I’m not a teacher but have given educational sessions for lawyers on issues like opening statements, direct examination, punitive damages, LGBTQ discrimination, police misconduct against transgender individuals, and Ethics and the Constitution.
I liked NYU better than college and after my first year was honored there to “write on” to Law Review – a little feather in my cap based on grades and a writing competition. I was lucky to get into NYU, a great law school, let alone to make it onto Law Review. In my courses, I studied under some legal luminaries who shaped my mind with methods of practice and unique views of the profession. At Northwestern, I earned a B.A. in the History of the Americas; I took the first ever Gay American history class in my last semester. History, I have found, was a good preparation for learning how to try a case: the ultimate question in history, as at trial, is how did we get from one situation to the next, and why. Debate honed my ability to think on my feet and speak in public, and taught me how to organize documents – a mundane task one needs to know in order to win. I won many debate awards in high school and college. High school debate is probably what taught me best how to speak and argue in public. I hated high school, but it gave me the gift of learning how to argue. I had a great writing teacher in college who made me see writing, literature in a different way and better recognize the hypocrisy of life.
In college and after, and maybe even still, I wanted to be a writer, and regret I may never achieve the honor of seeing my name on a book. I haven’t given up the possibility, and I think about taking a sabbatical to write something. Yet the process of creative writing stultifies me, whereas argumentative writing comes out of the mind and onto the page with fluidity if you excuse the typos that I inevitably miss. I’m criticized by some for flaunting my words for the practice of law, but to hell with them: I know how to tell a story.
So, after giving up my writing “career,” and before law school, I moved to New York to find something to write about, and took an unusual gig, traipsing and plodding as a child-welfare caseworker for some two years. I worked with many low-income families trying to stay together, and to arrange for the state to provide them services to do so. It didn’t always work out wonderfully, but I lived a middle-class childhood, so the job gave me the gift of seeing how the government often mistreats the poor. After child welfare, I went to NYU, coincidentally remaining in the same apartment as before. I did three internships, one with a (now) retired federal judge in San Francisco – stupidly turning down an internship with a well-known, highly dedicated death-penalty abolitionist – another with the U.S. Attorney’s Office in Brooklyn, and one the Federal Criminal Defenders in Manhattan. I sat through a trial with a talented criminal lawyer in 1992, watching him successfully defend a surely innocent man. He did a brilliant and daring job. He’s famous now and I won’t mention his name, but it was that trial where I realized that the practice of law can be fun and achieve the objectives of justr8ce. The judge is now retired, but showed me that justice may be had.
I passed the bar. I didn’t know how precisely to achieve my career goals, so I worked in the litigation department at a large law firm – one of the biggest. I was proud to be there and grateful for the brief exposure to what they call as “BigLaw.” I won an award (and obtained publicity) for my Pro Bono work, of which I did a lot. But given my desire to advocate, I felt like an expendable widget in a giant machine. I wanted more – and not more money. So I left of my own volition and saw the other side of the legal profession at the Legal Aid Society, Juvenile Rights Division, practicing in Family Court in the Bronx and Manhattan. Family Court can be an unhappy place – abuse, neglect, kids in criminal trouble are the nightmares of its jurisdiction. But it is in that court where I had the fortune of learning how to stand up to a judge, all of whom were busy, some unpleasant who played favorites, rubber-stamping the decisions of government actors. Kids arrested were detained, then taught how better to be criminals in lock-up. Struggling parents, some of whom were unfit, had their children taken away and never provided the training to get them back. The New York Times a few years after I left reported that less than 2 percent of these parents ever overcame the testimony of a caseworker – a college graduate with no specialized degree and three weeks’ training before going into the field with the power to remove children from a home. In 2017, the foster care system was indicted as a system known as “Jane Crow.” The Pulitzer Prize Winning website propublica.org devotes a whole page to Family Court, describing how functionaries, including judges, rely on the repetitious, pro-forma reports of supposed “experts” to take away parental rights.
This abhors me. I was one of those flunkies with a college degree. It seemed like an appealing challenge, and when I graduated law school, even more so. But before the Times exposed them, some judges were happier not to be challenged. They did not like that I went an extra half mile to question their decisions – including taking them on appeal and succeeding in getting children released from illegal custody. Some of these civil servants just lost their way and didn’t like that a mere twenty-something tried new strategies – there’s more than one way to practice law, but some judges and lawyers succumb to the conventional. When I was a caseworker, the worst thing I could do was separate a family and only did it if there were no alternatives. I was questioned for providing resources to keep families together. One judge yelled at me for not removing children from a woman who was a not a hoarder, but just overwhelmed and kept a sloppy home, as I tried to find a heavy duty housekeeper. When I found myself back in that court, another judge threatened not to assign cases to me if I lodged too many objections; she later accused me of “running to the Appellate Division” – the appeals court. She was not reappointed to the bench – though I had nothing to do with that; others came to the conclusion she lacked the proper temperament. Another judge hated me for no reason I can understand, except perhaps gossip from other judges. I remember objecting at a trial once, and, in response, his picking up the rules of professional responsibility, flipping through it and saying, “Let’s see….” as if to send me a warning that I was doing something unethical. He put down the book, overruled my objection, but I would have violated my path were I not to object. He, too, was not reappointed and was found to have committed judicial misconduct. Again, no one asked me for my opinion of him. The judges in that court at the time: a few, very good and patient ones; others were just mean and awful. I thought about becoming a judge – never in Family Court, for sure – but I have the mind of an advocate. This includes cooperating with adversaries and assisting in the settlement of cases. This is where my heart is. But I’m also a court of last resort for people who think they have a case and some who must be told they have one that’s not winnable. I wear many hats. One is to give honest advice.
