Three Rambo Litigators: Emotional Labor in a Male Dominated Job

Late in the afternoon, I was sitting with Ben and Stan …. They were complaining about being litigators, or as they put it, how “litigation turns people into bastards—you don't have any real choices.” Stan said that if you don't fit in, you have to get out because you won't be successful. And Ben added, “To be a really good litigator, you have to be a jerk. Sure you can get by being a nice guy, but you'll never be really good or really successful.”

Field notes

The comments made by these two young lawyers suggest that the legal profession often requires behavior that is offensive not only to other people, but to oneself: “To be a really good litigator, you have to be a jerk.” In popular culture and everyday life, jokes and stories abound that characterize lawyers as aggressive, manipulative, unreliable, and unethical.¹Close This image is expressed in the joke about why the lawyer who falls overboard in shark-infested waters is not eaten alive—it's professional courtesy. Our popular wisdom is that lawyers are ruthless con artists who are more concerned with making money than they are with fairness (Post 1987; National Law Journal 1986).²Close Few consider, as these two young men do, that the requirements of the profession itself support and reinforce this behavior.

How does the legal profession support such behavior? Legal scholar Carrie M enkel-Meadow suggests that the adversarial model, with its emphasis on “zealous advocacy” and “winning,” encourages a “macho ethic” in the courtroom (1985: 51–54). Lawyers and teachers of trial lawyers argue that the success of litigators depends on their ability to manipulate people's emotions (Brazil 1978; Berg 1987; Spence 1988; Turow 1987). Trial lawyers must persuade judges and juries and must intimidate witnesses and opposing counsel in the courtroom, in deposition, and in negotiations. The National Institute of Trial Advocacy, for example, devotes a three-week training seminar to teaching lawyers to hone such emotional skills.³Close Furthermore, attorneys recognize that to attract and retain clients they must not only provide a competent professional service, but spend considerable energy wooing potential business as well as listening to current clients, reassuring them and impressing them with their professional competence and expertise (Zimmerman 1983; Stibelman 1988a).

This chapter examines this emotional dimension of legal work in a particular specialty of law—litigation. Sociological studies of the legal profession have yet to seriously examine the emotional dimension of lawyering.⁴Close Although a few studies make reference to it, they do not make it the central focus of their research. For example, in their classic book, Lawyers and Their Work, Johnstone and Hopson (1967) describe in detail the many tasks associated with the lawyering role, such as advising clients, negotiation, drafting, litigation, investigation of the facts, legal research, and “business getting” (1967: 78–121). In only two of these nineteen task descriptions do Johnstone and Hopson allude to the emotional dimension of lawyering—“emotional support to client” and “acting as a scapegoat” (1967: 119–20). My findings suggest that these tasks as well as litigation, negotiation and business getting all contain an emotional as well as an intellectual component. More recently, Nelson (1988) reduces these varied tasks to three roles, finders, minders, and grinders: finders are lawyers “who seem to bring in substantial clients”; minders are lawyers “who take care of the clients who are already here”; and grinders are the lawyers “who do the work” (senior partner quoted in Nelson 1988: 69). Nelson's reduction of these roles to their instrumental and intellectual dimensions neglects the extent to which instrumentai tasks like “finding” and “minding” also contain emotional elements.

My study shows that this neglected dimension of lawyering is a significant part of the work. Litigators make use of their emotions to persuade juries, judges, and witnesses in the courtroom, in depositions, and in communications with opposing counsel and with clients. However, in contrast to the popular image, intimidation and aggression constitute only one component of the emotional labor of lawyering. Lawyers also make use of strategic friendliness, that is, charm or flattery to manipulate others. Despite apparent differences in these two types of emotional labor, both involve the manipulation of others for a specific end—winning a case, while other jobs require the use of manipulation to achieve specific ends, such labor may serve different purposes and be embedded in a different set of relationships. Flight attendants, for example, are trained to be friendly and reassuring to passengers to alleviate their anxiety about flying (Hochschild 1983). However, flight attendants' friendliness takes the form of deference: their relationship to passengers is supportive and subordinate. In litigation the goal of strategic friendliness is to “win over” or dominate another. As professionals who have a monopoly over specialized knowledge, attorneys hold a superordinate position with respect to clients, witnesses, and jurors, and they take a competitive position with other lawyers. To win their cases, trial lawyers must manipulate and ultimately dominate others for their professional ends.

By doing whatever it takes, within the letter of the law, to win a case, lawyers fulfill the goal of zealous advocacy: persuading a third party that the client's interests should prevail. In this way, intimidation and strategic friendliness serve to reproduce and maintain the adversarial model. By exercising dominance and control over others, trial lawyers also reproduce gender relations. The majority of litigators who “do dominance” are men, and those who defer are either women—such as secretaries and paralegals (see chapter 4)—or men who become feminized in the process of losing. In addition to creating and maintaining a gendered hierarchy, the form such emotional labor takes is itself gendered. It is a masculinized form of emotional labor not only because men do it but because dominance is associated with masculinity in our culture. West and Zimmerman (1987) argue, for example, that displays of dominance are ways for men to do gender. Similarly, psychoanalytic feminists equate masculinity with men's need to dominate women (Benjamin 1988; Chodorow 1978). In the case of trial lawyers, the requirements of the profession deem it appropriate to dominate women as well as other men. Such “conquests” or achievements at once serve the goals of effective advocacy and become means for the trial lawyer to demonstrate his masculinity.

Of course, not all litigators are men. My usage of the masculine pronoun in this chapter is meant to reflect not only that this area of law is male-dominated but also that the norms and idioms of appropriate emotional labor are masculinized. Furthermore, use of he highlights the contradictions women trial attorneys face as women in this profession: how can a woman be a woman and a lawyer who strives to prove his masculinity? The double binds women litigators experience will be examined in Chapter 5. This chapter emphasizes the unexamined, masculinized emotional norms of litigation practice.

Popular wisdom and lawyer folklore portray lawyering as a game, and the ability to play as gamesmanship (Fox 1978; Spence 1988). As one of the trial attorneys I interviewed said,

The logic of gamesmanship is very interesting to me. I like how you make someone appear to be a liar. You know, you take them down the merry path and before they know it, they've said something pretty stupid. The challenge is getting them to say it without violating the letter of the law.

Lawyering is based on gamesmanship—legal strategy, skill, and expertise. But trial lawyers are much more than chess players; their strategies are not simply cerebral, rational, and calculating moves, but highly emotional, dramatic, flamboyant, shocking presentations that evoke sympathy, distrust, or outrage. In litigation practice, gamesmanship involves the utilization of legal strategy through a presentation of an emotional self that is designed specifically to influence the feelings and judgment of a particular legal audience—the judge, the jury, the witness, or opposing counsel. Furthermore, in my definition, the choices litigators make about selecting a particular strategy are not simply individual; they are institutionally constrained by the structure of the legal profession, by formal and informal professional norms, such as the American Bar Association's Model Code of Professional Responsibility (1982), and by training in trial advocacy, through programs such as those sponsored by the National Institute of Trial Advocacy.

The rules governing gamesmanship derive from the adversarial model that underlies the basic structure of our legal system.⁵Close This is a method of adjudication in which two advocates (the attorneys) present their sides of the case to an impartial third party (the judge and the jury), who listens to evidence and argument and declares one party the winner (Luban 1988; Menkel-Meadow 1985). As Menkel-Meadow (1985) observes, the basic assumptions that underlie this set of arrangements are “advocacy, persuasion, hierarchy, competition and binary results (win/lose).” she writes: “The conduct of litigation is relatively similar … to a sporting event—there are rules, a referee, an object to the game, and a winner is declared after play is over” (1985: 51).

