From the Vault: Labor Pains

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In the 1990s, Joseph Matthews left his criminal law practice and wrote The Lawyer Who Blew Up His Desk (Ten Speed Press, 1998), a short story collection set in the courtrooms of the 1970s and 1980s. In an introduction to the story “Labor Pains,” Matthews noted that few women trial lawyers appeared in the book—not an accident of random distribution. “My 1971 law school graduating class was typical,” Matthews explained: “Of roughly two hundred students, fewer than a dozen were women, and of those I only know of one who became a trial lawyer. (After two decades of tenacious, immensely wearing and barely remunerative legal toil on behalf of women’s rights, that one classmate litigator closed up her practice, left a tape of bird songs on her office answering machine, and enrolled in art school.)” 

As highlighted in a recent Public Seminar essay by Sophie Boulter (“When Fascism Is Female”), regressive perceptions of “femaleness” persist (and are sometimes weaponized) even as more and more women attain positions of power. In the following excerpt from “Labor Pains,” Matthews offers a prescient look at the problem. 

Sociologists of the legal profession have by now explored and exposed the factors that continue to steer women lawyers onto certain professional tracks—notably family law and government bureaucracy desk-work—and away from trial law. What seems to remain unexamined, however, are changes that may have been occasioned by the entry of women into the trial court world: on one hand, how “femaleness” may be affecting the nature of the practice; and on the other, the gender-specific vitals of women attorneys which may be proving more or less vulnerable to the pathologies of trial lawyer life. 

Despite a number of deliberate conversations on the subject with women lawyer friends, I had no real sense from them of even tentative conclusions on these questions. So, when happenstance was about to send me through a certain midwestern city, I got in touch for the first time in a long while with Angela, an old friend who had left her public defender job and then private criminal law practice, and for several years now had been teaching in a social science department of a small university there.

“Oh, I can tell you exactly what convinced me to do it,” Angela said. “I’d had the idea for quite awhile. Vaguely, anyway. But I’d never actually pictured myself. No image of myself as a lawyer, you see. So, I never did anything about it. And then by chance I watched this hearing, with Beverly Ansthallen one of the judges. Well, not exactly by chance. Typical—it was this man I was seeing. In those days, I seemed to get involved with more than my share of lawyers . . .”

Angela and I both smiled at the recollection. We, too, had been briefly “involved” when I was just out of law school, shortly before the period she was now describing. But despite broadly shared values, mutual respect and a shimmering physical attraction, we found ourselves arguing far more than embracing. Not the best of beginnings for the perfect relationship. And since Angela and I were of a generation who believed that the perfect relationship would be the next one to walk through the door, we soon ended ours.

“So, this man—Jeff Balkin. You remember him?”

“With the motorcycle?”

Angela laughed. “I hadn’t thought of that. But yeah, that’s the guy. Anyway, he asks if I want to watch him argue a case in the court of appeal. And he mentions that Beverly Ansthallen—at that point she’s one of the only women anywhere on an appellate court—will be one of the judges. So, okay, I show up. And during the hearing, Judge Ansthallen asks Jeff to respond to a line of cases that ran against his client’s position. Now, Jeff had already told me that he was going to hang his whole argument on a single case, a 2–1 decision from Beverly Ansthallen’s first year on the court, and although she hadn’t written the opinion, she’d cast the deciding vote. So, when Ansthallen asks him about these other cases, Jeff glosses over them, and with this charm-boy act of his starts gushing about the ‘compelling logic’ of the early Ansthallen case. But ol’ Beverly keeps asking him about this other line of cases, and after the second or third time he gives her this ‘compelling logic’ crap about her early case, Beverly’s had enough. She yanks off these giant clip-on earrings she’s wearing, slams them down on the bench, and almost climbs out of her chair to glare down at Jeff: ‘You know, counsel,’ she growls, ‘something tells me that if I had it to do over again, I’d vote the other way on that case! Now, do you have any other logic you think might be compelling?’” 

Angela told me this story as we sat on the front porch of her three-room cottage, a modern little A-frame that squatted alone and anomalous on ten acres of scrubland almost an hour outside the city. Around the house lay miles and miles of remarkably flat fields and pasture, broken only by the occasional fence and at a great distance two dots that were an old clapboard farmhouse and barn. Far to the west, worn hillocks of mottled browns and greens were the only clues to perspective.

“Part of it was that I was sick and tired of the men I knew always driving the car while I just rode along.”

“You mean motorcycle, don’t you?” I teased. Shortly after splitting up with the motorcycle-riding lawyer Jeff, Angela had bought an even bigger bike of her own.

