Sunday, December 21, 2014

Discrimination and Justice - From A Certain Point of View

My law partner and another lawyer we work with got a large verdict in an age discrimination case last week. I think the jury got it right. My partner told me that she felt the Cosmos, or something God-like if not God, was in their favor. I reminded her of the Martin Luther King, Jr. quote, "the moral arc of time is long, but it bends toward justice."  The quote resonated with her. I considered a case I tried where I disagreed with what the jury decided. I felt no Cosmic aid, no ultimate Justice.  Everything about Justice, or life, really depends on one's point of view.

I try, unsuccessfully most times, to consider all points of view in my cases, and, hopefully, in life. Everything in which I believe depends on a certain point of view. Police officers shooting unarmed Black men disturbs me. I am White and a woman, and no one has ever pulled a gun on me or anyone in my family and I hope no one ever does.  Yesterday, two New York police officers were randomly gunned down by a deranged man upset by the Ferguson and Staten Island killings. This was another horrible and senseless killing. I have people with whom I am "friends" on Facebook who, like me, are outraged by what happened in Ferguson and New York. Today someone wanted me to participate in a group called "Police Lives Matter."  I agree that police lives do matter. Yet, I found the request ironic, since this person had an unarmed, white, loved one who was shot and killed by a police officer. I suspect the person advocating the group identifies with white police officers more than the unarmed African-Americans who were shot, even though the person's loved one was killed in a similar fashion.  The only difference I can see in the advocates allegiance with the new group is the police officer victims were not Black, so this person whose White loved one was also gunned down by a police officer doesn't relate to the Black victim in Ferguson. Race appears to be the only difference. It's apparent that our feelings are dependent on our points of view, this time about race.

When I was a kid, Vietnam was the biggest issue. I, as a child, believed, like the sayings on posters, that there would be no war if no soldiers showed up. That was a very simplistic and naive notion. Yet, the notion remains with me that people would be more merciful, and less insular, if we all could just understand the points of view of others. Empathy and compassion are the key to most of society's problems. It's hard, when filled with anger, to step back and try to understand what motivates others with whom we disagree. But, if we do not try to understand what it's like to be a Black youth, a White police officer, or anyone who is frightened or scared or angry or defeated, we cannot progress. Without empathy and compassion, there can be no resolution. Our prisons are over-crowded.  Our streets are often dangerous. Our criminal justice system is dysfunctional. We need to change. I hope Dr. King was right, that the arc of time bends toward Justice.  We all need to expand our points of view. Otherwise, this society will continue to fail.

Sunday, November 30, 2014

Are You An "Unconscious" Racist?

When I was a kid, adults I encountered use the "n" word not infrequently. Those people are either quite elderly or dead. It is no longer politically correct to be a flagrant racist. White people rarely identify themselves as racist. Being racist has gone undercover. How can you judge today if you're racist, when you swear you are "colorblind?"

Here are some ways to determine, however begrudgingly, that you might be racist:

1.  You think or have said that white men are the real racial victims today.

2.  You think America has no racism because we have a Black president.

3.  You believe the world is "colorblind."

4.  You think that if Black men would just be respectful to police officers, they wouldn't get stopped, or beaten, or killed.

5.  When you see two or more African-American youths on the street, you want to get away from them.

6.  You wonder why "they" have more crime, or fewer fathers in the household, or beat "their" women more than whites.

7.  You don't like interracial relationships, and never consider why.   You explain that it's much harder on the kids.

8.  You don't like "Black" names like Jamal, Andre or Mo'Ne and can't understand why anyone would choose a name like this for a child.

9.  You think Affirmative Action is unfair.

10.  You get tired of hearing about slavery, since it was abolished in 1865 and what's the big deal.

Many recent studies indicate while being openly racist is frowned upon, we still harbor racial stereotypes and feelings. America is not colorblind.  We need to deal with racial feelings in this country. Ferguson is a wake up call.

Thursday, November 27, 2014

Thankful

It's trite to write a blog describing how thankful I am for things in this world, but too bad. Thanksgiving is a nice holiday, but it's really dark this time of the year, so expressing my thanks makes me feel better.  First, let me get this off my chest - I do not like winter. I do not like the dark.  I do not like the cold. That being said, these are some of the things for which I am thankful:

1. I am thankful for this time on earth, in which I can see nature, hear music, taste food, feel warm embraces.

2.  I am thankful for empathy, logic and  modest intelligence and the ability to read, write and reason.

3.  I am thankful to be surrounded by the people I love, my husband, daughter, son, son-in-law, brothers, sister, nieces, nephews, mom, in-laws, and extended family. I am also thankful for the memories of those I love who are gone, my dad, grandmother, stepdad.i am thankful my small cadre of friends.

