Sunday, November 23, 2014

How Do You Solve A Problem Like Bill Cosby?

I don't know Bill Cosby.  I have no inside information about what he has or has not done.  It is conceivable that Mr. Cosby is merely the victim of scores of women of various ages, occupations and histories who all just conspired to make up stories about Cosby now for some unknown reason.  Bill Cosby might just be a victim of one of the most extensive celebrity-related conspiracy in history. Right.

If you accept that Bill Cosby engaged in some sort of nefarious behavior, which I do, why would he do this?  Is Cosby just an over-sexed, self-centered jerk, or is his behavior something more?  How does one of the most beloved men in America go from angel to devil?  I have some theories.  Mind you, my theories are not based in fact and certainly not based in science.  I have handled sexual harassment cases for some time and I have seen firsthand the actions of others that remind me of the allegations lodged by the women accusing Cosby.  So, for what it's worth, here is what I think.

Bill Cosby has problems, deep-seated problems from an early age.  If the allegations are true, Cosby has an issue with self-esteem and power.  Sex and power oftentimes go hand in hand.  In ancient times and now, when an invading army defeats the locals, what do they do?  RAPE and pillage. Sexual harassers are damaged men in positions of power who abuse that power.

Look at Cosby's history.  We have heard Bill Cosby lecture Black men ad nauseum about pulling their pants up, etc.  I think Cosby, by taking on the role of African-American super-father was tempting fate.  He talks about education, which is a good thing, but he had issues in school and went on to get his Ed.D. degree only after failing his sophomore year in high school, dropping out of school, taking correspondence courses to get his GED, enrolling in college, dropping out and finishing his education later.  While it is admirable that he went back to school, he has had human failings and was not always a golden child.  So, why does he think he can preach to others?

If you look at the sexual allegations, it seems that the first came out publicly after his time on The Cosby Show as the prototypical "American Dad." In the early  2000's and late 1990's, America was not ready to accept a tarnished Cosby, so the allegations fell on deaf public ears, while Cosby paid off the women he abused.  During the Cosby Show, Bill Cosby had fame, power and money.  He got cocky.  As time elapsed, his fame diminished and more allegations came forward.

I think that people like Cosby sometimes have a death wish.  Perhaps he wanted to tempt fate.  After all of these years as a Teflon-celebrity, with no allegation however disgusting, sticking, Cosby desired to regain some of his lost power.  It was not until Bill Cosby planned a television comeback and reignited his touring career that his world collapsed.  Perhaps his preaching about how Blacks should act, coupled with his diminished name, was sufficient for these persistent allegations of sexual abuse by many women to finally take hold. Maybe now, after pushing the envelope his whole life, Cosby had finally gone too far.  Maybe now Cosby's Teflon turned to Velcro.  Perhaps Bill Cosby was seeking the condemnation and punishment that he always knew he deserved and was destined to find.

If the allegations are true, Bill Cosby is a criminal.  Yet, as America's sweetheart dad, he was able to skate.  What if Bill Cosby is just an older Lindsey Lohan seeking public condemnation for his self-hatred?  In any event, it appears that Bill Cosby tempted fate one time too many.

Hopefully there is a lesson here, about power and sex and fame.  Hopefully the Bill Cosby story will spur some other girl or boy to come forward and refuse to be sexually abused.  Hopefully, Bill Cosby's legacy will be one of Americans, male and female alike, understanding the nefarious nature of abusing one's power by controlling others.

The Cosby store is one of abusing power more than one of sexual promiscuity.  Bill Cosby may have just thought he was more powerful than he is.  Or maybe he was just seeking the punishment he always thought he deserved.

Tuesday, November 18, 2014

Cowboy Lawyers - the American Civil Legal System

I was fortunate enough to participate in a trial demonstration, a mock trial with a mock jury, in Berlin, Germany this September.  It was a fascinating experience, having never been to Germany and not knowing much about the German, or European, legal systems, I was very curious.  I knew that there was no right to a jury trial in Germany, a system in which I fervent believe.  Yet, I was surprised by the competent and fair way Europeans, specifically Germans, dispense civil justice.