“Yes, I did love bikes. The power was, well, right there. Like climbing onto a new set of muscles. But after a while I realized it was a bit too heavy on the, ah, metaphoric.”

“And when you got to the real thing? Your time trying cases, I mean?”

“Well, but the struggle just getting the chance. . . . Did I ever tell you about my job interview with Thompson & McCreavy?”

“No. But I meant . . . after you were actually in . . .”

“You know, that big civil litigation firm? It was amazing. This stripe-suiter sitting there—silver-haired gentleman type, you know. Doing the recruiting for this big-time firm of his. And since I was almost top of my class, I thought I’d have a good shot at a job with them. So, he’s sitting there, doing the interview, and after a minute or two he says, ‘Tell me, do you really think you’re cut out to be a trial lawyer?’

I ask what he means, exactly. And he says, ‘Oh, I’m sure you’d be a good lawyer. But it’s the life, you see.’

So I say, ‘No, actually, I don’t see.’ And he says, ‘Well, women get married, of course. And husbands get jealous . . . of the time the wives have to spend litigating. And of the prestige.’

And then when I don’t say anything—because I can’t believe what I’m hearing—he bumbles right along: ‘And women have kids,’ he says, ‘and the kids get jealous, too. Because of the time Mommy spends on her work.’

Well, I’m sitting there still speechless, and so this clown gives me what he must have thought was the clincher. 

‘To be honest,’ he says, ‘there’s another problem. Sometimes you have to travel. And that means men and women lawyers together . . .’

Now, I expect him to say something about the women getting hassled on trips, or maybe some line about women not feeling comfortable traveling with men. But oh, no, that’s not it.

‘It’s the wives,’ he tells me. The wives of the male lawyers. They get jealous. And cause problems. Have I considered that? he wanted to know. Do I really want to be in the middle of all that . . .?”

The sun was disappearing behind the recumbent hip-and-shoulder hills, their faded-gingham browns turning vaguely blue. I wanted to nudge Angela to talk about her years in practice, but she’d gotten so steamed by thoughts of that job interview fifteen years before that I didn’t know what to say. Angela got up from her chair and collected my iced-tea glass. She came back with two gin-and-tonics.

“Well,” I said after we had worked our ways down the gin, “I’m sure you brought something different to the whole thing.”

“How do you mean?” She eyed me over the rim of her glass.

“I don’t mean anything . . . in particular. Just . . . well, okay, for starters, all that hideous trial lawyer aggression.”

“You mean, could I handle it?”

“No, I know you could . . .”

“Well, then what do you mean? Could I be like that . . .”

“No, not . . .”

“. . . if I needed to?”

“Look, I wasn’t saying anything. I know you were good. Come on.”

“Thin-skinned,” Angela laughed.

“What?”

“Women. They say women are too thin-skinned to be trial lawyers. Too emotional, you know. And here we are, a little heat from me and you’re the one getting all defensive.” She smiled, but I wasn’t sure whether her expression was comradely or sardonic. It was getting dark.

“Easily intimidated,” she continued in a somewhat less bumptious tone. “Meek. But you want to do stereotypes, how about ‘Women love to argue’? Of course, that leads to their favorite bête, the New Woman. You know: pushy, hard and blunt? . . . Now, there’s a law firm for you—‘Good morning, Pushy, Hard and Blunt.’”

“And what about ‘Women are too direct’?” I added. “Too forthright, so they always get taken by crafty male lawyers.”

“Crafty males?” Angela said with mock incredulity. “Come on. Have you forgotten Eve and the apple? I mean, Original Sin—whose work was that, for godssake?”

Angela was making us dinner. While peeling and chopping as she seared and sauteed, I urged her to talk about her life when she was practicing criminal law. She responded with stories of DAs and other lawyers, of judges, cops and clients, and of gender restraints both subtle and crude. What I couldn’t manage, however, was to get her to speak about what she might consider as elements of her femaleness, about how they may have affected, and were affected by, her life in court.

After supper we were back on the porch. The moonless summer sky had exploded into countless twinkling possibilities. Since I hadn’t been able to get Angela to talk about what trial lawyering may have done to her sense of herself, her “identity” as a woman, I shifted to a different lens: Did she feel, I asked, that the presence of more women lawyers was humanizing the criminal law?

Aware as soon as it was out of my mouth of the hopeless mush of “humanize,” I immediately tried again: What I meant was, did she think any of the mutilating saws of criminal justice had been blunted a bit by the infusion of values specifically female?

This was as vague and stilted as my first attempt, but Angela understood pretty well what I meant. I knew she understood—even without the porch light, I could see her face twisting in distress.

