A belated Mother’s Day Post in Two Parts

Posted: May 10th, 2010 by .

Warning – lots of sap ahead.  If you are brave, read on.

Part One:

I promised a post on mother’s day and I failed to deliver, I was busy being a mother – changing diapers, time outs, Trader Joe’s.  I didn’t get a day off (although I did ‘get’ to go dress shopping, not my favorite thing in the world despite my love of heels and mascara) I didn’t get a massage or breakfast in bed.  I got to be what I wanted to be, what I paid dearly to be, a mother.

As my four original, faithful readers know, I went through a lot to have these boys.  Their conception was not sexy or hot, it wasn’t a drunken evening of lust.  It involved a doctor of Indian decent, a few nurses, and an embryologist who came out of her dark lab with a tube containing three embryos and my babies first picture.  Two of those embryos became my kids.  One didn’t make it.  I have one embryo on ice, and despite my incredibly pro-choice stance, I view it as my kids’ sibling and will be thawing it in the next year or so.  We feel obliged to give it a shot at life.  So, for me, motherhood was anything but a natural function of my womanliness.  It came at a price, both literally and figuratively.  Mother’s day for me is a reminder that this is what I wanted.  This is what I signed up for.   While it may be only a Hallmark Holiday, or, as my friend Jamison says, demeaning to the entire notion of motherhood, it’s a holiday I didn’t think I would ever get to celebrate so I welcome it as a time for reflection  on all that is beautiful and awful about being a mom. 

Part Two:

My mother wasn’t allowed to leave her house without her burqua after her tenth birthday.  She was tall, tall enough for people to call a ‘woman’.  She had 10 years of childhood and not a minute more.  That’s more than a lot of Afghan girls got, but it still wasn’t enough.

My mother was engaged to my father when she was 17.  I used to ask her if she was excited when she got the proposal. She would laugh and say “oh yeah, so excited”.  It wasn’t until much later that I realized that she didn’t know who she was going to marry, just that a man had been chosen for her.  My father was a well-educated man.  He sent my mother to school in Kabul while he was finishing medical school there.  She learned to hold a pencil, to read and write her name.  She walked in the streets of Kabul without a burqua for the first time as an adult.  Freedom was sweet. 

My father left Afghanistan before I was born.  My mother was to come to America alone, leave me in Kandahar.  She couldn’t do it.  She told him to move on, find another wife, she was staying with her daughter.  He gave in – he’d married my mother for her sweet disposition and her good looks, I don’t know if he was counting on her determination – and I came to the promised land.  An 18 month old girl with her 21 year old mom.  Mom didn’t speak a lick of English, learned it all at the Chock Full of Nuts on the Bowery (she says) and watching Sesame Street with me. 

My mother is not typical of Afghan women.  She is cool and fiesty and raised her kids to be soulful, thoughtful and spiritual.  She sent me away to college and I was the first woman in my family to do that.  I lived in a dorm!  I stayed in my apartment for summers!  I backpacked through Europe for months!  I became an attorney who kept her last name and I defended people accused of terrible things.  Through all of this, I heard my mother’s voice “Zary, you can do it.  Zary, don’t ever say you can’t.  Zary, don’t quit, try harder.  Be better.”

My mother told me that if I changed my last name, I would have to repay her every dime she paid for my education. (“If your husband is going to get the credit, then he should have to pay for it.”)  My mother’s heart was the one that was broken when I told her I wanted to stay home with the kids and leave the practice of law altogether.  (“What was the point of all that education? You think your kids want a smart mom who sits in the house all day?”)

A mothers hopes and dreams are wrapped up in her children, whether she’s a lawyer, stay at home, clerk or Supreme Court Justice.  My mother’s hopes and dreams were no different.  I let her down when I said ‘never again’.  Now, when I sit in my little office in Hippieville, I know she is happy.  Mom, I dedicate my next ‘not guilty’ to you.

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Fixing What’s Broke

Posted: May 10th, 2010 by .

I had a chance to talk to a friend of mine from my New York State Days.  Mardi Crawford is an attorney with the New York State Defender’s Association and has her finger on the pulse of the initiatives for Public Defender reform in New York right now. I had a chance to talk to her last night and asked her to do a quick and dirty summary of the happenings in New York.  She was kind enough to do a timeline of what’s happened in New York for those not familiar.

Many Public Defender offices are having similar pains.  New York is not going to go to a state run system, but I wonder if that might not be the best way – although financing will always be an issue.  Here is Mardi’s rundown of happenings in New York


Will New York State see the recent reinstatement of a Civil Liberties lawsuit as an opportunity to truly reform a public defense system widely acknowledged to be broken?

