Sunday, December 20, 2009

The Strengths of Women Trial Lawyers

   Every once in awhile, I watch a movie about men in war, or men in sports, and the captain, or coach, is upset with the men and makes a statement to the men like, "What do you think you are doing, ladies?"  .  This statement is supposed to be a put-down.  I have wondered not only why this statement is an insult,but also  why I see no one objecting to this common "insult."
   Biologically, men and women commonly share different characteristics.  Several years ago, my husband and I went on a safari in Tanzania and we observed natural wildlife.  In the lion communities, males and females have very different functions.  Lions travel in prides, with several females and youths, and one male.  The function of the females are to kill the food and raise and nurture the offspring.  The function of the male is essentially to procreate.  Procreation is obviously very important.  But so is eating and nurturing the young.  In the lion "kingdom," the females engage in most of the violent activity, killing the prey for subsistence.  The males kill only rarely; killing other rival males, either older or more infirm male lions to take a pride, or younger male lions or male cubs to prevent those other males from taking the pride from the dominant male.  The females kill all the time to feed the young, the male and themselves.  The females protect their young.  The males protect themselves.  What the males do is important in establishing an order to further the existence of the species.  What the females do is the day to day necessary work to exist.  The females are more fierce more often than the males.  In the grand scheme, both the females and males are fierce in furtherance of the existence of the species.  Yet, the females are solely responsible for the lions' day to day nuts and bolts existence.
   Mothers are thought to be nurturing and caring.  Women are considered to be more "emotional" than men.  These are great characteristics.  Mothers fiercely protect there offspring.  Also, an admirable quality.  Women have always had to fight for a greater good, the good of their children.  The majority of whistleblowers I have represented are women.  That is not surprising.  Whistleblowers speak out to protect the common good, even though they are at risk, personally.
   We generally think of trial lawyers as men.  However, women lawyers are naturals as plaintiffs' trial lawyers.  Who better to fight for someone with less power?  Society pegs trial lawyers as bombastic and egotistical, out for themselves.  And there is a rush in winning a nice jury verdict and trial law does attract the most self-aggrandizing in society.  But that is not what our legal system is about.  Women are naturals as protectors of the less powerful in society.  Females fight for those in their charge.  We need more women representing plaintiffs.

Thursday, December 10, 2009


  For the past couple of years, I have tried to listen more.  I am not always successful.  At the Trial Lawyers College, the psychodramatists have coined the phrase, "Listening With The Third Ear."  I think what that really means is that listening is more than hearing.  The "third ear" is really a combination of the mind and heart.  To truly listen to someone is to empathize, to understand.  In order to understand someone, we have to reverse roles, or understand in what context he or she makes a statement. A statement is not merely what is said, but in what context it is made. When a person talks, oftentimes they are sharing their perception of an event through their eyes of the world.
    It is hard to listen with the third ear.  It takes all of one's attention and focus.  It's like meditation because you must be in the moment, in the here and now.  You cannot listen and multi-task.  You must totally focus on the speaker.  As Joshua Karton says, most communication is non-verbal.  Listening involves not just hearing, but also seeing and perceiving, and feeling.
    When you truly listen to a friend or loved one, it can be an act of love because when you listen, you give up yourself to the other person.  It is all about them, not you.  Your ego cannot get in the way; in fact one's ego cannot even exist if you are truly listening.
    This last year, I have tried to revamp how I handle cases.  I want to listen more than talk.  As I said in the first paragraph, I am not always successful.  Sometimes my ego or my insecure feelings interfere.  I have found that I am at my best when I don't care if I am at my best, when I am listening and in the moment.
     For instance, in preparing for depositions, I read everything in the case.  I may jot down notes.  I may have some questions in mind.  But in the deposition itself, I want to listen, to learn.  I want the answers to my questions, but the answers lead to areas I did not know even existed before the deposition. I go where the witness takes me.  I try to listen without judgment.
     I know when someone is truly listening to me and interested in what I say.  Witnesses know when we listen to them.  I feel honored when someone cares about how I feel. My clients have told me that they feel the same way.
    The most important person, outside of those in my personal life, is my client.  If I cannot empathize with her or him, there is a problem and that problem stems from me.  Something in my life experience is getting in the way.  I need to deal with what is inhibiting me and preventing me from listening to and understanding my client.
     What I have found when I really focus and listen, I learn things that were not in my preconceived script.  For instance, in one deposition, the witness told me he was not angry with my client for complaining about sexual harassment, but there was this "tone" in his voice.  I listened not to his words, but to what he was communicating.  I prodded, "Well, if not ticked, then what?"  He opened up that he was disappointed that she had come to him because it would put a "muzzle" on the workplace because he liked to "joke" with women, too.  That admission was important to the case, and it let me understand where he, and the company was coming from, how they did not understand the purpose of their policy because they let their insecure feelings get in the way.
     I am not saying that listening is a tool to trick adverse witnesses, but that it is a way to understand many of the multitudinous layers of a story.  Lawyers often ignore others in their quest to be kings.  The "downside" of empathy is that it is impossible to hate someone with whom you empathize.  In lawsuits, do we need to hate the other side?  Can we muster righteous indignation without hatred?  Yes, we can.
    A by-product of my quest to listen to others is that it makes me feel good to honor others.  When I feel good about myself, I am less insecure and I do a better job for my client.  I am less likely to see conduct as an affront, even if intended as an affront, since I try to understand where that person was coming from who tried to hurt me or my client.  Usually, the other person, or lawyer, is lashing out from fear.  To understand this is power.  Listening to others is an act of giving, to the other and to oneself.

Saturday, December 5, 2009

Relationships and Being a Trial Lawyer

  When I first started practicing law, 26 years ago, I read a book about how female lawyers could be in the game with the men.   Several of the women said that they had decided to forgo families and essentially be "married" to their careers.  At the time I thought, are they crazy?  How can you sustain interest in the law when you have nothing else?  At the time, my son was four, I had been married for nine years and I wanted another child.  I decided to practice law my way, taking my kids to depositions and on out of town trips, including them whenever I could.  It seemed to me life is what you make it.  It wasn't an issue of having it all, it was an issue of knowing what was important.  That's not to say I didn't make mistakes from time to time, but in the end (or hopefully, closer to the middle), I am who I am because of my relationships and my experiences with others.  I wonder what happened to those women who "lived" the law; if they got burned out, if they developed meaningful relationships, if they fell satisfied.  I hope they found what they sought.
   I bring this up because I have been thinking about relationships.  I was on the staff of the second week of the Graduate Seminar at the Trial Lawyers College back in August.  Fredi Sison was in charge of the curriculum and she developed an exercise that was quickly named "Discovering the Characters."  We explored a case and the relationships between the important people in the Plaintiff's life.  I thought, and think, the exercise was brilliant.  Our relationships tell so much about us and who we are.  In movies and books, I gravitate to stories where there is more character, rather than plot, development.  I want to identify with other people.  I think most of us do.
   I have also been thinking about one of my former clients and how I could identify with her.  We settled her case the day before trial.  I remember her talking to us about her kids.  Two were in college and one had moved away.  When she talked about her kids, she lit up.  She spoke to each of her children several times a day.  When we met her kids, they shared humorous stories about our client.  Every Saturday morning, when they were home, they tried to arise before their mom, because Saturday was her cleaning day and she would go on a rampage.  My client's son, in a teasing tone to his mother, said she was like a quarterback getting psyched for the big game.  The easy way in which my client and her kids traded good-natured barbs reminded me of my own smart-mouthed, sweet children.  I fell in love with my client that morning.  She became so real and someone with whom I could identify.
   We are the product of our relationships, whether good or bad; regardless of whether we rebel against those relationships or accept them.  I believe Fredi's exercise is beneficial not only in preparing for trial, but also in living life.  Thanks, Fredi.

Tuesday, November 24, 2009

Thanksgiving - I am thankful for my brave clients.

I love Thanksgiving, and it's not all about the food - especially since I do most of the cooking.  I enjoy Thanksgiving because of the enrichment my family and friends provide to my life.  But, for this article, I want to thank and be grateful for my clients and how they have enriched my life.

There's Ruth Bates, who taught me what true courage and perseverance was.  She felt within her what was right or just and followed her gut.  She acted with dignity and courage in the face of media barrages and intrusions.  Ruth handled herself with dignity, while the opponent could have taken lessons in decorum and self-esteem from her.  Plus, I had the joy of getting to know her and her wonderful family and how they came together in Ruth's hour of need.  There is not enough that I can say about Ruth Bates.  Who says you can't fight city hall.

There's Terri Wallace, who after 7 years, finally made justice happen. Through two appeals and one jury trial, Terri persevered and prevailed.  She did not set a 7 year goal, but when she saw that 7 years is what it would take to receive justice, she didn't balk or lay down.  Heroes come from humble beginnings.

