of hours preparing for the competition, which involved a criminal case based on a restriction of an individual’s freedom of expression—serious stuff. It centred on photoshopping intimate images of people without their consent, the intent to incite civil unrest, and threats to national security and public order.

I argued the first round of the competition in the UK with my male partner. Given the seriousness of the case, it should go without saying that both my partner and I treated the material with what we perceived to be appropriate gravitas.

As this is a first person narrative by Amanda Byrd, it’s fair to assume that she was exceptionally well-prepared to argue the cause. But there are two key words in her narrative that stand out: “we perceived.” It’s entirely appropriate to accept that she and her male partner perceived their demeanor, their “gravitas,” to be “appropriate.” If they didn’t, they would have tried a different demeanor, right?

But self-perception isn’t the equivalent of other people’s perception of you, and the “art” of persuasion isn’t about what you think of you, but what the person you’re trying to persuade thinks of you.

Here are a few things you should know about me.  I do not have a “cheerleader” personality. I chose to pursue legal education so I could do my part in curbing discrimination, after working as a law clerk at a human rights firm. I approach the law respectfully and seriously. I am a careful and conscientious researcher.

There’s a non-sequitur in there, but one that’s revealing as to self-perception. Byrd didn’t pursue a legal education to become a lawyer, but to do her part in “curbing discrimination.” There’s nothing wrong with wanting to curb discrimination, but that’s not what a lawyer, particularly a criminal defense lawyer, does. That no one explained that to her is unfortunate, but it’s revealing as to her point of view.

My mooting partner and I finished our arguments, and after a short break, eagerly returned to the room to receive feedback from our judges, two of whom were male. After praising my partner, who had legitimately done an incredible job, the first of these two judges informed me that “a smile would be nice” and told me I “looked bored”. The second agreed, even going so far as to state that it was a shame I didn’t smile more, because it was clear that I was knowledgeable and competent in my legal arguments. No one mentioned what my partner did with his face. He was only showered with praise.

Interestingly, the demeanor issue came from not just one, but two, judges. There are two distinct ways one could take this feedback, which apparently recognized her knowledge and competence. This could reflect what a great job she did, and the small tweaks to her demeanor that could make her an even more effective advocate. The “I ‘looked bored'” aspect is particularly significant. If she came off appearing bored, it could seriously undercut her message, causing her to have the right words to say but delivering them in a way that made them sound disingenuous. Was that her goal?

Byrd juxtaposes the praise “showered” on her male partner with the advice given her to smile. Perhaps this is rank sexism, two judges of unknown gender telling the female to smile while giving no demeanor feedback to the male advocate, or perhaps her partner did a better job of maintaining a persuasive demeanor than she did. Maybe he did better. Maybe she had a problem. Maybe it had nothing to do with gender at all. What was her takeaway?

I was stunned.

I felt helpless and hopeless. And angry.

Welcome to law, Amanda, except we try to reserve such feelings for more serious concerns. There will be far more serious concerns, like your innocent defendant going to prison for life plus cancer. Or are your hurt feelings about being told your demeanor was less effective than it could have been more important than your client’s life?

Is this the future of the legal profession? Courtrooms full of grinning female lawyers in high heels deferring to the expectations of our male counterparts? Smiling our way through murder trials and inquests?

Fighting back is complicated. My frustration with what happened during the moot was taken seriously by some, and not at all by others. I had to explain to one woman that this was gender discrimination, that it plagues women in the legal profession, that moots are places that are full of prejudicial attitudes—not just for women, but for students of colour who are routinely told that they are “too aggressive” by mooting judges. I still don’t think that particular woman understands what I was trying to get across, but I just don’t have the energy to shoulder the burden of educating her.

There are two ways this law student could have taken the advice of her two horrifying and exhausting judges. The first is that she was the victim of sex discrimination, destined to a future as a “grinning female lawyer in high heels” (did they also demand you wear high heels?). The other is that your demeanor wasn’t as solid as your knowledge and competence, and could use some work, unlike that of your male partner.

Amanda Byrd chose to see discrimination in the feedback she was given, and it made her angry. If she chose to see her job as advocate as serving the best interests of her client, then she might have realized that she wasn’t being told to be a “grinning female lawyer,” but to be the most persuasive lawyer she could be. Even so, she’ll have plenty of opportunity to be angry, but for more serious problems than being told to smile.

