Sunday, May 22, 2016

The Arc of History Is Bending Toward Justice

Fifty years ago, in 1966, I was 13 years old. Martin Luther King, Jr. was alive. The Civil Rights Movement was fully on, but mostly ignored by my 13 year old self.  My family had escaped Nazis 28 years before, but even that meant little to me.  We, my brother and sister and I, lived with my mother.  My mother met a man that year with seven kids and, after four weeks, they decided to marry. I learned a lot in the next four years, before they thankfully divorced. While I had heard the 'n' word, I heard it spoken in our household by this man as never before. He drank a lot of beer, cursed a lot of words, and landed a lot of punches on my mother's body. It was quite a learning experience for a young adolescent girl. I did not know the meaning of the word "whore" until I heard it vomited from this man's mouth. He was vile, vulgar and violent. Outside of the obvious negative impact on the four of us, I had never known a more racist, sexist or hateful human being. He has long since passed. Drinking, smoking and raging does not promote longevity. Back then, I knew no one who admitted to being gay, or "queer" as it was called then. Any gay person with any sense stayed in the closet so as not to be "rolled" or beaten by a group of teenagers. Life was considerably different in 1966 than it is today.

I became a lawyer in 1983.  In 1991, Congress amended the Civil Rights Act, first passed in 1964, to include damages for pain and suffering, punitive damages, and jury trials. I was immediately drawn to Civil Rights cases, not really understanding why. Back then, women came to me with stories of their bosses fondling them, demanding sex, and firing the women when the boss' sexual needs were unmet. I figured I had about ten years handling sexual harassment cases, and by then after the years of jury verdicts decrying sexual harassment, I would have to go back to handling personal injury cases because sexual harassment would be eliminated. It's been 25 years, and, unfortunately, I still have plenty of discrimination cases. Yet, my prediction was partly true. Employers recognized the economic toll on their businesses when hound dog bosses were allowed to prey on young female employees. Sexual harassment has not been completely eradicated, but it is surely diminished.

 My old partner used to say, "People do the right thing if you make them."  A financial incentive worked to curtail sexual harassment, the economic incentive to eradicate a company's harassment was compelling to businesses. Racial harassment has become unpopular, although racial bias still exists, but in much more subtle forms. Age discrimination is still rampant, but may be on the decline, at least overtly.

LGBT discrimination, however, is still legal in Missouri and Kansas.  I had a cousin who I represented in a car accident case in the 1980's.  He was hit by a drunk driver. I produced my cousin for a deposition.  My cousin admitted to me something he could never tell his parents, that he was gay. In the deposition, the opposing counsel questioned him if my cousin had ever had sex with men, something totally irrelevant to his case. I went ballistic, called the lawyer out as despicable. After the deposition, my cousin thanked me profusely. In retrospect, I realize that he was thanking me for protecting him and merely treating him as a human being. My poor cousin settled his case, but never officially came out. He died a very sad man.

While in 2016, we still are not at a point where the law protects the LGBT community from employment and housing discrimination, but I see it coming. I see it coming soon. My cousin will not be around to see it. But people coming after him will.  I see it in the attitudes of young people, in the way gays and Blacks and women are regarded by my children and those even younger. People do the right thing if you make them. And their children are more likely to do the right thing simply because it is the right thing.

I see a different world fifty years hence.  Martin Luther King was right. "The arc of history is long, but it bends toward justice."  While each person cannot expect justice, justice is coming. It's too bad I will not be alive in 50 years to see it. But, knowing it's coming is at least somewhat satisfying.

Sunday, May 15, 2016

We Need A Diverse Judiciary

People are attracted to others with whom they can relate. That is a fact of nature. Yet, most members of the judiciary are still white men. White men comprise an increasingly smaller percentage of the populace, but a large percentage of lawyers and judges. Some of these lawyers, especially in more country settings, are descended from long lines of country club lawyers, who golf, drink martinis, and vote together.  They are less likely to have been exposed to other lawyers with different backgrounds.

