Forgiveness

A lawyer whom I met before killed himself last week. Apparently, according to the newspaper, a judge wanted him to come to court to explain about some settlement funds. When the police came to his house, he went upstairs and shot himself dead. He had been on a lot of lawyer committees, and by all accounts, was somewhat of an over-achiever. But, in the end, he left two boys and his wife to deal with his mistakes for the rest of their lives. I am profoundly saddened by what has happened to his family.

We have so little time on this planet that it seems useless to spend that time blaming others and living with rage.  Nelson Mandela said something to the effect that holding a grudge is like drinking poison and expecting the other person to die. We expect a lot out of others.  People are not perfect.  Many have their own demons, their own stories, about which we usually know nothing. People often suffer from addictions or emotional illnesses and feel they cannot confide in others. Unfortunately, these less than perfect people don't realize how flawed the rest of us are.

A really wise man, Don Clarkson, says, "If you can't talk about something, it's out of control."  That statement rings true to me. Our country is so he'll-bent on punishing others. Our prisons are overflowing.  Missouri has had an uptick in executions. I am saddened by how harsh we are on others, and on ourselves.

I am not a Christian, having been raised as a Jew. Yet, in this season of Christmas, it behooves us all to look to the teachings of Jesus. Jesus understood and preached the true meaning of forgiveness. I am so heartened by his words, "He who is without sin should cast the first stone"  and "Judge not lest you be judged." Jesus understood that we are all flawed.  We all have the potential to do good, to be redeemed, yet we all are imperfect.  In this holiday season, I cherish the belief that life is not black and white, but shades of gray.

Why Does Power Corrupt?

There is a well known adage, "Power corrupts and absolute power corrupts absolutely."  What does that mean?  To me it means that few people can keep following their moral compass if they achieve too much power.  And, money is power.   Nelson  Mandela was an exception to the rule. Mandela had the possibility of endless power in South Africa. He could have put the whites responsible for his imprisonment in jail, but he didn't.  He could have exacted revenge on the proponents of apartheid, but he didn't.  Mandela worked to forgive those who had wronged him and the other blacks and unify the country.  He only ran for election once, and then stepped down so that democracy could work.

Compare Mugabe in Zimbabwe. He has become increasingly oppressive since wresting power from the Brits in the former Rhodesia. He claims land for his relatives. He rules with an iron hand, and his country suffers for it.

The difference is how the two men dealt with the power they had. There are few Mandelas in the world. But, power corrupts not only world leaders, but also bosses, politicians, the wealthy, and the rich capitalists.  I have thought about. The characteristics of those who abuse power. It seems to me, aside from being born a psychopath, there is mainly one characteristic and one characteristic alone that accounts for the corruptive tendency of power - INSECURITY.   If you do any reading about Richard Nixon, the man was wracked with insecurity and jealousy.  His 1960 statement upon losing the California governorship, "You won't have Dick Nixon to kick around anymore," was sad not only because of the defensiveness of Nixon, but also because the statement was untrue. Nixon came back and what happened to the country wasn't pretty.

In discrimination cases, particularly those involving harassment, the  abuse of power principle applies. The less the boss' self-esteem, the more bullying he or she is. The same holds true for school bullies. What's the moral here?  Make sure people you promote are secure in their personhood?  That would be nice.  We don't need any more Charles Foster Kane's running this county.

Mandela and Foregiveness

Nelson Mandela was an amazing man and accomplished many great things.  When I was younger, I thought South Africa was doomed to be wracked by violence, with the Black population not  unreasonably seeking revenge for the years of apartheid, discrimination and poverty imparted on them by the White Afrikaaners.  But, massive violent rebellion never happened.  As far as I can tell the main reason for the relatively peaceful redistribution of power is because of the tremendous leadership and wisdom of Nelson Mandela.

After being imprisoned for 27 years, Mandela sought peaceful transition and abolition of apartheid. What an amazing human being, with the wisdom and foregivenesx that prevented what could have been violence and destruction. Mandela said that being vengeful was akin to drinking poison and expecting the other person to die.   Wow. There are very few great leaders throughout history.  Nelson Mandela was a great leader. I hope other leaders around the world learn something from this great man.

The Human Spirit - Dedicated To My Great Friend Teresa York

Sometimes I get bogged down with all that is wrong with the world.  Then I am reminded of what is right with the world.  I am thankful to have some time here on this planet with the wonderful people around me, my family, friends, clients, co-workers (who are my friends, too).

I think of the human spirit and what people I know have overcome - the Holocaust, my daughter battling daily migraines and thriving through chronic pain, illnesses in my relatives, brave clients who battle for the rights of themselves and to make this place better for others, and other challenges we all face. I am so thankful to have these wonderful people in my life.

I want to dedicate this Thanksgiving to Teresa York. She posted on Facebook and her words have moved me,

" On this Thanksgiving I am so very uplifted by my family and friends - from my children and sister to my extended family - old dear friends and all of my wonderful friends at work ... I am so very grateful for all of them and wish for them health and happiness. Never have I felt more acutely aware of living in the moment and never have the moments been more filled with more happiness!"

Here's to you, Teresa, you have developed such courage and grace.  Happy Thanksgiving!

Five Reasons Why Americans Need Investigative Journalists

I was in college when Watergate erupted. Carl Bernstein and Bob Woodward were national heroes. I don't know about other Baby Boomers, but I read the book "All The President's Men" and saw the movie version on multiple  occasions, and I was proud I lived in a country where freedom of the press was not only guaranteed, but also lionized. We have had a long string of journalists who have fought the hard fight to bring truth to the American people. Walter Cronkite, a Mizzou alum, lead American opinion away from the Vietnam War. Edward R. Murrough exposed Joseph McCarthy and his war on perceived "communists".  Those were the days.

Such is not our situation today.  The news media is driven by the almighty dollar and print media is becoming extinct. CNN is a shell of the dynamic news station that my father watched religiously. MSNBC and Fox News are a joke, with pundits, not reporters, pandering to the crazies. The Kansas City Star is a shell of its former self and has fared poorly under McClatchey. No more are there reporters beating down the doors to expose corruption and malice.  And local broadcast news is little more than hours upon hours of weather and sports reports, intermingled with car chases and monitoring of Twitter posts.   Sad and scary.

Who is there to uncover graft and corruption, corporate greed or misfeasance.  I am afraid almost no one remains to expose the liars, cheats and crooks in politics, government and big business.  Every once in awhile, a "greedy" plaintiffs' lawyer successfully exposes corruption, but not often. The press is called the "Fourth Estate" for a reason. Freedom of the press is integral in exposing corporate and government wrongdoing. But where is the press now, with huge newspaper lay-offs and the broadcast dribble that passes for "news,". Of course, government sponsored NPR and public television seem less dependent on wealthy corporations' largesse. I was pleasingly surprised to see the apparently unbiased reporting of Al Jazeera America, backed by Qatar.  But who is there to protect citizens?  Not nearly as many folks as there used to be.