Within this system, the attorney's main objective is to persuade the impartial third party that his client's interests should prevail (American Bar Association 1982: 34). However, clients do not always have airtight, defensible cases. How then does the “zealous advocate” protect his client's interests and achieve the desired result? When persuasion by appeal to reason breaks down, an appeal to emotions becomes paramount (Cheatham 1955: 282–83). As legal scholar John Buchan writes, “the root of the talent is simply the power to persuade” (1939: 211–13). And in “Basic Rules of Pleading,” Jerome Michael writes:

The decision of an issue of fact in a case of closely balanced probabilities therefore, must, in the nature of things, be an emotional rather than a rational act; and the rules regulating that stage of a trial which we call the stage of persuasion, the stage when lawyers sum up to the jury …. The point is beautifully made by an old Tennessee case in which the plaintiff s counsel, when summing up to the jury began to weep …. The lawyer for the defendant objected and asked the trial judge to stop him from weeping. Weeping is not a form of argument …. Well, the Supreme Court of Tennessee said: “It is not only counsel's privilege to weep for his client; it is his duty to weep for his client.” (1950: 175)

By appealing to emotions, the lawyer becomes a con man.⁶Close He acts as if he has a defensible case; he puffs himself up; he bolsters his case. Thus, the successful advocate must not only be smart, but, as the famous turn-of-the-century trial lawyer Francis Wellman⁷Close observed, he must also be a good actor (1986 [1903]: 13). In The Art of Cross-Examination, first published in 1903 and reprinted to the present, Wellman describes how carefully the litigator must present himself to the judge and jury:

The most cautious cross-examiner will often elicit a damaging answer. Now is the time for the greatest self-control. If you show by your face how the answer hurt, you may lose by that one point alone. How often one sees a cross-examiner fairly staggered by such an answer. He pauses, blushes, [but seldom regains] control of the witness. With the really experienced trial lawyer, such answers, instead of appearing to surprise or disconcert him, will seem to come as a matter of course, and will fall perfectly flat. He will proceed with the next question as if nothing happened, or else perhaps give the witness an incredulous smile, as if to say, “Who do you suppose would believe that for a minute.” (1986 [1903]: 13–14)

More recently, teacher and lawyer David Berg (1987) advises lawyers to think of themselves as actors and the jury as an audience:⁸Close

Decorum can make a difference, too …. Stride to the podium and exude confidence, even if there is a chance that the high school dropout on the stand is going to make you look like an idiot. Take command of the courtroom. Once you begin, do not grope for questions, shuffle through papers, or take breaks to confer with cocounsel. Let the jury know that you are prepared, that you do not need anyone's advice, and that you care about the case … because if you don't care, the jurors won't care. (1987: 28)

Wellman and Berg make a similar point: in the courtroom drama, attorneys are the leading actors. Appearance and demeanor are of utmost importance. The lawyer's manner, his tone of voice, and his facial expressions are all means to persuade the jury that his client is right. Outrageous behavior, as long as it remains within the letter of the law, is acceptable. Not only are trial lawyers expected to act, but they are expected to act with a specific purpose in mind: to favorably influence feelings of the judge and jurors.

This emphasis on acting is also evident in the courses taught by the National Institute for Trial Advocacy, where neophyte litigators learn the basics of presenting a case for trial. NITA's emphasis is on “learning by doing” (Kilpatrick quoted in Rice 1989). Attorneys do not simply read about cases but practice presenting them in a simulated courtroom with a judge, a jury, and witnesses. In this case, doing means acting. As one of the teachers/lawyers said on the first day of class, “Being a good trial lawyer means being a good actor …. Trial attorneys love to perform.” Acting, in sociological terms, constitutes emotional labor, that is, inducing or suppressing feelings in order to produce an outward countenance that influences the emotions of others. The instructors discuss style, delivery, presentation of self, attitude, and professionalism. Participants, in turn, compare notes about the best way to “handle” judges, jurors, witnesses, clients, and opposing counsel. The efforts of these two groups constitute the teaching and observance of “feeling rules,” or professional norms that govern appropriate lawyerly conduct in the courtroom.

The tone of the three-week course I attended in Boulder, Colorado, was set by one of the introductory speakers, a communications expert and actor. He began his lecture by describing his personal “presentation of self”:

“Let's see, tall, blond, Scandinavian looking. Can't change that. But let's think about what I can change.” He stands erect, imperious, and exclaims, “A Nordic Viking!” The class laughs. He doubles over, limps along the dais, and says in a shaky voice, “A bent, old man.” There is more laughter. He stands erect again and begins making exaggerated faces—he smiles, grimaces, frowns; he looks sad, stern, angry. There is more laughter. “So you see, I do have something to work with! Now let's start with you. Everyone stand up.” People stand. “Are you a sloucher, do you walk with a ramrod up your …. Let's practice by standing for awhile and try thinking confidence. You want to convey confidence in the courtroom! How do you do that?” He addresses one of the students: “No, you do not slouch!” There is more laughter. “Stand tall …. Stand tall.” He looks around the room. “Have any of you ever heard of animation? Standing tall is great, but—” he pauses and looks significantly at a woman student—“standing tall and looking bored does not convey confidence! How do you convey confidence? It helps to look confident—but you also have to feel confident.”

In his lecture, he provided a list of acting techniques that attorneys could use in the courtroom. He encouraged the litigators to practice facial expressions in front of a mirror for at least fifteen minutes a day. However, his lecture was not just a lesson in “surface acting,” that is, the display of facial expressions, but in “deep acting,” as well. Deep acting is similar to the Stanislavski method, in which the actor induces the actual feeling called upon by the role (Hochschild 1983: 35). NITA's communications expert, for example, encouraged students to visualize themselves in situations where they had felt confident, to “hold on to that feeling” and “project it” into the current situation.

The remainder of the three-week course took students through various phases of a hypothetical trial—jury selection, opening and closing statements, direct and cross-examination. In each stage of the trial the lawyer has a slightly different purpose. For example, the objective in jury selection is to uncover the biases and prejudices of the jurors and to develop rapport with them. The opening statement sets the theme for the case, whereas direct examination lays the foundation of evidence for the case. Cross-examination is intended to undermine the credibility of the opposition's witness, and closing represents the final argument. Despite the differing goals of each phase, the means to achieve the lawyer's goals is similar in each case, that is, to attempt to persuade a legal audience to be favorably disposed to one's client through a particular emotional presentation of self.

In their sessions on direct and cross-examination, students were given primarily stylistic rather than substantive responses to their presentations. They were given finer criticisms on the technicalities of their objections and the strength or weakness of their arguments. But in the content analysis of my field notes of each session I found that 50 to 80 percent of comments were directed toward the attorney's particular style. These comments fell into five categories: (1) personal appearance; (2) presentation of self (nice, aggressive, or sincere manner); (3) tone and level of voice; (4) eye contact and (5) rapport with others in the courtroom.

