Sunday, October 19, 2014

Why I Love THIS Kansas City Royals Team and Why It Scares Me

I do not know who is going to win the World Series, but I sure hope it's the Royals.  This Royals team is different, and not just because they are winning.  I am no baseball expert, but I have followed the Royals since the team's inception in 1969, when I was 16 years old.  Those early years seemed like they were easy years.  Sure, they won a lot and we expected them to win a lot.  When I was younger, the Kansas City team was the Athletics, which left for Oakland.  My mother used to take my brother, sister and I to old Municipal Stadium to watch the A's, which had a pretty lousy record.  I loved going to the games, nevertheless.  I remember stepping through the dark gate and into the bright lights of the colorful and beautifully kept field.  The brilliant greens of the field, along the the kelly green and gold uniforms were so visually spectacular.  Of course, the famous George Toma was the groundskeeper and he was the person associated with the A's that gave Kansas City the most pride.

Fast forward to the early Royals.  Everyone in this city loved Ewing Kauffman and his devotion to Kansas City and to baseball.  I loved and love the blue of the Royals.  The early Kauffman Stadium, before it was named the K, had ugly orangish, reddish seats which were replaced with the more spectacular blues of the present incarnation of the stadium.  My husband and I, then teenagers and dating, went to games all of the time.  The seats in the bleachers in left field were a cheap date and my husband loved baseball, and I loved it, too.  I remember the time I tried to convince my then boyfriend to leave because of the boring pitchers' duel we were watching from way out in left field. He insisted we stay and I reluctantly watched what turned out to be Nolan Ryan's first no-hitter. Back then, though, we expected to have great teams, with George Brett and Frank White and Amos Otis and Freddie Patek.  Then, Mr. K died and the Royals went to hell.  I used to laugh, because for the last 28 years, we have had "rebuilding" years.

This is why I like the Royals now even better than then.  The players are young, exuberant and fun. Lorenzo Cain grabs flies that look impossible to catch, as if he is a super-human.  The team members seem to enjoy each other and love to play the game.  They love playing baseball, they play harder than humanly possible.  They love the fans.  They are young and exuberant, instead of jaded and arrogant.  They are not the super millionaires of most other teams.  They are not involved in doping scandals.  These Royals play the game as the fans hope players will play, with enthusiasm and youthful exuberance.  That is why the country loves the Royals as much as the fact we have had such a bad team for so long.

And that is also why I am oh so slightly jealous, of that youthful exuberance.  The contest is still new and fresh for these players.  They are not jaded or overwhelmed by greed or ego.  They are young and innocent, and I am not.  I wonder if this wonderful fielding and diving to catch fly balls will be part of their existence in ten years.  I wonder what salary negotiations will be like for these players in the future.  I wonder if personal gain and fame will overcome their love of team, fans, and the game.  I wonder if they will become jaded in the quest to win their games as I have been disenchanted and jaded in my world.  I have "practiced" law for 31 years, longer than most Royals players have been on this earth.  I want their exuberance.  I want their enthusiasm. I still can see remnants of my youth. But the "game" of law is not so much fun as it used to be.  Of course, law is not supposed to be a game.  It is supposed to be a quest for justice.  I just wish I could get some of my innocence back. Oh to be Lorenzo Cain.  May he never feel jaded.  Right now, I want to have a little of the Lorenzo Cain mojo.  At least I colored my nails blue and I will use the blue chalk in my white hair during the series.  Maybe the Royals can be an inspiration to us all. 

Sunday, September 21, 2014

Employers Could Save Billions By Preserving Employees' Civil RIghts

The way our American companies treat their employees, especially in employee civil rights, oftentimes is one of the more foolhardy and ill-conceived ways to run a business.

Take this fairly typical scenario:  a supervisor starts making sexually inappropriate remarks to a female subordinate.  She finally tells her boss to stop.  He doesn't.  She goes to her boss's boss and complains.  The first boss hears about the complaint and starts treating the woman with disrespect, criticizes here performance, writes her up, and makes her job hell and she quits.

The woman goes to a lawyer and files a charge of discrimination with the EEOC.  What does the employer do?  Here are some examples:

1.  Call a high price law firm to make the woman's life hell - checking into her sexual history, stating she is flirtatious or dates others, try to find dirt on her.  Then the law firm defends the case in a "scorched earth" fashion, sparing no expense, billing thousands of hours and ultimately offering nothing or an insulting amount to the woman.

2.  Hold sexual harassment "training" either in person or over the Internet that is universally ridiculed by the employees.  After all, how "politically correct" do they want us to be?  Women who complain are reviled and harassment is kicked up a notch.