Here are five reasons that Americans must have unfettered reporting:

1.  Unscrupulous politicians, who still exist, can have a hey day if no one is watching or reporting on malfeasance or even bad judgment.

2.  Corporations will be able to run rampant in their pursuit of unfettered greed. Remember tobacco officials testifying, under oath, that nicotine is not addictive.

3.  Massive numbers of the electorate may believe the candidate with the slickest commercials.   (Don't get me started on Citizens United).  Who will seek the truth?

4.  With no media checking on elections, the rich and powerful will call the shots, because of their greater ability to contribute enormous amounts to political campaigns without consequence or even publication.

5.  What is left of the press will, by necessity, be forced to pursue money to stay afloat rather than stories to inform the citizenry.   .

I don't think this is what the forefathers had in mind while they passed the first amendment. This is a frightening state of affairs.  Thank good news for Tony Botello and tonyskansascity.com. Without bloggers free from big money pressure, we would have even less information than we have today.

Rethinking Football, While You Can Still Think

This is not going to be a popular post, even in my own family while the Chiefs and  Mizzou Tigers are today undefeated.  Oh well.

My husband and I watched "League of Denial" on Frontline.  League of Denial. The documentary explored the overwhelming proof of brain damage in the brains of deceased NFL players.  One young college football player, who committed suicide at age 21, has extensive brain damage (CTE - chronic traumatic encephalopathy) even though he had no documented incidence of concussion. The program explored Junior Seau's suicide, along with dementia, addiction, violence and suicide in many other football players.  The NFL appears to be engaged in a cover-up, disavowing responsibility while ponying up $765,000,000 in a class action settlement by former players and their families.

My husband argues, the players know what they are getting into. They know they might be injured.  While I agree that many players may realize they are subject to traumatic arthritis and joint point as they age,do you really think they knowingly go into a job realizing that there is a probability they will experience brain damage which may cause personality changes, dementia and suicide. Plus, football players don't start playing as adults. They start playing football long before college. Sure, the boys playing football have the permission of their parents. But, do these parents really comprehend the real danger of brain damage to their children.

Sure, football is exciting and we have a sense of camaraderie in rooting for the old college or city team. It's great fun to tailgate. Why, in Kansas City passing Arrowhead Stadium hours before the game provides great olfactory pleasure, with the aroma of barbecue filling the air.  But, what are we really celebrating. Do we realize what significant brain damage risks there are to pro and amateur players alike.

Some people make a lot of money from football.  The NCAA, NFL, team owners and colleges can reap abundant riches, but at what cost?   Parents need to wake up. Football is not a safe sport for children. But, as long as there is such profit from the sport, it is not going away.  I know this viewpoint is not popular, not even in my immediate family. Watching gladiators die in the ring used to be popular, too.

I Hope I Can Be The Trial Lawyer Who . . .

I hope I can be the trial lawyer who:

1.  Cares deeply about my client,

2.  Fights for a  for a just and worthy cause,

3.  Treating the parties, witnesses, jurors and judge case with respect,

4,   Behaving honestly and fairly, with passion and sincerity,

5.  Without resorting to subterfuge, gamesmanship or other chicanery. 

That is the kind of lawyer I hope to be. 

There Is No "I" in T-E-A-M, But There Are 2 "I"'s in M-i-S-F-I-T

What is a team, a group of individuals with a common goal.  The team moves as a whole.

Team members are popular, usually attractive and and oftentimes smart.  What teams may not be are free-thinkers, misfits, and loners. I like representing the latter, those souls who may who be misfits, who I oftentimes feel are my compatriots.  Let's talk about some differences between team-players and misfits.

TEAM-PLAYERS

1.  You are part of a group, do not make waves.

2.  To be respected, work hard and don't care about recognition.

3.  If the the group likes it, it is good.

4.    Sometimes if the group doesn't like someone, they may be ostracized

5.   Team-players follow the rules, usually without question.

-----------------------------------/

MISFITS

1.  Misfits do not fit in, at least in their own minds.  They may be too poor, too ugly, think differently, etc.

2.   Misfits don't follow the rules. Sometimes this makes them more creative.

3.   Many misfits have very good self-esteem and don't worry about making others like them.

4.  Misfits stand up for themselves and other misfits.

5.  Misfits report unethical or immoral conduct that the team players may condone.

6.   Misfits are scrappy and fighters, oftentimes.

Civil Rights are revered when the team-players respect the misfits.

Read DAVID and GOLIATH, by Malcolm Gladwell. It's great.

I am proud to challenge the status quo because I am a misfit who represents other misfits.

LONG LIVE THE MISFITS, THE QUESTIONERS, THE REBELS!  We need them.

It's Not A Dog Eat Dog World.

I have never known of a dog eating another dog. It may happen, but I suspect it is rare. I have never seen a rat race. Perhaps rats race, but none that I have ever seen have done so before.

Our problems are human related. Perhaps dogs think, it's a people eat people world. Figuratively, people do eat people. In the "The Power of Nice," a great book, the authors suggest sending business associates cookies.  Cookies are appropriate for lawyers, difficult or otherwise.

Sometimes I need to re-establish my humanity. Perhaps it's time to send cookies.

How To Have A Better Day . . .

1.  Don't take anything personally,

2.  Live in the moment,

3.  Count your blessings,

4.  Don't take anything personally,

5.  Don't take anything personally,   

Etc...   (Sigh.  . . .)!

You Know You're A Bad Employer If . . .

You know you're a bad employer if ....

1.  You think that only young men can be in management positions,

2.  You pay women and minorities less than white men,

3.  You think all older people are resistant to change and cannot work on computers,

4.  You think you are better than your employees,

5.  You want to pay your employees as little as possible,

6.  You think discrimination laws make it harder for you to make a profit,

7.  You make references to female employees in sexual terms,

8.  You think sex with employees makes you powerful,

9.  You don't respect your employees,

10.  You don't like your employees.

Goodbye, Jury Trials In Federal Court

I guess federal judges in this country have decided that the founding fathers were joking when they enacted the Seventh Amendment of the United States Constitution.   The biggest right to jury trial joke is in discrimination cases.

The Wall Street Journal published a study in 2009 and determined discrimination plaintiffs win only 15% of the time in federal court, while other plaintiffs win 51% of the time. What accounts for the difference?

Two reasons - convoluted unnatural determinations of the law, coupled with summary judgments, cases thrown out by judges with no jury trials. Most discrimination plaintiffs never have a chance to present their cases to a jury of their peers. The judge usurps that role, by throwing out cases on their own.