For example, in one of the sessions, Tom, a young student in the class, did a direct examination of a witness to a liquor-store robbery. He solemnly questioned the witness about his work, his special training in enforcing liquor laws, and his approach to determining whether someone was intoxicated. At one point, the witness provided a detail that Tom had not expected, but rather than expressing surprise, Tom appeared nonchalant and continued with his line of questions. At the end of his direct, the teacher provided the following feedback:

Good background development of witness. Your voice level was appropriate but try modulating it a bit more for emphasis. You also use too many thank you's to the judge. You should ingratiate yourself with the judge, but not overly so. You also made a good recovery when the witness said something unexpected.

When Patricia, a young woman attorney, proceeded nervously through the same direct examination, opposing counsel objected repeatedly to some of her questions, which flustered her. The teacher told her:

You talk too fast. And, you didn't make enough eye contact with the judge. Plus, you got bogged down in the objections and harassment from opposing counsel. Your recovery was too slow. You've got to be more forceful.

In both these examples, as in most of the sessions I observed, the focus of the comments is not on the questions asked but on how the questions are asked. Tom is told to modulate his voice; Patricia is told not to talk so fast. In addition, the teacher directs attention to rapport with others in the courtroom, particularly the judge. Moreover, the teacher commends Tom for his “recovery,” that is, regaining self-composure and control of the witness. He criticizes Patricia, on the other hand, for not recovering well from an aggressive objection made by opposing counsel.

In my fieldwork at NITA and in the two law offices, I found two main types of emotional labor: intimidation and strategic friendliness. Intimidation entails the use of anger and aggression, whereas strategic friendliness utilizes politeness, friendliness, and/or playing dumb. Both types of emotional labor are related to gamesmanship.

Many jobs appear to require strategic friendliness and intimidation. Domestic workers, for example, sometimes “play dumb” so as not to alienate their white female employers (Rollins 1985). For domestie workers, however, this strategy offers a means for someone in a subordinate position to survive a degrading job. By contrast, for litigators strategic friendliness, like intimidation, allows an individual with professional status to control and dominate others in an effort to win one's case. Although both the litigator and the domestic worker may play dumb, their behavior serves different goals, which are indicative of their divergent positions in relationship to others.

Intimidation and strategic friendliness not only serve the goals of the adversarial model but also exemplify a masculine style of emotional labor. They become construed as masculine for several reasons. First, emotional labor in the male-dominated professional strata of the gendered law firm is interpreted as masculine simply because men do it.⁹Close Ruth Milkman, for example, suggests that “idioms of sex-typing can be applied to whatever women and men happen to be doing” (1987: 50). Male trial attorneys participate in shaping this idiom by describing their battles in the courtroom and with opposing counsel as “macho,” “something men get into” and “a male thing.” In addition, by treating women lawyers as outsiders and excluding them from professional networks, they further define their job as exclusively male (see Chapter 5).

The underlying purpose of gamesmanship itself, that is, the control and domination of others through manipulation, reflects a particular cultural conception of masculinity. Connell (1987), for example, describes a hegemonic form of masculinity which emphasizes the domination of a certain class of men—middle- to upper-middle-class—over other men and over women. Connelľs cultural conception of masculinity dovetails neatly with feminist psychoanalytic accounts that interpret domination as a means of asserting one's masculinity (Chodorow 1978; Benjamin 1988). The lawyers I studied also employed a ritual of degradation and humiliation against other men and women who were witnesses, opposing counsel, and, in some cases, clients. The remainder of this chapter describes the main components and purposes of litigators' emotional labor and shows how these forms become construed as masculine.

Litigation is war. The lawyer is a gladiator and the object is to wipe out the other side.

Cleveland lawyer quoted in the New York Times, August 5, 1988

The most common form of emotional labor associated with lawyers is intimidation. In popular culture, the tough, hard-hitting, and aggressive trial lawyer is portrayed in television shows such as L.A. Law and Perry Mason and in movies such as The Firm, A Few Good Men, and Presumed Innocent. The news media's focus on famous trial attorneys such as Arthur Liman, the prosecutor of Oliver North in the Iran-Contra trial, also reinforces this image. Law professor Wayne Brazil (1978) refers to this style of lawyering as the “professional combatant.” Others have termed it the “Rambo litigator” (a reference to the highly stylized, super-masculine role Sylvester Stallone plays in his action movies), “legal terrorists,” and “barbarians of the bar” (Margolick 1988; Sayler 1988; Miner 1988). Trial attorneys themselves call litigators from large law firms “hired guns” (Spangler 1986). And books on trial preparation, such as McElhaney's Trial Notebook (1987), endorse the litigator-as-gladiator metaphor by portraying the attorney on the book's dust jacket as a knight in a suit of armor ready to do battle (McElhaney 1987).

The recurring figure in these images is not only intimidating but strongly masculine. In the old West, hired guns were sharpshooters; men who were hired to kill other men. The strong, silent movie character Rambo is emblematic of a highly stylized, supermasculinity. The knight in shining armor preparing to do battle on the front cover of McElhaney's Trial Notebook is male, not female. Finally, most of the actors who play tough, hard-hitting lawyers in the television shows and movies mentioned above are men. Thus, intimidation is not simply a form of emotional labor associated with trial lawyers, it is a masculinized form of labor.

Intimidation is tied to cultural conceptions of masculinity in yet another way. In a review of the literature on occupations, Connell (1987) observes that the cult of masculinity in working-class jobs centers on physical prowess and sexual contempt for men in managerial or office positions (1987: 180). Like the men on the shop floor in Michael Burawoy's (1979) study who brag about how much they can lift or produce, lawyers in this study boast about “destroying witnesses,” “playing hard-ball,” and “taking no prisoners” and about the size and amount of their “win.” In a middle-class job such as the legal profession, however, intimidation depends not on physical ability but on mental quickness and a highly developed set of social skills. Thus, masculinizing practices such as aggression and humiliation take on an emotional and intellectual tone in this occupation.

This stance is tied to the adversarial model's conception of the “zealous advocate” (American Bar Association 1982). The purpose of this strategy is to intimidate the witness or opposing counsel into submission. A destructive cross-examination is the best example.¹⁰Close The trial attorney is taught to intimidate the witness in cross-examination, “to control the witness by never asking a question to which he does not already know the answer and to regard the impeachment of the witness as a highly confrontational act” (Menkel-Meadow, 1985: 54). Wellman describes cross-examination in this way:

It requires the greatest ingenuity; a habit of logical thought; clearness of perception; infinite patience and self-control; the power to read men's minds intuitively, to judge of their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and, above all the instinct to discover the weak point in the witness under examination …. It is a mental duel between counsel and witness. (1986 [1903]: 8)

In his lecture on cross-examination, Berg echoes Wellman's words: “The common denominator for effective cross-examination is not genius, however. It's a combination of preparation and an instinct for the jugular” (1987: 27). Again, cross-examination involves not only acting mean but creating a specific impression on the witness. An article in the National Law Journal, “Testifying Can be Deadly, Witness Says,” speaks to the intended effect of an aggressive cross-examination (Ziegler 1989: 6). The author describes a case in which cross-examination was so aggressive that the witness had a heart attack on the witness stand. Nevertheless, opposing counsel recalled the witness as soon as he got out of the hospital, suggesting not only the importance of the witness to the case but the persistence and ruthlessness of the lawyer in obtaining the desired result. The effect on the witness has been portrayed more humorously in popular culture. In a cartoon featured in the New Yorker magazine, a witness sitting in the witness box says to the judge in reference to the lawyer before him, “Your honor, I feel threatened by this gentleman's intensity.” And in John Mortimer's Rumpole of the Bailey, Philida Trant, a fictional woman lawyer, compares the effect of a destructive cross-examination to “being hit by a steam roller at 90 miles an hour” (1978: 348).

