Sunday, July 31, 2011

Shark Week and the Tea Party

I, along, with millions of Americans, love shark week. The television screen fills with calming deep azure water, only to be shattered by the explosive violence of these terrific creatures. Those sleek, impervious monstrous devils fascinate me. The sharks, in their deep blue environs never stop, random victims in their path. Some fish and other aquatic creatures the sharks devour whole, while other victims can be dismembered. Teenage surfers are the humans who seem to fall victim to shark evisceration more than older less bold land mammals. I know people oftentimes call lawyers "sharks." Is that a badge of honor because we are fierce? Probably not, but sometimes I pretend that's what others mean when they can trial lawyers sharks. It's harder to rationalize the term "ambulance chaser," except, for me, my clients rarely have been in ambulances.

But this weekend Shark Week has a different meaning. My family has been glued to the television about the appalling debt ceiling "crisis" and the hostage taking of America. I don't even know the program I was watching, but the self-important, self-declared leader of the Tea Party in Tennesee was speaking. I immediately noticed how the guy looked like an Elvis impersonator, but obviously not during the years when Elvis looked like a non-drugged out bloated shadow of his former self. And he was the self-appointed guru or our economic policy. During his diatribe, what caught my ear was his disparaging of the alleged causes of our economic malaise. Was it entering two or three wars while lowering taxes? Was it the deregulation of the banking industry? No. Was it the greed of Big Oil? Of course not! It was that damned federal agency OSHA, attempting to insure that our workplaces were safe, or the disabled Americans who get protection under the Americans With Disabilities Act, or those lazy Americans who are out of work and have to subsist on unemployment. REALLY.

And they call lawyers sharks.

Sunday, July 24, 2011

Don't Nazis Scare You?

Don't Nazis scare you? Shoot, they scare the bejesus out of me. Sure they scare me because the old German Nazisvscare me because ey killed my ancestors, not much before I was born. But the real reason Nazis scare me is because, if the situation was right, with the right scapegoat and the right leader to exploit the scapegoat, we could be the Nazis. Groups can become scary. I remember a comic strip, Pogo?, which declared "We hav found the enemy ad the enemy is us."

Remember the bullies in schoolv. If their target was not us, how many of us stood up against the bullies. I am sur some of you were bully-fighters, but most of us just wanted to stay under the radar and fit in. At least that's how it was for me. My Hebrew name was Bela and in Hebrew School some of th boys would call me "belly" because I was chubby. Who stood up for me? No one. Not even me. we all just wanted to fit in.

In the 1960s and 1970s we wanted to protest the war. Protest was in. In my circles, especially after the Nazis, civil rights was in. I am glad it was. But what if we lived in Nazi Germany, coming out of oppressive inflation and World War I humiliation, wouldn't we want to listen to someone awhi told us we were special? And if we were special, buy the country was screwed up, wouldn't it be nice to have a scapegoat, someone to blame and to hate? Like those money-lending Jews who kidnapped Gentile boys to get their blood to make matzos. Problems solved. Most Germans were part of the master race and th once who weren't caused all the problems and needed to be exterminated. This group mentality was fundamentally flawed and many died in the process, but this is an example of group dynamics at it's worst.

You may say, "Oh, that could never happen here in the good old U S of A.". But could it? I think it could and we need to be forever vigilant so that forces looking for scapegoats cannot spread hate. I believe, under the right circumstances anyone, including me, could have been a Nazi. Look how we talk about illegal immigrants in this country, or Muslims, or people who hav had abortions. Some of us get all self-righteous and say they don't deserve what we have. They are different. Amercians who have been here awhile (as little as one or two generations) are different, they are special. 24 hour news station preach hatred when there are slow news days. we are not special. we have responsibility to prevent the vilification of others.

WE NEED TO BE VIGILANT. GROUPS CONDUCT CAN BE DANGEROUS, JUST LOOK AT RWANDA. One group is not morally or religiously superior to another. We are all humans on this planet, all part of the grander universe. Stop this narcissistic bullshit. I don't want to have to find out if I will stand up to the bullies. I want everyone to put the bullies in their place. We are better than that. I hope.

Tuesday, July 12, 2011

Intuition - The Art of Letting Go

Intuition has got a bad name in our society. Intuition is thought to be a gut feeling some lucky people have. Intuition is a "6th sense," a gut feeling, some kind of supernatural sense. I don't think that is what intuition is about at all. We all have the ability to be intuitive, to make the right decision in a split-second. How many times have people instructed us on standardized multiple choice tests, to go with your first answer, trust your gut.

Intuition is logic which seemingly spontaneously enters your mind before you can analyze the situation. Intuition is pre-verbal, pre-cognitive logic. The brain is analyzing the facts, along with using your empathetic abilities and understanding non-verbal clues before you can clumsily attempt to dissect the situation verbally.

Look back at any of your knee jerk reactions, your three year old child has that look on his face like he wants to step off the curb, you grab him. You don't wait until he moves toward the street. You don't go through mental gyrations and evaluate the situation, first noticing
a movement of the child's leg, then notice the direction of his gaze, then say,"what are you thinking of doing, little Spike," before you decide to grab your child. You don't have time.
You had all the observations, but made your decision before actually mentally verbalizing the

If you had been distracted by a friend, or on the phone, you may have missed the clues to
prevent your child from stepping into oncoming traffic. Intuition requires complete
attention. If you are thinking, "I wonder if this outfit makes me look fat, oh, where should
we go for lunch, I am so mad at my husband because he left that mess," you may have missed the important clues. Mothers pay close attention to their children and pick up all of the signals. That's what "women's intuition is all about."

