Friday, April 29, 2016

Making the Most of What Comes Next

Lately, I have been thinking a lot about dying.  I am not dying, to my knowledge, any more than the rest of us, who will all end our existence on this earth with death.  At the age of 63, I have been thinking about what makes us happy until we meet the end of our days.  How do we accept that all of our lives are going to end.

I read "Being Mortal" by Arul Gawande and I recommend that book to everyone.  He talks about the reality of dying and what is important.  He asks his patients who are mortally ill a few questions. What is your understanding of what is happening to you?  What are the goals for the rest of your life? What trade-offs are you willing to make to accomplish your goals.  Not to sound too trite, those questions can also be asked of plaintiffs in discrimination cases.  What is your understanding of what has happened to you at work?  What is you goal in your lawsuit - getting as much money as you can, justice for you, justice for others, going to trial, or not going to trial?  What are you willing to do to accomplish those goals?  Trial exacts a tremendous cost to those willing to go through trial, which can be equated to a sort of death, an actual judgment day.

However, I digress.  When I started pondering death, to be fair and truthful, it was not in the context of litigation.  It was in the context of what makes one's life worth living.  Gawande writes that people are most satisfied with their lives when they feel they have accomplished something for the greater good.  I think greater good is relative.  If one has made another person happy, a father, son, daughter, spouse, lover, then I think there is a fair argument that their life is a success.  Making another person happy is working to a greater good.  Working for goals one believes in is working for a greater good. Helping a child, an elderly person, a student, just helping someone else, is working toward the greater good.

Gawande spends a lot of time talking about listening to others to determine how they want to live out their life.  His principles are applicable to living life in general, but he particularly writes about helping someone to live the life he or she wants in their final days.  I realized reading the book that my father was able to do just that before he died.  My father died too young.  He was just 59 years old when he died from complications of a pulmonary embolism caused due to his poor health from diabetes and congestive heart failure in 1989.  My dad was informed that the surgeons were not going to take his damaged leg as had been planned, and that he only had a few days to live.

All four of my dad's children, including me, traveled to my father's hospital bed in Rochester, New York.  He lived another 10 days and he made the most of his time.  He was lucid and understood his fate.  During those final days, he apologized for any perceived faux pas of his past, whether real or imagined.  He told me that the divorce from my mother was all his fault, even though I know divorce is never caused by just one person in a marriage.  He told me how much he loved me and he told me he was proud of me.  He had encouraged me to go to law school when I expressed frustration with my civil service job when I was 25 years old.  After my first jury trial, a slip and fall case, where the jury gave my client everything I asked for (a result that was quite rare for me in later years) he burst with pride.  My dad was gentle, kind, caring and realistic about his plight.  He wanted to tell each of his children what we had meant to him.  He wondered if there was something after death, even though he was a self-professed atheist.  In my mind, my dad was too young to go, but he had always said that he would prefer leaving 5 years too soon rather than 5 years too late. He implored us to take care of his mother, whom we all knew was quite a handful.  He would no longer be able to make the five minute calls to check on her every Sunday.

After ten days, my dad finally became disoriented.  On Friday of that week, Dad's final day, he told me that in the night before, the nurses had tied his hands down so that he could not continue to pull the tubes out of his orifices. He proudly declared, that he wrested himself from the restraints, pulled off his hospital gown and sat naked in the room chair before anyone noticed his freedom.  Within a few hours, he took his last breath, with three of his children and his wife standing over his deathbed.

My dad died well.  My dad died with great dignity.  I, too, want to die with dignity.  One of the things that scares me is that what I have worked for in this lifetime will be forgotten, that my life will be devoid of meaning in the end.  Then I remember my dad, as I have many times through these last 26 years.  I remember my great grandmother, such a kind and gentle woman who died right after my eleventh birthday in 1963.  I remember my maternal grandmother, who saved the family by orchestrating the exodus from Germany in 1938.  She died on my husband's birthday the year of my daughter's birth, 1985.   Then I realized, as long as we are remembered by loved ones, the ones whom cared for us and whom we cared about, our lives are not in vain.  My father is alive in my heart, as are my grandmother and even my great grandmother.  These people helped to shape who I have become and I have helped to shape my children, my husband and my loved ones.

Life is beautiful, but it must end.  Living life on one's own terms and recognizing what matters is what I wish for everyone.

Sunday, April 17, 2016

What Do You Want - Justice or Simply to Win?