In Germany, law students undergo go a couple of years of apprenticeship, an internship if you will, before being allowed to practice law. I wish we had a similar system here.  When I went to law school, brand new lawyers were ill-prepared to practice law.  The Paper Chase was a popular television show before I started law school and the actor, whose name escapes me, (who touted Meryl Lynch - "They make money the old-fashioned way, they earn it.") told the viewers and Harvard law students on the show, that he would teach them to "think like a lawyer."  At the time I watched that program, I thought thinking like a lawyer must be a great thing to do.  I suppose what the Paper Chase professor meant, was to think logically.  However, in real life, new lawyers might approach legal issues more logically, yet without a clue of how to file a lawsuit and draft a will.  I understand that American law schools do teach more practical application of the law than in the olden days, but it sure would have been, and I suspect still would be, nice formally apprentice with an experienced attorney before being thrown to the wolves.  I, as many other young lawyers did, found mentors and informally apprenticed.  For those who were not so lucky, I do not know how they learned and adjusted.

In Germany, the law student has one of two paths to follow, as a lawyer or as a judge.  The judicial path is for the better students.  Judges have an enormous amount of power in Germany, and are fiercely independent from the government.  Since the German lawyers turned judges know the law and are deemed to be intelligent, they, in essence, investigate the case and are deemed sufficiently sophisticated to have the common good at heart.  A German lawyer confided in me that if a German was hurt on the job, and lost his or her leg, the recovery would be around $100,000 and the German lawyer and I agreed how woefully inadequate that award would be.  Germany does not have an adversarial system such as we do.  Most times, if a German litigant cannot afford a lawyer, the lawyer petitions the government for payment.  While I was taken aback at the unbridled power of German judges, it occurred to me that their system works because of all the societal benefits we do not share. In Germany, there is no at-will employment.  Every employee has a contract and rights towards his or her employment.  If a German is injured, the health care is provided by the government, as are social programs.  Germany is so much more of a socialist country.  One young German lawyer told me that if I was politically left-leaning in America, I would probably be considered a conservative in German culture.

We went through our mock trial demonstration, and, at the end of the day, a jury made up of young German lawyers deliberated on camera and awarded a fair verdict to the critically injured plaintiff in this fake products liability case we litigated.  People are not so different in other parts of the world. The mock jurors deliberated and came to agreement in ways that American jurors do in this country.

What is really different between the German civil justice system and the American civil justice system is embodied by the lawyers.  We have much lower taxes percentage-wise than Germans.  We do not have the government pay lawyers who represent those without the means to pay for legal representation unless it is a criminal cases.  In civil cases, we have what I like to call a COWBOY LAWYER SYSTEM.  Corporations can afford to hire law firms to represent them.  I have heard many a lawyer tell me that he or she (mainly he, though) doesn't want to talk about settling a case until the firm had had an opportunity to "bilk" (my word, not theirs) the file.  Many, if not most, defense lawyers do not say things like this.  However, it is a fact that under normal billing methods, the longer a firm works on a case, the more the firm earns.

As you know if you have been reading this blog, I am a plaintiffs' lawyer.  However, plaintiffs' lawyers, myself included, do not fare better.  Plaintiffs' lawyer are paid contingent fees, a percentage of the recovery in a case.  The system was set up because most people cannot afford to pay for lawyers and if the people are seeking redress for damage, those with no money can still seek justice. As a practical matter, this system is somewhat, although, in my opinion, not fatally flawed.  When I take on a case, I know that if we lose, I will not get paid.  I also know that, if we win, I may win big. Ah, there is the rub.  People do not become plaintiffs' lawyers simply to help the poor.  If that were the case, we would become government or Legal Aid lawyers.  We plaintiffs' lawyers may have big hearts and truly care for justice, but we work on contingent fee cases because we are cowboys.  By cowboys, I mean, we take risks.  We gamble.  Sometimes I liken what I do to being a professional gambler.  Never knowing if the next big case is beyond the horizon, we gamble with our money, our time, and our affection.  We take no physical risks, but boy, do we take financial risks.  And, just like gamblers, we relish the peaks and withstand the valleys.  When we get a verdict from a jury many times more than what was offered by the defendant, we preen.  We are Peacock Cowboy Lawyers. I include myself wholeheartedly in this description.  Being a plaintiffs' lawyer is addictive.