“You know,” she spoke wearily, “whenever one of my students says something about ‘Americans do this . . .’ or ‘Americans think that’, I say: ‘There are 300 million Americans. Which one, exactly, do you have in mind?’ So, let me ask you: Which women, exactly, do you have in mind? Or, which values?”

“Well, all right,” I backpedaled. “I’m not talking earth-mother essentialism, here. But are you saying there aren’t any gender particulars that might make a difference to criminal law? Or at least to criminal lawyers?”

“Such as?”

“Such as? I don’t know. You tell me. . . . Well, all right, how about . . . compassion? There’s an awful lot of talk about the ‘caring ethic’.”

“Excuse me? When you think of the women prosecutors you’ve run up against, is compassion a word that leaps to mind?” 

“Well . . .”

“Or women judges in criminal cases?”

“Okay, major dragons, most of ’em, you’re right. But they’re playing to the role, aren’t they?”

“Precisely. The position: DA; lawyer; judge. There are women in all of them now. But it’s still the same people getting busted. The same people getting shit on the same way in court. And getting put away for even longer. I mean, it’s like saying that with more women soldiers, armies will kill people ‘nicer.’”

“Yeah, okay, GIs, but . . .”

“Or, you want to move up the ladder? The decision-makers? You mean women in the board room won’t plunder for profit? Women in government not just as capable of callousness? Of monstrousness? You mean they won’t serve the worst imperatives of power? Tell me, which one do you want, Maggie Thatcher or Eva Peron? Or since you mentioned ‘caring’, how about the exquisitely compassionate Madeleine ‘Bomb-’em-to-their-knees’ Albright. Or my hero, Judge Beverly Ansthallen? Last I heard, she’d left the bench and was representing some chemical company—against women who’d been crippled by one of their toxic medications. So, go on, take your pick. . . . And take your time.”

Surfacing from our distant past together was an uncomfortable memory of this same tone of voice, the same forward-tilting head and rising brow. An atavistic burning arose in my chest as I recalled how often we used to argue and how Angela would press on unwaveringly until either I gave in or we parted with sizzling skins. Then, in a day or two or three, she would make peace and pay her respects to those of my arguments she thought worthy; she was always good about that. And by then reflection had usually shown us that we agreed far more than disagreed. 

But this time we didn’t have another day or two or three. And for the most part, again, I agreed with her. Besides, giving in or not wasn’t really a problem—skin was no longer at risk. So, I kept quiet. And when I didn’t respond, Angela leaned back and slowly exhaled. 

“Did you know,” she said softly after a minute, “that fish that are hooked and then released develop permanent psychological problems? . . . See how great it is reading academic journals? I mean, you’d never learn that in a law book.”

“And no more 20-hour days,” I chimed in. “Or midnight phone-calls. You get to have a life now.”

“Pardon me, but I had a life. That was one of the raps, too: trial lawyering follows you home, and ‘women can’t handle that.’ You know, relationships suffer, and ‘those things’ are too important to a woman. So, in the end she’ll give up the gig. Well, relationships have changed. And what’s important has changed, too. . . . Right?” 

We sat in silence, closely felt. I could almost hear Angela’s jaw working. The country sky had spread a huge blanket of stars, but too distant to give comfort. 

“But . . . you did give it up,” I finally said.

After a moment, Angela got abruptly to her feet and went inside. Noisily she banged around in the kitchen. The sounds seemed to carry a long way over the fields, nothing around to stop them. In a few minutes she came out again and sat down but said nothing.

I looked toward an old MG parked on a dirt path at the side of the house: “You still have a motorcycle?” 

“No,” she tried to laugh. I’m a professor now.”

“Oh, right.” I tried to laugh with her. “So, what do you do with yourself . . . out here?”

“Well . . . a lot of riding.”

“You mean, horses?”

“A horse, yes. Most every week. Cross-country: six, eight hours in the saddle. Sometimes I go the whole weekend. Extra muscles are okay out here . . . as long as you get them from a horse.”

Images were just beginning to form a line—Angela on a motorbike, Angela in court, Angela on a horse—when she spoke again. 

“Yeah, horses, I know,” she said sternly. “That’s another facile little metaphor, isn’t it? But frankly, I don’t care. . . . Women are like that, you know,” she added in afterthought. “Not caring.” And managed a smile.

Joseph Matthews is author of the novels The Blast, Everyone Has Their Reasons, and Shades of Resistance, the story collection The Lawyer Who Blew Up His Desk, and the post–September 11 political analysis Afflicted Powers: Capital and Spectacle in a New Age of War (with Iain Boal, T. J. Clark, and Michael Watts).