I'll tell you why I bring this up now, after practicing more than 30 years. I mainly practice in Kansas City, with its diverse and open-minded judiciary. I've gotten spoiled. While I don't always agree with local judges, I cannot remember a time where I thought a Jackson County judge treated me or my client differently based on race or sex. I guess, as an old woman, I have age on my side, since I have a lot years in this job. When I was s young woman lawyer, older male lawyers would test me, which I attributed to either my age or my youth. My reaction was less than ideal. When crossed, I yelled and screamed back. I scare myself when I think how aggressive I was. But, I received a grudging "respect" from opposing counsel who tried to intimidate me.  As I got older, I got friendlier. I found less need to "prove" myself, or perhaps I was just more confident, with less need to lash out. Occasionally, I felt older judges took me less seriously at times, so I worked harder. Through the years, with my increased experience through many, many, many years and the concomitant increased numbers of women and minorities, I did not even think about me or my clients being slighted by a judge. The judges around here work hard, strive to be impartial, understand diversity and by-and-large treat people fairly in their courtrooms in civil cases. I have no experience with criminal cases, so I cannot comment on that. 

Now, to finally get to my point. The very rare couple of times I have felt that I was treated with less respect than the white male opposing counsel, were instances with white male judges from rural areas.   I don't jump to conclusions that a judge is sexist. In those two occasions where I suspect my gender made a difference, it didn't dawn on me until later. In one instance, I tried a jury trial in front of an older white male judge from the country, where, as the days in trial rolled by, I realized that my objections were being overruled, while my defense counterpart's objections were sustained. The evidence I needed in the trial was excluded by the court, while the defense attorney got all his evidence admitted without problems. I may be wrong and the judge may not have been biased. He never mase a derogatory comment to me. I did not raise sex as issue. I'm too macho to play the gender card, but I can't help but wonder. 

That trial was a few years ago. I revisit the trial the issue because of something more recent. I traveled to a more rural country many miles from Jackson County regarding a motion I filed in a sex discrimination case. Judges in rural counties run in partisan elections for judgeships, unlike Jackson County, where judges are appointed by the Governor after the applicants are winnowed down by a committee of lawyers and laypeople. I had never met this white male judge before. I am at least 15 years older than the white male opposing counsel. It was my motion, meaning it was incumbent on me to explain it. Yet, invariably, when the judge spoke, he looked at and addressed the opposing counsel, who was also not local.  The difference between him and me was our respective genders. I felt like I needed to interrupt to get the judge's attention.  When questions were asked of opposing counsel that should have been asked of me, I had to pipe up and answer. I felt frustrated.

After all these years, it's tiresome for me to address what appears to be a sexist judge. I suspect most lawyers he knows in his counties are men. I suppose he has no clue that he treats women lawyers differently than men. I can take care of myself, though.  Remember, I'm macho. But what happens to any hapless African-American, Latino, foreign-born, woman, or poorly educated litigant who appears before judges like him?  Can they get justice in this "good ol' boy club" in the country?  

How can we fix this?  Well, one thing we don't need are elected judges. We need judicial diversity. We don't need patrician lawyers descended from long lines of patrician lawyers becoming patrician judges. I do not mean to say all white male judges are discriminatory. Jackson county's example proves quite the contrary. But, sometimes in Missouri, the further you travel from an urban area the closer you are to time-traveling to the 1950's. 

Sunday, May 8, 2016

Clients - Your Lawyer Is Not Supposed To Have Sex With You

People going through divorces or child custody battles are vulnerable. This is not a professional opinion, since I do not handle family law cases. This is common sense. It is also common sense that your lawyer, often times happening in family law litigation, should not make sexual overtures to you. It wasn't until 2007 that Missouri finally adopted an ethical rule making it an ethical violation for a lawyer to have sex with his or her client. It took that long to codify what is common sense.

Lawyers and clients are not in an even playing field when clients are dependent on their lawyers for outcomes in their cases. This is true in family law settings. A client needs to trust his or her lawyer and a lawyer needs to be trustworthy and not motivated by emotion, lust or crushes. Unfortunately, sometimes lawyers violate the client's trust and engage in sexual relationships with clients. That is never okay. I have represented clients on several occasions where lustful lawyers place their "needs" above those of their clients. One such lawyer was elevate to a judgeship before he was dethroned, disbarred and criminally prosecuted. He was also a leader in his church. He was a fraud.

Some lawyers are not strangers to egotism, narcissism, sociopathy.  Others may be unhappy, confused and insecure. There are professional services available to disturbed lawyers. Lawyers taking advantage of their clients sexually is never acceptable. There never is an excuse for a lawyer to have a sexual relationship with a client. Never. If your lawyer comes on to you, you need to report him or her to the state bar. 

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.