Boston, MA. Beacon Press. 264 pages. $26.95 (hardcover).
Posted: February 16, 2012 at 9:02 p.m.
Review by: Laura Wolf
Harvard Law School
Class of 2013
Former district judge Nancy Gertner writes about her career before ascending to the bench, painting a portrait of a staunch trial lawyer who represented women in key areas of the law—such as abortion rights, sexual harassment, employment discrimination, and medical malpractice—and who helped push the law forward with her cases. As a second-year law student, I plan to spend my career litigating causes, either in the courtroom or through impact litigation. Within the pages of Judge Gertner’s book, I found the confirmation that others share my zealous attitude, and that it takes a committed advocate to match Nancy Gertner’s effectiveness.
These pages truly are, as promised by the book’s title, memoirs of an unrepentant advocate. Though Gertner does not describe it as such, she acted as her own advocate when she followed her heart to Barnard College and then Yale Law School in spite of her father Moishe’s wishes that she fulfill the more traditional female roles of mother and wife. Gertner references many instances in which she was treated differently, often unfairly, for being a woman. At each impasse she stands up for herself, be it by going to the Superior Court of Massachusetts to demand state assignment of murder cases or by turning the concept of “having it all” (marriage, kids, career) into a joke at her twentieth college reunion. Gertner knows when to pick a fight, and when she decides to stand up for what she believes in, she gives it all she’s got. She appears unfamiliar with the concept of getting her feet wet first, preferring always to dive right in.
This zeal, along with the ability to shrug off the little things, translates seamlessly into the representation of her clients, since Gertner cannot help but identify with them. Gertner begins her book with the case of Susan Saxe, quickly paralleling her upbringing with Susan’s, and noting that even Saxe’s mother seemed to get the two confused. Similarly, in a medical malpractice case where the client’s psychiatrist manipulated her into having sex, Gertner recalls how she believed the client partially, if not mainly, because she once had a dentist who fondled her breasts. Finally, during closing arguments in a murder case, Gertner sat on a chair, ominously rocking back and forth, and spoke in the first-person, as though she were the defendant, describing her intention to “relive Lisa’s story . . . . [to] transform myself into her.” I wondered throughout if it was almost easier for Gertner to advocate so passionately for someone once she transposed the client onto her self, her personhood.
While I hope to become an equally passionate advocate some day, I worry about the negative effects it may have on a cause. It becomes so easy to get swept up in a client (and of course legally one is obligated to do just that) such that a cause may be hurt by the representation. Yet, I find that Gertner often equates her legal duty with empathy, likely because she puts herself so deeply in her client’s shoes. In doing so, it appears that she excuses turning a blind eye to a cause because of her ethical obligations when in reality it’s due to her personal feelings.
For instance, at the time when Gertner represented a woman charged with first-degree murder, there existed only an inchoate concept of using Battered Women’s Syndrome (“BWS”) as a self-defense argument. Gertner succeeded in convincing the judge that BWS could be used as grounds for self-defense, and in doing so hoped to push the law forward as well as win the case for her client. She writes: “[T]he empathy was real . . . . I represented Lisa, not society. I was an advocate, not an academic, and surely not a judge. I feared a first-degree murder conviction for this troubled and tortured woman far more than I feared the implications of runaway battered woman syndrome defenses.” This entire paragraph is confusing, as it conflates the reasons behind Gertner’s disinterest of her effect on future cases. The middle of the paragraph suggests she is simply doing her legal duty as an advocate; Lisa, not society, was the client. Yet this is cushioned in self-identification and personal feelings, beginning with empathy and ending in fear. Empathy and fear are not terms one uses in discussing the legal obligation to represent the client above all else. So what is the real reason that Gertner sides with her client: an ethical duty or her personal feelings? More importantly, should it matter?
In a different case, Gertner represents a young man accused of rape, and in doing so inadvertently sets back rape victim’s rights in Massachusetts for about fifteen years. While Gertner was “stunned” with the Massachusetts Supreme Judicial Court’s far-reaching decision, she does not appear as critical of her role or, at least, foreboding about the dangers of litigation as I had hoped she would be. She explains away the decision by saying: “Advocacy is unlimited. Once you are enlisted to represent someone, you must do everything you can that is lawful to secure his liberty. You cannot control the outcome, the court’s reasoning, the impact on other cases.”
I find it difficult to criticize someone’s career choices, as I know I will undoubtedly make endless blunders and at least a few serious mistakes in my professional life. Yet, reading Judge Gertner’s description of this case, I cannot help but feel as though the disastrous result was partially due to the fact that Gertner did not actively participate in her client’s case until the bail hearing and appeal. She assumed first that the client would never be indicted, and left it to another lawyer to effectuate that end. He failed. She then believed the client would be acquitted, and let the same lawyer handle the trial. The judge convicted. If Gertner had stepped in from the start, perhaps her client would never have been indicted, least of all convicted. In turn, no appeal would have ever been made, and no bad precedent set. Yet at no point does Gertner reflect on this possibility, and I critically wonder how much this case’s result can be excused with the argument that being an advocate comes before all else. Personally, I wish that Gertner had openly said that she perhaps mismanaged this case by passing it off, and in doing so caused a ripple effect that she did not foresee. While it is true that once you take on the role of litigator you give up control over the cause and any future cases, there are times where the result is more in your control than you care to believe. Gertner misses an opportunity to warn future litigators that sometimes you do make mistakes, that not all setbacks can be excused or explained by your legal duty to zealously represent your client.