 And, in the rare case that is decided by the jury, almost all of the time, a judge lowers the jury's award. No one ever tells jurors that the judges think their reasoned, debated awards are stupid. In all my years trying cases in federal court, oftentimes after going to the court of appeals to get the judge-thrown-out case reinstated, the judge or the court of appeals slashes the verdict.

We hear significant debate about the 2nd amendment, while most other amendments in the Bill of Rights are considered sacrosanct, yet the 7th Amendment is considered the repugnant stepchild of the Bill of Rights family of amendments.

Why is this so?  Are federal judges out of touch with real people?  Do they think most Americans are stupid?  Or are they influenced by big business?  I don't know, but it's hardly a level playing field in discrimination cases. Perhaps we need a judiciary that is more representative ethnically and socially of the American people as a whole. Perhaps judges should not be appointed for life with fat cat pensions.

Thank goodness for state courts, particularly Missouri state courts. The playing field is less uneven. Judges let the jury system work the way it is supposed to work. Win or lose, at least you have a fair court with fair minded decision makers.

Religious Discrimination In Today's World

In the past decade, religious discrimination cases have markedly increased. For years, it seemed like religious discrimination was a thing of the past, until September 11.  There are extremist in all three major religions.  The conflicts between England and Ireland of the last decade stemmed from fights between Catholics and Protestants, although this is an obvious simplification of the issues. Itzhaak Rabin was killed by an extremist Jew who was opposed yo peace between Jews and Palestinians.  In fact, Gandhi was a Hindu, and was killed by a Hindu nationalist because the killer did not want accord with Muslims.  And now in the world there are militant Muslims in Al Qaeda, the Taliban, and Al Shabaab who represent a tiny minority of Muslims.

These terrorists don't like us, and we don't like them. It bears repeating that radicals are not representative of any mainstream religion and Islam is most certainly a mainstream religion. Yet, there is a considerable amount of fear and misunderstanding of Islam in this country, reflected at times by discrimination in the workplace.

My brother, who is not Muslim, but who did have black curly hair in college, was taunted during the Iran hostage crisis with, "Go home, you camel jockey!"  Now discriminatory epithets oftentimes more hateful are sometimes hurled at women in hijab or Muslim males.  Sometimes, Muslims are ridiculed for dressing conservatively or for praying during the day. This violates federal and state laws.

Someday, I hope, we in this country and the world will see all of the world's citizens as part of one group, humans. While we can maintain our own beliefs, I dream of a time that other points of view are respected.  The first amendment freedom of religion comes from the reaction to religious persecution in Europe and our forefathers' recognition that we are each entitled to believe in whatever we want. The first amendment comes before the second and is at least as important as the right to bear arms. When we forget the foundations upon which this country was built, we do a disservice not only to our citizens, but to the people of the world.

I hear politicians say this is a Christian nation. It is not. While there are people of the Christian faith who are the majority of religious people, this nation was built as a haven for religious freedom. That is one of the precepts that truly makes America great. Let's not cause the forefathers to roll over in their graves (especially if you believe that can happen. Treat all those of all or no religions with respect.   Peace be with you and yours.

When Is It Right to Go to Trial - Lawyers' Edition

I have been pondering this issue. Clients ask me what the value of a case is, and, after 30 years, I don't have a good answer. I think I am not framing the issue well. While no one knows what will happen in trial, I think decisions are impacted by time and fortitude. I sometimes talk about the fortitude, but give short shrift to the time issue.

Would most clients rather settle for $50,000 after three months, or would they rather try for $500,000 to much more, realizing the time for a trial and appeals have to be factored in? When we tried some cases in federal court, this process took as much as 7 years, (1) summary judgment: (2) appeal to 8th circuit where s.j. Is overturned, (3) trial with verdict, (4) appeal resulting in remittitur = 7 years. Now there is less chance in state court of summary judgment or remittitur and defendants offer more because of their greater risk.  But, settling a case may be a disservice to the client experiencing PTSD or depression and struggling to feed his or her family.  

 These are rhetorical questions, since I much prefer to go to trial in good cases with low offers - less risk (but frankly more embarrassment if you lose). But, I don't know that in other cases I always present them in terms of time and risk. With better judges and laws in state court, maybe we should be going to trial more instead of less, tempted by higher offers. I know it's up to the client, but I may not be giving my clients the right criteria with which to make a decision. I haven't been to trial since June, 2011, and the case settled after a week of trial. 2012 was the first year since 1984 that I never even started a trial.  There are some pretty heinous acts still occurring in the workforce. Surprisingly, the sexual harassment cases I have are as bad as the ones in the 1990's, as if some companies think sexual harassment policies need not be enforced. 

Sometimes, lawyers tell me that, if a case goes to trial, there are no winners.  I disagree.  Sometimes a client deserves to be heard by a jury of his or her peers.  If no one tested discrimination laws in trial, bosses would still be chasing their secretaries around their desks for a smooch and to cop a feel or worse. Settling a case may be right for one client, but not for all.  Many parties deserve their day(s) in court. 

Code Words For Age Discrimination

Age discrimination is rampant in America.   And many Americans think age discrimination is hunky dory (an expression used in this country by older people).  Late night talk show hosts joke about older politicians being perceived as infirm or senile (another old person expression).  There is no other protected group in discrimination law about which it is more accepted to ridicule.  People jokingly call older workers over-the-hill, or other put downs. In truth, older workers can be more experienced, more confident, more dependable and more loyal.

I think it's sad to see older, experienced, vibrant employees dyeing their hair, injecting botox, or changing their wardrobe to look or make others think they look younger.  What is this country coming to?  We don't want 30 year old Supreme Court justices for a reason.  It takes years to gather the wisdom, knowledge and experience to be a great appellate court judge.  Two federal judges in Kansas City who are still on the bench are in their 80's.  Do you want a brand new brain surgeon to cut on your brain?  I would prefer one with a little experience.

In trying age discrimination cases, I have noticed certain code words that indicated employers are not valuing employees because the employers consider them to be too old.  Here are a few:

1.  She is too set in her ways.

2.  He has trouble keeping up with technology.

3.  We need energetic employees.

4.  This company needs employees with vibrant, new ideas.

5.  Isn't he going to be retiring soon?

Perhaps a workforce of only young people may not be what it's cranked up to be.  I am glad Benjamin Franklin had a few years under his belt when he helped create this country.  The next time you want to fire someone because he or she is old, remember, that if you are lucky, that person being fired could be you in a few years.

Words of Wisdom Sent to Me from My Cousin Sonny Jaben

My cousin Sonny Jaben, the first cousin of my dear departed father, oftentimes sends me and others emails with sage reflections and interesting advice. Here is his latest missive. Enjoy. 

