Sunday, April 29, 2012

Life is Uncomfortable

Getting out of one's comfort zone sucks. I realize most of my existence is beyond the bounds of my comfort zone.  I have an overwhelming desire to reside within my comfort zone, but then I get bored.  Such is life.  

Tuesday, April 24, 2012

Of Mentors, Mavens and Memories

 I am very lucky because I have had great fortune to be trained by the side of excellent mentors.  When I got out of law school in 1983, there were few women trying civil cases, and only a few more in the criminal arena.  Yet, in my very first jury trial I was mentored by a brilliant, competent female attorney with many years of practice.

Here is how I fell into this good fortune.  In law school at the University of Missouri-Kansas City, I took a class entitled Trial Practice.   Trial Practice was taught by the former law school dean, Pat Kelly.  My trial partner in 1983, Marie Gockel, worked for Professor Kelly.  Little did I know back in 1983 that Marie and I would partner up again in 1995 to start our law firm, Bratcher Gockel & Kingston, another fortuitous event, but, I digress. In Trial Practice, we tried an actual insurance subrogation case to a jury of people the professor rounded up.  The distinction of this class was that the real parties agreed that the verdict was binding and the trial was overseen by an actual circuit court judge.

Marie and I were very serious about our case and our client.  Marie hired a photographer who essentially risked life and limb and trespassed on property to take the photographs we needed to win our case for the defense.  Our real client was someone who knew local attorney M. Sperry Hickman, or Martha to those who know her.  Martha came and watched the trial.  Little did I know what impact that class would have on my future life as a trial lawyer.  We won the trial!  Hurrah!  Our first trial victory.

Martha Sperry Hickman hailed from Clinton, MO, where she was the daughter of the Henry County Judge.  Martha was a smart girl and graduated at the top of her class and went on to college.  She wanted to be a lawyer like her dad, which was unheard of at the time.  Judge Sperry tried to dissuade his daughter of this lofty goal, to no avail.  Martha went on to law school and graduated at the top of her class, only to find out that there were certain bar associations of which she could not be a member because she was the wrong gender.  She persisted.  By the time I met Martha, she had been in practice around 30 years.  She is smart, tough and thorough.  All of the judges knew her and she knew and knows what she is doing.

The next year, 1984, saw me in my bedroom office of an old house converted to law office, with my own little shingle on the door.  One day, I received a call from Martha.  She had a slip and fall case that was not going to settle, Martha’s client wanted $15,000 and the defendant would only offer $12,000 for a comminuted fracture with an open reduction of her ankle (I can’t remember my kids’ names half the time but I can remember this).  Martha asked me if I was interested in trying the case with Martha’s assistance.  Martha knew my dream was to be a real trial lawyer.  And I hope she was handing me a golden opportunity on a silver platter, or is that a silver opportunity on a golden platter.

Anyway, Martha is a consummate lawyer, a lawyer’s lawyer if you will.  She loved to sit around and discuss legal strategies.  Her legal research was impeccable.  She had taken all of the depositions in the case, and, of course, she had done a superb job.   Back then, I probably did not even realize how fortunate I was.  Martha, well-known to the judges, with the legal acumen, skill and tenacity, offering me my first chance before a real, live jury.

While we prepared for trial in Martha’s conference room, I remember asking her the question that was really troubling me back in 1984, will it hurt the case that two women were representing the plaintiff in court.  I will never forget Martha’s response.  She looked me in the eyes and said in her plain-spoken way, “What are we going to do about it?  We are two women.”  Yup, we are.

Throughout the trial, Martha suggested strategies to me, commented on what had happened and was my rock.  She prepared the jury instructions, since I doubt I knew what they even were at the time.  Back in chambers, she joked with the judge, while my knees involuntarily shook.

I had no idea how the trial was going.  Back in 1984, comparative fault was brand new and no one knew how to deal with it.  Also, in 1984, in the petition, a prayer for an actual amount was required.  Martha had asked for $85,000 in the prayer.  We got to closing argument and I asked Martha what I should suggest the jury award.  She said, “What the heck, ask for the whole $85,000.”  So I did.