The constitution – and justice itself — requires that people who cannot afford to hire an attorney must be provided one when the government seeks to take away their liberty. If the right to counsel isn’t honored, many other rights may also be lost for lack of proper legal action to secure them. The high court in New York State just reiterated that principle in allowing a lawsuit by the New York Civil Liberties against the State and five counties to proceed. Advocates for public defense reform are hoping that this development will add to the already-growing momentum for public defense reform in the Empire State. While many states experience public defense problems, often brought on or heightened by the Great Recession, New York’s public defense system (or non-system) has been in ongoing crisis since well before the economic downturn.

A brief timeline for those who haven’t been following New York’s public defense crisis:

1965-2006 – From the time the State implemented a patchwork county-operated and primarily county-funded system for providing public defense, problems were apparent. Entities including the National Legal Aid and Defender Association, the NAACP Legal Defense and Educational Fund, and the New York State Defenders Association studied various counties at different times and consistently found major deficiencies and resulting injustices. Beginning in 2001, bills that would create an independent public defense commission to oversee public defense in the state were introduced in the State Legislature but failed to pass.

2006 – a blue ribbon commission reported to the State’s Chief Judge, Judith Kaye (now retired) that the county-by-county system mandated by the State Legislature in 1965 fails to satisfy constitutional and statutory obligations to protect the rights of public defense clients. This finding followed statewide hearings and a study by the nationally-recognized public defense consultant The Spangenberg Group.

2007 – The New York Civil Liberties Union filed a class-action suit against the State for unconstitutionally deficient public defense services in five counties.

2008 – The NYCLU suit survived a motion to dismiss. The five named counties were added as defendants in the case.

2009 – Momentum for public defense reform grew, with many legislators and others calling for creation of an independent public defense commission. Late in the year, an intermediate appellate court dismissed the NYCLU suit as presenting an “nonjusticiable” issue that must be resolved by the other branches of government. Many state and national organizations filed briefs as amici curiae, urging that the suit be allowed to go forward.

2010 – Recognizing that even in a difficult budget year, the State must begin to address its public defense crisis, the Governor included a modest reform in the Executive Budget. Famed former Manhattan District Attorney Robert Morgenthau, who with 61 other former prosecutors had joined a brief authored by the Brennan Center for Justice urging the state’s high court to reinstate the NYCLU claim for better defense services, published an op-ed. The State Senate and Assembly each agreed that, with at least some modifications, the Governor’s proposal for public defense reform should be instituted. Now, action on that reform, like many other important measures, is subject to the negotiations that continue on the overdue 2010-2011 New York State Budget. And the recent Court of Appeals decision in Hurrell-Harring v the State of New York, which reinstated the NYCLU lawsuit, looms above those negotiations.

I’ve been having chats with former PD’s turned private counsel to discuss their take on the difference between how they reprsented clients as PD’s versus how they do it now.  Some of them are very forthright about the change in how they can practice as private lawyers, while others seem to believe they treated PD clients the same way they would treat a privae one.  I doubt this is true – if someone is paying you a few thousand dollars, you aren’t going to tell them you’ll meet them in the hallway of the courthouse on the day of trial and you’ll talk about the case, witnesses, and possible outcomes with them then.  To say otherwise is just not true. 

However, public defenders across the country are having a harder and harder time keeping up with their caseloads.  I don’t make excuses for PD’s who just don’t do their job, but we need more lawsuits like the ones in New York State to keep all of us honest.

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New Posts Coming Up, after I do some law stuff.

Posted: May 10th, 2010 by .

I have several guest bloggers on the docket.  Kathy Manley from my old firm of Kindlon & Shanks will be posting on a topic of her choosing.  I’m hoping I’ll get that one today or tomorrow.  Mardi Crawford from the New York State Defender’s Association has promised me a little something about the Public Defender Reform Bills that are (hopefully) about to become law and that should also be in the pipeline.  My old law partner, Ivan Bates, wrote something for me a week or so ago on lawyer branding, which is a hot topic in the virtual world these days.  I’ll post that later today.

All these guest posts mean that I can devote some time to taking care of clients.  I’ve got a lot of things I’d like to get down, but right now the law is calling.  And we all know she is a jealous mistress.

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Man, I feel like a woman.

Posted: May 6th, 2010 by .