Any lawyers can use his or her intuition. But, to have intuition you must forgo other thought or emotions. You must be "in the moment" completely concentrating on what you are doing. If you are cross-examining someone with a checklist, reading your checklist and not listening to
the answers, your intuition will not emerge. If you ar more focused on sounding articulate and
lawyer-like, trying to impress the jurors, the judge and the girlfriend in the back of the
courtroom with your finesse and command of the English language, your ability to be intuitive
is annihilated.

To be intuitive, in life as in law, you must be in the moment. What does that mean? You must listen more than talk. You must understand the meaning of what you hear from the speakers
point of view. Your mind and gut must be free of barriers to react. You must pay complete
attention to what is going on and none to yourself or how you look or to what you are going to
say next. Intuitive requires letting yourself go.

While I certainly do not profess to be the be all and end all of intuitive lawyers, I want to give an example from one of my trials. I was cross-exmining the human resource executive about the way she conducted an investigation. She was defensive and obstinate in insisting her investigation was complete. Then, all of the sudden, she fought back tears. I was listening and watching. My next question was,"Would you have liked more help with human resources?". "Yes," she sighed. I asked how many people she had to help her and she replied three people
in human resources for 29 offices in 9 states. She looked relieved that I understood her
dilemma. She wasn't the bad guy, the company that really did not care as much about
preventing discrimination as it cared about profits was the bad guy.

In yoga, my yoga teacher says the hardest pose is the corpse pose, where your task is to let go, to meditate, to clear your mind. Cultivating your intuition is like savasana, you must
let go. It's hard for lawyers, and people, to let go and trust in what will happen. But, to
use your intuition, let go, you must.

Monday, July 11, 2011

What It Takes to Be a Plaintiff - Hot Coffee, Sluts, and Other Fallacies

Every time I pick a jury, I ask the same questions:

1. Are there two many lawsuits?
2. Are verdicts too high?
3. Do you believe that people should get money for emotional distress?
4. Do you believe juries should award punitive damages if warranted?

The insurance industry and corporate America has done an excellent job of disseminating the mistaken view that lazy, unethical people are running to the courts to cash in on big sums of money for very little effort. In almost every trial a person on the jury panel brings up the McDonald's coffee case as an example of juries gone wild. Te wildly help perception that America is filled with lawyers bringing frivolous cases is just plain false. I challenge everyone reading this blog to watch the HBO documentary movie, Hot Coffee, the Movie. I challenge those who thinks juries are running wild to do some research on what average verdicts are and what federal judges are doing to even moderate verdicts. Read about the people who go through years of ligitation, and even if they win, get nothing, because the company folds to avoid paying the judgement or declares bankruptcy even if it is solvent.

In cases I have handled, my clients have had to endure gross indignities merely to exercise their constitutional rights to redress and a jury trial. Here are some of the humiliating questions asked of my clients:

1. When did you first have sex?
2. Where did you first have sex?
3. Have you ever had sex in a movie theater?
4. Did you and your boyfriend who never worked for your employer videotape the two of you having sex? Is this that video?
5. Have you ever had sex with someone of the same gender? (That was in a car wreck case where a drunk driver hit my client and hurt his back.)
6. Were your children born out of wedlock?
7. Tell us about all of the times you have been married (in a slip and fall case with a broken ankle).
8. Wasn't the company just joking with you when the supervisor called you the "n" word?
9. Have you ever smoked marijuana (in a discrimination case).
10. You've had emotional problems before, haven't you, since your son has ADHD.
11. Have you ever had an extra-marital affair?
12. Wasn't it just a joke when nooses were hanged in the break room?

How many people have the drive and determination to go through the humiliation of ging forth with a lawsuit such as this? I represent those brave souls, but I doubt whether I have the courage to go through this degradation myself.

Most of my clients, when they come to see me, do not say , "How much money am I going to
get?". Most of my clients say,"I want to make sure this doesn't happen to someone else." I am proud to represent he pele I do. They are some of the real American heroes.

Monday, July 4, 2011

For the 4th, Celebrate the 7th (Amendment, that is)

I love the 4th of July. I love fireworks, summer and independence. Heck, I live in Independence. The only other worthy Missouri town, by name, is Liberty in Clay County. Of course, most people I know probably think I should be living in Cass County in the significantly named town of Peculiar.

But, I want to talk about what makes our country great, and to a great extent that is because of our Constitution. My family came here because of the first amendment, religious freedom, after being persecuted in Nazi Germany. We hear a lot about the first amendment, and of course, the second amendment makes a lot of news. Most of the Bill of Rights are extolled as virtuous Ten Commandments-like rules. But little attention is given to the seventh amendment.

The founding fathers stated the following in the Seventh Amendment: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. ”. That means, regular citizens are entitled to a jury or their peers in civil disputes. The purpose of the 7th was to make sure the government, namely the judges appointed by the sovereign, did not abuse it's power. The 7th is another check on the power of government, just as the three branches of government are.

Let's embrace the 7th for the 4th. Who knows how safe cars and prescription drugs would be without the 7th. Without the 7th, sexual harassment in the workplace might be commonplace, as it was in the 1960's, and we probably wouldn't have airbags in vehicles. We live in a time where the individual is important, almost as important in government as the almighty corporation. Maybe we are working towards a world where peoplevare afforded dignity, respect and safety. We wouldn't be here if large corporations had their way. Hurray for the Seventh Amendment, which allows us to even the playing field.