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.