I watched the HBO movie about Anita Hill. I always thought she was telling the truth. Perhaps because of Ms Hill, Congress passed the amendments to the Civil Rights Act which provided for jury trials in discrimination cases. Perhaps, as a result of Senator Jack Danforth's nimonation of Clarence Thomas, and perhaps because of some guilt Danforth felt over the way he treated Ms Hill, Senator Danforth agreed to sponsor the Americans with Disabilities Act. I don't know. I have always respected Senator Danforth, but I don't respect the way he treated Anita Hill. I watched the hearings and I think HBO gave Biden more credit for being decent than he was do. Danforth wanted to win. So, the Senators smeared Anita Hill's reputation.  It wasn't fair. It wasn't just. But they won. Clarence Thomas has been on the Supreme Court for 25 years.

Anita Hill's abuse was no different than a candidate on the wrong side of a politician's campaign. They all want to win. They are taken by the desire. Winning becomes more important than justice, or dignity or fairness. I don't mean to sound holier than thou. Trial lawyers, including me, get taken by the desire to win a trial.  Cross-examination is often similar to a bully beating up a younger kid. Lawyers hone their cross-examination skills for years, pouncing on an unsuspecting lay witness. Usually, it's not a fair fight. I know.  I can cross-examine a witness and wound them to the core, even when it's unwarranted.  When I go to trial, I lose objectivity. I want to win.

I suppose it's my job to win. It's not my job to be just. Justice is the responsibility of a judge and jury. But, when I allow myself to be honest with myself, I am not proud of seeking victory over seeking justice. Trial lawyers, including me, have big egos. I used to tell myself that the big egos only belonged to the other guys, not me. And when I rationalized egotists were "guys," I meant they were men. But, I realize, I merely was rationalizing to convince myself that I have little ego. I admit it now, I have a big ego. Yet, in representing my clients, I am supposed to want to win, for them. I do want to win, for them, and also for me. I don't know how to do this job any differently. Sometimes, when I allow myself to strip the facade, I feel somewhat hypocritical. I don't know how to fix this dilemma. Maybe I can't.

Sunday, April 3, 2016

The Life of a Trial Lawyer

My Mississippi friend Vicki Robinson Slater, wrote;

"Do you know what a trial lawyer is?  Unlike doctors or other lawyers, they don't demand cash on the barrel head for services.  Because even middle class Americans can't really afford a lawyer.  So they fight for their clients and work many 60, 70 and 80 hour weeks with no pay unless they win the case.  They have been vilified, laughed at, warred on and joked about.  They watch every piece of legislation in the State capitols and in DC and warn people when their rights are being diminished.  Like most prophets, their warnings are rarely heeded and the people scoff in disbelief.  Their numbers are diminishing - they are growing old and dying off - and when they are gone then there will be no rights left.  The people have been convinced by Karl Rove and corporate America ALEC and the Koch Bros. to fight against their own warriors, the only lawyers who will stand with them and once the people help defeat their own warriors - they will be unmoored not only from the most basic of human rights, but also from their dignity."

I sometimes say that being a plaintiffs' trial lawyer is like being a professional gambler. We never KNOW what the outcome of a case will be. We represent people on contingent fees and sometimes things go wrong and our clients lose. Even though I have other cases, it is hard for me to emotionally recover forum a loss. Obviously, I know it can be devastating for my clients and I do not want to underplay their sense of loss. But, for me, it is also devastating. I feel that I have not only disappointed my client, but also I must myself and others in similar circumstances to my client.  I delve deep trying to understand what I did wrong, what I misunderstood, and in what actions I failed. It takes months for me to recover from a trial loss. In the last two years, I have three trial wins and three trial losses. I focus on the losses.  It's not just because I don't get paid if I lose. Practicing law is not a mere hobby, it is my livelihood. By the time I go to trial, I am convinced my case is just. So, I must deconstruct the case and determine what went wrong. I want to learn from my losses, but it is painful to relive them.

I believe in civil rights and I believe we are on the cusp of gender equality in wages and LGBTQ equality. Yet, we haven't achieved racial equality or anything close to it even though we have been working on those issues for over 150 years. Prejudices run deep.

I have been fighting this fight, and getting paid only when we settle a case or win it outright, for 33 years. Fighting for 33 years, more than half of my lifetime, takes a toll. I am not as idealistic as I was. I am much more cynical. And sometimes I tire of the fight. But after this length of time, I am little suited for any other job and I believe being a trial lawyer is now inextricably a part of me.

I am going to the KC Royals opening game tonight. I love watching those young guys fight!  Would professional athletes keep playing professionally if they were only paid when they win?  Can you imagine a Workd Series where winner takes all the money?  So, how crazy are we trial lawyers?