In the sections on cross-examination at NITA, teachers trained lawyers to “act mean.” The demonstration by the teachers on cross-examination best exemplified this point. Two male instructors reenacted an aggressive cross-examination in a burglary case. The prosecutor relentlessly hammered away until the witness couldn't remember any specific details about the burglar s appearance. At the end of his demonstration, the audience clapped vigorously. Three male students who had been asked to comment responded unanimously and enthusiastically that the prosecutor's approach had been excellent. One student commentator said, “He kept complete control of the witness.” Another remarked, “He blasted the witness's testimony.” And the third added, “He destroyed the witness's credibility.” The fact that a destructive cross-examination served as the demonstration for the entire class underscores the desirability of aggressive behavior as a model for appropriate lawyer-like conduct in this situation. Furthermore, the students' praise for the attorney's tactics collectively reinforce the norm for such behavior.

Teachers emphasized the importance of using aggression to motivate oneself as well. Before a presentation on cross-examination, Tom, one of the students, stood in the hallway with one of the instructors trying to “psyche himself up to get mad.” He repeated over and over to himself, “I hate it when witnesses lie to me. It makes me so mad!” The teacher coached him to concentrate on that thought until Tom could actually evoke the feeling of anger. He said later in an interview, “I really felt mad at the witness when I walked into the courtroom.” In the actual cross-examination, each time the witness made an inconsistent statement, Tom became more and more angry: “First, you told us you could see the burglar, now you say your vision was obstructed! So, which is it, Mr. Jones?” The more irate he became, the more he intimidated and confused the witness, who at last completely backed down and said, “I don't know” in response to every question. The teacher characterized Tom's performance as “the best in the class” because it was “the most forceful” and “the most intimidating.” Students remarked that he deserved to “win the case.”

NITA's teachers also utilized mistakes to train students in the rigors of cross-examination. For example, when Laura cross-examined the same witness in the liquor store case, a teacher commented on her performance:

Too many words. You're asking the witness for information. Don't do that in cross-examination. You tell them what the information is. You want to be destructive in cross-examination. When the other side objects to an answer, you were too nice. Don't be so nice! Next time, ask to talk to the judge, tell him, “This is crucial to my case.” You also asked for information when you didn't know the answer. Bad news. You lost control of the witness.

By being nice and losing control of the witness, Laura violated two norms underlying the classic confrontational cross-examination. A destructive cross-examination is meant to impeach the witness's credibility, thereby demonstrating to the jury the weakness in opposing counsel's case. In situations that call for such an aggressive cross-examination, being nice implies that the lawyer likes the witness and agrees with her testimony. By not being aggressive, Laura created the wrong impression for the jury. Second, Laura lost control of the witness. Rather than guiding the witness through the cross with leading questions¹¹Close that were damaging to opposing counsel's case, she allowed the witness to make his own points. As we will see in the next section of the chapter, being nice can also be used as a strategy for controlling a witness; however, such a strategy is not effective in a destructive cross-examination.

Laura's violation of these norms also serves to highlight the implicitly masculine practices utilized in cross-examination. The repeated phrase, “keeping complete control of the witness,” clearly signals the importance of dominating other women and men. Further, the language used to describe obtaining submission—“blasting the witness,” “destroying his credibility,” pushing him to “back down”—is quite violent. In addition, the successful control of the witness often takes on the character of a sexual conquest. One brutal phrase used repeatedly in this way is “raping the witness.” Within this discursive field, men who “control,” “destroy,” or “rape” the witness are seen as “manly,” while those who lose control are feminized as “sissies” and “wimps,” or in Laura's case as “too nice.”

The combative aspect of emotional labor carries over from the courtroom to other lawyering tasks, such as depositions, negotiation, communications with opposing counsel, and discovery. Attorneys “shred” witnesses not only in the courtroom but in depositions as well. When I worked at the private firm, Daniel, one of the partners, employed what he called his “cat and mouse game” with one of the key witnesses, Jim, in a deposition I attended. During the deposition, Daniel aggressively cross-examined Jim. “When did you do this?” “You were lying, weren't you?” Jim lost his temper in response to Daniel's hostile form of interrogation—”You hassle me, man! You make me mad!” Daniel smiled and said, “I'm only trying to get to the truth of the situation.” Then he became aggressive again and said, “You lied to the IRS about how much profit you made, didn't you, Jim!” Jim lost his temper again and started calling Daniel a liar. A heated interchange between Daniel and opposing counsel followed, in which opposing counsel objected to Daniel's “badgering the witness.” The attorneys decided to take a brief recess.

When the deposition resumed, Daniel began by pointing his index finger at John, the other attorney, and accusing him of with-holding crucial documents. Opposing counsel stood up and started yelling in a high-pitched voice—“Don't you ever point your finger at me! Don't you ever do that to me! This deposition is over …. I'm leaving.” With that he stood up and began to cram papers into his briefcase in preparation to leave. Daniel immediately backed down, apologized, and said, “Sit down John, I promise, I won't point my finger again.” He went on to smooth the situation over and proceeded to tell John in a very calm and controlled voice what his objections were. John made some protesting noises, but he didn't leave. The deposition continued.

In this instance, the deposition, rather than the courtroom, became the “stage” and Daniel took the leading role. His cross-examination was confrontational, and his behavior with the witness and opposing counsel was meant to intimidate. After the deposition Daniel boasted to me and several associates about how mad he had made the witness and how he had “destroyed his credibility.” He then proceeded to reenact the final confrontation by imitating John standing up and yelling at him in a falsetto voice. In the discussion that followed, Daniel and his associates gave the effects of his behavior on the “audience” utmost consideration. Hadn't Daniel done a good job forcing the witness to lose control? Hadn't he controlled the situation well? Didn't he make opposing counsel look like a “simpering fool?”

The reenactment and ensuing discussion reveal several underlying purposes of the deposition. First, they suggest that for the attorney the deposition was not only a fact-finding mission but a show designed to influence a particular audience—the witness. Daniel effectively flustered and intimidated the witness. Second, Daniel's imitation of John with a falsetto voice “as if he were a woman serves as a sort of degradation ceremony” (Garfinkel 1956). By reenacting the drama, he ridicules the man on the other side before an audience of peers, further denigrating him by inviting collective criticism and laughter from colleagues. Third, the discussion of the strategy builds up and elevates Daniel's status as an attorney for his aggressive, yet rational control of the witness and the situation. Thus, the discussion creates an opportunity for collectively reinforcing Daniel's intimidation strategy.

In addition to highlighting the use of intimidation in depositions, this example also illustrates the way in which aggression as legal strategy, or rule-governed aggression (Lyman 1987; Benjamin 1988), becomes conflated with masculinity, whereas aggression that is not rule-governed is ridiculed as feminine. John shows anger, but it is deemed inappropriate because he loses control of the situation. Such a display of hostility does not serve the interests of the legal profession because it does not achieve the desired result—a win for the case. As a result, Daniel and his associate regard John's behavior—his lack of control, his seeming hysteria, his high voice—with contempt. This contempt takes on a specific sexual character. Just as the working-class “lads” in Paul Willis's (1977) book Learning to Labor denigrate the “earholes” or sissies for their feminine attributes, Daniel and his colleagues ridicule John for his female-like behavior. Aggression as legal strategy or maleness is celebrated; contempt is reserved for aggression (or behavior) which is not rule-governed, behavior which is also associated with the opposite sex.