These types of reactions can cost the company millions.  The company pays for their high-priced lawyers who prolong the case and bill generally, assigning ten or more staff to work on the case.  The company lives in la la land and believes that their side is the moral side, the one for capitalism.  After all, once you "grow" a business, are you not the king of your castle.  Are not your workers, or at least the ones with whom you cannot relate like women, older workers and workers of different races, in essence the serfs that serve the kingdom.  You are king.  No one call tell you how to run your business.

And then there is the verdict of lost wages, emotional distress damages and the pesky damages you did not consider, punitive damages, which can be in the millions.  When that happens, it's no reflection of how you treat your workers.  It's not reflection of your management's demeaning conduct to the women workers.  Of course, it's just our crazy jury system with juries comprised of stupid people which hate you because you are wealthy.

Sometimes company owners convince themselves that they are the victims.  They are not.  I have a different way that could ;save these business owners oh so much money.  This is what I would suggest:

1.  Do not assume your manager is right.  You can relate to him, but that does not make him right.

2.  Put yourself in the shoes of the employee.  Really get into those shoes.  How would ;you feel if you were her.

3.  If the guy harassed and retaliated against her - own up to it upfront.  I don't care what the lawyers or insurance companies say.  Taking responsibility saves you money and it is the right thing to do. Truthfully tell her - I am sorry.  We will make this right.  (This is probably all it takes to protect yourself from punitive damages.)

4.  Go to the harasser.  If the conduct is bad enough, fire him.  If not, reprimand.  Give all employees, management and non-management alike, extensive training and impress how the training is not to be ridiculed.  Make the employees step into the shoes of the employee who is discriminated against.  Talk about race and how we are all affected by our experiences with race.  Make the training a safe place to talk and complain.  Have professional trainers who understand the human dynamics involved in discrimination.  Repeat training often and show the employees how dedicated you are to eliminating discrimination.  Have professional objective conflict resolution professionals at your disposal to stop problems before they grow.  Dedicate your company to treating everyone, and I mean everyone, with respect.  The bullies get fired.

I could write a book about this, and I hope to do so.  However, the above is a good start.  We could have productive, engaged employees who do not sue their employers.  Morale would be high.  More later.

Monday, September 15, 2014

When Not to Sue Your Boss

Going through a lawsuit, any lawsuit, is a very stressful experience.  The opposing counsel will take your deposition, which can be very stressful.  It is hard to be forced to answer questions under oath even if you sometimes feel the questions are embarrassing or invade your privacy.  The opposing counsel will try to shoot holes in your credibility and perhaps your character.  And, if it is a discrimination case, oftentimes co-workers are afraid to get involved because they need their jobs, too.

Here are some things to consider before you decide to sue for discrimination:

1.  Are you still working at the place of employment?  THINK CAREFULLY ABOUT THIS!!!

    It is very stressful suing a current employer.  If the conduct is bad, most people would be better off quitting, especially if the employee can get another job.  If you don't want to leave, consider that:

        a.  Is the conduct really bad or do I just want them to change and I am frustrated?  Will a visit to HR or the president of the company make a difference?

       b.   Does the company know about what is going on?  If it is sexual harassment, have you clearly complained to someone in charge?

If you can get a situation changed for the better without resorting to litigation, you should try to do that first.  Litigation is a last resort.

2.   Do you think if you sue your employer you will hit the jack pot?  BAD REASON!!!

    Looking got a pot of gold is never the right reason to bring a discrimination case.  People don't like greedy people.  I don't like greedy people.  Few people get rich from suing their employer.  To win an employment case, the jury should see that civil rights and fairness are important to you.  And stopping racism or sexism or ageism must be more important than money.  People who are the most devoted to discrimination cases have a desire to make the workplace better not only for themselves, but also others. Money is not the primary motivator.

4.    Can you prove that discrimination based on your being in a protected class is part of the reason you were damaged.    EVIDENCE IS ESSENTIAL!

   Discrimination, such as racist terms, sexist actions, have to be clear.  That does not mean that the "n" has to be in every case.  There are "code words" that substitute for traditional discriminatory terms.  Some of these are - for racism- lazy, late to work, doesn't catch on,; for ageism - too slow, can't deal with technology, needing newer ideas looked through fresher eyes; and, with sexism - can't make decisions, not authoritative enough, or too nice.

5.   Can you withstand the attacks and stress because you believe that your case could make it better for the company's employees and maybe even for the country as a whole.  THIS IS THE BEST REASON OF ALL!!!

