Being a Lawyer - It's Not About Me

  When I was a young lawyer, I was thrust into the battles of trial preparation - depositions - with little training.  I was young then and it seemed like I was "fresh meat"for the old lions of the trial bar.  I was not into being devoured, so I developed a strategy for my self-preservation.  I concentrated on the way I walked and sat.  I made chit-chat with the opposing counsel, smiled a lot, sat in a comfortable, nonchalant pose and acted like I was unafraid.  A weird thing happened, when I acted unafraid, I started to feel unafraid.  Just like the song says, "Whenever I feel afraid, I hold my head erect.  And whistle a happy tune, and no one can suspect, I'm afraid."  It worked.  I started feeling the same way my body language reflected.
    I no longer need to play-act, but through the years, as a trial lawyer, there is one principle that has served me well. Whatever the other side pulls, it is not a reflection on me, but on them.  What I mean is that I strive to take NOTHING personally.  It's not about me.   If the other lawyer is nasty to me, he or she must be insecure or have some issue.  If the other lawyer yells, that means I am winning.  I don't yell,  that's a sign of weakness, that I have lost my cool and allowed something get to me personally.  I represent a person and need to protect that person.  I can handle myself and need no protection.
     This past week I was in depositions with an attorney whom plaintiffs' lawyers in this area disdain.  He is rude, cold and uncaring.  He was that way with the two witnesses whose depositions he took this week.  This lawyer proudly exclaimed that he only defended cases with catastrophic injuries or deaths.   What a sad way to make a living.  He was nasty in the depositions, and I objected when he tried to trick or cajole the witness.
      Man, did the lawyer get ticked.  So what.  It was not about me.  I protected my witness, through legal objections, but really just to made sure there was a level playing field so that this lawyer could not intimidate the witness to get favorable testimony by twisting words.  I didn't take his harangues personally, because it was not about me.  Sure, he wants to get an advantage in the case, and I prevented that.  But, what makes this guy tick is beyond me.  Maybe his father was mean to him, maybe he was rejected as a child, maybe his mother favored one of his siblings, I don't know.  But, knowing his attacks weren't about me helped.  And even if he hates me, even if I remind him of an ex-wife or mean teacher, that does not matter.  I don't care and that is so freeing.  I am free to represent my client.
      One of the many things Gerry Spence says that I wholeheartedly agree with is that we must know who we are to be good trial lawyers.  I have spent years trying to understand me.  What a liberating experience this is as a lawyer and as a person.  Eleanor Roosevelt said, "No one can make you feel bad about yourself unless you let them."  I believe that.
       In my experience, to be a good and effective lawyer, one must not let his or her ego get in the way.  It is not about us.  That is probably the lesson that has taken me the longest to learn.