I did my senior thesis on the Hegelian dialectic, using Simone deBeavoir’s The Second Sex as a jumping off point.  Here’s the quick rundown on the dialectic.  There is man, (yes, it must be a man in the sense that he has male parts) he is alone in the world.  He sees a rock in his path and needs to get around it.  So, he moves the rock.  Or he walks around it.  He is the master of the rock, the rock doesn’t fight back or say “no, don’t move me” he gets to do what he wants when he wants.  A couple of days later, man is walking around and there is this other man (it is still a man with man parts) in his way.  He says to the other man, “move” and the other guy says “no, you move” and so they get in a fight over who moves.  Whoever wins becomes the master and whoever loses is the slave.

Now, this is a tense relationship but, according to Hegel, a necessary one since without the master there is no slave and vice versa.   They need each other in order to survive since they define each other.  Simone de Beauvoir, who lived with John Paul Sartre (you’ve heard of him, right?), says that in the male/female relationship, man is the master and woman is the slave.  Or, more correctly, man is the One and woman  is the Other, the aberration of nature.  de Beauvoir began her book as an autobiography, but as she was writing realized that in order to write about herself, she had to write about what it meant to be a woman.  Why?   She wondered the same thing and said:

A man would never get the notion of writing a book on the peculiar situation of the human male. But if I wish to define myself, I must first of all say, ”I am a woman”; on this truth must be based all further discussion.

de Beauvoir’s take on woman being ‘the other’ a/k/a slave, was really radical during its time. In a quite remarkable statement in chapter two, de Beauvoir makes the distinction between gender and biology: One is not born, but rather becomes, a woman. She says its nurture, not nature. We are born with parts that are defined as female, but femininity as we know it is a falsehood, it doesn’t exist in the natural world. It’s something that has been thrust upon us to continue us to be the Other. [The book is fantastic, and I recommend that most humans read it since it gives you a decent look at gender roles in philosophy and history. How did we get to where we are now, which is so far yet still too damned close to where we came from?]

It is this continuing notion of ‘otherness’ that has us still stymied as women lawyers. Recently, Nicole Black at Sui Generis pointed us to an article on a panel of judges who were purportedly giving out tips to women litigators.  You should stop here and think “hmmm, I wonder what tips women would need in order to be successful that men don’t need?”  If you think the article is about what not to wear, you’d mostly be right.  To be fair, I loved and hated what the women judges had to say. Loved it because much of what they said was true and needed to be said, as far as speaking up for yourself and making sure you were well prepared (although this was almost an afterthought). I hated it because in talking to ‘us’ as women separate from the ‘us’ as litigators, they, and we- continue to perpetuate the notion that we, indeed are the ‘other’.

It is disheartening that it was a group of women judges who put on this presentation. A group of women that I would otherwise look up to. I’ve met Judge Kaye at the Court of Appeals dinners and she really is a beautiful woman. But, I never thought about it until someone on the panel pointed it out. I thought “she writes some damned good opinions.”

My question is this – why do we keep talking about woman as if ‘feminine’ was an innate thing, as if we aren’t made women but are born with a lack of confidence or a desire to wear sparkly tops?  Why do we continue to foster the idea that we are so very different from men and need separate guidance to reach our goals? 

My thesis concluded that women are the pepetuators of the ‘otherness’ of our own gender.  Man started it, but women bought it hook, line and sinker, and we are the ones who keep it up.  To be honest, I don’t think about being a girl much most days.  I put on a dress and heels, get my eybrows done and try to maintain my femininity to the best of my ability (although my husband might disagree when I get home and put on my bleach stained walmart sweats).  But when I read an article like the one above, I stop thinking about the brief that needs to get out the door or the DOL request I need to respond to.  I think, is my bracelet too big and flashy (got a compliment on it at the co-op today), are my heels unprofessional (the answer to that today is yes) and are people minimizing what I say because I don’t say it in a deep enough voice.

The fact is none of those things matter if what I am saying is meaningless.  My femininity does not impact the way in which I formulate a closing argument or cross-examination.  If it does, I’d like to know how it hurts it or helps it, I’d like to know – if it really is a factor – how to control it so that my legal analysis is more on point.   

Why do we, women lawyers, continue to maintain the notion that we are ‘the other’?  Why do we even discuss things like keeping our legs closed at counsel table?  I would like to, just once, be at a seminar where they remind men to double check their flies to make sure they are zipped.  It will never happen.  Since, as we are continually reminded, they are not the aberration.  We are.

I wear lipstick and mascara each day.  These are the things that make me a woman.  I write briefs and motions and I’ve tried some really tough cases.  These are the things that make me a lawyer.  If you want to make me a better lawyer, talk to me about client and practice management.  I can take care of my woman parts without a panel of legal experts.

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