Even though plaintiffs have lawyers usually working on a contingent fee basis, lawsuits are still very stressful, embarrassing and there is no guarantee for success.  Some people are more risk averse than others.  All of these issues should be explained to you when you consult with a lawyer. All lawyers do not work in all areas.  I would recommend employment discrimination lawyers for employment discrimination cases.   Out of the employment lawyers, you should look for lawyers with trial experience in the area of your case.  Surprisingly, many lawyers have had few or no trials.  If you hire a seasoned trial lawyer, not only will you be hiring a professional with experience in evaluating cases, and who is more likely to be respected by defense counsel.

If you have discovered blatant and pervasive discrimination and bigotry, that is when I like to think the fine citizens of Missouri want change. Sometimes we have to do things that are difficult.  It's a matter of character.  When you have the chance to make the lives of other workers less discriminatory, you should do it.   It's the right thing to do.

Monday, September 1, 2014

"It Was My Fault"

A few years ago I was leaving Wichita after a deposition, in my just-purchased new car, talking on the phone to my partner.  While driving down the unfamiliar road, on my cell phone, I notice the sign to the interstate.  I was passing my exit to the right and I was in the middle lane.  As I look to my right, there is a tractor-trailer passing me.  I wait until the tractor, then the trailer, pass ahead of me and swerve my car to the right to cut over to the exit.  Crash!  The truck had two trailers and I rammed into the second one.  Fortunately, I was not hurt, but my right fender and door were bashed in.  I pull over, followed by the truck driver.  As he gets down from the bed of the truck, I instinctively said five words that I have been proud of, "It was all my fault!"  I am a lawyer and I used to defend insurance companies and I know that insurance companies tell their insured not to apologize, not to say much, and certainly not to saw those five words, "It was all my fault."  Yet, when I made my declaration, I felt relieved.  No pretense, no bullshit.  I did it and I was stepping up.  The truck driver smiled at me, asked me if I was hurt, and then helped me with the police officer, who did not give me a ticket, even though I told him, also, that it was my fault.  I got the car fixed, the truck had no damage, and everyone wanted to help. That wreck was a revelation.  When I apologized for my mistake, when I made it clear that it was all my fault, I and everyone else was relieved.  They wanted to help me because I was honest and I said the truth although we all knew that an insurance company would not want me to do so.  The driver and the cop went out of their ways to help me.

I have often thought about the, "It was my fault" way to bring a claim or to defend a claim. If you are a reader of this blog, you know that I represent people who bring claims of employment discrimination. Just like most of us in life, most clients, and most defendants, do not want to admit any fault in the dilemma that occurred at work.  Sometimes, my clients, won't made that they had made a mistake at work, or were tardy, or disobeyed a directive.  My clients want to feel like they did nothing wrong, who doesn't?  But, I know of no one in life who is perfect.

Likewise, the employer, or heaven-forbid a harasser, denies any racist, sexist, ageist conduct. They are never to blame.  Either they did not make the racist comment, or it was a joke, or the plaintiff said things much worse.  No one ever means it and the termination had nothing to do with my client's complaints.

I'm just thinking out loud now, but what would happen if everyone accepted responsibility for the part of the mess they created.  My client might say, "I was late for work.  It was hard for me to get my kids moving and I will make them get up earlier."  The boss might say, "I know that joke was racist and I am embarrassed.  I thought I wasn't a racist, but I need more work.  Let's get training for me and others on this.  I am so sorry."  There can be a whole variety of scenarios, but I hope you catch my drift.  I like people who own up to what they do.  I feel good about myself when I admit mistakes, because making excuses is a lot easier.  

Maybe if we all own up to our imperfections, our mistakes, our biases and bigotry, we could work our problems out at work and reduce lawsuits about unlawful discrimination.  To take matters a step further, what if we spent an afternoon reversing roles with the opposing party, putting ourselves in their positions, understand how they may think, what may really be going on, not merely emphasizing, but figuratively living in their shoes.  If we could lose our fear and insecurity and lose our inhibitions, and go imagine what  is going on with the other side, what things would happen?

I think there is a reason I did not get a ticket, even though the wreck was my fault.  I owned up to what I did.  I have had only a few cases but some where the company essentially says, "Yup, we were wrong.  We are fixing the harassment.  No one should have to go through what she did."  Those are the cases where I have had great satisfaction, although my clients ended up with much less money.  Admitting wrongdoing with contrition eliminates the desire for juries to punish employers.  In fact, if everyone would admit his or her part in whatever happened, I suspect we could get cases settled and people back to work.  We might even begin to put a dent in unlawful discrimination, once everyone saw the other one as a human being like themselves.