Whistle-blowing - To Thine Own Self Be True

  For most of us, what we do for a living affects so much of how we feel about life. If you sell out at work, do things to get ahead and betray co-workers, it takes its toll on your soul. I don't know any CEO's of gigantic corporations, but my prejudiced view is that many of those on top did things to others to climb the ladder that changed who they were.  I believe it's human nature to rationalize what we do so that we do not own up to the consequences of our actions.
   People compromising values happens not only in the workplace, but in all types of social settings.  We are social beings and how we interact with each other can present challenges. People act differently in groups than individually.  Would there have been the slaughter in Rwanda if it were not for mass hysteria? I am constantly reminded of how important it is for me to  have the support of other human beings.  I have done things in my life of which I am not proud to "get along" or to advance myself in a group.  Life is like high school for many of us, who want to be part of the cool kids or be in the popular group.  My mother, who is approaching 80 years old, and I talk about how evenly elderly woman can be "mean girls."  That is why it is so refreshing when a true rebel, a true whistleblower, comes along.
   It is really hard to stand up to authority and speak out.  Whistleblowers oftentimes risk everything, not just their jobs, but also their friends, and sometimes their families.  It takes a lot of courage to speak up.  As I write this, I think of one of my clients, a woman who is dear to me because she risked and lost so much.   This woman was a leader, and she sacrificed so much.  I am not going to mention her name, or even give her a pseudonym, because to do so seems like it would trivialize or cheapen what she did.
   My client is a nurse.  She, like all of the nurses I know, went into nursing because she wanted to tend to and care for others.  A good nurse is not only smart, caring and efficient, but a good nurse is also a stickler for details.   My client was a very good nurse.  My client really cared about her patients.  My client cared about her friends.  Her friends were nurses, too.  The friends really cared about their patients, too.  Unfortunately, the hospital where they all worked did not care so much about their patients.
    After very contentious litigation, tens of depositions, scores of sleepless nights, the case was resolved.  However, the story did not end there for my client.  Her husband worked for the same company that she did.   Her marriage of over twenty years deteriorated and failed, leading to a divorce even more contentious than the lawsuit. She vacated her lovely home and left it to her husband.  In just over two years, my client lost the job she loved, the home she loved and the marriage she thought was secure.  Did she help her co-workers and the patients of the hospital?  Undoubtedly.  But at what personal cost?  
  I hope the story does not end here.  I hope that my client gets some real justice for her.  She has the love of her children and her former co-workers, but I hope it does not stop there.  One of my other clients is working at another area hospital where I visited with my daughter who suffers from debilitating headaches.  My client was my daughter's nurse and she was wonderful.  My daughter's care was superb and our nurse, my former client, told her co-workers that we were like family to her. I felt very good about that.
   Next year, at the annual celebration concerning the case, I hope to see my first client flourishing.  This year it was hard because I did not know how badly the divorce and ensuing litigation had been.  This woman is a hero.  I hope next year she can know that.  It is not easy to be the one to stand up and say, "No more."  I hope my client realizes the good she has done and can someday look back on this episode of her life without the pain in her heart.
      

Not All Toymakers Are Willy Wonka

I am working on a products liability case against a Chinese manufacturer.  Since the case is pending, I will not go into too much detail.  However, this mega-toy manufacturer, with its American cohort, manufactured a product and totally ignored American safety laws.  Our client was gravely injured.  It's the kind of case that haunts a parent's dreams.  Yet, when the American wing of this mega-bucks Chinese company was successfully sued for trademark infringement, the American company up and liquidated the company and transferred all assets to some other phony, baloney shell company, all the while protecting the fat-cat American who is profiting from being the front for this unscrupulous mega-rich foreign company.

Many years ago, there was a Saturday Night Live skit where Dan Aykroyd played an unscrupulous toy manufacturer.  He was interviewed by Candace Bergen, promoting his company's new toy, "Bag of Glass," a bag full of broken glass.  At least potential buyers could see the product for what it was, dangerous.  Our client was unsuspecting and not so fortunate.

How can we make this foreign company stop hurting people?  I don't know and I am frustrated.

The Strengths of Women Trial Lawyers

   Every once in awhile, I watch a movie about men in war, or men in sports, and the captain, or coach, is upset with the men and makes a statement to the men like, "What do you think you are doing, ladies?"  .  This statement is supposed to be a put-down.  I have wondered not only why this statement is an insult,but also  why I see no one objecting to this common "insult."
   Biologically, men and women commonly share different characteristics.  Several years ago, my husband and I went on a safari in Tanzania and we observed natural wildlife.  In the lion communities, males and females have very different functions.  Lions travel in prides, with several females and youths, and one male.  The function of the females are to kill the food and raise and nurture the offspring.  The function of the male is essentially to procreate.  Procreation is obviously very important.  But so is eating and nurturing the young.  In the lion "kingdom," the females engage in most of the violent activity, killing the prey for subsistence.  The males kill only rarely; killing other rival males, either older or more infirm male lions to take a pride, or younger male lions or male cubs to prevent those other males from taking the pride from the dominant male.  The females kill all the time to feed the young, the male and themselves.  The females protect their young.  The males protect themselves.  What the males do is important in establishing an order to further the existence of the species.  What the females do is the day to day necessary work to exist.  The females are more fierce more often than the males.  In the grand scheme, both the females and males are fierce in furtherance of the existence of the species.  Yet, the females are solely responsible for the lions' day to day nuts and bolts existence.
   Mothers are thought to be nurturing and caring.  Women are considered to be more "emotional" than men.  These are great characteristics.  Mothers fiercely protect there offspring.  Also, an admirable quality.  Women have always had to fight for a greater good, the good of their children.  The majority of whistleblowers I have represented are women.  That is not surprising.  Whistleblowers speak out to protect the common good, even though they are at risk, personally.
   We generally think of trial lawyers as men.  However, women lawyers are naturals as plaintiffs' trial lawyers.  Who better to fight for someone with less power?  Society pegs trial lawyers as bombastic and egotistical, out for themselves.  And there is a rush in winning a nice jury verdict and trial law does attract the most self-aggrandizing in society.  But that is not what our legal system is about.  Women are naturals as protectors of the less powerful in society.  Females fight for those in their charge.  We need more women representing plaintiffs.
 