To the Campbell family, who hopefully will get some closure after the brutal killing of their father.  I particularly respect Debbie, who made her peace personally with the officer who killed her husband.  That took great courage and taught me a valuable lesson in forgiveness.  The girls are doing so well now.

To my former brave clients, who have given me strength through the years (this is not a comprehensive list) -
Of course, Serita Wright, one of the bravest women I know; Nancy Watson, who started it all for me, James Brock, who displayed incredible courage; Marlene Hickerson and Shirley Stroud, who showed what it meant to believe in moral values; Vera Sims, who refused to allow herself be treated like a piece of meat, and to the many others through the years who have helped so many, and particularly who have kept my hope for society's future alive.  To the brave and true nurses.

And there are the clients whose cases are pending - Christie Helm, who had the courage to tell the truth about a judge, and others I shouldn't name until we are finished with the case.

I went to the Holocaust museum and bought myself a tee-shirt with a quote from Margaret Mead, "Never doubt that a small group of thoughtful committed citizens can change the world: Indeed it's the only thing that has."

I am deeply indebted to all of these brave people who are willing to bare their souls in the name of justice, in the quest to eliminate discrimination and dishonesty in America's workplace.  And as the saying now goes, "How the workplace goes, so goes the U.S., and someday the world."

Thanks again to all of my clients.  You probably don't realize what difference you have made in my life.

Wednesday, November 18, 2009

Even Though I Blasted Men In My Earlier Post, They Have Redeeming Qualities

A couple of posts ago, I compared qualities of male and female lawyers.  Some think I blasted men.  This is my disclaimer, if not an apology.  I believe what is said in the previous post is generally true and I admit to generalizing.  But that is not why I am writing.  Overall, men are good to have around.  I like men.  Dare I say, I love some men (like my husband, brothers and son and nephews, ya da ya da).  It's just that male lawyers can learn a lot from female lawyers (and I must admit female lawyers can learn to be a little braver from their male counterparts).  The end.

Monday, November 16, 2009

Thank God for the Nurses

I love nurses.  I have loved nurses for many years.  This past week, I went to the party of some of my former nurse clients.  They were celebrating the day of their unceremonious firing and subsequent successful lawsuit.  It was wonderful seeing them after several years.  I love those nurses.  Nurses are special.

When my grandfather died, my grandmother decided to pursue her life long dream, to be a nurse.  She enrolled in nursing school at the age of 63.  She had retired from her job as a factory worker sewing on sleeves on women's coats and had planned to travel the world with my grandfather.  Their first trip after Oma, my grandmother, retired was to Israel.  Israel was the destination in the late 1960s of all European Jews who had emigrated from Europe around the time of World War II.  My grandmother had taken her family (including my mother) and fled Nazi Germany in 1938.  She first worked as a housekeeper after she arrived in Kansas City, and worked her way up to the Betty Rose coat factory, where she joined the International Ladies' Garment Workers Union and took the bus every day to the factory to sew on coat sleeves until she retired around 1967.  Oma and Uncle Sam (my step-grandfather) had planned for many years to go to Israel.  Uncle Sam bought a beautiful smoky topaz ring for Oma while in Israel.  I am wearing it on my finger as I type this blog.

My grandparents' retirement plans were not to be.  Upon returning from Israel, Uncle Sam went to his doctor because he was feeling weak and tired.  He had lung cancer.  By November 1968, he was dead.  And my grandmother decided to go to nursing school.  While Oma never really recovered from my grandfather's death, the one redeeming thing in her life was that she was a nurse.  Through all of the years in the factory, she had always wanted to be a nurse and, by the end of her life, she made her dream come true.  In so many ways, my grandmother was my hero.  In her unassuming way, she was the risk taker in the family.

This leads me to what I want to write about and that is the profession of nursing.  Through the last few years as a trial lawyer, I have represented many nurses.  I have kept nurses on many juries.  I have the greatest respect for the profession of nursing.  People who decide to go into the nursing profession by and large do so because they care about helping people.  Nurses are smart, work hard, are sometimes unappreciated and don't get the respect that doctors receive.  When you go to a hospital, you spend much more time with nurses than with doctors.  Nurses take care of you.  Nurses are the mothers and fathers of the health care profession.

I have represented nurses who were sexually harassed in horrible ways by the doctors they worked for and I have represented nurses who spoke out against dangerous medical conditions in health care facilities and were fired.  In a whistleblower case against a not-for-profit case, it was the nurses on the jury who spoke out against the illegal conduct of the employer.  Qualities necessary to make a good nurse include the willingness and ability to question authority and the drive to seek perfection.  Some may call this latter trait obsessive compulsive disorder, but as far as I am concerned, give me an OCD nurse any day of the week.

My daughter has been struggling with migraines and who is it that gives her the care she needs to function?  The doctors help, but the CARE is provided for by the nurses.  Nurses don't seek recognition or glamour, they just do their job with intelligence and caring in 12 hour shifts.

Here's to the nurses!  Especially the ones who speak up so that we are all safer.  Thank goodness the nurses who were my clients had the courage they have to make this world a better place.  Thank God for nurses.

Thursday, November 12, 2009

Women Trial Lawyers - As Good or Better Than Men

I have been a civil trial lawyer for 26 years and there are not many more women trying plaintiffs' case than there were 26 years ago.  Why is this?  I have a friend, a highly skilled and accomplished female trial lawyer who was beat out for a prestigious position to a man even though she was better qualified.  Why?  Gerry Spence opined in my presence that it would be hard for women to be trial lawyers because we are not natural fighters or warriors. I told him that he was wrong because we women fight all the time - we fight for our children, we fight for ourselves, we fight for justice.  It's just that we aren't as loud.  I don't think we need to be.

 Is it true that women are ill-equipped to fight in the rough and tumble world of trial work? I say NO!!!!  Resoundingly NO!!!!!  What I am going to write about are my own opinions and observations only.  I believe that women have the capacity to far outshine their male trial lawyer counterparts.  But, women have not excelled in traditionally recognized ways.  I think there are a couple of reasons for that.

First of all, women, by and large, have much smaller egos than their male counterparts.  For instance, I second chaired a case with my partner and we won.  We belong to a local lawyers group that meets monthly. Although our all female firm tries many cases with results as good as the male firms, I cannot remember one time when a meeting was devoted to stories about one of our cases. There is another woman in the organization and I know that the same thing has happened to her.  However, with the male trial lawyers, not only do they have meetings devoted to them when they win, I remember attending a meeting where one of the male lawyers spent the whole time talking about what great strategies he had and things he had done in trial in a case that he LOST.  The long and short of it is that male trial lawyers brag more than women trial lawyers.  I will explain how this lack of ego and bragging in women can make them better trial lawyers than the men.

Second, women are less likely to take risks that men are.  I mean less likely to risk going to trial, to risk acting as first chair, to risk making a mistake in front of others,to risk losing money, and to risk asking for money from a jury.  Women need to take more risks.  

Third, because there are fewer women trying plaintiffs' civil cases, we look to males as models for what a trial lawyer is.  Yes, they fight.  Yes, they talk a lot.  Yes, they brag.  Out of those three traits, the only male trait that is really effective is that they fight.  The other two traits are detrimental to representing clients.  However, since we have male role models, people, espouse that you have to act like a "man" to be a successful trial lawyer.  That is poppycock.  I will tell you why,

Men are more ego-centric and are more likely to make the trial about themselves.  "I won this trial."  "The jury gave ME..."  While female lawyers are more willing to focus on the client.  Women are more likely to be nurturers.  Nurturers protect and nourish their clients.  And by "protect," I mean fight for their client.  Women don't have to be the focus, and sometimes men, who want to be the focus step all over their female counterparts to get attention.  Mind you, these are stereotypes and generalizationsw and not all male trial lawyers are like this.  In fact, I have tried several cases with men, most notably with Rafe Foreman, who did not demonstrate the male egoic traits I have ascribed to male trial lawyers.  When a trial lawyer makes the case really about himself, he has lost sight of his job.

These are the typical female traits which allow women the potential to be superior trial lawyers:

1.   Ability to LISTEN instead of talking all the time.  In my opinion, many trials have been lost because the lawyer failed to listen and was hell-bent on being the star of the show.  Women are better listeners. Better listeners are better story-tellers.

2.   Women have more EMPATHY.  Empathy, or the ability to place oneself in the shoes of another and understand them is a critical trait for people, not just trial lawyers.  Kindness, caring and understanding all come from empathy.

3.   LACK OF OVER-ACTIVE EGO allows women to be in the moment, be real and spontaneous.  All traits helpful in life as well as in trial.

4.   Because of women's EMPATHY, LACK OF EGO, AND LISTENING ABILITIES, women are more trustworthy.  Sincerity, honesty and trustworthiness (along with preparedness, etc.) are the keys to persuasion.  Women have the innate ability, that some women suppress, to be sincere and trustworthy and focus on their clients.  Those are building blocks for great trial lawyers.

