Tuesday, May 3, 2016

Trial Bloodlust

I have never been to war. I have never been threatened physically in a courtroom. Yet, I imagine going to trial is the closest non-physical contest to war. I say non-physical, not non-violent. I believe that some lawyers can do violence to the opposite party of not checked, provoking anxiety, shame or PTSD. I understand why most lawyers choose not to battle in the courtroom, especially in front of a jury. A good trial lawyer risks becoming virtually naked, raw and vulnerable, like BeyoncĂ© in Lemonade. The jury gets to see the lawyer at his or her most vulnerable. We try to protect our clients and take the brunt of the hits. We try to demolish our opponents,  polite as necessary to avoid the turning the tied of jury regard.

By the time most lawyers get to trial, they must rely on their former good judgment in times of cooler heads. By trial time, all, or most, objectivity is gone. We are raving maniacs trying to hide our madness. The modern jury trial system was developed to curtail trial by battle. No more limbs or heads or genitalia to be hacked off the defeated warrior. But, trial by jury can feel like death by guillotine.

We lawyers like to act civilized and pretend our battles involve simply skirmishes of logic and reasoning. But, trials are a engines of raw emotions, ego and insecurity. We all claim we  battle merely for justice. But truth and right are often in the eyes of the beholder. Truth be told, we thrive on battle. We fight. We fight for our clients. We fight for justice. We fight for our ego. And above all, we just fight.

I am a 63 year old woman, scarred and disfigured by more than 39 years in the trenches,  having withstood hundreds of battles. Sometimes, I tire and convince myself my battle-list is dissipated.  I stop fighting for awhile. The more time elapses from my last battle I travel from my last battle, the more I long to battle again. This legal bloodlust comes from someplace deep within. I am bored on the sidelines. I must find a client for whom I can crusade. The scars begin to heal and I re-enter the ring to re-tear my flesh open. By the time I die, I will be nothing but scar tissue, gristle and arthritic bone.  What a strange profession and what odd creatures  are wewho are drawn to it.

Sunday, May 1, 2016

To Those Lost Friends And Foes Of Cases Past

I have practiced law for many years. In that time, I have kept in touch with some former clients,and lost track of others. I have lost track of most opposing parties and witnesses. However, many of the people I meet stay with me.  This past week, I found out one of my past clients died. I miss him already. This man was a kind and gentle soul. He was a nurse and he cared about others. He fought for the rights of himself and others. He made a good life for himself and traveled with his spouse up until the end. I looked through the wonderful photos of his life, his garden with his flowers, his basketball games and his trips to Hawaii, and I can't believe he is gone. I miss the thought of his joy.

The first client I remembering dying was a vital, sweet mother of two.  She had been sexually harassed and she found the courage to fight, and she found she won the fight. My dear client was ecstatic. She had money to raise her two young boys. One of her first purchases with her newly acquired cash was a brand new car. She felt she had a fresh start and the world was a different place. One day, before work, she went to visit her mother. On the way to work, after the visit, her car careened off the road and she died. Those little boys were motherless. Since they had different fathers, the two boys never lived as brothers again. I expect, The boys would be grown by now.

Another client, a dear older man, died last year. He died of old age. We represented him when he stepped into a hidden hole and broke his ankle, ending the couples' dancing classes and recitals. They were married many years and loved to play penny slots at the casinos, grow their own vegetables, and play with their grandchildren. While I was saddened by his death, I know he lived a good life and brought joy to many others.

There is one more man I remember. He died by his own hand a decade or more ago. He had a wife and children, too. This man was not my client, but the manager of a restaurant I had sued for sexual harassment. This man did not engage in the sexual assaults. In fact, he was unaware of the assaults until after they occurred. I took this man's deposition. I do not recall treating him unkindly. I do not recall that he appeared to be disturbed, angry or mentally ill. Just a few weeks after I took his deposition, this man ended his life. I am sure he must have been troubled. I believe that I did not cause his death. However, the opposing counsel told me this man was upset because of the litigation. I suppose I have a little fear that something I said might have contributed to his unwise decision to die.

I remember all four of these people, but in different ways. I mourn my most recent client. It pains me to think that he is gone. We all end, but I want my memories of him to remain. All four of these deaths have profoundly affected me. I do not want to forget any of them. Dead people live, in a way, if they are remembered. I have no way to tie what I write here into a neat bow. They all lived, and
died, in different ways. We will all live and die. We want our lives, before the end, to have meaning. I want my life to be meaningful before I go.  I suppose all of us do.