Idle Thoughts Of A Retiree's Wandering Mind: I planted some bird seed. A bird came up. Now I don't know what to feed it  ******************** I had amnesia once---or twice  ********************   I went to San Francisco . I found someone's heart. Now what? ********************  Protons have mass? I didn't even know they were Catholic.  ********************  All I ask is a chance to prove that money can't make me happy.              ********************  If the world were a logical place, men would be the ones who ride horses sidesaddle.  ********************  What is a "free" gift? Aren't all gifts free?  ********************  They told me I was gullible and I believed them.  ********************  Teach a child to be polite and courteous in the home and, when he grows up, he'll never be able to merge his car onto the freeway.  ********************  Experience is the thing you have left when everything else is gone.  ********************  One nice thing about egotists: they don't talk about other people.  ********************  My weight is perfect for my height-- which varies.  ********************  I used to be indecisive. Now I'm not so sure.  ********************  How can there be self-help "groups?"  ********************  If swimming is so good for your figure, how do you explain whales?  ********************  Show me a man with both feet firmly on the ground, and I'll show you a man who can't get his pants off.  ********************  Is it me --or do buffalo wings taste like chicken? ******************** TODAY IS THE OLDEST YOU'VE EVER BEEN, YET THE YOUNGEST YOU'LL EVER BE, SO ENJOY THIS DAY WHILE IT LASTS

To All My 18 Mentors Who Helped Me Become a Trial Lawyer

I do not profess to be the smartest trial lawyer, nor the richest or hardest working.  But I could not have become the trial lawyer I am without the help of some wonderful lawyers who took  their time to take me under their wings.  Most of these people are pretty much unsung heroes.  They may not be the ones who are in the news, or make the most,  because their goals are not just for accolades or money.  There are some very caring, talented, brilliant, people out their who made a real difference to me.

1.  Martha Sperry Hickman - I have written about Martha before.  I met her in law school.  After law school, she invited me to first chair my first jury trial.  Martha is wonderful and she still practices law.  She is brilliant and let me try most of the case, but dealt with the judge and had my back.  I forgot to mention that Martha became a lawyer when being a female lawyer was a rarity and women could not join the Kansas City bar.  Martha and I tried several personal injury cases together.  She was so funny and so much fun, but also a thorough and brilliant attorney.  She was my first role model, either male and female.  I can't thank her enough.

2.  The partners at the now-defunct firm Miller Dougherty & Modin.  My first job as an employees was with these guys.  They mainly practiced civil defense law.  I told them that I wanted to try cases, and they gave me cases.  All kinds, small, and maybe a little bigger. I was a hero if I won and they were fine if I lost the dog case they gave me.  And the three of them were great trial lawyers in their own right.  I learned so much from them.  Thanks, Spencer, Ed and Dick.

3.  John Kurtz - I have never worked with John, but a friend of mine told me about how great he was as a public defender.  I since got to know John.  John Kurtz is a man of compassion, kindness and truth.  I would be happy if I was half as noble as he.  He is my shining example of a really greeat lawyer.

4.  The Trial Lawyers College - I was fortunate to be a member of the first class in 1994 at Gerry Spence's ranch in Wyoming.  It was a life changer.  I learned psychodrama from the best psychodramatist.  I have since had a falling out with some of the management of TLC, but I must credit some very important people with whom I worked for 15 years.  These include:

Psychodramatists -

   a.  John Nolte - my teacher, mentor and friend.

   b.  Don Clarkson - my mentor.

   c.  Kathy St. Clair - my mentor.

   d.  Katlin Larimer - my mentor.

Lawyers _

   a.  Jim Jeans - my trial ad teacher in law school and teacher at TLC.

   b.   Fredi Sison - my friend and one of the most creative lawyers I know.

   c.  Carl Bettinger - another brilliant lawyer who is so creative.

   d.  Rafe Foreman - a great lawyer I met in Wyoming who we are lucky that now teaches at UMKC.

   e.  Joane Garcia-Colson - another brilliant teacher who taught me so many things.

   f.  Gerry Spence - who started the college and shared of himself.

5.  Denise Henning - a great lawyer who is teaching me the value of courage.

6,  Mary Ann Sedey and Donna Harper - my heroes in St. Louis.  They are so great.

I am sure that I have left out some people.  I want the people I have named to know how appreciative I am of their help.  Most are wonderful people. Thanks.

Why Are People Bullies?

It seems that there are a lot of bullies these days.  I am sure there have always been bullies.  But, it seems that I am encountering a lot of bullies lately.  Every harassment case involves grown-up bullies.  Bullies are people who put others down to build themselves up.  Bullies are probably people who have been bullied. That does not make the bullying any easier for the victims.

I am working on a case where there was a pack of bullies.  These men are mean and homophobic.  Looking at them, it's hard to see redeeming characteristics.  They use the vilest language to harass my client.  Two of them are supervisors.  I suspect they had bad childhoods and they have issues concerning their manhood.   They seem to be homophobic.  The conduct is sordid and sad.  I feel dirty at the end of the day, having to regale their statements and describe their conduct.

Of course, bullying occurs in a lot more places than the workplace.  Bashar el Assad is a bully.  So are a lot of leaders of countries, in the Mideast and elsewhere.  In fact, bullies are everywhere.  I think some people become lawyers because they have the chance to bully opposing parties and sometimes even opposing counsel.

How do we stop bullies?  We can sometimes derail an individual bully, but how do we obliterate the desire to bully?  How do we deal with insecure and scared people who derive pleasure from putting others down? I wish someone would come up with an anti-bully solution.  I don't have any answers.

How Do Government Employers Pick Their Law Firms?

Right now, it seems, I am suing several separate governmental entities for discrimination,  In fact, I am suing six government departments, federal, state, county and city in both Kansas and Missouri in eight separate lawsuits with with more than twenty separate defendants.  Yikes.

It is interesting to examine who defends these cases.  In some, I am pitted against in-house governmental discrimination lawyers.  However, the trend has always been for these governmental entities to contract with outside law firms, who are usually paid by the hour.  Sometimes, these firms assign multiple partners and associates to cases in which I represent the plaintiff alone.  I wonder how much these lawyers bill the governments of which we are taxpayers and how much the lawyers get paid.  Sometimes, the cases seem overworked, other times not.  Sometimes the best lawyers defend the cases, sometimes newer, recent graduates are at the helm, especially when there are no outside attorneys.

How do lawyers bid on this prime business?   I work on a contingent fee and my work is not affected in the same way defense lawyers' work can be.  I am not looking at immediate pay gratification.  I do not get paid until the end, and sometimes I get paid nothing.