In Germany, I contemplated working in a legal system with significantly less risk to the participants and lawyers and significantly more security.  I don't think I would like it.  Where is the adrenaline-rush?  You ride your horse on the prairie, hoping to find a slight upgrade. In America, we gallop on our steeds off the sides of cliffs, praying for a soft landing. I do not know if the German system makes more sense, and I doubt after practicing law for 31 years in America, practicing law in Germany would be satisfying for me.  Perhaps I should consider starting a 12-step program called Plaintiffs' Lawyers Anonymous.  Even though we lawyers hate to admit it, perhaps our Cowboy Peacock preening is part of the reason that many Americans cannot stand lawyers.

Sunday, November 16, 2014

Discussing The Big Five Cultural Taboos: Race, Sexual Orientation, Sexual Abuse, Religion, Mental Illness

In picking a jury, and at other more common times in my life, I have felt it necessary to talk about taboos.  Taboos - those things that we do not like to discuss.  Why?  Because these subjects are hard to talk about and are divisive.  When you discuss taboos, you may have an opinion someone else disagrees with and then there will not be apparent harmony on the earth.  It is so much easier to talk about things that do not matter.  No one gets hurt, no one gets offended, and the conversations are easily forgotten.  We all have, feelings, opinions and beliefs borne from a lifetime of experiences and prejudices.  I suspect that since we are reticent to discuss taboo subjects with others whose opinions may differ, many issues that could be resolved are not.  Here is a list of what I see as common taboos that those of us with manners and good taste are wont to avoid, lest we expose ourselves for who we are and show what drives us:

1.   RACE - We (meaning people like me, Caucasians) like to pretend that race issues do not drive what happens in this world.  We like to pretend that racism does not exist.  For crying out loud, isn't our President half-Black?  How can anyone accuse us of being racist.  I do have to discuss race in cases of race discrimination or when I represent a non-Caucasian client and I know that self-identifying as a racist is no longer preferred, as it was by many during my childhood so many years ago.  In recent years, I have had to explore this issue with questions like, "What do you think about inter-racial relationships?"  One time that questions resonated with some brave souls who felt safe enough to honestly state their opinion, one with which I disagree.  I listened, accepted what the people said, because we all need to feel safe with our beliefs.  Those people were struck from the jury, because I represented an African-American woman who had been called by the "n" word at work.  But, at least we had some semblance of a discussion. Pretending that the issue does not exist merely perpetuates racism.

2.   SEXUAL ORIENTATION - This may be an even harder discussion than with race.  When I was a child, it was popular to stay nasty, horrible things about members of the LGBT community.  Of course, none of the people I knew thought they knew a gay person, and LGBT was not a phrase back then.  Back then, we subjected  perhaps 10% of the population to horrible ridicule,  causing many to be too afraid to dare publicly state who they were and who they loved.  That was so sad.  I suspect many people led and still lead tormented lives because of the cruelty of the masses.  I am so happy to see society change, but we have a long way to go.  Why is okay to torment a group of people who simply want to live and love in peace?

3.  SEXUAL ABUSE - When I started handling sexual harassment cases in the early 1990's, I noticed a troubling fact, most of my sexual harassment clients had been childhood victims of sexual abuse.  After I started talking to new clients, after I thought we had developed some mutual trust, I began asking each new client if she had been sexually abused and, almost without exception, the answer was 'yes.'  I began to wonder, can these harassers sniff out the women already victimized by others?  Something like 1/4 of the women in the United States, and many more in other countries, are sexually abused at some time in their lives.  In Nigeria, Boko Haram, the militant group which kidnaps schoolgirls to "marry" them off are simply selling young girls into slavery.  I have had many clients whose lives seemed to be undermined by their vulnerability, especially if they were beautiful by modern standards and had less-advantaged childhoods.  Beauty can be a curse to vulnerable women. Odd, huh?  The thing that Americans value most in women, beauty, can be bad.  If we could have open discussions about heinous things such as sexual abuse, would things be better?  I do not know.