Friday, April 29, 2016

Making the Most of What Comes Next

Lately, I have been thinking a lot about dying.  I am not dying, to my knowledge, any more than the rest of us, who will all end our existence on this earth with death.  At the age of 63, I have been thinking about what makes us happy until we meet the end of our days.  How do we accept that all of our lives are going to end.

I read "Being Mortal" by Arul Gawande and I recommend that book to everyone.  He talks about the reality of dying and what is important.  He asks his patients who are mortally ill a few questions. What is your understanding of what is happening to you?  What are the goals for the rest of your life? What trade-offs are you willing to make to accomplish your goals.  Not to sound too trite, those questions can also be asked of plaintiffs in discrimination cases.  What is your understanding of what has happened to you at work?  What is you goal in your lawsuit - getting as much money as you can, justice for you, justice for others, going to trial, or not going to trial?  What are you willing to do to accomplish those goals?  Trial exacts a tremendous cost to those willing to go through trial, which can be equated to a sort of death, an actual judgment day.

However, I digress.  When I started pondering death, to be fair and truthful, it was not in the context of litigation.  It was in the context of what makes one's life worth living.  Gawande writes that people are most satisfied with their lives when they feel they have accomplished something for the greater good.  I think greater good is relative.  If one has made another person happy, a father, son, daughter, spouse, lover, then I think there is a fair argument that their life is a success.  Making another person happy is working to a greater good.  Working for goals one believes in is working for a greater good. Helping a child, an elderly person, a student, just helping someone else, is working toward the greater good.

Gawande spends a lot of time talking about listening to others to determine how they want to live out their life.  His principles are applicable to living life in general, but he particularly writes about helping someone to live the life he or she wants in their final days.  I realized reading the book that my father was able to do just that before he died.  My father died too young.  He was just 59 years old when he died from complications of a pulmonary embolism caused due to his poor health from diabetes and congestive heart failure in 1989.  My dad was informed that the surgeons were not going to take his damaged leg as had been planned, and that he only had a few days to live.

All four of my dad's children, including me, traveled to my father's hospital bed in Rochester, New York.  He lived another 10 days and he made the most of his time.  He was lucid and understood his fate.  During those final days, he apologized for any perceived faux pas of his past, whether real or imagined.  He told me that the divorce from my mother was all his fault, even though I know divorce is never caused by just one person in a marriage.  He told me how much he loved me and he told me he was proud of me.  He had encouraged me to go to law school when I expressed frustration with my civil service job when I was 25 years old.  After my first jury trial, a slip and fall case, where the jury gave my client everything I asked for (a result that was quite rare for me in later years) he burst with pride.  My dad was gentle, kind, caring and realistic about his plight.  He wanted to tell each of his children what we had meant to him.  He wondered if there was something after death, even though he was a self-professed atheist.  In my mind, my dad was too young to go, but he had always said that he would prefer leaving 5 years too soon rather than 5 years too late. He implored us to take care of his mother, whom we all knew was quite a handful.  He would no longer be able to make the five minute calls to check on her every Sunday.

After ten days, my dad finally became disoriented.  On Friday of that week, Dad's final day, he told me that in the night before, the nurses had tied his hands down so that he could not continue to pull the tubes out of his orifices. He proudly declared, that he wrested himself from the restraints, pulled off his hospital gown and sat naked in the room chair before anyone noticed his freedom.  Within a few hours, he took his last breath, with three of his children and his wife standing over his deathbed.

My dad died well.  My dad died with great dignity.  I, too, want to die with dignity.  One of the things that scares me is that what I have worked for in this lifetime will be forgotten, that my life will be devoid of meaning in the end.  Then I remember my dad, as I have many times through these last 26 years.  I remember my great grandmother, such a kind and gentle woman who died right after my eleventh birthday in 1963.  I remember my maternal grandmother, who saved the family by orchestrating the exodus from Germany in 1938.  She died on my husband's birthday the year of my daughter's birth, 1985.   Then I realized, as long as we are remembered by loved ones, the ones whom cared for us and whom we cared about, our lives are not in vain.  My father is alive in my heart, as are my grandmother and even my great grandmother.  These people helped to shape who I have become and I have helped to shape my children, my husband and my loved ones.

