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.

Sunday, August 3, 2014

I Am Prejudiced

I was going to title this piece, "I Am A Bigot," but I looked up "bigot" and I do not believe I am a bigot. I do not hate people who I do not know simply for who they are.

Yet, I am prejudiced. I grew up in a time and place where I formed ideas about people I don't know.  When I see strangers, I have knee-jerk reactions.  When someone looks like a "homeless person," I assume he or she is poor, living on the street, and perhaps suffering from a mental condition.  When I hear of rich people who have inherited wealth, I assume they have feelings of entitlement.  When I hear that someone does not have a high school education, I assume that he or she is less intelligent.  When someone tries to convert me to a different religion, I assume he or she is narrow-minded.  I have even more repulsive prejudices than I am willing to admit in print because I feel bad about my biases.

As bad as I feel about my prejudices, I have not been able to eliminate them.  I am embarrassed, but I cannot control my knee-jerk reactions.  The best I can do is recognize my biases, admit to them, and understand that I cannot let the prejudices, my bigotry, control me.  My grandmother was a refugee from Nazi Germany. When she saw a non-Jewish German, she would whisper, "I bet he has a Nazi in the family."  That prejudice has stuck with me.  I know that Germans and Germany cannot be considered with a broad brush, that anti-Semitism is repugnant in Germany today, but I cannot stop my knee jerk reaction.  I can fight against my pre-conceived notions, but I am incapable of eliminating the original feelings.

Sunday, July 27, 2014

What's It Like To Be Sued For Discrimination?

We are all human beings.  Well not really.  Technically, while corporations may be legally considered "people"with the benefit of first amendment rights, those of us not on the Supreme Court know that corporations are fictitious concoctions invented by people to avoid real people having personal liability.

But, corporations are formed by real people.  And when a corporation is sued by a current or former employee for discrimination, real people are affected by the lawsuit.  It is hard to be accused of discrimination.  It is hard to be accused of discrimination even when the allegations are true.  Most people do not want to believe that they sexually harass employees.  Most people nowadays claim they are not racist, even if they  tell racist jokes or believe that there are "some good ones" and some who "are not so good."  Even where a manager grabs an employee's rear, he thinks it's either just a joke, or she liked it.

But, we all know that many, if not most, of those accused of discrimination do not believe that he or she has discriminated against anyone.  Sometimes they have not.  Not all plaintiffs are truthful. Not all plaintiffs have the same sensibilities as the rest of us.  I remember the time a woman sought my representation, claiming that she had been sexually harassed because her boss told her she looked nice, and "they are not allowed to do that, are they?"  Discrimination may be subjective.  Growing up in the 1960's I remember what names African-Americans were called by some white people, who probably truly believe that they were not racist.

So what is a defendant to do?  I do not mean to make light of the dilemma of the defendant in a discrimination lawsuit.  Actually, my old law firm was sued for sexual harassment when I was a partner so I have been a defendant in a lawsuit.  It is hard to be a defendant.

Employment discrimination laws had little bite until 1991 when Congress first allowed plaintiffs to have jury trials and provide for the recovery of emotional distress damages and punitive damages.  Things were different in American workplaces before the 1990's.  This spate of discrimination cases in our country is relatively new, even though the Civil Rights Act was passed in 1964.  In the 1960's, some white people did not mind admitting they were racist, but now it is not popular to be racist, a good by-product of the Civil Rights Movement, even if there are more racists who deny being racist than before.

I guess my point, that I am stating inarticulately, is that it is hard to be sued.  Most people who are sued become angry, become defensive, and are truly hurt by being accused of discrimination.  CEO's, managers, HR professionals, and other human beings oftentimes do not like being accused of wrongdoing regardless of what might have happened.  When a company is accused of discrimination, managers can have a variety of reactions.  Some high level managers want to make their companies better and address problems, if there have been any.  Some employers are personally offended and will fight no matter what the facts show.  People are different and companies have different responses, just as people do.

I guess my point is that we are all humans.  We all have different experiences in life.  We all have learned different life lessons.  Some of us cannot tolerate being criticized, whether plaintiff or defendant.  Some of us want to learn from our experiences and become better people.  Some of us have self images that are fragile and cannot tolerate criticism, whether plaintiff or defendant.  We are all people.  Hopefully, thanks to the Civil Rights Movement and the rights and responsibilities that we have in this country, we can all learn and grow and become a better society.

Sunday, July 20, 2014

RANT - Worlds Gone Wild!

What is the problem with human beings?  A passenger plane is shot done over Ukraine, Israelis and Palestinians are working on a "fewer-human-beings-who make-up-a state" solution, and life is fleeting. The world  makes me sad, and I am not getting any younger.  I went to a funeral today and I realize humanity is so screwed up.  My son suggests to me that corruption may be a way that government becomes more efficient, I see first-hand how poorly local governments are run, and . . . then we die.

I am not a bastion of optimism tonight.  Life is an existential crisis.  We kill people, probably because we have no other natural predators besides ourselves.  We inflict pain, torture and atrocities against each other, we treat each other with disrespect, humiliation and/or violence, and then we die.

I just read the first two paragraphs to a family member who responded, "Do you need a hug?" YES!!!! I, and I suspect, the most of the world, needs to hug each other.  I know I sound like a crazy hippy, but I am so disgusted with humanity.  And, quite frankly, I am not really helping.  I do not know how to solve these issues.  I am as petty as the next human.  I haven't killed anyone nor have I committed a violent act against anyone since adolescent, when I bit the shit out of my sister in our last scratching, biting physical fight, except the swat I gave my daughter one morning when she refused to go to school while I was in the middle of trial.  She and I have since made up.

I try my best as a lawyer to help with my version of justice.  But, I am not feeding hungry children, administering to the sick, or negotiating peace settlements between warring factions besides plaintiffs and defendants in discrimination cases. At least I am not protesting needy, scared children seeking refuge in this country, but I haven't done anything to help them, either.

What can one person do?  I don't know.  I delude myself that working to alleviate racism, sexism and ageism makes a difference.  Sure, the cases I work on effect the people involved, but the world is so screwed up, what can really make a difference.

Genocide, atrocities, and rape and killing still happen.  These events will probably always happen.  It's overwhelming.  I still believe that most people want to do the fair, right and just things.  I believe in the goodness of people, but why is there so much destruction now?  What are we doing wrong?

Maybe the "arc of history is long, and it curves towards justice," but I want to see justice now!  I won't be alive in a hundred years.  It is so deflating to see so many people in so much pain caused by so many other people.  What are we doing wrong?  Why do we do these things to each other?  Are we really civilized?  How can we treat others the way we do?  Why is this world so dysfunctional?

I guess I just need to learn to deal with this somehow.  Tomorrow, I go back to work and work on my cases, hopefully helping my clients.  Maybe we all just need to sleep on it.  Right now, I feel like we are caught in a nightmare.  All I can say is, "World grow up!  This shit needs to stop!"