My husband's 13 year old cousin died today. She had suffered from debilitating seizures for most of her life. Her grandmother posted the following on Facebook:
"Thank you everyone for your prayers, love and assistance. I pray that in Amanda's memory people (especially children) have awareness and compassion for people that are different. Teach your children to say hello to a child in a special needs class rather than make fun of them or ignore them. They are the most loving children in the world. They are special, but in the most delightful way. As soon as I know arrangements, I will post. We so appreciate your prayers and hearing from so many people (even those we don't know personally)."
My heart goes out to Amanda's family. I am at a loss for words....
Friday, September 23, 2011
Monday, September 19, 2011
Our Crazy Civil Justice - Brave, Committed and Patient People Needed
Most of my clients are worried about going to trial, and with good reason. Being a party to litigation which culminates in trial is not pleasant for either side. It's easiest on the lawyers. Some lawyers think it is their duty to be mean and nasty and others, probably most, get a kick out of rattling the other side. Knowing what I know about how these things go, I would think long and hard before being a party to a lawsuit. I like to think I would sue, if there is a grave injustice, but I know the emotional perils of trial.
I try to tell new clients what to expect in litigation. I refuse to allow lawyers to treat my clients with disrespect in depositions. However, it's impossible to tell what can happen in a trial. The other side wants to portray my clients as a liar, a cheat, greedy, with low morals. It takes a lot of my energy to deal with this and I can imagine what it is like for my clients, who have little control once the trial starts.
My goal is to find the good things in my clients, their courage and kindness, and by the time of trial I really care about my clients the same way I care about my friends and family. My role is not just to be their advocate, but also to be their protector. I am very fortunate because most of my clients display the type of courage in the battle of litigation that I have only dreamt about. It takes quite a toll on me to protect my client and be ready to deal with the other side. But, at least I have some control over the situation. I plan the strategy, ask the questions and make the objections. My client has to sit at the counsel table, displayed before judge, jury and opposing counsel, without any control whatsoever. My clients can only talk while being questioned. They must relinquish control and trust me, even while knowing sometimes our cases don't work out.
I believe that most of my opposing attorneys are fine, upstanding people, but every once in awhile, oftentimes based on comments from the lawyers, the other side will not resolve the case until the lawyers has exacted his pound of flesh. Ironically, this phrase comes from Shylock in the Merchant of Venice, and Shylock does not portray the lawyer Shylock in a very favorable light. Insteadvof flesh, some lawyers want to make a certain amount of money off the case before they will discuss settlement. Their pound of flesh is the unnecessary pounding on my clients from which they bill their time. The more time, the more unnecessary work, the more money that lines their pockets.
I long for the days before my time when lawyers just went in and tried their cases. No whorish experts, no multiple day long depositions. The way we drag out the civil justice system today is unfair. As some Supreme Court Justice one said one day long ago, "Justice delayed is justice denied." Perhaps we need to examine why the justice process is taking so long and who reaps the benefit from this delay. Can't we do this better? I think there must be a way.
I wish I could tell my clients what will happen with their case, but all I can do is guess. I don't know the future. At some point, most, but not all cases settle. I tell my clients that sometimes I feel like my job is similar to being a professional gambler. That does not give the client much solace, since I am, I effect, gambling with both their and my money.
It takes a lot of resolve to be a client in litigation heading toward trial. I admire my clients. I admire that most of them want to make the workplace a fairer place. But, darn, this is not a path for the timid of heart nor for the half-hearted. Thank God for the courage of people to do the right thing. My clients restore my faith in humanity.
I try to tell new clients what to expect in litigation. I refuse to allow lawyers to treat my clients with disrespect in depositions. However, it's impossible to tell what can happen in a trial. The other side wants to portray my clients as a liar, a cheat, greedy, with low morals. It takes a lot of my energy to deal with this and I can imagine what it is like for my clients, who have little control once the trial starts.
My goal is to find the good things in my clients, their courage and kindness, and by the time of trial I really care about my clients the same way I care about my friends and family. My role is not just to be their advocate, but also to be their protector. I am very fortunate because most of my clients display the type of courage in the battle of litigation that I have only dreamt about. It takes quite a toll on me to protect my client and be ready to deal with the other side. But, at least I have some control over the situation. I plan the strategy, ask the questions and make the objections. My client has to sit at the counsel table, displayed before judge, jury and opposing counsel, without any control whatsoever. My clients can only talk while being questioned. They must relinquish control and trust me, even while knowing sometimes our cases don't work out.
I believe that most of my opposing attorneys are fine, upstanding people, but every once in awhile, oftentimes based on comments from the lawyers, the other side will not resolve the case until the lawyers has exacted his pound of flesh. Ironically, this phrase comes from Shylock in the Merchant of Venice, and Shylock does not portray the lawyer Shylock in a very favorable light. Insteadvof flesh, some lawyers want to make a certain amount of money off the case before they will discuss settlement. Their pound of flesh is the unnecessary pounding on my clients from which they bill their time. The more time, the more unnecessary work, the more money that lines their pockets.