Listening

  For the past couple of years, I have tried to listen more.  I am not always successful.  At the Trial Lawyers College, the psychodramatists have coined the phrase, "Listening With The Third Ear."  I think what that really means is that listening is more than hearing.  The "third ear" is really a combination of the mind and heart.  To truly listen to someone is to empathize, to understand.  In order to understand someone, we have to reverse roles, or understand in what context he or she makes a statement. A statement is not merely what is said, but in what context it is made. When a person talks, oftentimes they are sharing their perception of an event through their eyes of the world.
    It is hard to listen with the third ear.  It takes all of one's attention and focus.  It's like meditation because you must be in the moment, in the here and now.  You cannot listen and multi-task.  You must totally focus on the speaker.  As Joshua Karton says, most communication is non-verbal.  Listening involves not just hearing, but also seeing and perceiving, and feeling.
    When you truly listen to a friend or loved one, it can be an act of love because when you listen, you give up yourself to the other person.  It is all about them, not you.  Your ego cannot get in the way; in fact one's ego cannot even exist if you are truly listening.
    This last year, I have tried to revamp how I handle cases.  I want to listen more than talk.  As I said in the first paragraph, I am not always successful.  Sometimes my ego or my insecure feelings interfere.  I have found that I am at my best when I don't care if I am at my best, when I am listening and in the moment.
     For instance, in preparing for depositions, I read everything in the case.  I may jot down notes.  I may have some questions in mind.  But in the deposition itself, I want to listen, to learn.  I want the answers to my questions, but the answers lead to areas I did not know even existed before the deposition. I go where the witness takes me.  I try to listen without judgment.
     I know when someone is truly listening to me and interested in what I say.  Witnesses know when we listen to them.  I feel honored when someone cares about how I feel. My clients have told me that they feel the same way.
    The most important person, outside of those in my personal life, is my client.  If I cannot empathize with her or him, there is a problem and that problem stems from me.  Something in my life experience is getting in the way.  I need to deal with what is inhibiting me and preventing me from listening to and understanding my client.
     What I have found when I really focus and listen, I learn things that were not in my preconceived script.  For instance, in one deposition, the witness told me he was not angry with my client for complaining about sexual harassment, but there was this "tone" in his voice.  I listened not to his words, but to what he was communicating.  I prodded, "Well, if not ticked, then what?"  He opened up that he was disappointed that she had come to him because it would put a "muzzle" on the workplace because he liked to "joke" with women, too.  That admission was important to the case, and it let me understand where he, and the company was coming from, how they did not understand the purpose of their policy because they let their insecure feelings get in the way.
     I am not saying that listening is a tool to trick adverse witnesses, but that it is a way to understand many of the multitudinous layers of a story.  Lawyers often ignore others in their quest to be kings.  The "downside" of empathy is that it is impossible to hate someone with whom you empathize.  In lawsuits, do we need to hate the other side?  Can we muster righteous indignation without hatred?  Yes, we can.
    A by-product of my quest to listen to others is that it makes me feel good to honor others.  When I feel good about myself, I am less insecure and I do a better job for my client.  I am less likely to see conduct as an affront, even if intended as an affront, since I try to understand where that person was coming from who tried to hurt me or my client.  Usually, the other person, or lawyer, is lashing out from fear.  To understand this is power.  Listening to others is an act of giving, to the other and to oneself.
  