Attorneys also used the confrontational approach in depositions at Bonhomie Corporation. In a deposition I sat in on, Mack, a litigator, utilized an aggressive cross-examination of the key witness.

Q:

What were the names of the people that have migrated from one of the violators, as you call it, to Bonhomie Corporation?

A:

I don't remember as of now.

Q:

Do you have their names written down?

A:

No.

Q:

Well, if you don't remember their names and they're not written down, how can you follow their migration from one company to another?

A:

You can consider it in the process of discovery that I will make some enquiring phone calls.

Q:

Did you call anyone to follow their migration?

A:

Well, I was unsuccessful as of yet to reach other people.

Q:

Who have you attempted to call?

A:

I can't tell you at this time. I have a list of processes in my mind to follo.

Q:

Do you recall who you called and were not able to reach?

A:

No.

Q:

What's the list of processes in your mind to follow?

A:

It's hard to describe.

Q:

In other words, you don't have a list?

A:

[quietly] Not really.

Q:

Mr. Jensen, instead of wasting everyone's time and money, answer the question yes or no!

Opposing Counsel:

Don't badger the witness.

Q:

Answer the question, Mr. Jensen, Yes or No!

Opposing counsel:

I said, don't badger the witness.

Q:

Mr. Jensen, you are still required to answer the question!

A:

[quietly] No.

In this case, Mack persists in badgering the witness, who provides incoherent and vague answers. As the witness becomes more evasive, the attorney becomes more confrontational. By using this approach, the lawyer succeeds in making the witness appear uncooperative and eventually pushes him to admit that he doesn't have a list.

Later, in the same deposition, the attorney's confrontational tactics extend to opposing counsel.

Q:

Let's change the subject. Mr. Jensen, can you tell me what representations were made to you about the reliability of the Bonhomie Corporation's spider system?

A:

Nancy, the saleslady, said they use it widely in the United States, and could not be but very reliable. And, as we allege, fraudulent, and as somebody referred to it, was the, they wanted to give us the embrace of death to provide us more dependency, and then to go on and control our operation totally.

Q:

Who said that?

A:

My attorney.

Q:

When was that?

Opposing Counsel:

Well, I …

Mack:

I think he's already waived it. All I want to know is when it was supposedly said.

A:

Well …

Opposing Counsel:

I do use some great metaphors.

Mack:

Yes, I know, I have read your complaint.

Opposing Counsel:

Sorry?

Mack:

I have read your complaint. That will be all for today, Mr. Jensen.

Here, the attorney does not stop with badgering the witness. When the witness makes the statement about the “embrace of death,” Mack is quick to find out who said it. And when opposing counsel brags about his “great metaphors,” Macķ parries back with a sarcastic retort. Having had the final word, he abruptly ends the deposition. Like the other deposition, this one is an arena not only for intimidating the witness, but for ridiculing the attorney on the other side. In this way, intimidation is used to contro/the witness, and sarcasm to dominate opposing counsel. In doing so, Mack has achieved the desired result—the witness's submission to his line of questioning and a victory over the other side. Furthermore, in his replay of the deposition to his colleagues, he characterizes his victory as a “macho blast against the other side,” thereby underscoring the masculine character of his intimidation tactics.

Even phone calls to opposing counsel become an opportunity for intimidation. One of the lawyers at the private firm described gearing himself up for the next phone call with the plaintiff's lawyer:

Sometimes, I spend the whole day mentally preparing myself for the next phone call with the plaintiff s lawyer.

What do you do?

I think about how much he pisses me off. By the time I call him, I'm ready for a fight.

Then what happens?

Well, today he said he didn't have the documents for the production ready yet. I told him that we needed them and reminded him about the rules of discovery. He said something insulting like, “I guess you should know, since you're a Harvard boy.” Then I said, “I'll get sanctions from the judge.” By the end of the conversation, we were yelling at each other on the phone. [He laughs and looks embarrassed.] It's a male thing.

Male thing?

It's a competition. Men beating each other up, trying to show one another up. Only these aren't fist fights, they're verbal assaults.

Other lawyers, both at the private firm and Bonhomie Corporation, described similar telephone interactions. “I get into yelling matches with opposing counsel over the phone at least once a week And another, “On one case I was on the phone every day with the other side.” “Opposing counsel play hardball all the time—even on the telephone. It's another way to intimidate you. It's part of the game.” In these instances, the phone conversation itself becomes an arena for competition. The lawyer works to build up emotional readiness. Then each side works to insult and bully the other. The masculine character of the “verbal assault” is underscored by the attorney himself when he describes it as “a male thing.”

Attorneys rarely use intimidation to manipulate their clients. Clients are the bread-and-butter for these professionals. Lawyers want to please their clients, win repeat business, maintain their business, and create future business contacts through them. Alienating a client is usually the last thing they want to do. However, in extreme circumstances, lawyers will resort to such a strategy. In an article questioning the ethics of the manipulative strategies used by trial lawyers in their daily practice, Wayne Brazil (1978) describes how an attorney emotionally bullied a client to achieve the desired result in a trial. In preparation for the trial, the attorney warned his client that expressing certain feelings during the trial itself would be detrimental to their case. The client promised to keep these feelings to himself; however, when he got on the witness stand, he began to say the very things he had been warned not to say. A lunch recess intervened before too much damage had been done. Brazil describes how the attorney handled this situation:

At lunch the attorney was silent and cold for a few minutes, then he threw a tantrum over the testimony the client was giving. The lawyer shouted that though the rules of professional responsibility forced him to continue as counsel in this case, he had no obligation to spend any social time with the client. The attorney then threw his napkin on the table and stormed out of the room. He neither spoke nor saw his client again until that afternoon, when the badly shaken client followed the attorney's pretrial instruction to the letter and suppressed all feelings he wanted to air. (1978: 109)

As Brazil observes, the tantrum by the lawyer had been “completely contrived.” Because the attorney “had failed to control the client's behavior through an appeal to self-interest and reason, he had used all the emotional power accessible to him” (1978: 110). In this way, the litigator disguised his own feelings in an effort to manipulate his client and to achieve the goals of zealous advocacy: obtaining the best result at trial without violating the letter of the law.

At the private firm, trial lawyers did not use intimidation with clients; they utilized strategic friendliness. Certainly, litigators grumbled about trying to please difficult clients behind the scenes, but no one complained personally to a client. At Bonhomie Corporation the attorney-client relationship was different because the company itself was the client. It was often difficult to get other departments to co-operate with the legal department because lawyers were regarded as “watchdogs” or people who created more work for their unit.¹²Close As a consequence, relations between departments were often strained. Tension typically began when the client from another department refused to cooperate. In one instance, the lack of cooperation escalated until the attorney personally visited the client in the other department to scream at the offending party. Eleanor said:

The final straw came when Judy from [department X] told me that she didn't feel like doing any overtime to work on the case. At that time, I had been putting in sixty-hour weeks for two months to prepare for this trial. So, I just let her have it. I told her I worked my tail off for the company. And that we were all in this together, a team, and it was just too bad if she didn't feel like it because she was going to do it anyway!

What happened then?

I called her supervisor and yelled at him. “Why aren't you doing your job? Don't you know how to manage your employees? Why aren't you cooperating with us, after all this is a lawsuit against the Company.”