Not so for defense lawyers.  I don't know if bidding wars go on for government business.  I suspect not. Part of my skepticism is because I know in several of my cases that the lawyers for the government held campaign fundraisers at their offices for the largely unopposed candidates that run the governmental division. That sounds somewhat like political patronage to me.  I do not know if these lawyers have to bid for their jobs.  And when some of these firms get hold of the cases, they have a tendency to work them to death.  I have had government cases take seven years or more.  The defense lawyers may bring in quite a chunk in attorneys fees.

I have known long before this blog entry that I will not be getting any of this defense business.  I don't want it.  I have never wanted to wine, dine, hold fundraisers, or make political contributions to get business.  That feels somewhat slimy.  The people who hire me are the ones who we think have good cases.  They don't need to have money.  That is why we have contingent fees.  Representing plaintiffs with good cases feels really good.  Defense work, with its steady paycheck and strings is not for me.

Let's Put the LABOR Back In Labor Day

My grandmother, after she orchestrated saving her family from the Nazis and moved to Kansas City, was a proud member of the International Ladies' Garment Workers" Union.  She sewed sleeves on coats for many years at a local coat maker, Nellie Don.  Because of her union affiliation, she was able to bring her family and her out of poverty and lead a good life in America.  There are few garment manufacturers left with facilities in the United States.  Somewhere, maybe in Bangladesh, there are workers sewing sleeves for less than a dollar a day so Americans can be cheap clothes.  The cost in human livelihoods and what is done to foreign workers is not worth the few dollars that we as consumers save.

We have another crisis here in the U.S.  Servers in the fast food industry work long, hard days, but do not earn enough to be free of government assistance.  So, while we get cheap, unhealthy food, we as tax payers have to supplement the abysmal pay of these workers with food stamps and Medicaid.  While McDonald's and Wendy's make a profit off the backs of these underpaid workers, we as taxpayers have to help the workers feed their families.  What is wrong with this picture?  

We need more protection for our workers.  Workers in this country need to make a living wage.  We have witnessed the demise of labor unions.  Around now, it sure would be nice to have someone organize these workers and let them support their families in dignity.  Sure, a happy meal might cost a dollar more, but the workers are worth it.

I avoid shopping at Wal-Mart because I have seen what they have done to some of their workers.  The same goes for Family Dollar.  The livelihood of our nation's workers and the well-being of their families is more important than a meager savings on cheap products.  These mega businesses are about the bottom line, profit.  Unfortunately, it looks like profit is more important than people.  

We need a resurgence in union membership during these tough economic times.  The corporations are getting richer and their workers are getting poorer.  We need to pass a minimum wage that is livable.  It is not all right for people who work hard to still have to grapple with crippling poverty.  

Paying workers a living wage is just the right thing to do, pure and simple.

Being Honorable

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.

Lawyer - Know Thyself (In six easy steps)

"The unexamined life is not worth living," Socrates.

The other day I used this blog to vent about difficult lawyers and posted the venting on facebook.  One of my friends wrote a reply that I found was dead on.  Beth Kushner, a fine lawyer in Milwaukee said, . . . These are people who use a law license to act out their personal issues."

Wow.  What a perceptive statement. Lawyers who are filled with unresolved anger, resentment, and pain can do a disservice to their clients.  Instead of thinking about the interests of their clients, they are fighting against perceived bullies (who may have taunted them years ago) or are looking for self-validation or admiration, or, dare I say it, love.  They are unhappy people and fierce and aggressive lawyers.  Depositions may end with the statement, "Let's take it outside," or my favorite member measuring statement, "How many jury trials have you had?  I bet you have never even tried one case to a jury."  Lawyers trying to remedy some ancient slight are angry, and sometimes mean and bullying.  Lawyers travel in packs, like dogs, and the rest of the pack may snicker when a witness or opposing counsel is humiliated.

In my opinion, bullying is not effective lawyering. We are not supposed to try to remedy childhood slights through representing others in lawsuits.  This is not a testosterone laced event.  We represent CLIENTS.  We must be able to empathize, get in the skin of, our clients.  Even better if we empathize with everyone involved.

We can not empathize, nor have compassion, for others without dealing with our own vulnerabilities.  Lawyerng is not competing in an Mr. Universe competition.  To represent your clients in the best way, we must have compassion which stems from self-knowledge.  We are not bulls in China shops.

This is the hardest task of all.  To be the best lawyer for the best reasons, lawyers need to know themselves and be self-actualized.  There are many ways to get there.  Counseling is a primary way that comes to mind. Participating in psychodramas is another.  Until we understand what makes us tick, we can't understand what motivates our clients and all parties.  Certainly, to understand bad conduct of opposing parties is not the same as condoning it.

Here are my 6 ways to get be a self-actualized lawyer.  (People really dig these lists, don't they?)

1.   Address your demons!!  Demons keep coming back and keep going after them and understand them.   They can be your friends.   Counseling, psychodrama, group therapy, mediation, whatever floats your boat.

2.   Take responsibility for your bad acts and bad characteristics and try to do better.  Take responsibility, don't make excuses.  Forgive and let go of grudges.

3.  Imagine yourself in your client's shoes.  Understand where/he or she is coming from.  Do this with all parties.
'
4.  Trust others unless someone has betrayed you. Be trustworthy and trusting.

5.  Exercise regularly and perhaps learn to meditate.

6.   Care about other people.

This may seem counter-intuitive, but the more compassionate you are, the better advocate you can be.  You will be happier and the jury will like you better.  And you won't end up a bitter, nasty, repugnant old man or woman.  You can be an advocate and be compassionate to the other side.  I promise.

OT: Great Health Insurance for Older or Younger People - 3 easy steps

We all know Obamacare's individual mandate will take effect within a year or two and all Americans will need to have insuraou learn nce or pay a penalty. We don't know what the exchanges will be like, how much they will cost, what they will cover.  My family and I (really just I - I got my family on this) have been receiving excellent health insurance, with no copay and a very small deductible, plus great prescription benefits for around $200 per month, regardless of pre-existing conditions.  The pool of insureds with these policies is generally young, keeping the premiums down.

Now, I am 60 years old and my husband is 62 years old.  We both have lived awhile so we necessarily have some pre-existing conditions.  We got this great insurance, and not through a big employer.  How did we do this?  Here's how:

1.  Apply online as a non-degree seeking undergraduate at the University of Missouri - Columbia, or the one in Kansas City.  In Columbia, they have internet courses which you can take up to 9 months to complete.

2.  It takes about a day to be approved.   Sign up online for a class.  This semester - Intro to Film.  (Last year I took "The History of Rock and Roll," and "How It Works" - an introductory physics class that was very interesting.  Enroll.

