I want to write this piece in part because a law student who shared her experiences with me triggered my own experiences, which made me really think about the importance of sharing this in a more public form.
“We felt differently judged”
I met a WOC law student a few days ago and asked her how it was going lately. She mentioned that they were fine, and I had asked about their argument when I saw her dressed for it not so long ago.
She immediately mentioned, without speaking about the content of the case question or positive experiences, that her own experience and that which she shared with other WOC participants in various sessions was that the judges seemed extremely tough on them. How content they presented the same material as their white colleagues / classmates, but in the feedback they were grilled harder and less praised. Although it was only a small snapshot, it cannot be a coincidence that two separate mooters were connected to each other in two different sessions in the same place as immediate feedback after the moot.
This experience is parallel to the experience of WOC in many other professional fields. I remember a quote from US Democratic representative Rashida Tlaib
The hardest thing about serving as a WOC and “first” in Congress is how people hear you differently. No matter how much we hate ourselves and stay true to who we are through our experiences, our voices are subdued and reduced. We are not perfect, but neither is this institution.
– Rashida Tlaib (@RashidaTlaib) February 11, 2019
We see it in Canada too. As I tweeted the different treatment (and personalized attacks) against Dr. Theresa Tam (Canada’s Chief Medical Officer, a racialized woman of color) compared to Dr. Bonnie Henry (BC’s Chief Medical Officer). I have also written in the past about how many of my WOC colleagues have had experiences with customers who have contacted them to contact male business partners to complain.
Connect with these experiences
Today I would consider myself a lawyer, but increasingly involved in litigation. I openly admit that my writing is much better than my verbal endorsement, and there is a lot to learn and improve on the presentation in a courtroom. I’m still thankful for how far I’ve come. During the PLTC, I was so nervous about speaking publicly and sharing my voice publicly that I literally stumbled across my own name. I remember that I almost failed a sham task because I became so scared and my thoughts were empty, which caused a separation between my written notes and oral arguments.
I’ve always been a decent speech writer. When I write prepared statements, they are often thoughtful / well worked out. Oral advocacy over litigation involving a judge is more difficult. I grew up in very hierarchical environments where you have never looked an elder straight in the face – where your father’s word should be followed, which your teacher considered perfect and you as your nobody should not question these relationships yourself. You grew up very hostile to conflict – often you resorted to silence or swallowed dissatisfaction and disagreement. The public expression of disagreements usually led to raised arguments and emotions that stood in the way of logical discourse. I know that many others are likely to share this experience.
Studying law, and especially hoping to be someone who leads litigation, becomes a crucial place to learn and challenge yourself. Unfortunately, both the Socratic method (less commonly used) and larger lectures where the same voices would dominate (usually white, privileged voices) have led to a lack of environment to test this procedural voice or to focus on these kinds of important ones (loud conversations). I only remember that through small groups and our incredible tort professor Dr. Jena McGill, who could speak more freely to each of us in a way that was not intrusive and allowed for further conversation.
What happens through these processes of silence (on the one hand, I can literally count how many times I have spoken in the lecture within three years) is this internalized fear of speaking out. Although there are no statistics (and I think it should be collected), I believe that for many racialized people, we are involved in the legal profession because we do not have the ability to overcome our procedural fears / challenges / and culture-specific barriers. By that date, I’ve heard from many high school students preparing to graduate that they’d like to pursue litigation, but never made it into competitive high school moot teams, never got a mentorship to litigate to become, and above all, never had room to practice and fail.
My own moot experience
I have only ever participated in one dispute – an employment dispute. The issue had something to do with drug use in a unionized workplace, a sawmill, if I remember correctly.
I remember our first round competitors (two white men) presenting their case. They were good – there wasn’t much depth in the analysis, but they were confident and clear. I can’t remember a lot of feedback.
I remember that after the presentation by myself and my partner (a white colleague), the entire feedback session was directed to me. A white judge criticized my decision to take my assessment of the social impact of the decision as a standalone argument, rather than integrating it into the points I wanted to address. I really had no defense – so far I’ve done it both ways in my cases and found it effective.
After that, while my teammate tried to comfort us (after our defeat) and I apologized for not doing my best (although I had been preparing for both of us for hours), I really felt abandoned afterwards. I thought I went much deeper than the other mooters – really concerned with the facts. Ultimately, however, I was selected for a strategic decision and that’s it. There was no positive reinforcement, no identification that there was any potential there.
Needless to say we didn’t make any progress and that was the end of my shooting experience. I never applied for competitive disputes and avoided disputes like the plague.
Systematically, moots will indelibly reflect the white of litigation as it is. This is important because disputes are usually the starting point for those who want to pursue litigation. It is the gateway to those who eventually become tribunal members and judges. Strong moot experience tends to increase the chances of a legal clerkship and interaction with professors and moot trainers (often lawyers) who can open career / process doors.
A good starting point for changes are the above-mentioned moots in the first year, which in my opinion should be mandatory for all law schools.
Especially for the first year moot, The selection of a large number of guest judges (especially early round judges) needs to be emphasized.
Different perspectives in the room (even if they are not experts – i.e. even if they are quieter lawyers) can change the dynamics in the room. I think judges should also be encouraged to disagree and get involved in positive conflicts instead of being a consensual sounding board. This dialogue, which shows disagreement, can free those who are in an uncomfortable process. For example, if I had seen colored women receive unbalanced criticism from a white judge, I could directly commission that judge as another judge. I could bring in some of these different points of view and perspectives. I could even be extra patient or get involved to validate instead of hurrying to criticize.
For more competitive discussions, the selection committee is the starting point. Those who hold competitions in schools are usually socially oriented white professors. When it comes to selecting teams, there is certainly an inherent tendency towards similarly positioned people who reflect past successful teams, and probably not those who were like me and had problems[[[[all the trauma behind being selected for teams – i will save it for future posts].
Schools may also consider using B-teams (second teams) that are not the next four best mooters, but four people who have expressed an interest in litigation and may not have had access to past experience. Rather than aiming to win, these teams can enter with a non-competitive lens to improve oral advocacy skills as a primary goal.
In addition, I would like to encourage affinity groups such as the Federation of Asian Canadian Lawyers and the South Asian Bar Association to follow the steps of the Black Law Students Association and the Julius Alexander Isaac Diversity Moot and gain more experience. Focus these questions not only on diversity issues, but also on charter cases, public law cases, and other areas. Organize workshops, feedback sessions, and other opportunities for students to learn, fail, and challenge themselves. Make Moot not only a competitive sport in a law school, but also a recreational activity for all levels. While the litigation cannot be addressed immediately, it could prompt students to think about it, or at least add it to their arsenal of tools devoted to articulation and practice.
Conclusion – creating safe spaces for student litigation
The fact that students are returning from these first year disputes, which are intended to help initiate litigation and expose them to oral advocacy, with the feeling that they may not want to do it again is very worrying. If there is a lack of diversity in the judiciary, we should address the root causes – including how students are exposed to litigation.
Ultimately, I recommend that we start moots in the first year by leveling out more (including non-subjective) judges and giving students voice and support that may not come from oral stakeholders. Second, we look at competitive moot teams that go beyond A teams and actively put together non-competitive B teams for those who want to improve their skills. Third, affinity groups (through their advocacy committees, etc.) can put together more disputes that target that audience.
I hope that some of these challenges will enable BIPOC lawyers to pursue a litigation career beyond their time at the law school.
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