I long for the days before my time when lawyers just went in and tried their cases. No whorish experts, no multiple day long depositions. The way we drag out the civil justice system today is unfair. As some Supreme Court Justice one said one day long ago, "Justice delayed is justice denied." Perhaps we need to examine why the justice process is taking so long and who reaps the benefit from this delay. Can't we do this better? I think there must be a way.
I wish I could tell my clients what will happen with their case, but all I can do is guess. I don't know the future. At some point, most, but not all cases settle. I tell my clients that sometimes I feel like my job is similar to being a professional gambler. That does not give the client much solace, since I am, I effect, gambling with both their and my money.
It takes a lot of resolve to be a client in litigation heading toward trial. I admire my clients. I admire that most of them want to make the workplace a fairer place. But, darn, this is not a path for the timid of heart nor for the half-hearted. Thank God for the courage of people to do the right thing. My clients restore my faith in humanity.
Tuesday, September 6, 2011
Cannibalism And The Struggle Against Inhumanity
I have been reading "What It is Like To Go To War" by Karl Marlantes and am struck by how much in common we have with violent warriors. The book is not just about war, it's about humanity. Obviously, warriors kill and fight physical battles, which is foreign to most of society. But the emotions, regrets and knowledge Marlantes recites applies universally to humanity.
In the book Marlantes talks about a friend of his, who, during the end of his tour in Vietnam committed an actionable atrocity. The man beats a prisoner and hangs him upside down from a flagpole. This soldier is, in all other respects, a normal, decent human being. What could make an otherwise normal person torture another human being? Marlantes explains how this one man's actions, while horrible and reprehensible are also understandable. He does not excuse the conduct, but explains it.
I have often wondered about the atrocities perpetrated in places like Bosnia, Rwanda, Nazi Germany, and the like. Who were these perpetrators, and more importantly, what made them carry put these atrocities? Were those "monster" who killed, hacked and mutilated other human beings so different from you and me. I have read books on genocide in Africa, about the rise of the Nazis and I am convinced under the wrong circumstances, a "perfect storm" if you will, any of us could become murderers. we could all become part of marauding cannibals similar to those depicted in "The Road", Cormac McCarthy's post-apocalyptic novel.
What intrigues me about Marlantes' book is his lifelong struggle to understand his own behavior in Vietnam and to learn from it. He proposes methods to prevent soldiers from reverting to inhumanity. At first blush, it is easy to rationalize that soldiers act bad because war makes them bad. And, that is partly true. However, we all have darker, baser sides against which we must guard ourselves. Genocide is extreme bullying. That sounds trite, but it is true. When human dehumanize others, when humans put others down to enhance their own esteem, when cruelty is rewarded by a group, we risk inhumanity.
One part of the book really intrigues me as a trial lawyer and that is the satisfaction that soldiers may, and oftentimes do, feel when killing the enemy. Marlantes describes it in ways that remind me of a winning home run, the deciding touchdown, and the win at trial. One year, my husband and i went to a University of Missouri football game against Nebraska and I sat by a little girl in a Nebraska cheerleading outfit. She was 4 or 5 years old and instead of thinking, oh, how cute, she became the epitome of the enemy. When my rational self returned, I was scared. How could I, a grandmotherly mother of two reflect such I'll feelings on a cute little girl? At that moment, she was not just a little girl, but the enemy.
At trial, I have wanted decimate my "enemy". It's a real high to battle in the courtroom and win. It's physiological. Every night while I am in trial, I have an adrenaline crash. I live
on adrenalin in the courtroom and oftentimes in depositions. I hate to admit it, but those
highs are some of the real draws to this job. It scares me sometimes. I can imagine that instead of being a 58 year old female trial lawyer, I am a 22 year old soldier and how feeling
that rush could lead to disaster.
In our family, my kids and I all have odd little phobias, things that scare us enough we will not go to movies or read books about them. To my daughter, it is vampires; to my son it is worms; and to me it is cannibals. I never understood why cannibals have scared me so much ever since I was a little girl watching cannibal movies. Today, I think I understand why I am so afraid of cannibals. In actual fact, it is not that I am afraid of being eaten by cannibals, but that I am afraid of becoming one.
What it takes
In the book Marlantes talks about a friend of his, who, during the end of his tour in Vietnam committed an actionable atrocity. The man beats a prisoner and hangs him upside down from a flagpole. This soldier is, in all other respects, a normal, decent human being. What could make an otherwise normal person torture another human being? Marlantes explains how this one man's actions, while horrible and reprehensible are also understandable. He does not excuse the conduct, but explains it.
I have often wondered about the atrocities perpetrated in places like Bosnia, Rwanda, Nazi Germany, and the like. Who were these perpetrators, and more importantly, what made them carry put these atrocities? Were those "monster" who killed, hacked and mutilated other human beings so different from you and me. I have read books on genocide in Africa, about the rise of the Nazis and I am convinced under the wrong circumstances, a "perfect storm" if you will, any of us could become murderers. we could all become part of marauding cannibals similar to those depicted in "The Road", Cormac McCarthy's post-apocalyptic novel.