Relationships and Being a Trial Lawyer

  When I first started practicing law, 26 years ago, I read a book about how female lawyers could be in the game with the men.   Several of the women said that they had decided to forgo families and essentially be "married" to their careers.  At the time I thought, are they crazy?  How can you sustain interest in the law when you have nothing else?  At the time, my son was four, I had been married for nine years and I wanted another child.  I decided to practice law my way, taking my kids to depositions and on out of town trips, including them whenever I could.  It seemed to me life is what you make it.  It wasn't an issue of having it all, it was an issue of knowing what was important.  That's not to say I didn't make mistakes from time to time, but in the end (or hopefully, closer to the middle), I am who I am because of my relationships and my experiences with others.  I wonder what happened to those women who "lived" the law; if they got burned out, if they developed meaningful relationships, if they fell satisfied.  I hope they found what they sought.
   I bring this up because I have been thinking about relationships.  I was on the staff of the second week of the Graduate Seminar at the Trial Lawyers College back in August.  Fredi Sison was in charge of the curriculum and she developed an exercise that was quickly named "Discovering the Characters."  We explored a case and the relationships between the important people in the Plaintiff's life.  I thought, and think, the exercise was brilliant.  Our relationships tell so much about us and who we are.  In movies and books, I gravitate to stories where there is more character, rather than plot, development.  I want to identify with other people.  I think most of us do.
   I have also been thinking about one of my former clients and how I could identify with her.  We settled her case the day before trial.  I remember her talking to us about her kids.  Two were in college and one had moved away.  When she talked about her kids, she lit up.  She spoke to each of her children several times a day.  When we met her kids, they shared humorous stories about our client.  Every Saturday morning, when they were home, they tried to arise before their mom, because Saturday was her cleaning day and she would go on a rampage.  My client's son, in a teasing tone to his mother, said she was like a quarterback getting psyched for the big game.  The easy way in which my client and her kids traded good-natured barbs reminded me of my own smart-mouthed, sweet children.  I fell in love with my client that morning.  She became so real and someone with whom I could identify.
   We are the product of our relationships, whether good or bad; regardless of whether we rebel against those relationships or accept them.  I believe Fredi's exercise is beneficial not only in preparing for trial, but also in living life.  Thanks, Fredi.
 

Thanksgiving - I am thankful for my brave clients.

I love Thanksgiving, and it's not all about the food - especially since I do most of the cooking.  I enjoy Thanksgiving because of the enrichment my family and friends provide to my life.  But, for this article, I want to thank and be grateful for my clients and how they have enriched my life.

There's Ruth Bates, who taught me what true courage and perseverance was.  She felt within her what was right or just and followed her gut.  She acted with dignity and courage in the face of media barrages and intrusions.  Ruth handled herself with dignity, while the opponent could have taken lessons in decorum and self-esteem from her.  Plus, I had the joy of getting to know her and her wonderful family and how they came together in Ruth's hour of need.  There is not enough that I can say about Ruth Bates.  Who says you can't fight city hall.

There's Terri Wallace, who after 7 years, finally made justice happen. Through two appeals and one jury trial, Terri persevered and prevailed.  She did not set a 7 year goal, but when she saw that 7 years is what it would take to receive justice, she didn't balk or lay down.  Heroes come from humble beginnings.

To the Campbell family, who hopefully will get some closure after the brutal killing of their father.  I particularly respect Debbie, who made her peace personally with the officer who killed her husband.  That took great courage and taught me a valuable lesson in forgiveness.  The girls are doing so well now.

To my former brave clients, who have given me strength through the years (this is not a comprehensive list) -

Of course, Serita Wright, one of the bravest women I know; Nancy Watson, who started it all for me, James Brock, who displayed incredible courage; Marlene Hickerson and Shirley Stroud, who showed what it meant to believe in moral values; Vera Sims, who refused to allow herself be treated like a piece of meat, and to the many others through the years who have helped so many, and particularly who have kept my hope for society's future alive.  To the brave and true nurses.

And there are the clients whose cases are pending - Christie Helm, who had the courage to tell the truth about a judge, and others I shouldn't name until we are finished with the case.

I went to the Holocaust museum and bought myself a tee-shirt with a quote from Margaret Mead, "Never doubt that a small group of thoughtful committed citizens can change the world: Indeed it's the only thing that has."

I am deeply indebted to all of these brave people who are willing to bare their souls in the name of justice, in the quest to eliminate discrimination and dishonesty in America's workplace.  And as the saying now goes, "How the workplace goes, so goes the U.S., and someday the world."