After a couple of hours, the jury came back.  I remember that my stomach was in my throat (I don’t know if I actually remember it that time, but every time a jury comes back, my stomach is in my throat.)  The foreman handed the verdict form to the judge who read, “One the claim of plaintiff against defendant for personal injuries, we the jury find in favor of plaintiff.  We find the amount of plaintiff’s damages to be $85,000.”  Martha said, and I remember it to this day, “Jesus!!”   The client, Martha and I were ecstatic.  This isn’t so hard, I thought. (Of course, my views of how easy trials are changed after trial number 2, not such a favorable verdict).

Through the years, Martha has been very good to me.  She and I tried several cases to juries all over the state.  I remember one case, in a small town in Missouri.  A woman came out of the chambers and put a number of files on the bench.  I turned to Martha and said, “When is the judge coming out?”  Martha looked at me wryly and laughed, “I can’t believe you said that.  She is the judge.”  And Martha chuckled about my misstatement for several years to come.

I am so fortunate to have had such wonderful mentors in my career.  But, I count myself blessed to have had Martha Sperry Hickman stumble upon me and bestow me with her wisdom and guidance.  I hope I have, in some small way, paid it forward.

Sunday, April 15, 2012

Missouri Whistleblowing - Is Eight Trials in Eight Years Really a Flood of Litigation?

Whistleblowers are good for business, although many businesses do not seem to recognize this fact.  Whistleblowing is good not only for public safety, but also for businesses.  If there had been someone to blow the whistle on Bernie Madoff, think of the people and businesses that would be solvent, with their savings intact.  But, whistleblowing is hard and takes a lot of courage.  It takes a great deal of fortitude to report management wrongdoing for the betterment of society. People generally depend on their pay for food and shelter, and few people are willing to jeopardize their survival for the good of others.  

In fact, the Missouri Legislature, at he behest of the Chamber of Commerce and some individual businesses (primary among them is Enterprise Leasing Co. headquartered in St. Louis) are attempting to prevent courageous citizens from coming forward to report wrongdoing at the peril of society and businesses.  You see, some eight years ago, a man sued Enterprise because he had whistleblown about corporate business keeping and he was terminated from his employment. He sued and the jury gave the man a substantial verdict, which was upheld by the Court of Appeals. Ever since that verdict, Missouri businesses have lobbied the legislature to prevent people from whistleblowing.  The new bill makes it harder for concerned employees to come forward, it restricts to whom they should report illegal or suspected illegal activity, it prohibits lawsuits against government and employers operating with fewer employees.  The bill heavily restricts the award of punitive damages, although several years ago the Legislature passed laws require 1/2 of punitive damage awards to go to the State.  This law is purportedly to stem the tidal wave of whistleblower cases brought throughout this great state. 

The National Employers Lawyers in Missouri decided to look into this alleged wave of whistleblower litigation to see how many whistleblower cases have been tried in Missouri since the Enterprise case eight years ago.  And  in those eight years, across the entire great state of Missouri with millions of workers, there have been a total of eight trials with verdicts where a former employer claims he or she was fired for whistleblowing. Eight cases.  Two of the eight juries returned verdicts for the employer and the plaintiff got nothing. 

In at least one of the cases, one that I tried, the case involved an executive director of a professional organization who stole from the company and brought in pornography.  Under the proposed bill, that case could not have been brought because even though the employer was a professional association for physicians with insurance coverage, the company did not have enough employees under the proposed legislation.

Whistleblowers are rare because most people do not have the courage to criticize their bosses, no matter how much damage is done to the business or to the public. I read recently that Enterprise rental cars had been renting out cars subject to recalls.  Because of that, two women who rented a car from Enterprise were killed by the defect for which the cars had been recalled.  I suppose the families of those women are probably making wrongful death claims against Enterprise.  Wouldn't society and Enterprise have been better served if an employee had the courage to speak up and complain against this policy?  Two women would be alive, Enterprise would be free of the claims and bad publicity,and the world would have been better served.

We have so few employees willing to come forward and help the businesses they work for by pointing out bad conduct.  Do we really want it to be harder?  Shouldn't we promote whistleblowing?  Isn't that just the right thing to do?