What did he say?

He didn't say a thing. In fact, he still ignores me when he sees me in the elevator. But he must have done something because Judy did the overtime.

Other lawyers at the Bonhomie Corporation reported similar incidents. For example, one lawyer told me that one client was so uncooperative—never returning phone calls, canceling appointments—that he and his paralegal finally camped outside his office door early one morning.

[When he saw us] the client was furious. I told him if he didn't start to cooperate with us right this minute, we'd sue his ass all the way to Kalamazoo and he'd never work for the company again.

What did he do?

He unlocked his office door and invited us in.

Masculine images of violence and warfare—destroying, blasting, shredding, slaying, burying—are used repeatedly to characterize the attorney's relationship to legal audiences. They are also used to describe discovery tactics and filing briefs. Discovery tactics such as enormous document requests are referred to as “dropping bombs” or “sending missiles” to the other side. And at the private firm, when a lawyer filed fourteen pretrial motions the week before trial, over three hundred pages of written material, he referred to it as “dumping an avalanche” on the other side.

Mr. Choate's appeal to the jury began long before final argument …. His manner to the jury was that of a friend, a friend solicitous to help them through their tedious investigation; never an expert combatant, intent on victory, and looking upon them as only instruments for its attainment.

(Wellman 1986 [1903]: 16–17)

The lesson implicit in Wellman's anecdote about famous nineteenth century lawyer Rufus choate's trial tactics is that friendliness is another important strategy the litigator must learn and use to be successful in the courtroom. Like aggression, the strategic use of friendliness is a feature of gamesmanship, and hence, a component of emotional labor. As Richard, one of the attorney/teachers, at NITA stated, “Lawyers have to be able to vary their styles; they have to be able to have multiple speeds, personalities, and style.” In his view, intimidation did not always work, and he proposed an alternative strategy, what he called “the toe-in-the-sand, awshucks routine.” Rather than adopting an intimidating stance toward the witness, he advocated “playing dumb and innocent”: “Say to the witness, ‘Gee, I don't know what you mean. Can you explain it again?’ until you catch the witness in a mistake or an inconsistent statement.” Other litigators such as Leonard Ring (1987) call this the “low-key approach.” Ring describes how opposing counsel delicately handled the cross-examination of a child witness:

The lawyer for the defendant … stood to cross-examine. Did he attack the details of her story to show inconsistencies? Did he set her up for impeachment by attempting to reveal mistakes, uncertainties and confusion? I sat there praying that he would. But no, he did none of the things a competent defense lawyer is supposed to do. He was old enough to be the girl's grand-father [and] the image came through. He asked her very softly and politely: “Honey, could you tell us again what you saw?” She told it exactly as she had on my direct. I felt relieved. He still wasn't satisfied. “Honey, would you mind telling us again what you saw?” she did again exactly as she had before. He still wasn't satisfied. “Would you do it once more?” she did. she repeated, again, the same story—the same way, in the same words. By that time I got the message. The child had been rehearsed by her mother the same way she had been taught “Mary Had a Little Lamb.” I won the case, but it was a very small verdict. (1987: 35–36)

Ring concludes that a low-key approach is necessary in some situations and advises against adhering rigidly to the prototypical combative style.

Similarly, Scott Turow (1987), the lawyer and novelist, advises trying a variety of approaches when cross-examining the star witness. He cautions against adopting a “guerrilla warfare mentality” in cross-examination and suggests that the attorney may want to create another impression with the jury:

Behaving courteously can keep you from getting hurt and, in the process, smooth the path for a win. [In one case I worked on] the cross examination was conducted with a politesse appropriate to a drawing room. I smiled to show that I was not mean-spirited. The chief executive officer smiled to show that he was not beaten. The commissioners smiled to show their gratitude that everybody was being so nice. And my client won big (1987: 40–42).

Being nice, polite, welcoming, playing dumb, or behaving courteously are all ways that a trial lawyer can manipulate the witness in order to create a particular impression for the jury. I term this form of gamesmanship strategic friendliness. Rather than bully or scare the witness into submission, this tactic employs friendliness, politeness and tact. Yet it is simply another form of emotional manipulation of another person for a strategic end—winning one's case. For instance, the attorney in Ring's account is gentle and considerate of the child witness for two strategic reasons. First, by making the child feel comfortable, he brings to light the fact that her testimony has been rehearsed. Second, by playing the polite, gentle grandfatherly role, he has made a favorable impression on the jury. In this way, he improves his chances for winning. As, in fact, he did. Although he didn't win the case, the verdict for the other side was “small.”

Although strategic friendliness may appear to be a softer approach than intimidation, it carries with it a strongly manipulative element. Consider the reasoning behind this particular approach. Ring's attorney is nice to the child witness not because he's altruistically concerned for her welfare, but to achieve the desired result, as simply a means to an end. This end is best summed up by litigator Mark Dombroff: “So long as you don't violate the law, including the rules of procedure and evidence or do violence to the canons of ethics, winning is the only thing that matters” (1989: 13).

This emphasis on winning is tied to traditional conceptions of masculinity and competition. Sociologist Mike Messner (1989) argues that achievement in sporting competitions such as football, baseball, and basketball serve as a measure of men's self-worth and their masculinity. This can also be carried over into the workplace. For example, as I have suggested, by redefining production on the shop floor as a “game,” Burawoy's factory workers maintain their sense of control over the labor process, and hence, their identity as men. In her research on men in sales, Leidner (1991) finds that defining the jobs as competition becomes a means for construing the work as masculine:

The element of competition, the battle of wills implicit in their interactions with customers, seemed to be a major factor which allowed agents to interpret their work as manly. Virtually every step of the interaction was understood as a challenge to be met—getting in the door, making the prospect relax and warm up, being allowed to start the presentation … making the sale, and perhaps even increasing the size of the sale. (1991: 168)

For litigators, keeping score of wins in the courtroom and the dollar amount of damages or settlement awards allows them to interpret their work as manly. At Bonhomie Corporation and at Lyman, Lyman and Portia, the first question lawyers often asked others after a trial or settlement conference was “Who won the case?” or “How big were the damages?” Note that both Ring and Turow also conclude their pieces with descriptions of their win—“I won the case, but the verdict was small” and “I won big.” Trial attorneys who did not “win big” were described as “having no balls,” or as being “geeks” or “wimps.” The fact that losing is associated with being less than a man suggests that the constant focus on competition and winning is an arena for proving one's masculinity.

One important area that calls for strategic friendliness and focuses on winning is jury selection or voir dire. The main purpose of voir dire is to obtain personal information about prospective jurors in order to determine whether they will be “favorably disposed to you, your client, and your case, and will ultimately return a favorable verdict” (Mauet 1980: 31). Once an attorney has made that assessment, biased jurors can be eliminated through challenges for cause and peremptory challenges.¹³Close In an article on jury selection, attorney Peter Perlman maintains that the best way to uncover the prejudices of the jury “is to conduct voir dire in an atmosphere which makes prospective jurors comfortable about disclosing their true feelings” (1988: 5). He provides a checklist of strategies for lawyers to utilize which enable jurors to feel more comfortable. Some of these include:

Given the initial intimidation which jurors feel, try to make them feel as comfortable as possible; approach them in a natural, unpretentious and clear manner.

Since jurors don't relate to “litigants” or “litigation,” humanize the client and the dispute.