What intrigues me about Marlantes' book is his lifelong struggle to understand his own behavior in Vietnam and to learn from it. He proposes methods to prevent soldiers from reverting to inhumanity. At first blush, it is easy to rationalize that soldiers act bad because war makes them bad. And, that is partly true. However, we all have darker, baser sides against which we must guard ourselves. Genocide is extreme bullying. That sounds trite, but it is true. When human dehumanize others, when humans put others down to enhance their own esteem, when cruelty is rewarded by a group, we risk inhumanity.
One part of the book really intrigues me as a trial lawyer and that is the satisfaction that soldiers may, and oftentimes do, feel when killing the enemy. Marlantes describes it in ways that remind me of a winning home run, the deciding touchdown, and the win at trial. One year, my husband and i went to a University of Missouri football game against Nebraska and I sat by a little girl in a Nebraska cheerleading outfit. She was 4 or 5 years old and instead of thinking, oh, how cute, she became the epitome of the enemy. When my rational self returned, I was scared. How could I, a grandmotherly mother of two reflect such I'll feelings on a cute little girl? At that moment, she was not just a little girl, but the enemy.
At trial, I have wanted decimate my "enemy". It's a real high to battle in the courtroom and win. It's physiological. Every night while I am in trial, I have an adrenaline crash. I live
on adrenalin in the courtroom and oftentimes in depositions. I hate to admit it, but those
highs are some of the real draws to this job. It scares me sometimes. I can imagine that instead of being a 58 year old female trial lawyer, I am a 22 year old soldier and how feeling
that rush could lead to disaster.
In our family, my kids and I all have odd little phobias, things that scare us enough we will not go to movies or read books about them. To my daughter, it is vampires; to my son it is worms; and to me it is cannibals. I never understood why cannibals have scared me so much ever since I was a little girl watching cannibal movies. Today, I think I understand why I am so afraid of cannibals. In actual fact, it is not that I am afraid of being eaten by cannibals, but that I am afraid of becoming one.
What it takes
Friday, September 2, 2011
Ahhh!!!!!
Writer's block!!!!! I have been thinking about war, aggression, the meaning of life and illness. Plus spontaneity and intuition. Nothing I can articulate yet. I am reading the new Karl Marlantes book, "What It Is Like to Go to War" about war and morality. Yikes. Hope to be writing again soon.
Tuesday, August 9, 2011
Othello and the Practice of Law
Our clients are brave souls. It takes courage to buck the system and sometimes it takes a long time for justice to prevail. In my office, we handle discrimination cases on a contingent fee basis. Our jobs are to zealously represent our clients, which we do. Sometimes we go forth with cases for years, appealing summary judgment decisions, going on to try jury trials, overcoming post-trial motions, only to continue to have to fight the unscrupulous employers who change their names and liquidate their assets in order to evade justice. Sometimes it takes us 6, 7 or more years to get our clients and us paid. Sometimes we lose, and even though we advance all expense, we recoup nothing. Few people in the private sector are willing to work for others and forgo payment for years. We do. That's part of our job. We care about our clients and we work hard fo them. We feel that our mission as lawyers is to eradicate discrimination, but, too, we must pay mortgages, send our children to college and buy groceries. That's why we get paid when the clients get paid.
It is extremely rare for a client to object to this arrangement. After all, the client has no financial obligation whatsoever until we settle or win. We believe in our cases and we gladly advance our money to pay for expenses. We fiercely fight for our clients. We love our clients and at willing to work sometimes for many years on a case with no payment. Rarely, almost never, do we have issues with clients regarding fees and expenses.
It is hurtful to work for a client for years, for no pay, earn a wonderful result from a jury, then have to deal with a dishonest employer trying to hide assets only to have a client listen to a friend or relative who convinces the client that our deal is unfair to thr client I call this the Othello effect. We are the Desdemonas working hard and believing in our Othello clients when, unbeknownst to us slips in a Iago, whispering in Othello's ear that we, Desdemona, are cheating on Othello. How hurtful and disheartening. Othello and Desdemona did
not fare well in Shakespeare's play. I guess Shakespare really was brilliant and we humans are still plagued by the same insecurities and paranoia as in ancient times. How sad.
It is extremely rare for a client to object to this arrangement. After all, the client has no financial obligation whatsoever until we settle or win. We believe in our cases and we gladly advance our money to pay for expenses. We fiercely fight for our clients. We love our clients and at willing to work sometimes for many years on a case with no payment. Rarely, almost never, do we have issues with clients regarding fees and expenses.
It is hurtful to work for a client for years, for no pay, earn a wonderful result from a jury, then have to deal with a dishonest employer trying to hide assets only to have a client listen to a friend or relative who convinces the client that our deal is unfair to thr client I call this the Othello effect. We are the Desdemonas working hard and believing in our Othello clients when, unbeknownst to us slips in a Iago, whispering in Othello's ear that we, Desdemona, are cheating on Othello. How hurtful and disheartening. Othello and Desdemona did
not fare well in Shakespeare's play. I guess Shakespare really was brilliant and we humans are still plagued by the same insecurities and paranoia as in ancient times. How sad.
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.
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.
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
reasons.
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.
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
reasons.
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.
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.
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.
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