The only beneficial trait I see less in women than men is the desire to take risks.  Women are simply going to have to jump off the cliff and try cases.  Once this happens, I predict that society's view of effective trial lawyers will change and women will be venerated.  Women are as smart as men.  Women prepare as hard as men.  Women are oftentimes more believed than men,.  The lawyer who is believed and has the jury's trust is the one the jury will want to win.

So, I think women lawyers need to try cases, but not just copy the styles of men.  Women need to be confident enough to be themselves and not to adopt the annoying egoistic qualities of some of the male trial lawyers.  I hope that we are starting a movement where women take their rightful role as trial lawyers.  Women are well suited for the job.

Sunday, November 8, 2009

Health Care Bill in the House

This past week, I met my sister in D.C. to visit my son.  My sister and I had planned to get away, to a spa or some other girlie thing, but Joyce suggested visiting Aaron and I was happy.  For a former political science major, seeing my American History/politics-obsessed son, this trip was fun with little time for relaxation. Aaron was in charge in showing us his town, and we were busy, busy, busy.

The last day, Saturday, we started out getting breakfast close to the National Archives and viewed President Obama's motorcade with the President on his way to the House of Representatives to lobby for votes for the health care bill.  We went to the Archives, and then to the National Portrait Gallery, and then went to a movie, before the coup de gras.

Aaron's friend works for a Congressman, and he got gallery tickets for us to watch the debate on health care.  By the time we got to the office building, it was 7:00 p.m.  After a quick private tour of an empty Senate side of the Capitol, we went to the House chamber.  Wow.  When we got there, they were debating the abortion amendment, then the Republican bill and then the voting began.  The tension mounted during the  next four hour.  It reminded me of a basketball game.  A Democratic would get up and advocate, and then a Republican counterpart would counter.  They'd shoot, perhaps score, and then the other team got the ball.

After the abortion amendment passed and the Republican substitute for the health care bill failed, the Republicans threw in an unexpected monkey wrench.  They slipped in a new amendment requiring tort reform.   I sat through the Republicans arguments about how trial lawyers are worse than the devil and should be shot on sight.  Perhaps this is somewhat hyperbolic, but not much.  After articulate and convincing arguments against the amendment by Democrats, especially by a Plaintiff's lawyer from Iowa, while Republicans were heckling, "He's a trial lawyer, a trial lawyer!!! (as if he were an axe murderer), " the amendment failed.

Then the vote on the bill was called.  I had heard that the vote would be close and it was unknown how it would come out.  All 435 members of the House were there.  They voted electronically, and the votes were shown on a score board not unlike the kind used in basketball.  The numbers rolled constantly.  We knew the magic number was 218, over a 50% majority.  The votes slowed, with the Yeas at 213 and the Nays only one or two votes behind.  Slowly the numbers increased, 214, 215, 216 . . . it was like the last few seconds of a sports match.  Then, 217, and seconds went by seeming like minutes.  Finally - 218!!!!!!!!!  The Gallery, or most of us in the Gallery, erupted, cheering and clapping, echoing the cheering and applause on the Democratic side of the floor.  The acting speaker admonished the crowd in the Gallery, us, to be silent.  Still the 15 minute voting time had not officially expired.  When the time clock read 10, the Democratic Representatives began to chant, "10, 9, 8, 7, 6, 5, 4, 3, 2, 1!"  Again, the chamber erupted in cheering and applause.  As Speaker Pelosi walked to the podium to announce the vote, chills went through my spine.  What a rush!

Sunday, November 1, 2009

Novel Writing

My niece, Arrianna, has inspired me to write a novel - National Novel Writing Month (  We will see how this goes.

Tuesday, October 27, 2009

Being an Honorable Person - 6 Easy Rules

I am going to take a little departure from talking about cases.  I have and have had many courageous clients.  It's the nature of my business that someone who wants to bring a discrimination case must have a modicum of courage.  These are not the types of cases for the faint of heart.  Today, though, I have been thinking about honor.  It is the courageous, honorable clients whom are the ones I love.

What is it that makes a person honorable?  An honorable person is one who is deserving of respect.  And who deserves respect?  Most of us, including me, have acted in dishonorable ways.  Dishonorable acts include lying, cheating, stealing, betraying, manipulating.  It's easy to be negative.  What does it take to be a truly honorable person, worthy of the respect of others:

1.   Speaking the truth even when it is unpopular, while avoiding needless unkind words;
2.   Being loyal even when it is tempting to be disloyal;
3.   Having empathy, especially with one's opponents and people with whom one has little in common;
4.   Giving with no expectation of receiving anything in return except the joy of giving:
5.   Standing up for what one believes in even when it is unpopular to do so;
6.   Truly being able to forgive others for just about anything.

I know this is a simple list, but it seems fairly comprehensive to me.  When someone needlessly hurts someone else or strives for personal power or personal wealth above all else, it is always a reflection of some underlying conflict in that person.  Unfortunately, people who are hurt by others oftentimes go out and hurt even more people.  Angry people hurt others, while oftentimes not meaning to do so.

So, how does this relate to the practice of law?  The practice of law is a microcosm of the act of living.  We have developed a set of rules with which to operate so that we don't destroy each other.  Law is eminently logical and practical.  People aren't.  It is possible to fiercely promote what one believes in or to defend one's person and principles without annihilating the opponent.  The fiercest advocate can be the gentlest person.  It is not easy to be honorable, but honorable people do not expect perfection.  They are ready to forgive transgressions. Living honorably is the key to being peaceful and content. Not ironically, the best advocate is the one that acts with honor.

Friday, October 23, 2009

Courage to be Different

I am back to writing about clients.  I want to write by a young woman who was, in her own way, a maverick.  Diane (not her real name) was a young widow with two small children she needed to support.  Diane had never finished high school and her job prospects were poor.  She knew it was incumbent upon her to put food in the mouths of her children.   She could not type and she had no high school education.  Diane decided to do something different, to get a job in a typically male field, because those fields paid more money.

Diane applied for, and got, a job in a warehouse driving a forklift.  Few women worked in the warehouse and no other women in that warehouse were young and beautiful besides Diane.  Diane thought she had the protection of a union that protected the men, but she was wrong.  There was no one in that warehouse to protect Diane.

When Diane started working in the warehouse, she was a novelty and most of the men did not like that she worked there.  The men made crude comments about her body, asked her for sex, tried to touch her and generally made her life hell.  When Diane complained to her supervisor, her complaints fell on deaf ears.  The men brought a blow-up doll into the office and wrote things about Diane on the doll.  One day Diane was unloading a truck when she found a sketch of a naked woman with her legs spread eagle, with Diane's name written about the sketch.  Diane was humiliated.  When she complained, one of the older workers pretended as if he was going to run Diane down with his forklift.  Her life at work was a living hell and she had to quit.

When we prepared for trial, the defense attempted to present a witness, a former boyfriend of Diane's, who wanted to claim that Diane and he had had sex in the aisles at work.  The judge would not let the defendant offer that evidence.  It was not true.  Diane had broken up with this guy when she caught him hitting her child.

During the defense of the case, the opposing cancel tried to claim Diane was a money grubber because she had received a wrongful death settlement for the death of her husband.  The judge kept it out.  The defense also told the jury that, hey, this wasn't a law office, this was a warehouse, what did she expect?  Apparently,
that did not set well with the jury and they rendered a verdict for Diane.

Diane's case reminded me of how hard it is for someone to bring a case like this.  The employer wants to tear the plaintiff's reputation and character down.  It can take it's toll.  Diane appeared to lose weight during the week of trial.  She appeared tired, with dark circles under her eyes.  The trial was hard on her.  I hope she felt vindicated, she should.  But, no one deserves the denigration and disrespect that plaintiff's are subjected to in sexual harassment cases.

This case was in 1996.  We generally no longer see sexual harassment cases with as egregious conduct as was used in Diane's case.  Perhaps Diane had something to do with that, in a small way, by bring this case.  I hope so.  She did win and recover a decent money judgment, but money is a poor substitute for dignity and respect.  I hope Diane knows she made a difference.

Thursday, October 22, 2009

Sadness and Courage

When I started this blog, I was resolved not to write much about me, but to write about the courage, trials and tribulations of my clients. I am breaking that rule just into the first month of this blog.  There have been events in my life related to friendships and the practice of law that have brought me sadness.  Things are changing in an organization in which I have been heavily involved for a long time.  For all I know, these changes could be wonderful and all this worry and sadness is for naught.  However, the changes have made me profoundly sad.