In Manhattan Family Court, I made at least twenty-five appearances before Judith Scheindlin, aka Judge Judy. She never yelled at or embarrassed me, as she does the pre-chosen loser on her show, but I saw her do it to others. It’s not as if she liked me – she told me once to get my “nose out of the law books.” I think, quietly, somewhat, she respected my intentions. She said to me once, as we waited for a case to be called, not to “be a Kunstler-like obstructionist.” I nodded silently in response, and her advice was a gift, the best she could have given: be a zealous advocate, but not an unpleasant one. I believe William Kunstler was not an obstructionist. Many loved him, and history remembers him as one of the greatest. He was a criminal lawyer who knew how far he could go to protect his client, occasionally pissing off the powers. I took Judy’s advice with a large grain of salt, but I cooperate with the bench as much as possible, choosing my battles; judges are people too. So hers was good advice, but I have always admired attorneys like Kunstler who go as far as they can to win for an unpopular client. The trick is to practice like Kunstler but under the radar. I can’t do this anymore but did for many years. Indeed, soon after Judy left Family Court for Hollywood, I quietly got her reversed on appeal: she had made a simple but reversible mistake, and I knew I could use it to get my client’s charge dismissed or reduced. (It was, after appeal, converted to a misdemeanor, a win for a difficult “buy and bust” criminal drug sale, which is usually a cut and dry case for the prosecution.) Matter of Efrain R., 228 A.D.2d 303 (1st Dept.1996). Judy, the highest paid TV personality, wouldn’t care less about this, but the truth is appellate courts rarely reversed her because she usually couched her legal arguments in common sense. So I’m proud to have caught her mistake because I wanted the legal community to know I could win, even on my own. If I had to choose between being named SuperLawyer ever again or keeping my reversal of Judge Judy, it would be a very easy decision to make.
My experience to that point finished with what I perceived as injustice in which my experience was almost entirely in Family Court. Was that what practicing law was to be like? My mindset almost made me leave the law, or at least take a break. I applied to and was accepted at The Wharton School of Business graduate MBA program at the University of Pennsylvania. But then I had second thoughts. I turned my back on Family Court and found the practice not so nasty. I deferred my admission for a year. I tried some new tricks. Am I bragging? Yes, how can that not be a brag, but the point is that I considered the idea, had the chance to get an MBA at a top school but persisted for the people and for civil rights because I prefer helping people to the acquisition of wealth (though I ain’t saying the latter is all that bad). Wharton is a great school, and being admitted an accomplishment. In some ways, however, this is an admission of guilt. I felt kicked around by the legal profession for the first few years and needed the validation of having the choice to take a Wharton MBA or move to “bigger and better” things. It wasn’t me to have done so, but it made me feel confident after having been a little mangled in BigLaw and being branded a trouble maker in Family Court. It took a year and some months to make the decision, plus two $500 deposits, but ultimately after a short conversation with my father, a lawyer himself who sees the obvious – who had seen how dissatisfied I was in BigLaw – asked me why I wanted a sabbatical so that I could get another job that I hated similar to – as he aptly named it – “The Other Place.” I heard him; I knew whereof he spoke. So I remained a lawyer. I also found that I was respected by judges like the one I saw give a fair trial to a man while I was in law school. Stars coalesced. To mix metaphors and paraphrase Yogi Berra, I got to a fork in the road, and I took it.
I started to file cases that interested me, and I did better than I expected. I won several jury trials just before and after 9/11. In 2003, I wanted to learn what lawyers rarely learn in law school, if in their careers: how not just to argue, but to communicate with a jury. I had many trials in Family Court, but they were always before a judge. In 1996, I attended the National Criminal Defense College and learned, most of all, how to conduct a sifting and thorough cross-examination. In 2003, after applying once and being rejected, I was honored to be selected to attend The Trial Lawyer’s College, a three-week seminar, followed by graduate programs, in DuBois, Wyoming for plaintiff’s and criminal-defense attorneys. This College changed me in so many ways and was founded by Gerry Spence, among the best trial lawyers of our time. It was there that I understood why I was the lawyer I want to be. I’ve also studied with some of the nation’s best advocates and jury-communication experts and students of performance – including at the Upright Citizen’s Brigade Theatre Improvisation Skills Program and a class in Solo Performances at the Stella Adler School of Drama. Improv teaches you to be quick on your feet – a skill important for the courtroom. Some other important qualities are memory (of course legal knowledge), a deep understanding of the client’s situation and a passion for one’s cause. The hardest thing about what I do is understanding the perspective of a poker-faced opponent who doesn’t let her guard down. Fortunately, not all of my opponents fit this category – we do get often along – but lawyers have a bad reputation, in part, because of the rancor between them. I’ve been disparaged by some lawyers for my “passion,” once in open court. That was a way to condescend to my dedication, and on the backside disparage my legal position. This won’t happen again. My passion is not an audition, a false cloak I put on for court. It’s the feeling I’ve absorbed from the client and his case to communicate to the jury.
My teacher, Gerry Spence, with me, in 2003 – DuBois, Wyoming