We watched the "Railway Man" a movie about a British soldier in Burma who was tortured and water-boarded horribly during World War II.  He was plagued by PTSD and lived a haunted life until he confronted one of the soldiers who had survived the war.  The British soldier planned to kill the Japanese solder, but instead forgave his tormentor.  The Japanese soldier was haunted  by what he and the other had done to the captured and devoted his like to making amends.  He admitted his sins to the British soldier and the British soldier forgave him.
There is such a profound and basic lesson in this story.  Most of us want to forgive others.  We want to be herd and understood.  We want to be treated fairly, but justice is different from revenge.  Revenge brings mo comfort.

I wonder what what happen if we had, instead of mediation, am honest and frank discussion of what really happened from everyone's perspective and we looked into our souls, and decided  what part we played.  Then we admit that part and ask for forgiveness.  What would happen with that lime of thinking in litigation?  I wonder.

Sunday, August 24, 2014

The Cost of Not Just Forgiving But Also Forgetting

I believe in forgiving.  I believe that those of us who refuse to forgive others who hurt us only wind up hurting themselves.  Maintaining rage, anger and vengeful feelings hurts the person with the rage. When we hold on to anger, we sacrifice peace and contentment.  Forgiving helps the injured.  Forgiving is the only way for a damaged person to heal.  But what about forgetting?  Must we forget to heal?  I think there is danger in forgetting.  Perhaps it is personally advantageous for the forgiver to forget, but there is a greater danger in history repeating itself.

Ferguson, Missouri has been in the news all over the world.  People who claimed racism is dead in this country are perhaps reconsidering.  Racism has come out of the shadows and re-emerged in the lightness.  We can see racism.  We are having debates about racism, and it makes many of us feel uncomfortable.  Those of us who want to forget about the existence of racism are forced to confront its ugly countenance.  All of the Harvard, Princeton and Yale graduates, those college kids who have no knowledge of campus protests, sit-ins and race riots, are learning anew about those baser feelings that divide us. The lawyers, doctors, and investment bankers, comfortable in their big offices with lots of money and prestige may have to face humanity's baser characteristics.  We all want to forget, but if we forget, racism inevitably raises its ugly head.

I am slowly reading a novel about John Brown, and sometimes I feel like him.  I feel that he was a crazy man on a moral mission who went awry.  John Brown killed others in a futile attempt to eradicate slavery.  He was impotent in his killing rampages and died a violent death.  There is a fine balance between crazy fanaticism and moral righteousness, as we can see in terrorism attacks around the world. But, if we get too complacent, bigotry has no reason to hide.  How crazy do you have to be to fight for what you believe in and not take a cushy job and tell yourself that all is right in the world.  We all hate "political correctness," right? How important is it to feel comfortable while others still suffer?

I was born quite awhile after Hitler's suicide.  I have never met a Nazi.  Although my mother and grandmother fled Nazi Germany, I only know stories from relatives.  I have had a good life, with a good job and a wonderful safe family in a safe country.  I forget how fortunate I am.

But, Hitler is probably the reason I am a civil rights lawyer.  Next week, I am going to Germany for the first time.  There are probably far fewer Nazis in Germany today than there are in the state of Missouri. Yet, I cannot forget what happened to my forebears.  I wonder how I will feel at the numerous receptions with German lawyers that are slated during the seminar in which I am participating.  I am a little scared of my own feelings and hope this will be a healing experience for me.

I guess all this I have written above is really beating around the bush.  I belong to an organization of discrimination lawyers.  Like most lawyer organizations, this organization is populated mostly by white men.  They are by and large very good people.  But I suspect most of the lawyers in the organization have no personal experience with blatant bigotry.  Why aren't there more women trying civil rights cases?  Why are there very few people of color in the organization?  There are a few old hippies, which is probably the category the others put me in, but why don't we have more people in our ranks who know discrimination first hand? Women and minorities are being actively recruited to defend civil rights cases and it's a whole lot easier to live on a healthy salary with benefits than it is to fight discrimination on a contingent fee basis.  Will the Ferguson civil case, which will probably follow, be defended by a lawyer of color? I don't know.

The thing that probably scares me the most about the Holocaust and other instances of racial or religious genocide is the realization that it can, and will, happen again.  That's not what scares me, though.  It's that people like me, or even actually, me, can go along with the crowd and participate in bigotry because it is so much harder to fight the status quo than be a part of it.  The whole of the population of Germany in the 1930's and 1940's were not anti-Semitic or genocidal, but the Holocaust happened.  Massacres in Syria, and other countries occur today.  It's so much easier to forget, or just to trust that others will do the right thing.  Why get involved?  Isn't is easier just to look the other way, to become part of the "silent majority?'  Most people want to be the "cool kids," want to be in the "in" crowd.  When will comfort give way to justice?  I am scared because I can see myself becoming complacent.   Complacency and amnesia are the enemy.