It occurs to me that I need to look at these changes in perspective.  I represent people with life-threatening illnesses and injuries, people who have their livelihoods stolen from them in a moment.  I represent people whose real fears are that they cannot go on or that they will not have the resources to provide support for their family members.  My clients have been faced with these challenges and they squarely face them and prevail.  They fight and maintain their dignity during the most trying times.  They have real courage.  Perhaps,  courage consists of facing frightening challenges and not giving up.  Also, it takes courage to place things in their proper perspective.  A histrionic person repels me.  I admire my clients who deal with their problems with quiet dignity and reflection and it is they whom I hope to emulate.

So why am I so sad when my problems are so relatively minor?  I am in an organization which I love and I love many of the people in the organization.  With this shake up, my place in the organization is different.  Of course, the truth is that this shakeup isn't about me.  Ego is such a destructive force.  I am scared because I have depended on folks in the organization for my support.  I share basic beliefs about life, politics, and the practice of law with these people, most of whom are such wonderful people.  I have learned so much about the practice of law and about myself from this organization.  I am a better person and a better lawyer, but things are changing.  This change scares me because I don't know where it will lead.  I am worried I will or have lost dear friends.  I worry that the creativity and spontaneity that sparked this group will be extinguished.  Only time will tell.

One of the advantages of being a partner in my own law firm is that I cannot be fired.  I am not rejected, since I am one of the owners.  I am sure I am in this position by design.  I don't like having someone else having the power to determine my fate.  Perhaps this is just an issue of feeling helpless because I don't have the power in this situation.  How ego-centric is that?

Only time will tell what will happen with this organization.  But I can learn from this now.  Many of my clients have held jobs for many, many years and made their work part of their identity before they were terminated from their jobs.  My injured and ill clients have little or no control of their physical destiny.  I have family members with health problems, and they must go on. This is a lesson in patience and courage, and, dare I say it, trust, trust that things will work out some way and I will deal with it even if it is not the way I want things to work out.  I need to live in the moment.  I have no control over the past or the future.  All I have is now.  I think I will go gaze out the window at the vivdly colored trees.  They are here now and if I don't look at them now, I might miss them.

Sunday, October 11, 2009

Fighting Against Powerful People

I love representing nurses.  Most nurses go to nursing school because they have a desire to help others.  They don't have big egos, or they would have gone to medical school.  Many of the nurses I have represented are every bit as intelligent as the doctors they work for, but they want to be in the trenches.  They want to be comforting the patients.  These nurses are not content to glance at a patient and bark orders.  They comfort and nurture their patients.  They have a passion, a calling, to care for others.

I represented a nurse we will call Sherry (not her real name).  Sherry has years of nursing experience.  She had worked in a hospital and in clinics.  When I represented her, she was working in a doctors' office.  Sherry is a very pretty woman, with a warm smile and a caring heart.  She was assigned to work for a doctor, a male, who apparently felt Sherry was his for the taking.  When Sherry would bend over to get supplies, he would grind his groin into her backside.  This doctor tried to lure Sherry into his office.  On the one time he was able to do so, he fondled and kissed Sherry until she was able to wrest away from him.

Sherry worked for a large corporation which owned the hospital and the many doctors' offices.  Sherry was afraid to complain, though, because the doctor was one of her bosses.  The supervisor of the nurses was a woman who spent a day a week in the office, so she told the nurses that the receptionist was the supervisor's "eyes and ears."  Sherry told the receptionist what was happening.  Nothing happened.

When Sherry came to me, she was at her wit's end.  When we brought the case, I thought the harassment was evident.  The lawyer representing the corporation asked me to come to the hospital for a settlement conference, along with the doctor's lawyer.  Once I got there, the doctor's lawyer but a video in a VCR and started playing a videotape of my client have sex with a former boyfriend who had never worked with her.  I was outraged. They were trying to intimidate Sherry by showing the tape the lawyer had bought from the former boyfriend for $100. Obviously, we did not settle the case then.

Sherry was willing to fight.  I went to the judge and we got the tape excluded from evidence.  I took many depositions.  In employment cases, it is hard to find current employees who will corroborate the plaintiff's story, since the current employee's job is at stake.  Sherry was so beloved by her co-workers, they came out in droves, corroborating Sherry's story.  At the end of the discovery, the defendants filed a motion to throw the case out because Sherry had reported the harassment to the receptionist and not to the supervisor.  The federal judge in charge of the case threw the case out.

Sherry was willing to fight.  We filed an appeal in the Eighth Circuit Court of Appeals, and the judge who threw the case out was overturned.  We were back and  headed to court for a trial.

As trial drew near, we resolved the case.  I can't relay how.  Mind you, both the doctor and the hospital were defendants.  The doctor left the clinic.  I am proud of Sherry and amazed by her fortitude. Sherry fought the doctor, the hospital, the sleazy lawyer who got the video, and the trial judge, all of the way to the Court of Appeals, and won.

She took her money and with part of it took a much needed vacation to Venezuela.  Sherry stayed in nursing and studied for and received licensure as a Registered Nurse.  She was a fighter, not a whiner nor a complainer.  People with power sometimes think they can take advantage of those less fortunate.  In Sherry's case, she proved them wrong.

Friday, October 9, 2009

Overcoming Personal Danger

I like to write on this blog late at night.  It is relaxing.  I like to remember the great people I have represented.  Tonight, I want to tell you about a woman I met and represented shortly after I became a lawyer.  I will call her Shoshana (I just saw Inglorious Basterds).  Shoshana was married to Art (not real names).  Art was a cop.  Art beat Shoshana.  It was hard for Shoshana to get any help done when Art beat her, because his cop buddies didn't do anything to protect Shoshana.

Art did mean things to Shoshana's son, such as making him eat regurgitated food for punishment.  Art beat Shoshana a lot.  Shoshana fled to a shelter on several occasions.   She finally decided to get a divorce and she got a protective order.

One evening, Shoshana was driving in her car with her son and daughter in the back when she spied Art following her.  Shoshana drove to the police station, honked the horn and told the sergeant that she had a restraining order against Art, about which she had told the police.  This was the police station where Art worked, but the sergeant assured Shoshana that he would detain Art.

Shoshana drove home, but Art arrived there first.  He ordered the kids to their rooms, ripped out the phones from the jacks, locked the dead bolts on the doors, and started beating Shoshana.  His anger intensified, he made Shoshana have sex with him.  Then he got a knife and started stabbing Shoshana, but the knife handle broke.  Art got up to get another knife.  As he did so, Shoshana bolted up and flung herself through the plate glass window in the living room.  Art followed.  Shoshana, on the ground, looked up at Art.  It was as if Art woke up from a nap.  He looked at Shoshana, he looked at the knife in his hand, and he ran to his car and drove off, wearing only his underwear.  Shoshana came to find out that Art drove to his brother's house, where he put his service pistol to his head and blew his brains out.

Shoshana came to some lawyers, with whom I ultimately got involved, to sue the police department.  It was a civil rights case and I was just out of law school.  We took depositions.  Shoshana and the kids lived in the battered woman's shelter.  The city filed a summary judgment motion and the federal trial court threw the case out.  For the second time in my life, I wrote a brief and went to the Court of Appeals, this one in Denver, to argue the case for reversal.  I was scared, but didn't want Shoshana to know.  The judges asked interesting questions, and lo and behold, they reversed the trial court (my first win in appellate court.)

The case was remanded for trial and we began trial.  In the middle of the trial the case settled for enough money for Shoshana to buy a home for her kids.  They were happy, and I lost track of Shoshana.

Fast forward 15 - 20 years, I get a card from Shoshana, with her beautiful family. She called and we talked.   Her small daughter was grown up and a beauty queen.  Her son was in college.  Shoshana was a banker and married to a kind and loving man.  I had wondered what had happened to Shoshana, and quite frankly I had been worried.  It didn't seem as if she had much support when we tried the case.  It felt good to see her happy with a happy family.

Living in a physically abusive relationship is so detrimental not only to the person in danger, but also to the kids who witness that type of behavior.  It seems that abusive behavior can be passed down from generation to generation.  Shoshana broke the cycle.  I am not sure how she did it - I imagine the shelter helped.  I cannot imagine the amount of determination and fortitude it would take to break that cycle.  She is amazing.

Sunday, October 4, 2009

The Courageous Stoic

Earlier in my career as a trial lawyer, I thought all of my clients had to express their emotional distress in emotional ways in order to get damages from a jury. The problem is, we don't all express our emotions in the same ways. In my family, my daughter and I are more openly emotional, while my son and husband are more restrained. In my experience, men express emotions differently then women. Sometimes I think it is harder for men. Women cry while men hold in their emotions.

My partner Kristi and I represented a man in an age and retaliation discrimination case and I needed help to see his pain. I hired John Nolte, a psychodramatist, to help me and I had an agenda. I wanted my client to emote. It took me awhile, with John's assistance, to see that my agenda was misguided.

