Tears For The Sad Judge

Just because someone tells a story doesn’t mean it’s true, so take with a big grain of salt both the story and the moral of the story, particularly given the fact that it appears on a site with a tendency to grossly color its posts to align with its agenda. But since Richard Cohen raised it, the tenuous connection between cause and effect arises.

I had dinner the other night with a classmate from law school who has spent the last 20 years as a New York jurist. We talked about the numerous trials she had conducted, and at one point, she told me that she could not believe how rude and abusive some male lawyers were to her. Like talking over her, interrupting her, and trying in many respects to run the courtroom and take it away from her.

Now, she is no wallflower, and I suggested (and here I give a big shout out to my partner Amy Epstein Gluck, the “Notorious AEG”) that this was sexist behavior on the part of the lawyers; that they would likely not do that to male judges.  Her response can be reduced to one word: “Duh.”

Wipe away those tears so we can move forward. Cohen graduated from New York Law School in 1977, so his classmate is no kid judge. And yet she (Cohen’s choice of pronoun) suffers “rude and abusive behavior” from lawyers appearing before her. She’s the judge. It’s her courtroom. And these mean male lawyer are bullying her?

Like any trial lawyer, I’ve been before male and female judges. Some run their courtrooms like dictators. Some are kinder and gentler, but still in control. Some judges are weak, and if so, I will take advantage of their weakness to try to “run the courtroom” if it’s to my client’s advantage to do so. It doesn’t matter if they’re male or female. It matters that they’ll let me. It matters that it’s in my client’s best interest. If doing so benefits my client, but hurts the judge’s feelings, then that’s what I’m going to do.

But this story doesn’t ring true. One of the foundational tenets of female oppression is the power imbalance, that men are powerful and women subservient. Except this woman is the judge. She owns her courtroom, and no one gets away with anything she doesn’t let them get away with. And most are more articulate than to respond “duh.”

Which brings us to Cohen’s point, since the introduction by anecdote is merely a mechanism to set the stage these days, even if the anecdote emits the unpleasant odor of social justice malarkey.

Microaggression Is Sexist

Things that were not seen as sexist before are now seen for what they are — sexist. And things that were tolerated before are no longer tolerated.

Which leads me to my post today: the microaggressions which women may have not seen as sexist before, and may have tolerated before, but not anymore.  And at the highest levels.

There are two ways to look at Cohen’s tale of woe. Judge and lawyers, or female and male. Lawyers interrupting a judge is generally considered exceptionally bad practice, not so much because it’s rude but because it’s counterproductive since the judge will be the person deciding your client’s fate, and pissing off the person making decisions is rarely a good tactic.

There are lawyers who are tactlessly rude, who interrupt or speak over judges. They tend not to do well, not because of their gender but because they piss off the judge. It’s worthwhile to distinguish between a tactical challenge to a judge and a lawyer who’s just rude. It’s not the same thing.

But is this about the gender of the judge? Cohen wants to make it a “microaggression,” even though that appears to be the wrong word, even as he uses it. If this happens, and isn’t merely a story crafted to pander to the tears of the teary-eyed audience that still reads Above the Law, it would now reflect sexism, as does everything that isn’t racism (or both).

Is the problem that men are too rude and aggressive, or that women are too polite and passive? Of course, there can be no such gender distinctions, since it’s just a social construct, but then, it even happens at the Supreme Court, and certainly that can’t be Justice Sotomayor’s fault.

More startling: “Despite strict rules mandating that advocates stop talking immediately when a justice begins speaking, interruptions by male advocates account for approximately 10 percent of all interruptions that occur in court … In contrast, interruptions by female advocates account for approximately 0 percent.”

And finally, “The problem was particularly observable when, in 2015, male advocates interrupting Justice Sotomayor was the most common form of interruptions of any justice, accounting for 8 percent of all interruptions in the court. Justice Sotomayor is also the court’s only woman of color.”

Pretty troubling.  Sexist and perhaps racist, too.

Whether oral argument before the Supreme Court is an apt analogy to rudeness in a trial court, Cohen pushes a curious “solution” to this “dub” male lawyer sexism.

An observation which they made is particularly noteworthy and worthy of a lot more discussion: “Length of tenure does matter in one particular respect: Time on the court gives women a chance to learn how to avoid being interrupted — by talking more like men.”

Is that what women are forced to do — talk more like men?  Is there no other way to be heard?

How about talk like a judge? This isn’t a question of whether women belong on the bench, or anywhere else for that matter, but once there, they are still expected to fulfill the duties of the position, without complaining that those over whom they wield overwhelming power hurt their feelings. If there is anything remotely true about Cohen’s story, then the fault isn’t with the subordinates in the room, but the person in charge.

