Boston, MA. Beacon Press. 264 pages. $26.95 (hardcover).
Posted: February 16, 2012 at 9:02 p.m.
Review by: Elizabeth Jensen
Harvard Law School
Class of 2014
In Defense of Woman is more than a story about a feminist attorney. It is the story of a woman who entered a still bigoted profession, and carved her way. It is the story of the clients she took on and the causes for which they fought. Gertner writes candidly about the costs as well as the rewards of her life in law up to her appointment as a federal judge in 1993. For aspiring female attorneys, Gertner’s book is an insightful read.
Since the start of her career in 1975, Gertner early began keeping a “Sexist Tidbits” file, the kernels of many of her book’s stories. These anecdotes could have the effect of moving the reader from outrage to outrage, pulled along by a sense of anger at an anti-women establishment, but Gertner’s candid writing and thoughtful insights keep the work from falling into this trap. The sexist comments by judges, comments about plaintiffs and about herself, the news clippings and court room incidents that arose from the entrenched old boys network—all are painted into a portrait in shades of gray rather than in black and white.
We get an idea of Gertner’s motivation and shaping forces through her description of her close relationship with her very traditional father (he did not approve of her mother working or driving). Gertner writes that through their debates—really more like arguments—she learned to disagree vehemently while still respecting and even loving her opponent; that growing up she did not have women role models doing what she wanted to do; and that although she loved and respected her mother, she did not want to become her, or so she thought. As a young female attorney she forged her path without clear guideposts.
Much of Gertner’s professional life was spent, as suggested by her book’s title, defending women: sexual harassment, sexual discrimination, malpractice, battered women, abortion, lesbian women seeking custody of children. The book tells the stories of Gertner’s life and her cases, recalling the legal choices as well as the personal decisions behind them, both client decisions and decisions she made about her own professional and moral compass.
Gertner writes fluidly about the legal strategizing, her prose painting firm, clear strokes. Her first case, defending anti-Vietnam activist Susan Saxe in a murder charge stemming from a bank robbery, presents both the ideological and procedural considerations. Saxe was a defendant heavily involved in her own case, and wanted the legal team “to reflect her feminism.” Gertner had to teach herself legal procedure. Legal work was like “learning a language” and immersion was the way to learn quickly. She describes in deft detail the intense preparation for court and the payoff: an unexpected victory in her first major case.
The Saxe case went for months before Gertner and her team nailed down a substantive argument. Throughout her book, Gertner emphasizes the creative thinking needed for substantive reasoning. These creative arguments are a good window into the evolution of the law, of the evolving definitions of medical malpractice and sexual harassment. Gertner utilizes an advocate’s approach as she presents these issues, leaving the reader curious about as to what Gertner herself thought of the decisions and compromises she made.
Though we’re left wondering how Gertner the lawyer felt about some of the gray she encountered in her work, discussing controversial issues through the lens of cases and stories gives the work emotional pull. While we wish to hear the reflections of the advocate, her silence leaves room for readers to reflect for themselves on the gray areas. The case of a physiatrist who started a sexual relationship with his client illustrates this point. At the time, there were questions about whether such conduct even qualified as malpractice. He called it “therapy” and said that his client’s problems were not his fault, as “she was a ‘global disaster’ long before they met.” As expected, Gertner argued passionately against this self-serving characterization. She writes that in this environment, not knowing much about medical malpractice was unexpectedly “a strength.” She would focus her argument on how the exploitation and dehumanization of the situation ran directly counter to the purposes of therapy. It was a new concept of malpractice, but one that fit well within the existing framework.
In the end, she writes of the legal process as a kind of “‘law cure”’ that helped her client develop agency and confidence far more than her years of therapy ever did. At the same time, the client did not consider herself to be an actor in the ongoing evolution of the meaning of medical malpractice. When asked later to testify in another case brought against the same physiatrist, her former client refused. Gertner ends the chapter with a discussion she had with her hairdresser. He tells her about a jury on which he had served. It was a malpractice case against a psychiatrist for sexual improprieties. Without other women coming forward, the jury was unable to convict. Gertner asks the defendant’s name and learns that it was Dr. X, the defendant from her own case. She does not write of any emotional response she had to the news, and it is left to the reader to reflect on the choice of the client not to testify and what it means that Dr. X continued his practice.