Life is beautiful, but it must end.  Living life on one's own terms and recognizing what matters is what I wish for everyone.

Sunday, April 17, 2016

What Do You Want - Justice or Simply to Win?

I watched the HBO movie about Anita Hill. I always thought she was telling the truth. Perhaps because of Ms Hill, Congress passed the amendments to the Civil Rights Act which provided for jury trials in discrimination cases. Perhaps, as a result of Senator Jack Danforth's nimonation of Clarence Thomas, and perhaps because of some guilt Danforth felt over the way he treated Ms Hill, Senator Danforth agreed to sponsor the Americans with Disabilities Act. I don't know. I have always respected Senator Danforth, but I don't respect the way he treated Anita Hill. I watched the hearings and I think HBO gave Biden more credit for being decent than he was do. Danforth wanted to win. So, the Senators smeared Anita Hill's reputation.  It wasn't fair. It wasn't just. But they won. Clarence Thomas has been on the Supreme Court for 25 years.

Anita Hill's abuse was no different than a candidate on the wrong side of a politician's campaign. They all want to win. They are taken by the desire. Winning becomes more important than justice, or dignity or fairness. I don't mean to sound holier than thou. Trial lawyers, including me, get taken by the desire to win a trial.  Cross-examination is often similar to a bully beating up a younger kid. Lawyers hone their cross-examination skills for years, pouncing on an unsuspecting lay witness. Usually, it's not a fair fight. I know.  I can cross-examine a witness and wound them to the core, even when it's unwarranted.  When I go to trial, I lose objectivity. I want to win.

I suppose it's my job to win. It's not my job to be just. Justice is the responsibility of a judge and jury. But, when I allow myself to be honest with myself, I am not proud of seeking victory over seeking justice. Trial lawyers, including me, have big egos. I used to tell myself that the big egos only belonged to the other guys, not me. And when I rationalized egotists were "guys," I meant they were men. But, I realize, I merely was rationalizing to convince myself that I have little ego. I admit it now, I have a big ego. Yet, in representing my clients, I am supposed to want to win, for them. I do want to win, for them, and also for me. I don't know how to do this job any differently. Sometimes, when I allow myself to strip the facade, I feel somewhat hypocritical. I don't know how to fix this dilemma. Maybe I can't.

Sunday, April 3, 2016

The Life of a Trial Lawyer

My Mississippi friend Vicki Robinson Slater, wrote;

"Do you know what a trial lawyer is?  Unlike doctors or other lawyers, they don't demand cash on the barrel head for services.  Because even middle class Americans can't really afford a lawyer.  So they fight for their clients and work many 60, 70 and 80 hour weeks with no pay unless they win the case.  They have been vilified, laughed at, warred on and joked about.  They watch every piece of legislation in the State capitols and in DC and warn people when their rights are being diminished.  Like most prophets, their warnings are rarely heeded and the people scoff in disbelief.  Their numbers are diminishing - they are growing old and dying off - and when they are gone then there will be no rights left.  The people have been convinced by Karl Rove and corporate America ALEC and the Koch Bros. to fight against their own warriors, the only lawyers who will stand with them and once the people help defeat their own warriors - they will be unmoored not only from the most basic of human rights, but also from their dignity."

I sometimes say that being a plaintiffs' trial lawyer is like being a professional gambler. We never KNOW what the outcome of a case will be. We represent people on contingent fees and sometimes things go wrong and our clients lose. Even though I have other cases, it is hard for me to emotionally recover forum a loss. Obviously, I know it can be devastating for my clients and I do not want to underplay their sense of loss. But, for me, it is also devastating. I feel that I have not only disappointed my client, but also I must myself and others in similar circumstances to my client.  I delve deep trying to understand what I did wrong, what I misunderstood, and in what actions I failed. It takes months for me to recover from a trial loss. In the last two years, I have three trial wins and three trial losses. I focus on the losses.  It's not just because I don't get paid if I lose. Practicing law is not a mere hobby, it is my livelihood. By the time I go to trial, I am convinced my case is just. So, I must deconstruct the case and determine what went wrong. I want to learn from my losses, but it is painful to relive them.