4.  RELIGION.  Bill Maher recently went on a rant against the Mormon church, calling it a cult. What a sanctimonious thing to say.  All religions have beliefs that can only be accepted if one has the faith to accept the beliefs.  While I am not going to expose my views here about religion, since I, too, fear dissent, belief is all about faith.  What troubles me is the significant history of repression, violence and genocide in the name of religion.  Many might not agree with some people who commit crimes in the name of religion, but it is folly to condemn the religion because of the actions of a few people.  The purpose of all organized religions is to make people and society better.  Unfortunately, in fact, the commission of crimes purportedly in the name of religion causes great societal damage. Politics, in a perverse way, is a by-product of religion.  People sometimes adhere to political beliefs as zealots.  Religion and politics both involve socialization, community and power.

5.  MENTAL ILLNESS  - We are so sanctimonious when it comes to mental illness.  I say "we," meaning me, and many others I know.  You know those anti-depressants you take because you have been stressed.  Those are to relieve the symptoms of depression, a mental illness.  Some of the most creative and productive members of society, of humanity, suffered from mental illness.  In the book "Olive Kitteridge" by Elizabeth Strout, Olive declares that she is depressed because she is intelligent and complicated and that simple people are less likely to be depressed.  While I know of no statistics to support that statement, I know a lot of complicated, brilliant, creative, productive people with mental illnesses.  Abraham Lincoln, Edgar Alan Poe,  and Vincent Van Gogh were all purportedly mentally ill.  So get over it and accept that we all have challenges.  Embrace each other.

If we are ever to have a modicum of peace and civility on this planet, we must accept each other.  As the fictional Atticus Finch said to his fictional daughter Scout in "To Kill A Mockingbird" by Harper Lee,“You never really understand a person until you consider things from his point of view…until you climb in his skin and walk around in it.”   Oh, that we could make this statement become fact.

Saturday, November 15, 2014

The Cancer of Cigarettes

A whole generation of Americans is dying or suffering with cigarette-caused ailments, and the world pretty much ignores their plight.  My parents smoked as teenagers.  It was the thing to do.  Cigarettes were touted in commercials in the 1950's as not only safe, but healthy.  Tobacco companies made billions and billions of dollars by addicting kids, who smoked throughout their lives until they sickened and died from debilitating and painful illnesses.

My father and my mother were both addicted to cigarettes, with my dad dying at age 59.  My mother quit smoking in her early 40's, but now in her 80's she struggles with debilitating COPD (chronic obstructive pulmonary disease), continually tethered to a tank of oxygen and struggling to walk more than just a few feet.

There have been some successful lawsuits against tobacco companies, but they are just a drop in the bucket of the vast stores of money these immoral corporations accumulate.  Americans don't smoke as much today as they did 50 years ago, so tobacco companies have addicted unsuspecting smokers in third world countries.  Rather than go under as I had hoped because of the downturn in profits, these giant corporations with their vast stores of money simply diversified and purchased food companies, buying Nabisco and other companies with piles of money from their ill-gotten gains.

There is no good result from nicotine addiction.  There are no health or societal benefits to smoking, outside of farmers who can sell a "cash crop" to alleviate their financial struggles.  Yet, we have rewarded these companies and the people who own them.  Alcohol, which can be destructive, can also have some health benefits.  In centuries past, water was unsafe.  Fermenting fruit juice saved lives.  Not so with tobacco.  Yet we do way too little to regulate this vile industry.

Every day I watch my mother struggle for a breath.  She thought when she quit smoking in the 1970's that she could reverse the consequences of the noxious habit.  I thought she could, too.  But, even though she quit 40 years ago, it was too late.  

Think of the billions of dollars the cigarette industry has caused in medical bills which they do not pay.  Think of the cancers and heart diseases and lung diseases that their products have caused, for which they do not pay.  Think of the suffering of the addicted tobacco users and their families, for which they do not pay.  The companies get richer, while their victims sicken and die.

When a 12 or 13 year old begins smoking, he or she is not competent to commit to a life of cigarette-related suffering.  We have to do more to make these evil companies pay for what they have done. So far, these businesses and their shareholders have profited from a product which causes death and horrible illness.  They get rich, while the unsuspecting, immature smokers end up dying from their childish misadventure.