My client, I'll call him Phil (not his real name) was in his late 50s. He had worked as the general manager of a business for ten years when he was brought into the office and fired. He then had to exhaust the money he had saved for retirement to start his own business. At the time Phil was fired, his boss told him that it was nothing personal and he had done a good job, it was an economic decision. However, when Phil asked for a letter with the reasons for his termination, the employer claimed, for the first time, that Phil was a sexual harasser, was lazy, yada yada yada. Phil appeared to take this in stride.

Phil was a very interesting man. He was a jokester, never appearing to take things seriously. Sometimes, Phil would make off the cuff comments that we found to be offensive, jokes that I didn't think were funny. I let him know and he stopped. Phil was "a good ol' boy," who had a good heart. He was devoted to Kristi and I and constantly gave us positive feedback. But, "good ol' boys" don't whine and complain. It's not in their nature. They are the strong, silent types when they are hurting. The phrase "Don't let them see you sweat," was coined with people like Phil in mind. But, Phil was really hurting.

I hired Nolte to help with re-enacts with Phil, but John Nolte helped with so much more. Nolte gave me ideas for opening statement. He told me to set the scene and reenact Phil going into his boss' office and what Phil was really thinking and feeling when he got fired. I did that and I was drawn into Phil's world, the world of the tough guy in pain. And Phil could see that I understood what he was going through.

The defense made a point that the other younger employee who was vulgar and awful and who was fired but then rehired because he begged for his job back. In closing argument, I explained to the jury that Phil did not beg for his job back, that Phil had too much pride to beg. That wasn't who he was. Phil was proud. I could tell immediately from Phil's muted grin that I got him, I knew him, and Phil was pleased. He wouldn't plead or beg, he would not degrade himself. He had too much character and pride.

The jury rendered a verdict for the defendant on the age discrimination case, but gave Phil a good sum for emotional distress and punitive damages on the retaliation case because of the letter Phil got claiming he was a sexual harasser. Phil was pleased. He gave us a gigantic Honey-baked ham that Christmas.

The defendant appealed the case, a federal case, to the 8th Circuit Court of Appeals and, of course, the verdict was reduced. Phil didn't seem to mind. He was gracious and kind to Kristi and me, told us what a great job we did and I think he meant it. Phil was a class act. I don't know if he still tells the ethnic jokes I found offensive. I hope we learned from each other. I know I learned a lot about dignity from him.

Thursday, October 1, 2009

Courage and Overcoming Self-Doubt

These last few days, I have been thinking about my clients to decide which one I want to write about next. This has been gratifying and makes me realize how much I love my job. I have also come to realize how much I admire nurses. I don't mean in the way that nurses are the "power" behind the doctors, like the "little woman" behind "every successful man." I mean I value nurses probably more than doctors in their own right. I have represented many nurses and have had several on juries. Most nurses do the demanding, stressful jobs they do because they feel they have a calling. Most nurses have the highest ideals and want to heal people. They are not egomaniacs. They are competent professionals with a driving desire to heal. I have loved every nurse I have ever represented.

I have represented nurse/whistleblowers, nurse victims of sexual harassment and a nurse who was a victim of disability discrimination. The latter nurse is the one about which I write tonight. In 1991, Congress passed a law which was sponsored by Republican Missouri Senator Jack Danforth and signed by the first President George Bush to protect employees with disabilities, known as the Americans With Disabilities Act. I tried one of the first of these cases in Springfield, Missouri for this skilled and diligent operating room nurse who happened to have multiple sclerosis.

I will call her Corie. Corie was diagnosed with remitting/recurring MS while in her 40s. She had been a nurse for many years before that. Most of the time Corie was asymptomatic. She avoided places where the temperature was high and occasionally had to take time off when she suffered from tremors.

Corie's life long dream had been to be a Registered Nurse and she loved the operating room. For Corie, the OR is where the action was. She knew her job and she was good. Nursing in an office was boring to her. Corie had been through husbands, and personal problems, but the constant in her life was nursing. After she was diagnosed with MS, she continued nursing in the OR. She was not disabled, according to the legal standard. She could perform the essential functions of her job without accommodation and her major life activities were unaffected.

However, somehow Corie's condition was brought to the attention of her supervisor. Without ever observing Corie doing her work and with little knowledge of the disease, the supervisor determined that Corie was hampered by MS, was confused and could not move quickly enough. She and the hospital wrote up Corie, indicating that Corie was incapable of performing her job in the OR. Corie was devastated, and scared. She began to doubt herself, was her work affected?

Corie was relegated to a supply closet to take charge of the inventory, a job that did not require nursing qualifications. The job was temporary and Corie's supervisor told Corie that once the tasks in the supply closet were completed, Corie would need to find another job on her own in the hospital. Corie was humiliated and chose to quit rather than work in the "dummy" room (the hospital claimed it called the room that because a dumbwaiter was in the room, but I have my doubts).

Corie went to the EEOC and they referred her to me. By the time I met with Corie, she had been out of work for five years. She had applied at a couple of grocery stores for work, but not for any nursing work. I was puzzled. By the time my partner Kristi Kingston and I started trial, Corie had been out of work for seven years and we could not claim lost wages, because she did not even look for a job. In the meantime, Corie and her husband split up.

As we approached trial, I became apprehensive. I was worried about Corie's failure to seek work, but I think something more insidious was really going on. All my life I have harbored prejudices against sick people. I think it stems from a fear that I am supposed to take care of sick people and I don't want that responsibility. I was worried that perhaps Corie's MS might cause her to screw up in the OR and potentially injure a patient, even though her neurologist cleared her to go back to her old job. Plus, I don't like malingerers and I could not understand why Corie was not working anywhere.

We had a mediation and the defendant offered a paltry sum. I was afraid of losing the trial and I tried to convince Corie to take the settlement. Fortunately, for Corie and for me, she refused. I was so insistent that I made Corie cry. I later apologized. Sometimes I think I know everything and I don't.

We went to trial and Corie was wonderful. Her caring nature and love of her job emanated from her soul. She was born to be a nurse and the hospital took that away from her. No one on the jury was concerned about her working in the ER. They saw Corie for who she was, even though I hadn't.

This was a particularly difficult time for Corie, separated from her husband and caring for her aging parents. She got through the trial and she got a decent verdict. Of course, the defendant appealed to the 8th Circuit Court of Appeals, but the Court ruled in our favor, after granting remittitur (arghhh, that means they reduced the size of the verdict - it seems they always do that).

After the case was finally over, a wonderful thing happened. Corie looked for work as a nurse. I had not realized how much the hospital's actions had shaken Corie's confidence and she was, probably unconsciously, waiting for someone to tell her she was okay and that she was a good nurse. In essence, Corie regained her confidence after hearing what the jury had to say. She got a job as a nurse and she worked hard. Her MS had not got worse. She was more than capable of practicing nursing.

I learned a lot of lessons in Corie's case. I learned to listen to my client. I had not listened to her when she rejected the mediation offer and believed I knew better than her. I was wrong. I also learned, as the psychodramatist John Nolte says, to listen "with the third ear." I had not understood why Corie did not look for a job. I had not been paying close enough attention to who she was and what made her tick. She felt insecure and scared because of what the hospital had done to her. Immediately after the verdict, Corie had the confidence to find work as a nurse. And I relearned a lesson I already knew - when defense lawyers tell you that no one really wins after a trial, that is mullarkie. Corie won not only money, she won back her life.

Courage in the Face of Victory and Defeat

I wish I could tell you that every one of my client's won in his or her struggles, but that just isn't the case. That is the hard part for my clients, and for me. There are no guarantees, there is no certainty. This would be hard enough, exposing one's innermost feelings to a group of strangers, even if one were assured that something positive would come at the end. But there are no assurances in law. I liken my job to being a professional gambler. Nothing's certain.

It is one of these uncertain cases which I want to talk about. I want to tell you of my wonderful client and the risks she took in one of my first sexual harassment cases tried to a jury. In fact it was the second one, and I was to try the third just one week later. It was in 1994, right after I returned from the Trial Lawyers College and my new friend from the college, Ken Goldberg, graciously agreed to try this hotly contested case with me. Jury trials in sexual harassment cases were new. The law had just changed. And this case was different than most.

My client was one of the strongest, bravest, most honest people I have ever known. She is one of my friends on Facebook to this day, so I hesitate to state her real name. I will change this if she reads this and wants me to reveal her identity, I will do so. Let's call her, Angela, because she is angelic.

Angela worked in a business that was male-dominated and performed a job usually done by men. She is beautiful and strong. She was happily married with four children and she was devoted to the Lord. As a woman, she was different than most of the men who performed the manual work. In fact, she was a member of a labor union. Most of the time, labor unions are godsends, but this local was not. The title of the union uses the word "brotherhood" and it truly was for brothers and not sisters.