Thanks again to all of my clients.  You probably don't realize what difference you have made in my life.

Even Though I Blasted Men In My Earlier Post, They Have Redeeming Qualities

A couple of posts ago, I compared qualities of male and female lawyers.  Some think I blasted men.  This is my disclaimer, if not an apology.  I believe what is said in the previous post is generally true and I admit to generalizing.  But that is not why I am writing.  Overall, men are good to have around.  I like men.  Dare I say, I love some men (like my husband, brothers and son and nephews, ya da ya da).  It's just that male lawyers can learn a lot from female lawyers (and I must admit female lawyers can learn to be a little braver from their male counterparts).  The end.

Thank God for the Nurses

I love nurses.  I have loved nurses for many years.  This past week, I went to the party of some of my former nurse clients.  They were celebrating the day of their unceremonious firing and subsequent successful lawsuit.  It was wonderful seeing them after several years.  I love those nurses.  Nurses are special.

When my grandfather died, my grandmother decided to pursue her life long dream, to be a nurse.  She enrolled in nursing school at the age of 63.  She had retired from her job as a factory worker sewing on sleeves on women's coats and had planned to travel the world with my grandfather.  Their first trip after Oma, my grandmother, retired was to Israel.  Israel was the destination in the late 1960s of all European Jews who had emigrated from Europe around the time of World War II.  My grandmother had taken her family (including my mother) and fled Nazi Germany in 1938.  She first worked as a housekeeper after she arrived in Kansas City, and worked her way up to the Betty Rose coat factory, where she joined the International Ladies' Garment Workers Union and took the bus every day to the factory to sew on coat sleeves until she retired around 1967.  Oma and Uncle Sam (my step-grandfather) had planned for many years to go to Israel.  Uncle Sam bought a beautiful smoky topaz ring for Oma while in Israel.  I am wearing it on my finger as I type this blog.

My grandparents' retirement plans were not to be.  Upon returning from Israel, Uncle Sam went to his doctor because he was feeling weak and tired.  He had lung cancer.  By November 1968, he was dead.  And my grandmother decided to go to nursing school.  While Oma never really recovered from my grandfather's death, the one redeeming thing in her life was that she was a nurse.  Through all of the years in the factory, she had always wanted to be a nurse and, by the end of her life, she made her dream come true.  In so many ways, my grandmother was my hero.  In her unassuming way, she was the risk taker in the family.

This leads me to what I want to write about and that is the profession of nursing.  Through the last few years as a trial lawyer, I have represented many nurses.  I have kept nurses on many juries.  I have the greatest respect for the profession of nursing.  People who decide to go into the nursing profession by and large do so because they care about helping people.  Nurses are smart, work hard, are sometimes unappreciated and don't get the respect that doctors receive.  When you go to a hospital, you spend much more time with nurses than with doctors.  Nurses take care of you.  Nurses are the mothers and fathers of the health care profession.

I have represented nurses who were sexually harassed in horrible ways by the doctors they worked for and I have represented nurses who spoke out against dangerous medical conditions in health care facilities and were fired.  In a whistleblower case against a not-for-profit case, it was the nurses on the jury who spoke out against the illegal conduct of the employer.  Qualities necessary to make a good nurse include the willingness and ability to question authority and the drive to seek perfection.  Some may call this latter trait obsessive compulsive disorder, but as far as I am concerned, give me an OCD nurse any day of the week.

My daughter has been struggling with migraines and who is it that gives her the care she needs to function?  The doctors help, but the CARE is provided for by the nurses.  Nurses don't seek recognition or glamour, they just do their job with intelligence and caring in 12 hour shifts.

Here's to the nurses!  Especially the ones who speak up so that we are all safer.  Thank goodness the nurses who were my clients had the courage they have to make this world a better place.  Thank God for nurses.

Women Trial Lawyers - As Good or Better Than Men

I have been a civil trial lawyer for 26 years and there are not many more women trying plaintiffs' case than there were 26 years ago.  Why is this?  I have a friend, a highly skilled and accomplished female trial lawyer who was beat out for a prestigious position to a man even though she was better qualified.  Why?  Gerry Spence opined in my presence that it would be hard for women to be trial lawyers because we are not natural fighters or warriors. I told him that he was wrong because we women fight all the time - we fight for our children, we fight for ourselves, we fight for justice.  It's just that we aren't as loud.  I don't think we need to be.