I believe in civil rights and I believe we are on the cusp of gender equality in wages and LGBTQ equality. Yet, we haven't achieved racial equality or anything close to it even though we have been working on those issues for over 150 years. Prejudices run deep.

I have been fighting this fight, and getting paid only when we settle a case or win it outright, for 33 years. Fighting for 33 years, more than half of my lifetime, takes a toll. I am not as idealistic as I was. I am much more cynical. And sometimes I tire of the fight. But after this length of time, I am little suited for any other job and I believe being a trial lawyer is now inextricably a part of me.

I am going to the KC Royals opening game tonight. I love watching those young guys fight!  Would professional athletes keep playing professionally if they were only paid when they win?  Can you imagine a Workd Series where winner takes all the money?  So, how crazy are we trial lawyers?

Sunday, March 27, 2016

All You Need Is Love - Don't Discriminate Against LGBTQ

The Missouri Legislature is reconvening Monday. The Senate, after forcing the cessation of a 39 hour filibuster, passed SJR 39, a measure specifically targeting members of the LGBTQ community for discrimination.  The measure is going before the Missouri House. Stop SJR 39! There are many brave legislators, both Republicans and Democrats, who oppose this legislation. Missouri religious freedom is already protected by several Missouri statutes, the Missouri Constitution and the First Amendment to the United States Constitution. Don't be fooled. This resolution, SJR39, is designed to discriminate against the LGBTQ community. This is not who we, as Missourians, are.

Remember the Beatles, who were ahead of their time. All you need is love.

All you need is love, all together now
All you need is love, everybody
All you need is love, love
Love is all you need

Wednesday, March 9, 2016

The Courage of The Missouri Democratic Senators #NotInMyState

It was my privilege to listen to the 39 hour filibuster of Missouri Democratic Senators who tried to prevent the passage of SJR 39, a joint Senate resolution that purports to "protect" those with a "religious" objection to same sex marriage by establishing an amendment to the Missouri Constitution. Mind you, these protections were not merely those rights to religious freedom already protected by the First Amendment to the United States Constitution. SJR 39 is much broader. In essence, people who disapprove of members of the LGBTQ society could be free to discriminate - refuse to sell products, rent housing, refuse employment, etc., if they claim being gay, lesbian, or trans-sexual is against their religious beliefs. The First Amendment already protects religious acts. For instance, a Catholic priest need not perform a wedding of a Jew and a Hindu in a Catholic Church. Weddings, funerals and such can be part of a religious ceremony, and are thus protected. No, the Senate Majority sought to include non-religious activities, such as baking wedding cakes, etc. So sad. This legislation, which seeks to put the matter to voters as a Missouri Constitutional amendment, is reminiscent of the Missouri Constitutional Amendment 12 years ago purporting to ban same sex marriage. That amendment is now unconstitutional because of the U.S. Supreme Court's decision in Obergefell last summer. What an exercise in futility based out of fear, insecurity and hate.

How the prejudices of some play out in a sad display of the worst of human weaknesses. We try to stop what we fear. In the past, people claimed inter-racial marriage violated their "religious" views and states declared those marriages illegal for many years. Those laws were an embarrassment. Why we try to control the behavior of others and force them to conform our desires is beyond me.

The 39 hour filibuster was so life-affirming. These Senators talked on and on. Not one of them has declared him or herself a member of the LGBTQ community, but they had their LGBTQ brothers' and sisters' backs. They stood up to protect their constituents, all of their constituents, not just those in the majority. That is what makes our country great, we protect those in minorities. We abhor fascism.

The Senate majority effectively stopped the filibuster by using a little use technique and the measure will likely pass, for now. The Missouri Constitution will probably be amended, because that just takes a majority of Missouri voters.  The LGBTQ community is not in the majority. This demonstrates why the actions of the Democratic Senators was so important, and so heroic. With a little time, and a lot of wasted public taxpayer dollars, the amendment will be found to violate the U.S. Constitution and eventually the majority will have to accept that everyone need not believe one way, need not feel one way, need not love one way. We are in the midst of a new civil rights struggle and ultimately justice will prevail.

Thank you to all of those brave Senators, who talked for 39 hours in hopes of furthering justice and protecting others. Than you Senators Maria Chappelle-Nadal, Kiki Curls, Jason Holsman, Joseph Keaveney, Jamilah Nasheed, Jill Schupp, Scott Sifton, and Gina Walsh. We need people like you.