Angela drove a truck and another truck driver repeatedly asked her out on dates. Angela politely told the man that she was happily married and not interested. He persisted, and started making sexual comments. Angela had enough and tried to file a union grievance to get him to stop. That's when the trouble started. The steward did not want to take her grievance, but Angela insisted. As a result of the grievance, the driver was fired by the company and appealed. The union steward, who was also Angela's union steward, started a campaign. As drivers came in, union members would have other members write down lies about Angela, that she used vulgar language, asked for sex, etc. This hurt Angela, who by then had started doing some preaching at a church. There was to be a hearing called a "Two State Hearing" where union and management members listen to evidence and decide the fate of the disciplined employee.

On the day of the hearing, Angela got in her car to drive up by the airport to testify. When she had driven about ten miles, her tires blew out. They had been slit. Luckily, Angela was safe and hitched a ride to the hearing where she testified. At the hearing, there was a stack of written nasty statements by union members who were friends of the harasser, most of whom could not even identify Angela by sight insinuating that Angela had asked for it. The driver got his job back.

Angela came to me and we filed a lawsuit for defamation and for sexual harassment against the Union. The company had done all they could, but their hands were tied by the grievance hearing. The union attorney was mad. Many times he threatened me on camera and said he would be filing a malicious prosecution action against me. The statute of limitations has run and I was never sued. The union offered nothing and we went to trial.

We tried the case in state court and it took two weeks. Angela is so honest and decent, the jury fell in love with her. Never before had she been defamed like this. Never before had anyone treated her so demeaningly and disrespectfully. Although she is a strong woman, she could not help but sob on the stand.

The jury awarded Angela $250,000 for emotional distress and $400,000 for punitive damages against the union. We had over $200,000 to be awarded in attorneys fees. The case made the front page of USA Today. Ironically, at the time of trial, the driver had been fired because he had sexually harassed (grabbed the breasts of) a customer and the union could not bail him out yet again where customers were involved.

The union appealed and for reasons I do not care to remember, ,the Court of Appeals reversed the judgment and did not grant us a new trial. Angela lost and that was that. The Supreme Court refused to hear the case. It was gut-wrenching.

At some time after that, I spoke at a lawyers seminar about sexual harassment cases, and Angela agreed to talk to the audience about her experience as a a plaintiff. She talked about how hard it was to have lawyers pry into her most private life, but she did it anyway because going forward was the right thing to do.

Since the trial, Angela was promoted to management at work. More importantly to her and her family, she founded a church. She preaches at her church to this day. Angela is one of the kindest, most caring people I know. I talk to her now and again. Even though we ultimately lost the case, my life was so enriched by representing a brave soul such as Angela. I am thankful for the experience. I hope that Angela was positively impacted by having the courage and fortitude to go forward and fight the good fight, regardless of the result.

Monday, September 28, 2009

Shirlena's Story

Shirlena, (not her real name), was one of the most courageous whistle-blowers I have represented. I have written about Marley (not her real name). However, Marley might not have come forward against the not-for-profit company the two worked for had it not been for the Shirlena's singular act of courage. Shirlena worked for this company for 26 years, and with the Executive Director for that whole time.
This company was founded to assist a group of professionals and was similar to a local bar association, but for a different profession. The company had an Executive Director, an Assistant Director (Shirlena), the Executive Director's administrative assistant (Marley), another secretary and the bookkeeper. The professionals had a full board of directors with an executive board including a president, vice-president, secretary and treasurer. In addition to the secretary, there was a finance committee.
One of the functions of the not-for-profit was to organize to get public knowledge out so that the Legislature would pass tort reform, since these professionals believed they were getting sued too much. They were largely successful in their endeavor. The board members focused on tort reform, but many seemed to have little concern about the day-to-day operation of the business.
Shirlena was one of the most hard-working, diligent and intelligent employees a business could have. She was discrete, honest and caring. One day, she decided to look into one of the business' expenditures, a television/recorder set that was supposed to be given as a raffle prize as a convention the business had sponsored. Shirlena asked the Executive Director (we'll call him Ed for short) which professional had won the prize. Ed hemmed and hawwed and named someone in Arkansas. Shirlena checked it out and it was untrue. The following day, Shirlena found a check on her desk in the amount of the television/recorder combo with an apology from Ed. Shirlena decided to search farther to see if there were other irregularities. She found many other things, small in nature, but stealing nonetheless. In Ed's employment contract, the company was obligated to purchase life insurance for Ed, upon which Ed had taken personal loans. Ed had taken other items from the not-for-profit company, trips, televisions, a video recorder, even petty cash money. Ed regularly charged the company for personal items and ordered extra food for events so that he could take the food home to his family. He took cases of soda pop home.
Shirlena decided to tell the former treasurer, a professional whom she had trusted. This fellow told Shirlena that he would relay Shirlena's concerns to the Board and that Ed would probably be suspended while an investigation was conducted. The Board did meet, and decided to appoint one of their members, an ambitious fellow who not only practiced in the field but also held an M.B.A. and whose purpose was to make his honored profession into big business. He wanted a foot into this not-for-profit's door and he got it. This fellow told the Board he would conduct an investigation, but did nothing. He told Ed about Shirlena's complaints and the two of them conspired in ways to get Shirlena to quit.
The company had a valuable retirement program and knew Shirlena was dependent upon it since she intended to retire within 10 years. Ed and the board member decided to slice Shirlena's anticipated compensation. Shirlena was upset, but she did not quit. So Ed and the other decided to tell Shirlena they were taking her duties away and that she could either quit or be paid a fraction of her salary as a bookkeeper. Some of the Board members gave lip service to being upset, the former President resigned, but no one raised one finger to help Shirlena.
Shirlena is a very religious person and she was shocked that after 26 years, after giving her blood, sweat and tears to this company that they, of all people, would treat her this way. Her confidence was shaken and it was just the beginning.
Shirlena came to me. It was after Shirlena was forced out that Marley came forward. I hope you have already read of her situation, which I related below. We took deposition after deposition. Ed admitted to stealing in his deposition. The television was a Christmas gift to his son. In addition, Ed purchased, with company money, gift certificates to the Plaza shopping district and gave them to his daughter and daughter-in-law as Christmas presents. Ed was still employed, Shirlena was not.
In the meantime, Rafe Foreman and I tried Marley's case and the jury awarded a total of $551,500. Shirlena's case was set for trial, but this time there was no dispute that the company had a valid insurance policy in effect that would cover this case. Shirlena was quieter and quieter as time progressed. Ed had stolen her self-confidence, but she was determined to get it back.
When I began voir dire, I knew that Ed was nowhere to be found because we could not subpoena him to testify. He was hiding. I asked the panel if it would make a difference if he did not show. The consensus was a resounding ,"Hell, yes, it would make a difference." The jurors insisted that if Ed did not show, that would say volumes.
Before trial, Shirlena had decided that she would agree to settle her case if the defendant offered $450,000.00. We had been through a mediation some months before trial, where the defendant offered $50,000 and the mediator said she would never recommend that they pay over $100,000.00. Rafe had Ed on the stand when we took a break. The defense attorney offered the $450,000. Shirlena, to my amazement said no. She wanted a sign from God and if God wanted her to settle, then she would know if by the defendant offering $500,000. We went back into trial. As Rafe cross-examined Ed, I saw the defense counsel take his cell phone and leave the courtroom. A few moments later, he returned, went to Rafe and said loudly so the jury could hear, "They will pay the $500,000." I guess he didn't want to risk Shirlena balking, but she didn't.
I believe I witnessed an already strong woman grow stronger that day. Shirlena, as is true of most of us, was afraid of testifying in front of strangers. She was afraid of not being taken seriously again, after the Board had betrayed her. She never had to testify.
Shirlena quit the job she had taken as a legal assistant and set up her own accounting firm. Her honesty, courage, and fortitude paid off. I am a better person for having represented her.

Husband and Wife Courage

I just wrote about Tandra Chaudhuri, who valiantly fought sexual harassment and breast cancer to look for a cure to breast cancer. Now I want to talk about her brave husband Kurt.

Kurt was a red-headed, freckled Caucasian originally trained as a veterinarian. From what I recall he came from a long line of Missouri veterinarians. Kurt didn't stop his education there, though. He, too, became a biologist, perhaps a biochemist. I don't really remember. I don't remember how he and Tandra met, but I do remember how devoted the two were to each other.

Kurt was called a "whistle-blower" because he worked at the research reactor and had a healthy respect for nuclear energy. Kurt and Tandra took me to the reactor and showed me its core, which was quite impressive. Among the services provided at the reactor were things such as irradiate healing materials for cancer hospitals. They even irradiated clear topaz to turn it blue. When you went into the building, a visitor had to don certain items and walk repeatedly through geiger detectors. Nuclear radiation is a pretty powerful energy source, and, when something is messed up, there can be dire consequences.