In spite of this, what I love about her memoirs is that Gertner is not modest; she gives herself credit when it is due, and unabashedly speaks to her ability to win an impossible case. I must admit that at first this surprised me; it felt off-putting. Then I realized: No—this is exactly what feminists should demand of ourselves! Gertner is a woman doing what few women have the courage to do: admit to being the best.
Irony of ironies, one of the reasons Gertner is so successful is because no one gave her a break. The media ignored her, judges chided her, and yet she persisted. Being a woman—excluded from the “boy’s club”—and a young attorney gave her no choice but to be innovative. In the Saxe case, to undermine witness testimony identifying a purple dress allegedly belonging to the defendant, Gertner asked a number of women in the courtroom to wear various shades of purple. This had the best effect imaginable: the witness picked out a dress in court that failed to match the shade of the dress found by the police. Even more astonishing, once the prosecution rested their case, the defense rested as well. Gertner dared to let the entire theory of innocence rest on the notion that the prosecution had not proven Saxe’s connection to the crime beyond a reasonable doubt. In the end, the jury could not reach a decision, and the judge declared a mistrial. This was a case that was supposed to be a slam-dunk for the prosecutor, a male district attorney who had only lost one murder case out of the two hundred he had tried in his career. It’s this type of risk-taking that we fellow women can learn from, along with using whatever is meant to hold us back, including our gender, to our advantage.
Unfortunately, women cannot benefit from all stereotypes. As Gertner points out, “[t]he ‘bitch’ stereotype is always out there, ready to be launched if we go ‘too far.’” In truth, it is even worse than this. During Gertner’s confirmation hearing, a requirement to become a federal judge, a Boston Herald columnist compared a liberal Gertner to Lorena Bobbitt, a woman who, at the time, had just been arrested for cutting off a piece of her husband’s penis. I felt astonished, shocked, and livid when I read this anecdote. Would a liberal male nominee ever be compared to a man arrested for disfiguring women’s bodies?
One of my biggest fears is that female attorneys—and women generally—will never get to a point where men, frustrated with our success and capabilities, do not have the power to cut us down by calling us a “bitch” or by insinuating that successful women are deranged. Since I doubt this type of slander will ever cease, I wonder if the solution lies with us, with our reaction. Gertner barely seems to flinch when recounting the editorial. Is the answer to ignore or make light of these attacks? Earlier in her career Gertner wrote a letter to protest a sexist column in Massachusetts Lawyers Weekly and the response was a flood of attacks for being “humorless.” So if we fight, we are humorless, which really means to say that we are overreacting and thus our opinions should be diminished or dismissed outright. Yet if we say nothing, nothing changes. It certainly has not gotten better out there; look at coverage of any leading woman in politics and you will see what I mean. In fact, it has been nearly twenty years since Gertner’s confirmation hearing and the media’s characterization of women remains denigrating and sexist.
Another area in which women continue to be forced to live by male standards is the workplace. Fortunately, this area is one in which we have seen some progress, though not as much as one would hope. In the early 1970s, Gertner accepted that to succeed she had to, and did, act like a man. She concedes that women “couldn’t begin to talk about transforming the workplace to make it more human . . . until we had become a full-fledged part of it. We simply accepted the premise that the workplace would reflect the needs of its incumbents, who then were all male.” Yet, haven’t we all heard the same thing come from women we know, if not ourselves, today? Forty years later and we still make the excuse that things cannot change until we become integrated—then it was into the workforce, now it is into the upper echelon.
While I concede that much has improved, undoubtedly due in part to the efforts of Gertner and others who work towards furthering women’s equality, at a certain point we need to stop playing the game, climbing the same corporate ladder, and start demanding change from the outside. During recruiting season at law firm callback interviews, I openly questioned why I met only one woman at one firm, and why at another there was only one female litigation partner in the medium-sized office. These are leading litigation firms whose work I highly respect. Both firms responded honestly and graciously to my concerns, putting me in touch with women in the firm, explaining that they were looking into the gender disparity, and so on. Though one female student’s voice may not be enough to rock the boat completely, if we all take part in making our message clear—that we want equality now, not some day down the road—this is a result we can achieve.