3.  After you are a student and before 9/15 or so for the fall semester, go to the aetna student health website and sign up!  In a day or two, you will get your cards.

The Benefits -----  You learn interesting new things through your older years, perhaps helping to stave off Alzheimer's disease, AND  YOU GET KICK-ASS health insurance!

This works!!!!!  Expand your mind while you protect your health.  My family does, and so should yours!
:-)

Why Do Lawyers Suck?

Lawyers are some of the most disagreeable people you will meet.  Law schools attract egomaniacs, narcissists, greedy people, and even snakes.  There is something that being at war constantly does to a soul.  Of course, we are not real soldiers.  We fight not with guns or drones, or missiles.  We carry no physical armor or swords.  We fight with our wits and our tongues.  We play mind games.  We have no mercy.

Sure, there must be some decent opponents out there.  Most times I think most opponents are honorable, but not today.   We fight over dates, discovery extensions, semantics.  We can be bullies.  We manipulate.  All to gain some rather undefined benefit, that, in the end either makes no difference, or sometimes even hurts our cases.

In negotiations, there is no cutting to the chase.  That's too direct to be part of the game.  If it suits our purpose, we will go after the plaintiff's daughter who can't admit she was sexually abused and make that a central feature of a case where it is irrelevant.  Kindness and mercy are not in our vocabulary.

if one of the lawyers has serious illness in the family, we either bend over backwards to accommodate, especially if we lose nothing strategy-wise OR we pretend that nothing deserves special consideration and we ignore the opponent's pain for our advantage.

Some of us only care about money, not our clients.  We are always posturing, posturing, posturing, and then we pound our chests.

Doesn't this game of one-ups-manship grow old for others.  Law is supposed to be an honored profession. We are the keepers of justice and civilization.  What has gone wrong.  Is our selfishness and bullying antithetical to maintaining justice in a modern society?  Of course.  Maybe I just had a bad day.  I hope so.  No wonder lay people hate us.

Coming of Age During the Civil Rights Movement - Learning to Love to Fight

I never marched in protest of the Vietnam War nor did I participate in the Civil Rights Movement in any real way when it was ongoing.  I wasn't a hippie, either.  Maybe I was just a little bit too young.  I was 15 when Martin Luther King, Jr. was assassinated and the impact of  Dr. King and his work did not enter my mind back then.  I would like to say I was too busy worrying about teenage things, but back then, I was worrying about home issue that were atypical of most teens.  In my free time, I just wanted to act like a teenager.

When Dr. King was killed, my high school was dismissed.  Not fully aware of the importance of the day and the tragedy of the events, I wanted to hop on a city bus and go to downtown Kansas City to go clothes shopping, thinking that this day was not that unlike any other.  When I got home, I discovered that in the inner city, which stood between our house at 58th and Brookside and downtown, there were riots.  I had heard of rioting in other cities, but was shocked that Kansas City was included among the cities with racial violence.

Later that year, 1968, Robert Kennedy was killed and I thought what was wrong with people.  I still tried to be a teenager, even though I dealt with other "domestic" issues.  National or international affairs seemed too remote and I did not feel a connection to the civil rights struggles.  The Vietnam War was gaining in unpopularity and I was against it, but it had no direct impact on me.  I was not going to have to register for the draft because I was a girl.

The impact of the Civil Rights Movement and the Vietnam War didn't hit me until 1971, when the domestic strife was resolved, I was 18 and going to college.  I do not know why I felt so affected after so much apathy.  I attribute my indifference at the time to youth.  In college, the struggles of the 60's and early 70's seemed very important.

In college, the Vietnam war was so important.  Every day on the evening news, there were films of atrocities and  daily body counts of thousands upon thousands.  I could not understand why we were fighting and boys my age were being killed in large numbers.  When McGovern ran for President, I naively thought he had a chance to end the war.  I was 19 and the voting age had just gone from 21 to 18, so I could vote!  Somehow, I was elected as a Democratic delegate for McGovern to the Missouri state convention.  We lost the convention, then the Presidential election, but then Watergate happened.

I like to say I became a discrimination lawyer because of the Civil Rights Movement or The Vietnam War, because those were rallying points for our generation.  Plus, I came from German and Polish immigrant Jews who had fled Hitler, so I had a natural affiliation to downtrodden in this country.  But the truth is, had it not been for Watergate, I do not know if I would ever have been politically awakened to injustice in this country.
Many, if not most, of you reading this blog are too young to remember the events of Watergate.  The hearings were constant in the news during 1974 until Nixon's resignation in August.  My then boyfriend, now husband, would stay glued to the television in his apartment off the campus of the University of Missouri in Columbia. I was 21, more mature than my 15 year old self, majoring in political science because of the lessons learned in my brief stint as a McGovern delegate.  I was to be married during college, in August of 1974, and Nixon's resignation the week before our wedding seemed like an odd but satisfying wedding present.

Those events in the early 1970's, begun when I was too young to care, created an idealism in me that has been impossible to shake.  I know young people now make fun of hippies and naive protesters.  That time, though, was unlike any other time in my life.  People questioned authority, questioned war, questioned bigotry, unlike anything I have seen since.  And, it did make a difference.  Growing up as a white girl in Kansas City in the 1960's I heard many of my elders toss around the "n" word like it was a natural adjective. Jews were called kikes, Hispanics were called greasers or worse.  My brother, with his black kinky curly hair, was mistaken for an Arab.  In college, a group of boys yelled at him, "Go back to Iraq, you camel-jockey!"

Of course, there is still racism and needless deaths in hard to justify wars.  But the Civil Rights Act of 1964 started getting teeth in 1991, when jury trials were allowed.  Plaintiffs have won a lot of civil rights victories since the laws were passed.  We have a Black president, something I doubted I would ever see in my lifetime.  We may have a female president before I die.  It is socially unacceptable for whites to use the "n" word, men can't chase their secretaries around their desks to cop a feel, and it is illegal to pay women or minorities less than white men.

Life for Blacks and women is better than it was 50 years ago in this country.  The fight is not won, though.  I guess I feel fortunate to have lived through the times I have.  Without the Civil Rights Movement, the Vietnam War, and Watergate, I do not know what occupation I would have chosen.  It feels good to have a purpose. It may be that I am a dinosaur trying to fix ancient wrongs, but I have found that I like to fight. I do not want to fight for the status quo.  I don't know what this says about me as a human, but I like to fight and I have something for which to fight.  Maybe I am the "Dexter" of lawyers, I like to fight and I have a "code" so that my fighting is socially acceptable.  It's good to be old enough to remember the protests.

CIVIL RGHTS QUOTES I LIKE

1.  
"First they ignore you, then they laugh at you, then they fight you, then you win."