Kurt was a scientist, and he monitored the administrative things happening at the reactor. Soon he noticed there were lax controls and shipping quantities of radioactive isotopes were sometimes mis-marked. This could be very dangerous. Kurt complained loudly, and was viewed a nothing more than a trouble maker. Kurt never backed down, no matter what the personal consequences. He was due for a promotion, but it was denied. He was ridiculed and treated with disrespect. In the meantime, Kurt's wife was being hit on by the director.

Another less committed scientist might let the shipping errors slide, but not Kurt. Before obtaining a lawyer, he researched the Energy Reorganization Act, and he learned that he had a short period of time to complain to the Department of Labor. He did and then they contacted me.

It is my understanding that most investigations end in a decision that a violation did not occur or that it was inconclusive. We did not have the option of a jury trial, but had to try the case to am adminstrative law judge from D.C. who held Court in the Boone County Courthouse. We had little time to conduct discovery. In one deposition, Kurt wrote out a question for me to ask about radioactive isotopes. I dutifully, yet ignorantly, read the question. I was surprised when the response was, "Could you explain that question." Of course, I couldn't and we laughed and laughed.

We conducted that hearing for a solid week, with few breaks. One of the hard parts of this hearing was waiting for the decision. Tandra and Kurt continued worked with many people who wished them at least to be gone and at most something far worse. After a few months, we received a lengthy judgment, ALL IN KURT'S FAVOR!! There were shipping violations that must be corrected and Kurt was entitled to his promotion.

Kurt was elated. He is such a kind, diligent man. He had done what he needed to do to make that place safer and he wanted to continue his research with his wife. By nature, I am sure that many describe Kurt as a very serious young man, with little sense of humor. I don't think that is accurate. Kurt loved to laugh, but he was passionate about both his work and his wife and took a no-nonsense approach to both of his loves. He was relieved to move to another university where he and Tandra could research in peace. I also spoke with Kurt every couple of years and he kept me up to date with their lives and always asked about my family, and especially about my daughter Lisa. I thought of them as friends and was devastated when Kurt called to say Tandra had passed on. I hope Kurt reads this and that he is doing well and still making our lives safer through his research. I hope he has found happiness. I miss Kurt and Tandra a lot.

Saturday, September 26, 2009

Bittersweet Courage

I represented Tandra Chaudhuri, a brave woman from India, who was sexually harassed by her supervisor. Tandra was married to Kurt and they both worked as scientists at a research reactor. I can tell you that in my years as a lawyer, and as an adult, I don't think I have seen two people more in love than the two of them. They were both scientists and had voraciously pursued research, the kind of biological research geared to help the human condition. Their energy was boundless. Kurt had his own issues with his employer, but I am concentrating on Tandra here.

Tandra was a beautiful dark-haired, soft-spoken scientist who was taken with my daughter Lisa. Tandra was sexually harassed by her boss, which made it difficult for her to conduct her research. Tandra was devoted to science, devoted to Kurt and devoted to justice. While I represented her, she invited me and my daughter, Lisa who was around 9 years old, to their house. She was a gracious host. She had beautiful red flowers all over her deck and really cared about Lisa. Tandra and Kurt had not children of their own.

We took deposition after deposition of scientist, some in the pocket of management, and others in favor of allowing Tandra, hoping this brilliant and creative woman could do her research free of discrimination and harassment. It was important to Tandra and her husband that they work at the same facility. They were collaborators, and more importantly, they were in love. The defense sent Tandra to a St. Louis psychologist to say that Tandra was lying. In fact this psychologist was shut down in another case trying to testify to this inadmissible fabrication that the Plaintiff lied. Tandra was tough, though, taping the session she had with this paid expert.

Tandra, with her Ph.D. in biology decided to work on a cure for breast cancer. She just wanted to do her research, and she was brilliant at it. During the pendency of the lawsuit, she and Kurt were offered a job at an out of state university and they scooped it up. They finally had the freedom they needed to do good work and help society. We settled Tandra's case. Kurt had a different case that I will write about later.

This was one of my first cases around the time we started my current firm in 1995. Tandra and Kurt seemed blessed. Every few years, I would hear from them and their research. A few years ago, Tandra shared with me that, ironically, she has contracted breast cancer, the very disease she was attempting to eradicate. She sounded hopeful and I naively thought all was under control.

In 2006, I received a sad call from Kurt. Tandra was no longer with us. She succumbed to the very disease she sought to eradicate. Kurt was alone in his research, alone in his life, and seemed to be alone in his sorrow. He sounded lost and despondent. What do you say? I don't know. The loss of Tandra, one of my first sexual harassment clients and my friend haunts me to this day. There are few people like Tandra Chaudhuri and I miss her.

Friday, September 25, 2009

Courageous Whistleblower

In looking back on my clients, I realize how amazing they are. There are so many tales of courage and fortitude. I am sure many of these brave souls did not realize what lie ahead and how they would be tested. I want to talk about one remarkable woman, whom I will call Marley, not her real name. Marley worked at a not-for-profit organization that was a member organization for a group of professionals. The organization's board was comprised only of these "busy" professionals. In retrospect, I suspect these people liked having the prestige of being an officer of a board, but didn't really want to take the time to run the board.

This organization had an Executive Director who had been at the helm for many years. Marley was his assistant. She worked with another brave whistleblower, whom I will call Shirlena (not her real name), who acted as the assistant director, whose tale I will tell soon. But this story is Marley's.

Shirlena had shared with Marley that the Executive Director (ED, whom I will call Ed) was taking things from the organization. For instance, Ed had purchased a television/recorder for his son for a Christmas present and charged the organization for it, claiming the item had been given to the membership as a raffle prize at a conference. Shirlena confronted Ed, which was difficult. Shirlena had complained to the board. Eventually, Shirlena was forced out. As I said, I will focus on Shirlena's story later.

Marley was shocked and dismayed at Shirlena's fate. A normal, less brave soul might walk away after witnessing the retaliation against Shirlena. Not only did she contact many members of the board of directors about this example of stealing and several others. She also reported to these directors that she had found pornography on the office computers. She later discovered, through the litigation process, that some of the pornography came from at least one of these very same directors. Marley called director after director, until she was blue in the face, but they did not listen. One, a women, thought she was hyper-sensitive. They all acted as if she were a whiner and complainer. The treasurer whose task it was to conduct an investigation into the allegations of stealing did nothing. He seemed more interested in weaving his own businesses into the fabric of the organization. Ed systematically made Marley's life hell. She was barred from the premises when she reported the pornography while the finance director and Ed brought in new computers and implied that Marley was crazy to complain. Marley was a wreck. She found another job making more money and left the job that she had held and loved for eighteen years.

I tried this case with my friend from the Trial Lawyers College Rafe and also with the assistance of my law partners Marie and Kristi. During the discovery phase of the case, Marley was still distraught. She lost sleep, self-esteem, and at times it seemed to her she was losing her sanity. She became obsessed with the case and was so distraught. When Rafe and I were at her house, she was so frightened that at times she had to run from the room crying. Since the defendant's insurance company claimed they had no coverage, we had no offers and had to go to trial.

The trial came. Marley sat silently at the counsel table holding in her emotion. At the end of each day, she felt like she would explode, as the members of the board directors disavowed knowledge. These people were highly respected professionals, and they didn't give Marley the time of day, while she worked there, and most of them still didn't after she'd left. These were people whom Marley had trusted. For crying out loud, these were trusted professionals who we all expect more from. Ed fessed up to stealing. He still had his job. He fessed up to the pornography because we had the photos. He claimed Marley left on her own.

Marley was wonderful on the stand. She had been so distraught beforehand, but with grit and courage pulled herself together and told her story. They jury heard her. They gave her a verdict of a total of $551,500, even though she had not lost one penny of income. The jurors talked to Marley for two hours. Marley felt good.

But it was not over yet. The employer claimed they were going to file for bankruptcy if we tried to collect the judgment, so we sued the insurance company that had denied coverage. Marley thought her battle had been won, but to her it felt as if we were starting from scratch. We ended up trying the case regarding insurance coverage to a judge. Marley wondered if the whole ordeal had been worth it. She still had nightmares, she still was distraught. Marley called me time and again wondering if telling the truth and stepping forward had been worth it. Ed was still ED at the organization. After a few months, we got the word, there WAS COVERAGE!!!

Finally, years after the verdict, Ed was fired (after Shirlena's trial - more on that later.) Marley collected every penny due her. She and her husband took me out to dinner and we celebrated.

I live in the same community as Marley and we shop at the same grocery store. When I see her she is different. My mother and I ran into Marley and her husband at an Il Divo concert and I ran into her and her husband with my husband at the hospital. They took me to dinner again. It is some two years since Marley's judgment is paid. Marley is a happy person, not the stressed, distraught woman I met. She smiles freely and makes jokes. She and her husband, who recently retired, enjoy life. Marley radiates. She shines. I hadn't seen this Marley before the trial. It is so gratifying to see her now. I hope she is as proud of herself as I am of her.