Don’t let Gertner’s comments about the workforce fool you; she too openly rejected backwards thinking, even at the start of her career. When one attorney refused to address her, instead directing responses to her male partner, both she and her partner wrote indignant letters refusing to work with the lawyer “until he emerged from the dark ages and started dealing with [Gertner] as his equal.” First, I applaud that both Gertner and her male partner wrote these letters. One of the most important ways for women to change these persistent stereotypes that diminish our value is by getting men to advocate on our behalf as much as we do. Second, I cannot help but quote a segment of Gertner’s letter here, since I felt immeasurable joy and pride in reading it: “It both angers me and saddens me, that there can be people who can be so obtuse that they do not see change when it is upon them. Perhaps you and your colleagues will change when your myopia once again leads you to sadly misjudge a woman opponent, to lose substantially because you have undervalued your opposition.” True to form, Gertner says what I only wish more women were comfortable saying. My advice is for all women to take from this book the fighting spirit imbedded in each page, and use it in all aspects of our lives, most especially our careers.
On the first page of her book, Gertner writes: “Empathy was a given. Detachment is what I had to learn.” By the last page, it seems Gertner never did learn detachment, at least not in her career as a trial lawyer. I wonder if she ever could have learned it. Personally, whenever I have tried I have failed, so much so that friends joke with me about burning out before I turn thirty. Yet I wouldn’t know any other way to be, just as I am sure Gertner does not.
Reading her book, I thought about my experience meeting Judge Gerner during my first semester of law school. My Legal Research and Writing instructor clerked for a District of Massachusetts judge, and asked fellow District Judge Gertner to let us observe her in court. She agreed to let our first-year section come in and ask her questions, hear about her job, and see a federal courthouse. I remember she discussed how she hated being forced to give such high sentences for drug crimes, so much so that she would write long footnotes about the need to reform mandatory minimums. Even as a federal judge, Nancy Gertner could not detach herself from the individuals in court before her, undoubtedly making her a better judge, just as it had first made her into an extremely successful advocate.
No law school class has shown me what a true advocate looks like the way reading Nancy Gertner’s book did. My conclusion, cheesy as it may be, is that we soon-to-be lawyers should all strive to stand up fiercely for what we believe in and against injustices we perceive. We will surely make mistakes, but our lives will have purpose, and our capability to help those in need will continue to grow with each new experience.
 Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate 58 (2011).
 Id. at 126.
 Id. at 13–15.
 Id. at 1.
 Id. at 66.
 Id. at 130–31.
 Id. at 130.
 Id. at 140 (“I understood that my arguments were breaking new ground . . . .”). In 1986, Gertner used BWS to argue that the “reasonable battered woman” did fear for her life even hours after threats were made, and that thus self-defense was a proper argument for the court to allow. Id. at 138–39.
 Id. at 141.
 Id. at 151.
 Id. at 174.
 Commonwealth v. Stockhammer, 570 N.E.2d 992, 1002 (Mass. 1991) (holding that defendant’s counsel is entitled to review complainant’s psychiatric records under Article 12 of the Massachusetts Declaration of Rights). The decision was a setback for rape victim’s rights insofar as it addressed the issue of psychiatric records. Gertner, supra note 1, at 174. In the appellate brief, Gertner argued that in this case the psychiatric records of the alleged rape victim should have been made available at trial. Id. As these conversations were privileged, the common procedure for their admittance in trial was for an in camera review, where the judge would review the materials privately and come to a decision based on what he or she read. Id. at 173. In this instance, Gertner had good reason to believe that the trial judge did not review the materials before ruling on the matter. Id. at 173–74. On appeal, the Supreme Judicial Court reversed the conviction, and also addressed the psychiatric records issue in anticipation of a second trial. Id. at 174. Gertner summarized the court’s decision as holding that “all of the complainant’s psychiatric and therapy records should be available to the defense—period. There would be no prior judicial review. What’s more, defense lawyers no longer had to make any showing to get the records.” Id. Yet, psychiatric records are privileged for a reason. Gertner worried that if a woman “had been raped, she would be in dire need of counseling. If her words to her counselor could become fodder for the likes of Bailey-Rothblatt, she would not speak, and if she didn’t speak, she wouldn’t heal.” Id. at 173. The irony in all of this is that the prosecutor dropped the charges after the reversal; there was no second trial, id. at 174, and thus no need for this part of the decision.
 Id. at 175.
 The result referred to is that “[o]ne privilege was totally dismantled, the psychotherapist-patient privilege, with respect to one crime, rape, and one type of victim, a woman.” Id. at 174. Judges interpreted this decision broadly, such that “psychiatric records would be routinely turned over [in rape cases] whether there was a ‘legitimate need’ for them or not.” Id.
 Id. at 164.
 Id. at 165.
 In this 1976 case, Susan Saxe was on trial for murder in the first degree based on a theory of felony murder. Id. at 23. The trial was Gertner’s fourth ever, only three years into her practice. Id. at 9.
 Id. at 35.
 Id. at 43.
 Id. at 47.
 Id. at 10.
 Id. at 202.
 Id. at 241.
 Id. at 54.
 Id. at 180.
 Id. at 54.
 Id. at 55.
 Id. at 1.