Tuesday, August 12, 2014

In The Wake of Robin Williams' Death, Let's Talk About Depression

I suffer from major depression.  I was finally diagnosed in 1991 and have been on anti-depressants ever since.  The medication changed, and saved, my life.  My first bout of depression was long before 1991. In 1978, I suffered from postpartum depression for at least three weeks.  I probably was depressed before that.  In 1991, I felt as if I was in a tunnel with no exit.  I had trouble coping with every day living.  I was a wife and mother of two small children.  How could I be depressed.

If I had not gone on anti-depressants in 1991, I do not know where I would be now.  I have a psychiatrist who I see every 6 - 9 months for a few months to make sure my meds are working.  I no longer suffer from major depression anymore.  I have not suffered a major depression since 1991, but I wonder where I would be without modern medicine.  Thank goodness for medical science!

I write this because yesterday Robin Williams killed himself and it has affected me tremendously, as it has many others.  We treat mental illness in this country as a dark little secret.  I do not know why I am prone to depression.  I believe my grandmother suffered from depression that ultimately, indirectly, killed her.  I do not know if I inherited depression, but I do not care.  I suffer from a mental illness that is in remission because of modern medicine.  I want to shout about my depression from the rooftops. Maybe, if someone else suffers from crippling depression, if someone else realizes that having a mental illness does not mean that he or she is a bad person, that person can get help.

Too many people are ashamed of their depression and fault themselves.  My depression is a medical condition which I treat with medical care.  I want others to get the help that I got years ago and continue to get to this day.  Depression is an illness.  Depression is not a personal failing.  When life seems pointless and hopeless, there can be hope.  I know I am lucky that the meds work.  If you are thinking about ending your life, or you exist with constant self-loathing, I hope you will seek help.  Suicide may be a solution for the one in pain, but it hurts so many survivors.  Please do not give up.

Sunday, August 10, 2014

How To Not Burn Out As A Lawyer

Steve Martin used to have a sketch which he entitled, "How to make a million dollars and not pay taxes."  He said, "First, get a million dollars. Then, don't pay taxes.  If anyone asks you why you didn't pay taxes, you tell them two easy words, "I FORGOT!!!!!'

Well, here is the Steve Martin answer to How To Not Burn Out As A Lawyer.  First, get your law license, and then don't burn out.  Ha!  A lot easier said than done.  Here are the reasons that lawyers flee the practice of law:

1.  Too much pressure with too boring work and too many partners looking over your shoulder.

2.   Too much work that seems tedious or a type of law that is distasteful to the lawyer.

3.  A fear of the courtroom.

4.   A hatred of legal writing and research.

5.  Being on your own with no one to mentor you and trouble paying the bills.

The flip sides of the reasons for burn-out can also be the reasons that people know they are destined for the law.  Some lawyers like the organization and camaraderie of a big firm and welcome the challenge of moving up the ladder and becoming more of a boss.  Plus the pay is usually pretty good.

For those solo practitioners or those is small firm, the stress from bosses lessens, but the stress of ultimately responsibility for being the total legal counsel for the client combined with the need to find clients and figure out how to get paid.

then, there are the boundary issues.  If you are cold and calculating, caring little for either your client or for the legal principle at issue, how could you not get burned out.  The irony is that I suspect many caring lawyers, especially in criminal case, ,but got burned out watching those for whom the lawyer cares go to prison, sometimes for long periods of time and sometimes when he or she is innocent.

All of these possibilities  is enough to break your heart.  We talk about female attorneys balancing home life and professional life, but we don't talk much about boundaries and burn-out.  We need more training to deal with our grief and sadness and even feelings of abandonment some lawyers feel.  I know I have lost quite a few clients.  One young single mother died in a one-car collision shortly after her case was settled.  One day, on the way to work, she skidded off the road, hit a tree and died.  It still tears me up.  One man I deposed killed himself two weeks after the deposition.   I do not blame myself for those deaths, but they still hurt, a lot.  After I lost one trial, I grieved, just as if it were a dearth, for at least six months.  

There is only so much pain I can take at anyone time from any one case.  The pain can come from the other side.  I know that it is not just plaintiffs suffer from the way we treat each other.

Right now, I am tried.  I do not want to get burned out and I do not want to retire. There are times that this job is the most exciting I can imagine.  There are other times when I feel like I am no good to anyone.  It's time for a vacation.  I have the best partners in the world and I want to come back.  We all need some rest from time to time and I can feel that now is the time for me.