Demonstrate the sincere desire to learn of the jurors' feelings.

The lawyer's presentation to the jury should be positive and radiate sincerity. (1988: 5–9)

Perlman's account reveals that the underlying goal of jury selection is to encourage the jury to open up so that the lawyer can eliminate the jurors he doesn't want and develop a positive rapport with the ones who appear favorable to his case.

This goal is supported not only by other writings on jury selection (Blinder 1978; Cartwright 1977; Mauet 1980; Ring 1983; Wagner 1981) but also through the training offered by NITA. As one teacher, a judge, said after the class demonstration on jury selection, “Sell your personality to the jury. Try to get liked by the jury. You're not working for a fair jury, but one favorable to your side.” This fact is also recognized by a judge in Clifford Irving's best-selling novel Trial: “Assuming his case has some merit, if a lawyer gets a jury to like him and then trust him more than the son of a bitch who's arguing against him, he's home free” (1990: 64).

At NITA, teachers emphasized this point on the individual level. In their sessions on voir dire, students had to select a jury for a case which involved an employee who fell down the steps at work and severely injured herself. (Jurors for the case were classmates, including me.) Mike, one of the students, began his presentation by explaining that he was representing the woman's employer. He then went on to tell the jury a little bit about himself: “I grew up in a small town in Indiana.” Then he began to ask each of the jurors where they were from, whether they knew the witness or the experts, whether they played sports, had back problems, suffered any physical injuries, and had ever had physical therapy. The instructor gave him the following comments:

The personal comments about yourself seem forced. Good folksy approach, but you went overboard with it. You threw stuff out and let the jury nibble and you got a lot of information. But the main problem is that you didn't find out how people feel about the case or about their relatives and friends.

Another set of comments:

Nice folksy approach, but a bit overdone. Listen to what jurors say, don't draw conclusions. Don't get so close to them, it makes them feel uncomfortable. Use body language to give people a good feeling about you. Good personality, but don't cross certain lines. Never ask someone about their ancestry. It's too loaded a question to ask. Good sense of humor, but don't call one of your prospective jurors a “money man.” And don't tell the jury jokes! You don't win them over that way.

The sporting element to voir dire becomes “winning over the jury.” This theme also became evident in discussions student lawyers had before and after jury selection. They discussed at length how best “to handle the jurors,” “how to get personal information out of them,” “how to please them,” “how to make them like you,” and “how to seduce them to your side.” The element of sexual seduction is apparent in the often used phrase “getting in bed with the jury.” The direct reference to sexual seduction and conquest suggests, as did the intimidation strategy used in cross-examination, that “winning over the jury” is also a way to prove one's masculinity. Moreover, the desired result in both strategic friendliness and intimidation is similar: obtaining the juror's submission, and winning.

Strategic friendliness is also utilized in the cross-examination of sympathetic witnesses.¹⁴Close In one of NITA's hypothetical cases, a woman dies of an illness related to her employment. Her husband sues his deceased wife's employer for her medical bills, lost wages, and “lost companionship.” One of the damaging facts in the case, which could hurt his claim for “lost companionship,” was the fact that he had a girlfriend long before his wife died. In typical combative, adversarial style, some of the student lawyers tried to bring this fact out in cross-examination to discredit his claims about his relationship with his wife. The teacher told one lawyer who presented such an aggressive cross-examination:

It's too risky to go after him. Don't be so confrontational. And don't ask the judge to reprimand him for not answering the question. This witness is too sensitive. Go easy on him.

The same teacher gave the following comments to another student who had “come on too strong”:

Too stern. Hasn't this guy been through enough already! Handle him with kid gloves. And, don't cut him off. It generates sympathy for him from the jury when you do that. It's difficult to control a sympathetic witness. It's best to use another witness's testimony to impeach him.

And to yet another student:

Slow down! This is a dramatic witness. Don't lead so much. He's a sympathetic witness—the widower—let him do the talking. Otherwise you look like an insensitive jerk to the jury.

In the cross-examination of a sympathetic witness, teachers advised students to be gentle. Their concern, however, is not for the witness's feelings but for how their treatment of the witness appears to the jury. The jury is already sympathetic to the witness because he is a widower. As a result, the lawyers were advised not to do anything which would make the witness appear more sympathetic and them less so. The one student who did well on this presentation demonstrated great concern for the witness, she gently asked him about his job, his marriage, his wife's job and her illness. Continuing with this gentle approach, she softly asked him whether anyone had been able to provide him comfort during this difficult time, and thus was able to elicit the testimony about the girlfriend in a sensitive manner. By extracting the testimony about the girlfriend, she decreased the jury's sympathy for the bereaved widower. How much companionship did he lose, if he was having an affair? At the same time, because she treated the witness gently, she increased the jury's regard for herself. Her approach is similar to Laura's in utilizing “niceness” as a strategy. However, in Laura's case, being nice was not appropriate to a destructive cross-examination. In the case of cross-examining a sympathetic witness, such an approach is effective.

The non-confrontational approach is also advantageous in opening statements. NITA provided a hypothetical case called BMI v. Minicom, involving a large corporation that sues a small business for its failure to pay on a contract. Minicom signed a contract for a $20,000 order of computer parts from BMI. BMI shipped the computer parts through UPS to Minicom, but they never arrived. According to the law in the case, the buyer bears the loss, typically through insurance, when the equipment is lost in mail. Mark gave an opening statement that portrayed Minicom as a small business started by ambitious, hardworking college friends “on their way to the big league in business.” He played up the difficulties small businesses face in trying to compete with giant corporations. And at a dramatic moment in the opening, he asked the jury to “imagine a world where cruel giants didn't squeeze out small companies like Minicom.” The teacher provided the following comments:

Good use of evocative imagery. BMI as cruel giant. Minicom squeezing in between the cracks. Great highlighting of the injustice of the situation.

In his attempt to counter this image, Robert, the lawyer for BMI, utilized a courteous opening statement. He attempted to present himself as a nice guy. He took off his jacket, loosened his tie, smiled at the jury, and spoke in a friendly conversational tone: “This case is about a broken contract. BMI fulfilled their side of the contract. Mr. Blakey, my client, worked round the clock to get the shipment ready for Minicom. He made phone call after phone call to inventory to make sure the parts got out on time. He checked and rechecked the package before he sent it to Minicom.” He pauses for dramatic emphasis and says, looking sincere and concerned, “It's too bad UPS lost the shipment, but that's not B M I's fault. And now, BMI is out $20,000.” He received the following comments from the teacher:

Great use of gestures and eye contact. Good use of voice. You made the case sound simple, but important. You humanized yourself and the people at BMI. Good building of sequence.

Here, the attorney for BMI tried to play down his client's impersonal, corporate image by presenting himself as a nice guy and by personalizing the events at issue with a story about concerned, hardworking Mr. Blakey. Before he began his opening statement, he took off his jacket and loosened his tie to suggest a more casual and ostensibly less corporate image. He smiled at the jury to let them know that he is friendly—not the cruel giant depicted by opposing counsel. He used a friendly conversational tone in his opening statement. And he even admitted that it wasn't fair that the other side didn't get their computer parts. As the teacher's comments suggest, this strategy was most effective for this particular kind of case.

Lawyers working at Bonhomie Corporation also used strategic friendliness. In a mock trial, a litigator representing the company made an effort to “play down the corporate-giant image” by presenting himself as a nice guy. He smiled at the jury, used a conversational tone of voice, maintained eye contact with the jury and the witness. He said afterwards: “These jury studies show that people don't like big corporations. You've got to work extra hard to cancel out that image when you're defending Bonhomie.”