4.  I am thankful to live in a society where my family and I are not oppressed and have opportunities to be free.  I am thankful for the ability to engage in debates, both popular and unpopular. I am thankful I got an education.

5.  I am thankful for all the people I have met whom I have represented and who have taught me so much. I am enriched by them.

6.  I am thankful for my health and the fact I an walk and move and take care of myself.

7.  I am thankful I am a mother.

8.  I am thankful I and my law partner started a business 20 years ago which is going strong and I am thankful for the hard-working and dedicated employees who have built the firm into what it is.

9.  I am thankful that not all people in power are complete idiots.

10.  I am thankful for my dog, and the great dogs we have had before her.

11,  I am thankful for novels and other books and for great writers.

12.  I am thankful for cameras, photos, art, paint, colors and textures.

13.  I an thankful for movies and plays and inspirational speeches.

14.  I am thankful for great leaders and revolutionaries , like Abraham Lincoln, Mahatma Gandhi, Nelson Mandela, and Eleanor Roosevelt.

15.  I am thankful that my grandmother moved my family to this country and we survived.

16.  I am thankful for the ability to rebel and dissent and disagree.

17.  I am thankful for emotions, particularly, love, joy, and compassion.

18.  I am thankful for risks and the ability to take chances.

19.  I am thankful for having a kind, supportive, and goofy husband.

20.  I am thankful for the Internet and the availability of incredible knowledge at the tip of my fingers.

Tuesday, November 25, 2014

Ferguson - Where Is Nelson Mandela When You Need Him?

The violence in Ferguson, Missouri is not just about the killing of Michael Brown, an unarmed African-American teen by a white police officer.  The rioting in Ferguson stems from years of frustration about the way African-Americans are treated by whites, especially those with guns and badges who kill.  There was Trayvon Martin.  There were others.  Michael Brown was just the most recent one that has captured the world's attention.

Ferguson, Missouri is a town with a population that is 60% African-American, yet the government and police force is predominantly white.  There are towns and cities like this all around the country. When you couple the fact that the power in this country is with white people and that the population is shifting as non-whites make up more and more of the population, the potential for violence escalates.

I am a 61 year-old gray-haired white woman.  I do not get pulled over by the police often.  The last time I did was a couple of months ago while a passenger in my brother's car.  The officer said my brother was speeding and had failed to signal for a turn.  He asked for my brother's driver's license, which my brother willingly surrendered.  The officer questioned my brother about his Connecticut driver's license, "Do you know you only have 30 days to change your license to Missouri?" "Why did you not get a Missouri license?"  Then the state patrolman turned to me and said, "Can I see your driver's license."  I knew the officer had no reason to ask for my license.  I knew that could tell him no, but I handed it over. I saw no good coming from my refusal.  My drivers license is clear, no tickets, etc. (it helps I am a white woman).  He took it back to his cruiser.  We waited.  The officer walked back up. "I am just going to give you a warning," he said to my brother as he handed the licenses back to us.  No ticket.

I know of African-Americans who are routinely pulled over, for no good reason except  "Driving While Black."  White people are afraid of young Black men.  People you wouldn't expect to be racist have told me as much.

People are also afraid of losing power, losing self-esteem, losing control.  That's what happened during Reconstruction in the South.  The lynchings were a way of putting Blacks who might try to wrest power back "in their place." Intimidation has always been a way for people in power to hold on to that power.  People do not willingly relinquish power.  The racial and ethnic composition of this country is shifting and many white people are scared.  White men have been in charge of this country since it's inception as the United States of America and they do not want to lose control.

In the 1960's we went through a period of race riots.  I remember them.  In fact, in Kansas City, I remember the riots after Martin Luther King, Jr. was killed.  He was the last African-American leader who lead both Blacks and Whites regarding issues of race.  President Obama is our president, but not a racial leader dealing primarily with racial issues.

I also remember when apartheid was abolished in South Africa.  I assumed there would be massive violence because Black oppression had been so virulent and I assumed South Africans would follow America's lead.  But that did not happen.  Nelson Mandela happened.

Nelson Mandela was a man with no equal.  He preached forgiveness even after spending decades in a jail cell.  Mandela oversaw a relatively peaceful racial transition.  He was amazing.  I wish we had a Nelson Mandela here today.  Or, I wish we had his white counterpart.  What I saw in the St. Louis County prosecutor was a total lack of empathy or sensitivity to the straw that broke the camel's back.

I don't know what happened when Michael Brown was killed.  However, I do know that a subset of Americans in this country have traditionally been mistreated, maligned and oppressed.  The volcano erupted, and the prosecutor blames social media.  Sad.


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.