Gandhi

2.  
African proverb (quoted by NAACP head), "Care more than others think is wise, Risk more than others think is safe, Dream more than others think is practical and Expect more than others think is possible." (Except I really like the first two, the third is okay, but the fourth is sort of against my beliefs. I REALLY like the first two, though.)

3.
  “Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the 'wall of separation between church and state,' therefore, is absolutely essential in a free society.” 

― Thomas Jefferson

4. 

“I agree with Dante, that the hottest places in hell are reserved for those who, in a period of moral crisis, maintain their neutrality” 

― Martin Luther King Jr. 

5. “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

[Olmstead v. U.S. (1928)]” 

― Louis D. Brandeis

6   .

“People always say that I didn’t give up my seat because I was tired, but that isn’t true. No, the only tired I was, was tired of giving in.” 

― Rosa Parks

7. 

“You cannot stand for civil rights + not support gay marriage. You cannot stand for human rights + not support gay marriage. It's that simple.

Everywhere, the voice of the oppressed must echo + ring out or else it will be crushed by the tyranny of wickedness.” 

― Bernard Schaffer

8. 

It was we, the people; not we, the white male citizens; nor yet we, the male citizens; but we, the whole people, who formed the Union... Men, their rights and nothing more; women, their rights and nothing less.

~ Susan B. Anthony.

 

. 

What To Do If Your Company Discriminates?

This post is something I have often thought about.  I have wondered why employers who unlawfully discriminate just don't fix it.  If someone in your organization has unlawfully harassed or discriminated against an employee :

1.   Sincerely apologize.

2.   Admit the wrongdoing (I know this is counter-intuitive, but it works.)

3.  Offer the job, promotion, etc. that is at issue, if appropriate.

4.  Sincerely and effectively discipline the wrongdoer(s) up to termination.

5.   Make it clear that the behavior won't be tolerated.

6.  Treat the complainer with respect.

7.  Have sincere and significant training.

8.   Do not tolerate a workplace where the training is scoffed.

9.  If an EEOC charge is filed, again apologize in front of the EEOC and tell the EEOC that the problem has been corrected and you regret the issue occurring.

10.  If damages are claimed, again admit responsibility and settle early on before legal bills are high. If you apologize, you will probably avoid high damages, punitive damages, and the problems is taken care of quickly.  Deal effectively with wrongdoers.  

This advice may sound counter-intuitive to employers, but I assure that this will save money, time and make for a better workplace.  Fighting because of hurt feelings and ego makes things worse.   Of course, if the employee is making the discrimination up (make sure your personal feelings don't obscure your ability to rationally assess this), then fight.   Most of the time, though, if you act objectively early on, you can avoid a long drawn out fight tht drains you and your employees.

You Might Be A Whistleblower If . . .

You Might Be A Whistleblower If . . .

1.  You feel compelled to report to management or others what you believe is illegal, immoral or just plain wrong;  

2.  You think being a "team player" is not  as important as telling the truth;

3.  It is hard for you to lie, even if lying is in your best interest; 

4.  Oftentimes you feel like you don't fit in;

5.  Sometimes you wonder why you have such a hard time fitting in;

6.  You don't care that much about promotions, awards, or pleasing your supervisor;

7.  You worry about getting fired for coming forward, but you come forward anyway;

8.  Sometimes your loved ones wish you would try harder to get along at work;

9.  You were never part of the "in" crowd in school, work, or socially;

10.  You don't understand why others don't come forward. 

It is hard to be a whistleblower, since most whistleblowers get fired.  True whistleblowers are a rare breed. They show courage when most people are afraid to rock the boat. Here's to the boat rocker!  Our society is better because of your courage. 

Shades of Gray - Not 50

This weekend I watched myself get indignant - a lot. There was the employer who maliciously opposed my client's unemployment claim even though he knows she did not engage in misconduct. There was the boss in another case who, months and years after the facts reprimanded a younger worker for conduct that happened long ago to cover up her discrimination of my client.  There was our computer network at working blowing up, etc.  Then I watched a documentary about the Holocaust.  I was not having a good time. Concentrating on injustice and unfairness does not make me feel warm and fuzzy.  Plus, I seemed to think a lot about the meaning of life, or lack thereof and confronting my own feelings of religion, or lack thereof. Also, mortality keeps creeping up in my 60 year old brain.  I almost forgot my last photography class with my brother, which I really enjoy. It seems when I focus on the negative, every thing is black. Conversely, when I think about puppies and weddings and traveling, it's all lightness.  However, as we all know, life is not black and white.  Life is different shades of gray.

My son tells me I am too empathizing, but e doesn't mean it as a compliment. I think what he is really saying is that I don't have good emotional boundaries. I take on the fights of my clients, but I don't put the problems on the shelf when I get home. And my obsession with the Holocaust and genocide doesn't elp. I read books about troubled times and troubled places, and it makes me troubled. I read about poverty and corruption in India and Pakistan, voter fraud in Iran, unimaginable treachery and despotism in North Korea, pillaging and rape in Nanking, nuclear holocaust in Hiroshima and Nagasaki, genocide in Rwanda, and lots and lots about the Holocaust. No wonder I get cranky.

So I am going to lighten up this week, and not concentrate on the dark nature of humans.  Lets look at the light.  What do I, and most others, have to be thankful for?  Here are some things on my list:

1.  I live in the U.S. where we don't practice genocide, at least not on our soil (ad I assume and hope not on any other soil).

2.  Ihave   a loving  family and support group and great partners and friends.  This is especially true with my birthday boy husband as we approach 39 years of marriage.

3.  I have a great, sweet, affectionate dog.

4.  I have a job I love most of the time.

5.  I can see the beautiful things in this amazing world, listen to amazing music and I can read and understand books.  I can cry when I hear beautiful music or read tales of redemption. I can go on an amazing road trip to beautiful places and take pictures with my new great camera in the company of my old great brother.

6.  We do not have death squads in this country and there is a chance to better oneself.

7.  I can feel, emotions, senses, the whole gamut.

8.  I live in a place where redemption is possible.

9.  Some movies I see are really good.

10.  I can watch Louis CK and read jokes and I can make jokes and I can laugh n

11.  I am not dead yet.

I hope everyone reading this blog will reflect on the good things in life. Focusing on the bad can make you crazy.

Mimi - The Rescue

Mimi - The Rescue

It is hard to fathom how much joy this little dog brings me. She is petite, feisty, and athletic. She bounds when she runs, faster and more gracefully than her tiny legs seem capable of running, a gazelle-like bounce in a very un-gazelle-like frame. She knows few strangers and no enemies.  Her world is play and sleep, and play again. She would rather sleep on someone's lap than do anything else but fling her fleece bone in the air, jump and catch it. She believes she is an equal match for pit bull "brother" and challenges him to play, which challenge he handles with grace, restraint and a touch of fervor.  She weighs 15 pounds, has a black, brindle and white tuxedo coat, as do her kin, the other mongrel somewhat Boston Terriers.  Her coat is shiny, and her muscles small and taut. 

