Mean Girls in the Courtroom?

Here I mentioned “the usual older-female-prosecutor head games” that Kelly Siegler unsuccessfully employed against me in a two-kilo cocaine trial. Robert Guest commented, inquiring:

What are older female prosecutor head games? Like the jedi mind trick?

Not exactly.

“Older-female-prosecutor head games” are attempts by older female prosecutors to throw younger male defense lawyers off their game by finding and exploiting their insecurities.

This is usually done either with offhand remarks (“of course you know that . . .”), helpful advice (“if I were you, I would . . . ) or friendly questions (“are you sure you want to . . .?”).

The idea is to raise the adversary’s self-doubt. It’s generally much more efficient (and more fun) to convince your adversary to defeat himself than it is to try to defeat him. In the courtroom, if the adversary can’t be persuaded to defeat himself, trying to defeat him is not foreclosed as an option.

I suspect that the head games often work, because if they didn’t work people probably wouldn’t keep trying them. Trial lawyers are mostly very insecure despite (or as revealed by) their bluster. Many of us are trying desperately, without realizing it, to please our mommies and daddies. (How do I know this? It’s like being the sucker in the poker game: if you don’t see it, you’re probably doing it.) These head games, I suspect, play on their victims’ desire for mommy’s approval.

I wonder about four things (maybe my readers can advise me):

• First, what is the cutoff for “older” female defense lawyers? I haven’t observed these tactics from lawyers my age or younger, but from some only a little older than me (when I say “older” I don’t mean it as a euphemism for “old”).

• Second, do older female defense lawyers play the same games with prosecutors? I expect that they do.

• Third, do older female lawyers play the same games with younger female lawyers? I haven’t investigated, but I suspect so.

• And fourth, do older male lawyers play the same games? Generally, I think not. Men and women are fundamentally different. They think differently, they communicate differently, they try cases differently, and they fight differently (also, they bully differently, which I think might be the best analogy for differing styles of courtroom gamesmanship).

We of the weaker sex have a lot to learn from women. While a male lawyer beats his chest, trying to convince his adversary that he is the best, his female adversary is quietly and gently trying to raise his self doubt and make him question whether he’s any good at all. The man’s tactics are risible to anyone who can see what is going on (and, generally, anyone who is not trying to beat his own chest can see what is going on). The woman’s tactics are no less laughable to anyone who can see what is going on, but recognizing them requires a greater measure of objectivity and self-awareness.

(You were expecting what, political correctness???)

0 responses to “Mean Girls in the Courtroom?”

  1. I am hesitant to be the first one to comment on this…

    First of all, I’d rather use the term “seasoned” than “older” not out of any personal offense, but just to clear up the semantics.

    And second, I think it’s more of a female thing than anything having to do with age or which side of the courtroom you’re on. As a woman, I don’t go around beating my chest trying to intimidate my opponents. I’m much more likely to be friendly and even jovial. When opposing counsel is someone I dislike or have trouble dealing with, I have been known to throw in a little side comment like, “You may want to think about…” to emphasize a weakness in their case. If I get along well with opposing counsel, I’ll be much more likely to come out and say something directly.

    I find the chest-beating much worse to be honest. When dealing with a prosecutor–male or female–who will not be civil or have any discussions but who simply insists at every turn that they’re going to kick your ass, I tend to say as little as possible and leave my games for the jury.

    Basically, I think that women who use these “mind games” may not like you much for whatever reason and are trying to mess with you in their own way. Or they may not be able to handle a real discussion of the issues of the case, for whatever reason. (I find the latter has been true with my experiences with prosecutors, male and female. Few will acknowledge the possibility of an alternate point of view, which makes discussions pretty difficult.)

  2. As a younger female attorney, I can assure you that these tricks are indeed played upon younger female attorneys. By older attorneys both male and female, in fact.

    The real shame of it is that it’s harder to tell when opposing counsel is trying to be decent and honest with a less experienced younger attorney, or when they’re just messing with your mind.

    Every time I hear any “advice” from opposing counsel, I try to run it by more experienced attorneys who have always been on my side, to get a better sense of whether it’s a kindness or a trap.

  3. Maggie and Anon, thanks for the comments.

    Maggie, “seasoned” is good, but I haven’t experienced this from seasoned lawyers my own age or younger.

    I agree with you about the chest-beating being worse, at least in some ways. But it’s also more blatant, and therefore less insidious.

    Anon, it’s good to have more experienced peers to go to for advice. It sounds like sometimes opposing counsel is being kind to you. You must practice in a nice jurisdiction.

  4. Head games? Perhaps, but sometimes prosecutors are also worried about protecting their record. I’m not suggesting that this was the case with you, but sometimes there were incidents where I made a suggestion to a defense attorney in an attempt to protect the record against ineffecive assistance. Frankly, it’s happened more than once.

    Another possible scenario is where a prosecutor knows a defense attorney is planning on doing something clearly inadmissible. The thing that comes to mind is where a defense attorney is planning on calling a co-defendant stand strictly for the purpose of the co-defendant taking the 5th in front of the jury. Big Trial No-No.

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