27 comments on “A Byrd’s Eye View

  1. Richard Kopf

    SHG,

    Long ago, in a moot court round, I was told by the judges (and later my wife who was watching) that, in no uncertain terms, I was a sarcastic ass when presenting my argument and answering the judges’ questions. In particular, I was informed that my demeanor, argument, and answers implied that everyone else in the room was at best slow and at worst a dolt.

    Despite my unjustly oversized ego, I took the critical comments to heart. The next year we won our school’s competition and made it to the finals of the National Moot Court competition. By then, I had learned to fake a serious but pleasant facade when arguing and a patient submissiveness when answering questions from moot court judges. To this day, I look back on those earlier comments about being a smart ass as some of the best advice I received in law school even though I was shocked and hurt at the time.

    Ms. Byrd would be well advised to remember two things. One’s perceptions about one’s self are seldom accurate. And, most of the time, criticism in an education setting is intended to be helpful. But then again I never faced the horror of being told to smile and I don’t wear high heels (at least in public).

    All the best.

    RGK

    Reply
    1. SHG Post author

      I remember my first argument as a baby lawyer on a motion to dismiss an arson indictment. When I was done, the judge said, “listening to your argument was like judging a moot court competition,” whereupon she denied my motion. I still feel the sting of that cruel slap. I wore brogues at the time.

      Reply
      1. Richard Kopf

        SHG,

        It was the brogues. What were you thinking?

        For me, it was the original wine-colored flat strap Bass Wejuns (without the penny) worn with a heavy dark tweed wool suit and a vest. Footwear makes all the difference.

        All the best.

        RGK

        Reply
          1. Andrew Santos Fleischman

            I remember arguing one of my first big motions for new trial. It was a 2 day motion, tons of witnesses. I thought I was doing great, and after one cross as I got ready to sit down the codefendant’s lawyer clapped me on the shoulder and said “Could you please stop smirking like an asshole every time you twist the knife?”

            To this day, I am still paranoid about this, because demeanor advice is the shit you are LEAST aware of and need the most external feedback to improve on.

            Reply
      2. REvers

        I was an intern arguing a motion to dismiss, and the judge told me he’d never heard of adverse possession. I replied that the concept probably came along after he got out of law school.

        My shoes were some type of leather. My balls were brass, according to what opposing counsel said to me on our way out of the courtroom.

        Reply
        1. B. McLeod

          It certainly has been annoying how the legislatures and courts refused to stop changing the law when I got out of school. I paid a lot of money for those books, and now, most of them are wrong.

          Reply
          1. LocoYokel

            Although it is annoying, I don’t mind them changing it nearly so much as when the cops change it on the fly on the roadside.

            Reply
            1. SHG Post author

              Rabbit hole…rabbit hole…watch out for the rabbit hoooooooooooooooooooooooooooooooooooooooooooooooooooo…

  2. Lee

    So I guess that “iron sharpening iron” thing out of the Bible is completely unacceptable in modern society?

    But despair is a sin.

    Reply
  3. wilbur

    “I had to explain to one woman that this was gender discrimination, that it plagues women in the legal profession, that moots are places that are full of prejudicial attitudes—not just for women, but for students of colour who are routinely told that they are “too aggressive” by mooting judges.”

    Wait … I thought she was a law student, not an attorney. How does she know what plagues women in the legal profession? It can’t be from personal experience.

    Reply
  4. Joe Pew

    “…but I just don’t have the energy to shoulder the burden of educating her.”

    Probably for the best, as it’s unlikely it would have worked. After all, the woman tried to educate Byrd and look how well that went.

    Reply
    1. Nemo

      “Educating”, yet another word that has lost its definition. The word she should have used is “convincing”. Of course, learning the difference would interfere with her beliefs, so there’s that.

      Law is hard. Law is words. Using the correct words in the correct manner makes the job less hard, not so?

      She got 99 problems, and her RBF is only one of those.

      N

      Reply
  5. Norahc

    I have learned two things reading blawgs:
    1) shut up, courtesy of popehat
    2) if i ever need an attorney i should look for the old crotchety ones that aren’t on a social justice crusade courtesy of our host.

    Reply
    1. LocoYokel

      Apparently, according to REvers, you might be better off looking for the slightly younger crotchety ones who are apparently up on all the new (centuries old} legal doctrines.

      Reply
        1. Hunting Guy

          Ecclesiastes 3:7 (KJV)

          A time to rend, and a time to sew; a time to keep silence, and a time to speak.

          (~450 BC)

          Reply
          1. Morgan O.

            FUBAR for the limericks, Hunting Guy for the apt quotations. Truly, the comments provide wisdom for all learning styles.

            Reply

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