This approach can also be used in closing statements. In a hypothetical case where an insurance company alleged that the claimant set fire to his own business, the lawyer for the store owner tried to defuse the insurance company's strategy with a highly dramatic closing statement:

Visualize Elmwood Street in 1952. The day Tony Rubino came home from the navy. His father took him outside to show him a new sign he had made for the family business. It read “Rubino & Son.” Standing under the sign “Rubino and Son” with his father was the happiest day of his life. [Pause] The insurance company wants you to believe, ladies and gentlemen of the jury, that Tony set fire to this family jewel. “I'll carry on,” he told his father, and he did …. [With tears in her eyes, the lawyer concludes] You don't set fire to your father's dream.

The teacher's comments for Janine's closing statement were effusive:

Great! Well-thought out, sounded natural. Good use of details and organization. I especially liked “I don't know what it's like to have a son, but I know what it's like to have a father.” And, you had tears in your eyes! Gave me the closing-argument goose bumps. Pitched emotion felt real, not phoney.

Janine's use of sentimental and nostalgic imagery, the son returning home from the navy, the beginning of a father-and-son business, the business as the “family jewel,” is reminiscent of a Norman Rockwell painting. It also serves to counter the insurance company's allegation that Tony Rubino set fire to his own store. With the portrait the lawyer paints and the concluding line, “You don't set fire to your father's dream,” she rallies the jury's sympathy for Tony Rubino and their antipathy to the insurance company's malicious claim against them. Moreover, her emotional presentation of the story is so effective that the instructor thought it “sounded natural” and “felt real, not phoney.” The great irony here is that this is not a real case—it is a hypothetical case with hypothetical characters. There is no Tony Rubino, no family store, and no fire. Yet Janine's “deep acting” was so convincing that the teacher believed it was true—it gave him “the closing-argument goose bumps.”

Strategic friendliness carries over from the courtroom to depositions. Before deposing a particularly sensitive or sympathetic witness, Joe, one of the attorneys in the private firm, asked me whether “there is anything personal to start the interview with—a sort of warm-up question to start things off on a personal note?” I had previously interviewed the woman over the phone, so I knew something about her background. I told him that she was a young mother who had recently had a very difficult delivery of her first child. I added that she was worried about the baby's health because he had been born prematurely. At the beginning of the deposition later that afternoon, Joe said in a concerned voice that he understood the witness had recently had a baby and was concerned about its health. She appeared slightly embarrassed by the question, but with a slow smile and lots of encouragement from him, she began to tell him all about the baby and its health problems. By the time Joe began the formal part of the deposition, the witness had warmed up and gave her complete cooperation. Later, the attorney bragged to me and one of the associates that he had the witness “eating out of his hand.”

After recording these events in my field notes, I wrote the following impressions:

On the surface, it looks like social etiquette to ask the witness these questions because it puts her at ease. It lets her know he takes her seriously. But the “personal touch” is completely artificial. He doesn't care about the witness as a person. Or, I should say, only insofar as she's useful to him. Moreover, he doesn't even bother to ask the witness these questions himself the first time around. He asks me to do it. I'm to find the “personal hook” that he can use to manipulate her to his own ends.

Thus an innocuous personal remark becomes another way to create the desired impression with a witness and thereby manipulate him or her. Perhaps what is most ironic about strategic friendliness is that it requires a peculiar combination of sensitivity to other people and, at the same time, ruthlessness.¹⁵Close The lawyer wants to appear kind and understanding, but that is merely a cover for the ulterior motive—winning. Although the outward presentation of self for this form of emotional labor differs from intimidation, the underlying goal is the same: the emotional manipulation of the witness for a favorable result.

Attorneys also employed strategic friendliness when dealing with clients. As I mentioned in the previous section, intimidation is rarely used with clients, particularly at the private firm, who are typically treated with a politesse, courtesy, and reassurance. The sensitivity to the client's needs and interests does not reflect genuine concern, however, but rather serves as a means to an end—obtaining and maintaining the client's current and future business. The importance of clients to lawyers can be gauged by one of the criterion for determining partnership at private law firms: the ability to attract and maintain a client base (Nelson 1988; Smigel 1969). In this light, clients become another important legal audience for whom the lawyer performs and obtaining a client's business is construed as another form of “winning.”

Articles in legal newspapers such as the National Law Journal address the importance of lawyers' efforts to attract new clients (OʼNeil 1989; Foster and Raider 1988). These articles underscore the importance not only of obtaining business but of appealing to clients through “communication,” “cultural sensitivity,” and “creating good first impressions.” Thus, “finding” new clients is not simply an instrumental role as Nelson (1988) suggests, it also carries with it an emotional dimension.

“Wooing clients” to the firm, or “making rain,” as lawyers call it, is a common practice at the private firm. Partners were rewarded in annual bonuses for their ability to bring in new business. In informal conversations, partners often discussed the competition between firms for the clients' business. For example, when one of the partners procured a case from a large San Francisco bank that typically did business with another large firm in the city, he described it as a “coup.” Attorneys boasted not only about bringing clients into the firm but about how much revenue “their client” brought into the firm's coffers. The constant focus on capturing clients, “making rain,” and making big money betrays male lawyers' need to prove themselves through accomplishments and achievements. Further, those who lost big clients were considered “weak,” “impotent,” and no longer “in with the good old boys.” In this way, winning clients' business is also associated with manly behavior.

In addition to finding new clients for the firm, lawyers must also “mind” clients. This is accomplished not only by providing competent professional service, but through displaying confidence, reassurance, and courtesy. For example, how does a layperson know whether her attorney is doing a good job? In response to this question, a partner, in Susan Wolf s novel about a California law firm, advises a young and socially inept associate:

You tell him. You remind him every day that he's lucky to have you. I don't give a damn if you don't listen to him. He's a boring bastard. But you gotta make him think you're listening all the time. Make him think he's got the most interesting legal problem you can think of …. You've got to dance with the client, you Ve got to show him that you're right there with him all the time. (1989: 42)

Minding clients can also take the form of reassurance. Zimmerman (1983) observes that the clients made constant emotional demands of the attorneys he interviewed. As one of the lawyers he interviewed said, “We are, for a while, the most important person in the client's life [and] sometimes it's just the sound of my voice they need to hear … to know I am available” (1983: 7). And another said, “Many clients have to be reassured, told the same thing over and over again, clients seldom want to face reality” (1983: 7). Although attorneys in this study engaged in reassuring clients, it is not in the sense one typically thinks of reassurance. Rather than telling the client everything will be okay—something female paralegals and secretaries often do—the attorney reassures the client through an appeal to his own competence, expertise, and skill as a professional. I've handled lots of cases like this in the past.” “I know antitrust law inside and out. They [the other side] can't trip us up.” “Don't worry about a thing, this is something for a lawyer to handle.” To generate confidence and, hence, reassure the client, the lawyer builds himself up and projects an image of competence, self-assurance. Through such appeals to professional expertise, he underscores his superordinate position in relation to the client. By contrast, paralegals reassure attorneys by being supportive and deferential, thereby reinforcing their subordinate position in relation to lawyers (see chapter 4). Thus, for attorneys reassuring clients is a way of “doing dominance,” whereas for paralegals, it is a way of doing deference.