You would hardly know that this little bundle of joy and energy is afflicted with epilepsy, where her body contorts and spasms in ways new and frightening to me. After the cluster seizures, she knew not who she wais or where she was and she is blind for awhile.  After that terrifying day of seizures, her medicine was increased and she was herself again, but the seizures may come back at any time.  We rescued her, after at least two families gave her up, presumably traumatized by her trauma-inducing seizures. My daughter believes in rescuing animals. My daughter wants to dedicate her life to animal rescue. 

My family was so distraught when our beloved Irish Setter mix Rowdy, who we had rescued from the gas chamber at the kill shelter mere hours before his scheduled demise, died. Rowdy died suddenly at age ten, presumably from a tumor. His loss was severe and he was grieved by us all.  The others thought it was too soon to adopt this little bundle, but my daughter and I persisted. Mimi sleeps under our covers at the foot if the bed. Sometimes, in the middle of the night, I am awakened by a little tongue licking my toes.  She is so full of life, yet so vulnerable. What a wonderful little girl. It is hard to fathom how much joy this little dog brings me. 

Thanks to a Courageous Woman

I am amazed by the courage that Sharon Snyder, a former court employee, showed by giving a form for a successful request for a DNA analysis to a man, who tests finally determined, was wrongfully convicted of rape.  Although she was fired for what she did, she put justice ahead of her own personal interest.  How refreshing! http://www.kansascity.com/2013/07/28/4373583/jackson-county-circuit-judge-fires.html

Lawyers - Avoid Drafting Written Discovery That Birds Should Pee and Poop On

To the lawyers reading this blog- A practical approach to written discovery

The way we are drafting interrogatories is stupid. I am not sure how this discovery tool has devolved into a piece of junk.

I.  INTERROGATORIES - 

There is a way to draft interrogatories so that you find out information and there is a way to get worthless information in a format that deserves to be torn into pieces and used for lining a birdcage. 

A.  BIRD CAGE INTERROGATORIES -

These are interrogatories which all lawyers handling litigation and many of us have drafted. They are open-ended, long, and impossible to answer. 

Here is an example of a bird cage interrogatory -

"State all reasons you believe you were sexually harassed, the name of all employees who witnessed all form of harassment and everyone who has knowledge of the harassment, what they will testify about the harassment and what they will say about how the harassment affected the Plaintiff."  

I look at the questions and sigh. I don't know what everyone knows. Sometimes in trial, they speak their own mind and I don't know what they will say.  This unwieldy question would be hard to use to impeach a witness.  "You said in your interrogatories that A, B, & C would say E, F, & G.  Actually witness B said X."  Really?

B.  Worthwhile interrogatories -  in asking worthwhile interrogatories, you ask short, direct questions that can be answered by simple answers or yes or no.  "Was the color of the traffic signal when you went through the intersection red, green or amber."   You may be able to use this in trial.

II.  REQUESTS FOR PRODUCTION OF DOCUMENTS

This is where the crux of written interrogatories should be focused. In requests for production, you ask for specific documents, which by and large you need. 

Everything else comes from depositions, interviews and educated, rational conjecture. I will talk about rational conjecture in a later post. 

I fear lawyers want to stump opponents or trick them, but their premise is faulty.  All questions should have a solid purpose and tricking the other side into having to answer a long, and obfuscating inquiry.  Jurors don't like tricky lawyers. 

We make things more complicated than they need to be.  I am happy I don't get paid by the word, but I wonder if some other lawyers are. Lets cut out the crap and stop playing games. Cases work better that way.

Clients - The Good, the Occasionally Bad, and the Beautiful

I have learned so much from my clients.  I suspect all lawyers have. Most of the lessons, but not all, have been positive. Here are some of the lessons I have learned, good and bad, from my clients:

:-)1.  COURAGE - Many of my clients, especially the ones who go to trial, have a great deal of courage. They turn over their reputations and emotional well-being to lawyers who want to devastate them, jurors who don't know them, and their own lawyers who try their best, which may not be good enough. 

:-( 2.  GREED - I have had clients in the past, hopefully way in the past, who have no ability to see things reasonably. There was a man slightly injured years ago in a car wreck, who insisted he get enough money to buy a new house.  We tried the case.  He did not get the house. 

:-)3.  SELF-SACRIFICE - I have had clients who truly want to make the workplace safer for others, or want to help their loved ones, or who fight for principles. They want their children to be free of the harassment and discrimination that so dogged their own lives.

:-( 4.  DISHONESTY - I had a client many, many years ago who I believed until her deposition. When she lied in her testimony, I confronted her and she said she would pretend that she had forgotten. I had to withdraw from the case. That was an important lesson in assessing veracity in clients. 

:-) 5.  PERSEVERANCE - Perhaps this is one of the most important lessons. I have had clients who persevere through thick and thin to make things right. They don't give up through trials, appeals and deadbeat defendants. They help me to keep going.  I am thinking of one client who weathered the judge throwing out her case, appealing that decision and winning, beginning the trial resulting in a mistrial, finally trying the case to a good verdict, and going back up on appeal with the court taking away part of the verdict. My client went through seven awful years.  I think she is doing well now. Seven years. 

Lately, I have been thinking about my clients who have passed away. Some of them still haunt me. There was the client who died after the mistrial and before the retrial of her case about a fall down some stairs. There was the client who died in a single car collision in the car she bought from the proceeds of the sexual harassment settlement, a single mom leaving two little boys. And there were the children of the father the police officer shot and killed, who are now grown with happy families of their own. And the one that haunts me most, the wonderful, loving couple who both died from cancer within a year, leaving the settlement proceeds to their teenage kids. I think about them almost everyday. They were amazing people with incredible kids they did not get to finish raising. I see how the kids are doing now, and they are doing amazing things. I still miss their parents, though.

I guess I am lucky. I am a plaintiffs' lawyer and I am invited into my clients' lives. I grow to love many of my clients, living somewhat vicariously through them. When I started as a lawyer, I just wanted to go to trial. My ambitions involved self-aggrandizement.  I didn't think about how my clients would enrich and change me.  I sought the thrill of victory, massaging my own ego. In retrospect, after practicing 30 years, it's really the people, my clients, who have made the most difference in me. It took me awhile to realize that these cases are not about me and how glib I can be. Every great experience I have had as a lawyer were because of my clients. I am so grateful and honored to have been a part of their lives.