Life is Uncomfortable

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

Of Mentors, Mavens and Memories

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Irwin Mainway OR Manley Toys?????

Irwin Mainway

Coming soon . . .

A tale of international greed, deception and betrayal. Yes, I said it, betrayal. How the greedy allow the lying money-obsessed to dupe consumers into a false sense of security. This story has everything: a hero, multiple villains and a sweet story of love and devotion. Maybe we can become part of the story so virtue can ultimately triumph over evil and we can keep Americans and other world citizens safe from devastating injury or death. Stay tuned . . . .

I Feel Humbled

I have not posted for over a month because I have been getting ready for a trial that was to start tomorrow. The case is over today. I feel so humbled by the incredible courage of our client and his wife. He is so amazing with such incredible courage and grace. I feel fortunate to have been chosen by an incredibly caring and vigilant lawyer to assist him in this case. My life will be forever changed by this experience.

FEAR!!!!!

Sometimes, doing what you need to do is really hard and really scary and really overwhelming, but you know you've got to do it. You just have to jump off that cliff and pray the bungee cord doesn't break.

You're Just hoping the adrenalin rush outweighs the terror. Trial lawyers are some crazy sickos. Oy.

What's Wrong With America Today

The United States Constitution was written in 1789, with the Bill of Rights added in 1791. Our courts continually look at it's terms to interpret the framers' intent. Really?   Our courts look at this hundreds of years old document as if it were the Bible (which is fodder for another blog, but not one the subject today).  Were the framers endowed with omniscient powers, able to foresee the future?  Let's get real.

How were things different in 1791 as compared to today?  In 1791:

1.  SLAVERY WAS LEGAL AND HUMANS WERE PROPERTY (that's in all caps because I cannot over-emphasize what a different world it was in 1791).  The framers condoned slavery.  I know it was a different time, but we are revering these people and they said owning other human beings was not only okay, many said it was a necessary part of commerce and several owned humans themselves.

2.  WOMEN - Only white men with land could vote.  Women could not vote until 1920!!!!!!!

3.   TECHNOLOGY  - There have been great technological advances - in travel, communication, living.  We have planes, the Internet, electricity, indoor plumbing.  We no longer use leaches for medical care.  We have traveled to the moon.  We can kill millions of people at a time with our weapons, not just hundreds.

4.  CORPORATE BUY-OUT OF GOVERNMENT - Those "persons" with rights were living, breathing, eating white men.  Entities invented to escape individual liability, called corporations, were not "persons" given first amendment rights.  A real live person has a larynx and can speak.   He or she can write, either with a pen or computer. Thoughts come from a person's brain, an organ of the human body.  Corporations have no such biological makeup.  

What is the Constitution were written today, what would you like to see in it?  This is what I would like:

A.  EQUALITY  - All humans are entitled to the pursuit of life, liberty, and property.

B.  NO CITIZENS UNITED -  Only living breathing human beings have rights under the Constitution, not corporations, not robots nor cyborgs.   And rich people do not have more Constitutional rights than poor people. (No Citizens United - go Stephen Colbert!) 

C.  MORE EQUALITY -   Humans in the United States cannot be discriminated in employment, commerce, public accommodations, or WEALTH, based on race, gender, sexual orientation, religion, national origin, sexual preference, etc.

D.  EDUCATION AND EMPLOYMENT -  All United States citizens are entitled to a free education THROUGH COLLEGE OR TRADE SCHOOL so as to continually be employable and not outplaced by citizens with more technical or other education in other countries. We will continue to make sure our citizens are employed and employable so that they can support themselves and their families.  

E.  TAXES - Rich people and entities cannot be taxed on income at a lower rate than people who have to work for a living.  This means that wages and salaries are not taxed at a higher rate than investment income, dividends, or capital gains. People like Mitt Romney and Warren Buffett, multi-millionaires or billionaires, will not be taxed at a lower rate than nurses, and teachers, and mechanics.  

I am no economic scholar, but I don't think it takes one to explain the current state of this country's economic woes.  Rich people don't pay their fair share of taxes, especially since the Bush tax cuts and we have engaged in several wars costing taxpayers billions of dollars.  Corporations and the wealthy can spend unlimited amounts in getting candidates elected. These candidates become politicians who write our laws and control our lives.  Thus, they have lower tax rates than the common worker.  THIS MUST STOP.  

We are no longer fighting the British and supporting an agricultural system off the backs of human slaves.  A woman no longer loses her rights when she is married.    Hopefully, humanity has evolved.   Our country needs to reflect this enlightened progress and stop rewarding the American quasi-nobility, the rich. We don't need another violent revolution, someone just needs to slap some sense into these overly entitled rich people.  They are the ones truly receiving welfare and public assistance through the inequality in the tax laws.  The very rich are the real welfare cheats.  And don't get me started about the banking debacle.  Come on.  It's time for a change. 

Dr. Martin Luther King, Jr. - a message to lawmakers and judges

We in Missouri are continually struggling with some Legislators who want to emasculate our state's discrimination laws. We need these laws and the ability to stop discrimination by going to Court. As Dr. Martin Luther King once said, "Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless."

Why I Love Social Media and the Internet

There is hardly a person I can not find something about.  I don't hire private investigators, I have one who works for free.  His name is Google.  I find people through Facebook and My Space. And I am interested.  If I weren't a lawyer, I would still probably be looking people up on the Internet, because I am interested in who we are and how we are presented to the world.  We live in a much more connected world than the world of my youth.  When I was in college, a computer filled a building.  I bought my first personal computer in 1991, after 8 years as a lawyer.  When I was fresh out of law school, people used "word processors.". I didn't know how to turn one on.  Research was done in various libraries with books. We contacted others either by letter or phone.  In a prior law firm, there was a conflict about whether or not we needed the new-fangled "fax" machine since only dilatory lawyers failed to get their work done in time to use the mail.   How things have changed.  We have so much more access to everything and everyone.   When I represented a woman suing Mayor Funkhouser, I checked the Internet every morning.   Some days this was how I found out about new developments in the case, even though I was the plaintiff"s attorney.  I also discovered how anonymity emboldened those making vicious and vile comments.  Nasty racist and sexist comments appeared regularly, by people who falsely assumed they could forever remain nameless.  Of course, we could have tracked them down through there ip addresses, but those people were not worthy of the effort.  I received one anonymous hate letter by mail, and figured it must have been from a person who was essentially computer illiterate.  I resolved after that experience to never post anonymously anywhere ever.    With the Internet, anyone with a desire can have a voice.  We can learn a lot about others.  We had a sexual harassment case and my partner was going to take the deposition of the purported harasser.  She looked on the Internet, and there, on MySpace, was his page talking about how hot he thought he was to women.  How insecure is someone to have to post how desirable he or she is on the Internet?  Alternatively, there are people with whom I have been quite taken based on their social media postings.  I feel that I am honored to share a part of these people, especially the courageous ones who make themselves vulnerable and share their hopes, desires, sense of humor, and even progression of their labor pains. I hear others complain because people use social media for trivial information.  I love all of the information.  I feel honored that people make themselves vulnerable and let us know about their lives.  I know lawyers who tell their clients not to use social media.   I disagree.  We all need to exercise common sense, but isn't it wonderful that we get to learn about so many people and realize that we share hopes and dreams with those we hardly know.  I can't wait to see what technological advances are yet to come.  P.S.  Tony, I love your blog the most. You have the courage to be controversial, and funny. Don't we need controversial people in this conformist society? Yes!  Especially if they can laugh, not just at others, but also at themselves.