It is really hard to be a whistleblower when you are at a job you love. How people react to whistleblowers says a lot about them. An individual with the courage to tell the truth, even if it is not in his or her best interest is a remarkable person. Marley is now a grandmother. What a fine example she is for both her daughter and her little granddaughter. I am honored that she allowed me to represent her. What an honor.

Thursday, September 24, 2009

Age Discrimination

I have been delaying posting on the blog because I wanted to post the cases in chronological order and I was having problems recalling details with cases that have been over for some years. So, I decided to go in reverse chronological order with the most recent first.

I was recently lucky enough to assist my partner Kristi in trying an age discrimination case to a jury. Kristi and my client is Sue, a 63 year old woman who had worked at the same hotel as a supervisor of housekeepers for 23 years before she was fired. Sue loved her job. It meant the world to her and she was good at it. She knew how to talk to the housekeepers and motivate them. Although many of her employees spoke Spanish and she did not, she had no trouble in communicating with them. Some of the housekeepers told Sue, in Spanish, that they considered Sue to be her grandmother. Sue loved that job and working extra hours was not a chore, but welcomed by her.

Sue was a homemaker once she got married. She never finished high school. Once she decided to go to work, when her children were older and she was divorced, she worked hard. Sue took pride in her job and was a joy at work.

When the hotel was sold, after awhile the new management used "code words" for age discrimination, Sue was "resistant to change," they asked "when was she going to retire," they said "Sue was set in her ways." The new head of housekeeping claimed Sue was "insubordinate" and refused to make beds, although she had been making beds all along. One day Sue came in and the head of housekeeping informed Sue that the hotel was going "a different direction" and Sue "no longer fit in." They fired her then and there.

Sue was devastated. She testified that she felt her world had come to an end. This housekeeping job was not merely a job for Sue, but Sue's purpose for living. Sue quit taking care of herself, her boyfriend and her granddaughter. She wouldn't get out of bed or bathe. She cried a lot. Sue was still like this when she came to see Kristi.

I helped with the trial. I picked the jury, took a couple of witnesses, and did some of the closing arguments. Kristi was responsible for the bulk of the trial. She gave opening statements and did most of the direct examination, some cross, and the opening part of the the first closing argument.

Sue was, by nature, a very sweet woman who had spent her life taking orders and not rocking the boat. At age 63, she didn't know what to do. After her firing she was depressed up until the time of the trial. She couldn't even look for another job because she lacked self-confidence.

What I admire about many of our clients is their fortitude and courage when put to the test. Sue never thought she had what it took to fight her employer, but her courage was actually seemingly endless. Once she started the case, she wouldn't stop. She received only one offer to settle, which was $3500 paid out over 7 months, along with her $26,000 per year job (after 23 years of service) back. Sue said no. We went to trial.

I am not going to relay what went on at trial, even though that is the fun part for trial lawyers to recite and regale. However, the purpose of this blog is to spotlight and honor those courageous clients who help to change things. The trial was hard on Sue. She had wanted to settle out of court, but the offer was an insult. Sue testified and had to defend herself and her performance. She had suffered a stroke a few months before, and she had to overcome the residual effects, such as some confusion, while on the stand. Even more difficult, she had to listen to employees lie about her performance, claiming that she had bad performance yet the employees conveniently failed to document any of these alleged shortcomings. This tore Sue up. It is hard to sit powerlessly while witnesses impugn your character and your work ethic. She sat quietly and listened and withdrew.

Sue had very little in lost wages, since she had suffered a stroke and her wages were small. She did not seek treatment for her depression because she could not afford to do so and people like Sue don't waste there time on luxuries such as counselling. Sue was determined to see the case through, but it was obvious how difficult the trial was on her. At times during the day, she was so withdrawn and quiet that I worried about her.

The jury suffered from some confusion. First, they said they were hung. The judge asked them to continue deliberating. They came back with a verdict, but misunderstood that the case was bifurcated and there would be a second portion for punitive damages. The jury awarded a gross amount, without attorneys fees of $130,000. When the jurors realized it was premature to assess punitive damages, they reduced the award to $50,000 and came back the next day to deliberate over punitives. We fully expected an award of $80,000, based on what had happened. After another closing argument, the jury deliberated, with two jurors who had not agreed with the liability portion of the verdict signing the punitive damage portion of the verdict and the jury awarded $150,000 in punitive damages, almost twice what they had indicated the day before. We are also entitled to attorneys fees to be determined.

The difference in Sue was immediate, and had little to do with the amount of money. Sue was so gratified and felt validated by the juror's belief in her. Her first reaction was to have a good cry, she had bottled her emotions for so long and her self-esteem had suffered so from the firing. Within hours, I could see glimpses of the real Sue, the Sue I imagined existed before the firing. She was smiling and joking. We went out to lunch, the four of us, Sue, Butch (her boyfriend), Kristi and me and had fun. Sue was relaxed. She began to talk of the future. Sure, some was the relief of the trial actually being over, but more was from her realization that not only did she have the strength to fight back, but also to win. The greatest change was in her self-confidence. When Sue was fired, after working for one place for 23 years, and fired at age 63, she was terrified of being rejected again and felt guilty because she could not force herself to look for work and expose herself to further rejection. Now Sue had her old confidence back and was going to look at work. I don't think I had ever seen Sue smile so much. It was a wonderful lunch, not because of the food but because of the wonderful company. I can't wait to see Sue in a few months, after everything sinks in. Our courageous clients who go through this process seem like new people after a few months, their faith in justice restored.

It is wonderful to help our brave clients restore their sense of self. This is my greatest satisfaction in this work. Sue is one of the kindest, sweetest clients we've had. It is gratifying to see her happy again. I can't describe my joy and satisfaction upon witnessing the changes in a client who musters the courage to fight especially when she wins. What a great job I have.

Thursday, September 17, 2009


Whistleblowers are an interesting breed. True whistleblowers are courageous, they speak the truth even though it is not in their self-interest to do so. Whistleblowers are not followers, they buck the system. Whistleblowers are not merely satisfied with the status quo, to just get by. True whistleblowers are hard to come by.

We are social animals by nature. We want to get along, be liked, not rock the boat. Whistleblowers act in ways that are unnatural, they take risks and know that they will not just be going with the crowd. It takes a lot of courage to be a true whistleblower.

Whistleblowers are not "snitches." "Snitches" have ulterior motives such as lower jail terms, monetary gain, etc. to accuse another of something he or she may or may not have done. "Snitches" are not altruists, they are in it for themselves. I represent whistleblowers, not snitches.

I am going to tell the stories of some brave whistleblowers whom I have represented. I am changing their names and also those of the employers, but their stories are true. The courageous whistleblowers whom I have represented are:

1. Kurtis* the scientist, who reported shipping irregularities of radioactive materials at the research reactor (yes, that is a nuclear reactor) at which he worked. Incorrect and erroneous shipping and labeling of radioactive materials can have obvious serious consequences, including illness and death. Kurtis should have been hailed as a hero, but instead he was labeled a troublemaker and demoted in his job. Kurtis' whistleblower case was tried before the Department of Labor under the Energy Reorganization Act. I will tell Kurtis' story.

2. Shirlena* and Marley*, were two office workers in a not for profit company. The purpose of the company was to serve physicians in such endeavors such as lobbying for tort reform, promoting continuing education, etc. Both employees discovered the long-term executive director engaged in financial irregularities. Both Shirlena and Marley reported these irregularities to the physician board members. Shirlena was fired. After Shirlena left, Marley discovered pornography on the executive director's computer and reported it to the physician board members. She was forced out of her position. A colleague from the Trial Lawyers College, Rafe Foreman, and I, tried Marley's case to a jury verdict. We began trial in Shirlena's case, but the case was settled in the middle of trial. I will tell Shirlena and Marley's stories.

3. Mary* was happy to get a job with a major pharmaceutical company as a salesperson for a new drug that was in the process of approval by the FDA. Until the drug was approved, she was ostensibly told to sell another drug. However, her boss told Mary and her co-workers to go ahead and start marketing the un-approved drug, which was anticipated to be very costly and was projected to help increase revenue since a major drug had just gone generic. Unfortunately, it is unlawful to market an unapproved drug for reasons that were shown in this case. The drug here was found to potentially be dangerous and got a "black box" warning. Throughout the time Mary's boss told her to market the drug, Mary complained. Mary was ultimately fired. I will share Mary's story.

4. A group of ten nurses and other health care providers were employed in a local hospital in the emergency department. There were serious problems in the emergency department with understaffing and insufficient and outdated equipment. Patients suffered and the health care workers complained. Most were fired, a few were forced to quit, and one was transferred. I will share the story of these courageous workers.

*Denotes not their real names.