 Is it true that women are ill-equipped to fight in the rough and tumble world of trial work? I say NO!!!!  Resoundingly NO!!!!!  What I am going to write about are my own opinions and observations only.  I believe that women have the capacity to far outshine their male trial lawyer counterparts.  But, women have not excelled in traditionally recognized ways.  I think there are a couple of reasons for that.

First of all, women, by and large, have much smaller egos than their male counterparts.  For instance, I second chaired a case with my partner and we won.  We belong to a local lawyers group that meets monthly. Although our all female firm tries many cases with results as good as the male firms, I cannot remember one time when a meeting was devoted to stories about one of our cases. There is another woman in the organization and I know that the same thing has happened to her.  However, with the male trial lawyers, not only do they have meetings devoted to them when they win, I remember attending a meeting where one of the male lawyers spent the whole time talking about what great strategies he had and things he had done in trial in a case that he LOST.  The long and short of it is that male trial lawyers brag more than women trial lawyers.  I will explain how this lack of ego and bragging in women can make them better trial lawyers than the men.

Second, women are less likely to take risks that men are.  I mean less likely to risk going to trial, to risk acting as first chair, to risk making a mistake in front of others,to risk losing money, and to risk asking for money from a jury.  Women need to take more risks.  

Third, because there are fewer women trying plaintiffs' civil cases, we look to males as models for what a trial lawyer is.  Yes, they fight.  Yes, they talk a lot.  Yes, they brag.  Out of those three traits, the only male trait that is really effective is that they fight.  The other two traits are detrimental to representing clients.  However, since we have male role models, people, espouse that you have to act like a "man" to be a successful trial lawyer.  That is poppycock.  I will tell you why,

Men are more ego-centric and are more likely to make the trial about themselves.  "I won this trial."  "The jury gave ME..."  While female lawyers are more willing to focus on the client.  Women are more likely to be nurturers.  Nurturers protect and nourish their clients.  And by "protect," I mean fight for their client.  Women don't have to be the focus, and sometimes men, who want to be the focus step all over their female counterparts to get attention.  Mind you, these are stereotypes and generalizationsw and not all male trial lawyers are like this.  In fact, I have tried several cases with men, most notably with Rafe Foreman, who did not demonstrate the male egoic traits I have ascribed to male trial lawyers.  When a trial lawyer makes the case really about himself, he has lost sight of his job.

These are the typical female traits which allow women the potential to be superior trial lawyers:

1.   Ability to LISTEN instead of talking all the time.  In my opinion, many trials have been lost because the lawyer failed to listen and was hell-bent on being the star of the show.  Women are better listeners. Better listeners are better story-tellers.

2.   Women have more EMPATHY.  Empathy, or the ability to place oneself in the shoes of another and understand them is a critical trait for people, not just trial lawyers.  Kindness, caring and understanding all come from empathy.

3.   LACK OF OVER-ACTIVE EGO allows women to be in the moment, be real and spontaneous.  All traits helpful in life as well as in trial.

4.   Because of women's EMPATHY, LACK OF EGO, AND LISTENING ABILITIES, women are more trustworthy.  Sincerity, honesty and trustworthiness (along with preparedness, etc.) are the keys to persuasion.  Women have the innate ability, that some women suppress, to be sincere and trustworthy and focus on their clients.  Those are building blocks for great trial lawyers.

The only beneficial trait I see less in women than men is the desire to take risks.  Women are simply going to have to jump off the cliff and try cases.  Once this happens, I predict that society's view of effective trial lawyers will change and women will be venerated.  Women are as smart as men.  Women prepare as hard as men.  Women are oftentimes more believed than men,.  The lawyer who is believed and has the jury's trust is the one the jury will want to win.

So, I think women lawyers need to try cases, but not just copy the styles of men.  Women need to be confident enough to be themselves and not to adopt the annoying egoistic qualities of some of the male trial lawyers.  I hope that we are starting a movement where women take their rightful role as trial lawyers.  Women are well suited for the job.