I grew up in a house filled with smoke and full ashtrays.  Everyone I knew of my parents' generation smoked.  Most have horribly suffered as a consequence.  And the companies just get richer.

Sunday, November 9, 2014

Whistleblowers - Real Heroes

Lately, the media has covered instances of airbags killing passengers.  The airbags were made by a Japanese company, Takata, that tested the airbags in 2004, and found them to be defective. Corporate leaders in Takata ordered that the test results were to be destroyed.  Chicago Tribune story  Work to fix the defective airbags was cancelled.  It is unknown how many people have died as a result of these defective airbags.  If there had been even one whistle-blower, lives might have been saved.

I watched "Citizen Four," a documentary about Edward Snowden and his NSA whistle-blowing, today with my brother.  I do not know any more facts outside of what was presented in the documentary, but it is shocking to me that our government surveils the cell phone records, internet postings, emails of all Americans.  Angela Merkel was understandably upset to discover, through Snowden's disclosures, that our government was (hopefully, in the past tense) listening to her cell phone calls.  Merkel has always been one of our closest allies.  Snowden is a whistle-blower.  His film caused me to reflect on the characteristics of whistle-blowers, some of our unsung heroes in this country.

These are my conclusions.  A whistle-blower is:

1.  Someone with the courage to come forward even though the likelihood of retribution is high;
2.  Someone who is not swayed by fitting in or being popular among co-workers;
4.  Someone who puts the good of society above his or her personal interests.

There are not many whistle-blowers because being a whistle-blower can ruin one's life.  In Snowden's case, he is charged with criminal violations.  If he comes back to this country, he will be prosecuted. Most whistle-blowers, at the very least, forfeit their livelihoods.  Some whistle-blowers become unemployable.  Whistle-blowing affects not only the whistle-blower, but also his or her family.

Ironically, if corporations or governments took whistle-blowers' complaints seriously, the corporations or government would be better off.  Takata would be much less likely to fail if it had heeded experts advice, and lives would have been saved.  Whistle-blowers are generally not looking out for their own self-interest, but looking at society's interest and even the interest of their employers.  Yet, they are vilified, and, at best, fired, and, at worst, criminally or physically attacked.

Whistle-blowers are atypical.  They put others' needs first.  They don't put their jobs, fitting in with co-workers or just getting along over their public responsibilities.  In a sense, the founding fathers of this country, Jefferson, Adams, Franklin, were whistle-blowers.  It would have been easier to just get along with the Brits and pay those tea taxes.  Karen Silkwood would have lived a little longer, although she was doomed by her radiation exposure.  Enron might still be in existence if the whistle-blowers had been heeded.

Whistle-blowers are not recognized in this country as heroes, but they are.  Whistle-blowers risk their own well-being for the common good.  i just hope there are many courageous whistleblowers in the future.  Without them, we are all screwed.

Saturday, November 8, 2014

Marriage Equality in Western Missouri - Wow!!!!!

In the last few years, I read of other states and their quest to give the right to vote to people of the same gender, with admiration and a little envy.  I love Kansas City and almost everything about it. Sure, we can have extreme weather, sometimes the coldest of the cold in winters and the hottest of the hot in summer.  But, the thing that has always bothered me about the Heart of America (which, if Ohio is the midwest, I think we are more appropriately called the Heart of America), is the lack of "heart" for the LGBT community.  About ten years ago, Missouri passed a constitutional amendment banning same sex marriage.  Sigh.....  When a judge in St. Louis declared that the amendment was unconstitutional, just a couple of days ago, I was encouraged.  But, St. Louis is a long way from here - 250 miles.  However, yesterday, when federal judge Ortrie Smith declared the amendment to be unconstitutional, you could have knocked me over with a feather, and I was overjoyed!

For years, I practiced primarily in federal court and I learned to respect Judge Smith, who had been a small town lawyer from Nevada, MO, a nice town but perhaps not the hotbed of progressive thought. Judge Smith has always been fair, thoughtful and honorable.  I was so delighted that it was he who was the first federal judge in Missouri to recognize marriage equality.