Both the Saxe case and the Dr. X case are illustrative of the way in which Gertner combined “‘insider privileges’” with an “‘outsider consciousness.’” For Gertner, being a successful woman in the profession required carving out an identity in the old boys network. However, this familiar theme could have been further elaborated. While Gertner was clearly an outsider to the traditional old-boys network, her atypical clients and innovative arguments provided the foundation on which to build a successful and distinguished career. Such clients and causes of actions meant the outsider was coming into the courtroom. While the existence of the Sexist Tidbits file was itself a coping mechanism for the sexism she encountered, Gertner’s own success seems in some ways to belie the difficultly of the problem. In many ways, Gertner seems to credit her very outsider status as giving her the opening she needed to carve out her place in the system, a circumstances which could have been further explored throughout the work.
As a young woman, Gertner was better able to relate to certain clients and young jurors, and was seen as a more appropriate face for certain causes. She was the “flower child” lawyer, the female advocate with the seventies sensibility and the Yale law school training. This outsider status gave her cachet and media attention, providing a strong, early foundation on which to build a successful practice. One wonders how Gertner’s experience compared to young male lawyers, right out of law school, who did not have an outsider hook to carve out a courtroom identity.
Gertner’s story is also one of transition from the “flower child” advocate into a more traditional professional role. She recalls that early on she was opposed to what she thought professionalism meant, as she felt that it “separated the lawyer from the client [and] encouraged elitism.” This attitude changes, and the reader yearns for more self-reflection on this point. Certainly, there is plenty to suggest that the transition to the more professional route was not smooth. When working with her male partner to defend a political corruption case, her male partner would get the press. Though Gertner had practiced law for over twelve years, some still assumed that he was the one pulling the strings.
When she took high profile cases which were traditionally handled by the male establishment and not linked with what might be viewed as women’s causes, she gathered even more fuel than usual for her Sexist Tidbits file. She writes that in truth these high profile political cases belonged to her male partner, not herself—she was brought in for her trial expertise.  While Gertner argued and won against many male attorneys and carved out a place in the male-dominated courtrooms, the cases in which she developed her skills involved female clients or women’s causes. Even when she later took a main role in the trial for the case, she was not given credit in the press. Despite successful and extensive trial work she was not considered among the “top trial lawyer[s]” appropriate for a notorious political case. The idea that there may be certain areas of the law in which men assume women are not found or should not be taken seriously is a major issue that deserved further exploration in the book. As a reader I would have liked more discussion about the differences between being a female attorney working on “feminist issues” versus working on traditional, male dominated cases.
After the political corruption cases, Gertner discusses another incident which may be considered a woman’s issue, a rape case—but in this case, she represents the alleged perpetrator. Though at first reluctant to take the case, she ultimately does because she believed he was innocent. She talks of his case in a chapter entitled “A ‘So-Called’ Feminist,” starting the story at the end, when her feminist credentials are challenged for taking and winning the case. From the side of the defendant, the reader can see the dangers when the pendulum, even in the case of rape, swings too far in the direction of the accuser. Her discussion illustrates the role politics played in the case. It had become politically risky to find against a plaintiff in a rape case, as courts were reluctant to “send the wrong message” in this developing area of law. Believing her client’s innocence, Gertner won a victory even more sweeping than she could foresee, setting a precedent which pushed the pendulum back toward defendants by giving judges greater ability to overturn cases by giving them the option to review psychotherapy-patient records. Beyond merely recognizing the shades of gray in the system, Gertner herself was willing to take on shades of gray herself, and endure the political flak from groups that saw the world in black and white. She ended up pushing the pendulum in both directions, setting up a deep-seeded impression of the need for balance which would be invaluable for the next stage of her career.
Gertner ends her book with her appointment as a federal judge. It is a testament to the engaging prose and lively insights that on reaching the end of the book, one wants to know more of that next chapter of her life and her perspective from the bench. Gertner writes about the female judges she encountered, usually followed by the observation that they were the first female judge in that district or the only female judge on that panel. There is a sense of satisfaction as Gertner joins their ranks in the end.
 Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate xi (2011).
 Id. at 13.
 Id. at 127.
 Id. at 16.
 Id. at 30.
 See id. at 70–71.
 Id. at 67.
 Id. at 68.
 Id. at 69.
 See id. at 72.
 Id. at 80.
 Id. at 82.
 Id. at 53.
 Id. at 16.
 Id. at 53.
 Id. at 16.
 Id. at 110.
 Id. at 15–16.
 Id. at 111.
 Id. at 108.
 Id. at 110.
 Id. at 155–56.
 Id. at 168.
 Id. at 174.