If a judge can’t handle her courtroom, the problem isn’t sexism. The problem is she’s not very good at being a judge. There are many female judges who run their courtrooms like a well-oiled machine, and wouldn’t tolerate any lawyer interrupting them. Woe to any lawyer who tried. If Cohen’s classmate, in a position of power and control in her own courtroom, isn’t up to the task, then it’s not “duh” sexism, but “duh” lousy judging.

If anything, it’s Cohen’s low expectations of women that’s sexist, since there are so many excellent judges who neither experience, nor tolerate, rude behavior in their courtrooms. Not every woman is cut out to be a judge. Not every man either. If they’re not up to the task, then the problem isn’t sexism but them.

23 thoughts on “Tears For The Sad Judge

  1. F. Lee Billy

    A lot of conjecture here. Was the lady judge on or off the record? If off the record, she can say whatever she damn pleases, Judge Judy-breath.

    Otherwise, points well made. Happy you solved that sexist/anti-sexist problem, and see you are still at the top of your game.

    P.S., Our experience in front of lady judges has generally not been favorable. We possess equal-opportunity contempt for both male and female judges, although we try not to show.

    Furthermore my Dear Watson, talking-over is indeed rude behavior, whether inside or outside the courtroom. We don’t necessarily notice any difference between the sexes. More research is in order.
    The phenomenon of talking-over is however typical lawyer behavior we have noticed, and anticipate with bated breath. We hate it whenever and wherever it happens!

    Reply
    1. SHG Post author

      Interestingly, Judge Judy was New York Law School Class of ’65, and even when she was a real judge, nobody, but nobody, interrupted her.

      Reply
  2. Scott Jacobs

    I just had a flashback to one of the “scholarly” works I had to read for my capstone project, some tripe about “masculinity” of the advocate.

    Thankfully, I’m going tailgating in like an hour, so I can drink the horror away.

    Reply
    1. SHG Post author

      Great, the toxic masculinity of some guy hurling an oddly shaped ball at great velocity while some other guy tries to wrap his arms around him, take him to the ground and sexually molest him. Have fun.

      Reply
  3. Erica Ingram

    I’ve transcribed a lot of hearings and trials from possibly hundreds of judges in my almost two decades as a court transcriber and, from my experience, judges run their respective courtrooms in trials and hearings in all different ways and gender has nothing to do with it.

    This is just my experience of a lot of listening. Some judges like to have what sounds to me like on-the-fly interaction with the attorneys during their arguments and, for the judges that do, it might come across like interrupting for one person even though for another it might come across as just quick back-and-forth. i mean, if the judge doesn’t get upset or point it out at the time, is it really interrupting them? i would say no because, if it was, they would be offended and say something. This person is assuming all interruption is offensive and not everyone agrees on the degree to which an interruption is offensive.

    Reply
    1. SHG Post author

      That’s my experience as well. I’ve been before women judges who are tough as nails and men judges who are squishy as can be. It’s not gender. It’s the judge, and they run their courtroom however they choose.

      Reply
  4. Joe

    Of the female judges I’ve practiced before, only one is susceptible to interruption.

    The others… well, you’d be awfully stupid to interrupt them. You’d also be awfully stupid to show up late, show up with a coffee in hand, show up without a tie on, show up unannounced, show up wearing unshined shoes, etc. In my experience, female judges know what they’re up against, and they don’t screw around. But of all the bad things you can do in those courtrooms, interrupting will result in the most blowback.

    Reply
  5. Skink

    I have first-hand experience at this form of sexism. In the midst of a serious argument, one that meant everything for my clients, a female judge interrupted me, asking, “Mr. Skink, why do you always dress like an undertaker? You should dress a little more like Mr. Pretty over there. Add a little color!”*

    I was aghast, befuddled, humiliated and distraught. You name it, I felt it. How was I to go on with my argument? I thought of what it would cost to replace a couple dozen blue and grey suits, but that was fleeting. My embarrassment, my humiliation at the hands of her sexism compelled the expense. The only other solution was to turn in my card, by mail. I thought I might never step in a courtroom again.

    I slightly recovered. I told her I’d get some new ties.

    *All true.

    Reply
    1. Richard Kopf

      Skink,

      Speaking of plumage, let me tell you about how a few, very few, female lawyers dress in the courtroom.

      Oh, wait! Forget I mentioned it. Please just forget it.

      I didn’t mean to raise that issue. I apologize, in advance. I am horrified. My bad, very bad.

      All the best.

      RGK

      PS Although I am not a female judge, I, too, have some fashion advice for you. To succeed in court, at a minimum, wear gold cufflinks, a Rolex and pointy Italian shoes. Also, you might think of adding a signet ring, perhaps surrounded by diamonds, and worn on your pinky. Of course, you should consider a custom-tailored double breasted British suit. Given your tan, I suggest light blue linen

      Reply

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