And then to my surprise, upon emerging from a meeting, I discovered that gays were already getting marriage licenses and being married in Jackson County by retired Judge Vernon Scoville.  Judge Scoville oversaw the marriage of my daughter and son-in-law.  How nice and fitting that he would be the first judge to officiate at marriages of same sex couples!

I am awed by how quickly support for equality for the LGBT community has spread through the country, after such a long time of bigotry and discrimination.  This turnaround, particularly in the Heart of America, is so heartening.  I have always thought that people in the future would dumbfounded by the bigotry this country has shown toward gays and how years in the future, people would be embarrassed by the conduct of their predecessors.  Even President Obama just recently saw the light.

Perhaps, when I go on my rants about injustice and inequality, I can get some solace about this country's about-face on this important issue.  I only hope that the attitude of acceptance continues. Right now I am have a case in the Court of Appeals hoping the Court will recognize discrimination based on sexual orientation as sex discrimination, since our state discrimination statute does not specifically prohibit sexual orientation discrimination.  Wow!  What is this world coming to?  Maybe something good!  I hate to sound so jaded, but what Judges Smith and Scoville did yesterday helps to restore my faith in humanity and reduce my cynicism in a significant way.  Whoa.

Everything's up to date (almost, anyway) in Kansas City!

Sunday, November 2, 2014

The Best Government Money Can Buy

This week I read a New York Times article about a D.C. lobbying firm that apparently exerts a great deal of control on states Attorneys General. New York Times Article  I also have a habit of reading ethics reports of various Missouri political candidates. MIssouri Ethics Commission.  Look on the page where it lists contributions over $5,000. Rex Sinquefield contributes millions of dollars, literally, to candidates.  Recently he contributed $750,000 to the campaign of Catherine Hanaway. But, don't get me wrong, these types of contributions are for candidates on both sides of the aisle. Politics these days is big money. Candidates need not go to the gambling boats, or work hard.  Just find a political sugar daddy, the Koch brothers, Rex Sinquefield or any number of the newly crowned humans,  these 'people" corporations of unlimited means. These disclosures make me sad.  Since the Citizens United case, there is no limit on political contributions.  Citizens United v. Federal Election Commission.  The people, who now include corporations, with the most money can theoretically control our government.  You know how corporations are legally and officially people now.   In fact, it probably is conceivable that a person can marry a corporation. You may wonder how a marriage to a corporation is consummated, but it should be obvious to all, that corporations now screw people every day.

I do not know if elections of public officials was ever fair.  We have had political bosses, such as Boss Tweed and Tom Pendergast in our past.  You would think in today's day and age we might have come up with something better.  But, what incentive do people have to do away with obscene campaign contributions when it is those in power who want to maintain the status quo?  Peruse the ethics commission records and it may surprise you what attorneys general do with the political contributions they gather, spending it on McDonald's meals, Starbucks coffee, everyday expenses that the rest of us use our paychecks to cover.  Money is power in the political realm and at times those people who seek political office in reality seek money and power.

Our system is one of legalized bribery.  How can we condemn corrupt regimes who benefit the rich and powerful in order to receive riches and power when that is exactly what our political system rewards.  I do not know of a better way to find political candidates than the self-selection process we now have, but I can envision a better way of controlling the bribery.  We should have political contribution limits. We should have limits on campaign durations.  We should have better limits on what political contributions can fund.  We should pay more public funds to all campaigns and limit spending.

In a couple of days the political advertisements will end.  Then we get on to the task of seeing the real fruit of the contributions.   We will see the bills proposed or opposed based on the contributions received. We have a sordid system of conducting our government.  The people who would be the best and most altruistic do not have the stomach for politics and its requirement of constant campaigning and begging for campaign contributions.  In fact, in light of the legalized bribery system we have, is it any wonder that politicians' motives are generally suspect.  It disturbs me when I think about our system.  Sure, we do not have wide-scale tyranny and we are fond of saying that we have a flawed system, but it is the best system in the world.  Is that true?  And if it is true, is that any reason to stop making it better.  As long as unbridled political contributions are sought and allowed, our countries political system, and the country itself, is in danger.