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.