THE STRUGGLE OF BEING A CAREGIVER

Many of us have represented the parents of a brain injured or disabled child, a person whose spouse is paralyzed or a loved one with disabling injuries. While we have a certain medical knowledge about the consequences of the injuries to the injured person injuries are not confined to just the person who was injured. They also involve everyone connected to the circle around the injured person.

That includes caregivers as well as the injured person and other uninjured family members. We have learned how all of the relationships are forever changed and will never be the same again. We also know that the evidence shows the divorce rate is much higher in situations involving injured spouses or injured children. We know it is due to the stress of becoming a caregiver, because the injured person isn’t the same person and because the other members of the family unit suffer when all of the attention is directed at the injured member of the family.

I have talked to juries about the  fact that  the injured person  is changed forever.  In a  case  involving  a brain injured wife  I told the jury what it is like. I’ve said something like this to the jury:

“Helen, at least the Helen  George married, doesn’t exist anymore.  Yes, we see  her  physically  looking about  the same as before the injuries and  she is still alive , but she’s not the Helen  George fell in love with  and  married.  That Helen whose personality ,wit and attraction George fell in love with was destroyed forever  by the  injury inflicted on her brain. Those of us who are married  were attracted  to our spouse  by their  personality  and the essence of who they were.  We married them and  we found out  that they weren’t the perfect people  we thought they were and they learned we weren’t so perfect either. We learned to adjust to our mutual imperfections. Over time we  became  closer  to them  as  we  learned  to  understand  them and our relationship grew.  However, if suddenly and unexpectedly  that  same  person  we  learned to love  is brain injured like Helen, we now have  whole  new  person  we really haven’t  met before  as a spouse.  The profound change  in  our relationship  with that injured person  isn’t just  a change  for us. It is a change for our children,  family members and friends as well. Nothing will ever be the same again. The effect of injuries like this cannot be fully  foreseen  and  continuously  impact  our  lives as well as the life of our injured spouse into the forseeable future. ”

James W. Foley’s poem  drop a pebble in the water  describes  the reality  of what happens  to a family  when  one of them suffers serious and debilitating injuries:

“Drop a pebble in the water: just a splash, and it is gone; But there’s half-a-hundred ripples Circling on and on and on, Spreading, spreading from the center, flowing on out to the sea. And there is no way of telling where the end is going to be.”

It’s our role in representing injured people to be able to reverse roles with everyone in this kind of a tragic setting. We need to be able to see and feel what it is like when someone you love and are responsible for suffers serious injuries.

Peter Rosenberger has written a book Hope for the Caregiver: Encouraging Words to Strengthen Your Spirit. Rosenberger’s wife, Gracie, was seriously injured in a car collision in 1983. She went through dozens of surgeries and ultimately had her legs amputated. The couple have two sons and Rosenberger and his children have been Gracie’s care giver during her life since the collision.

The New York Times interviewed him. He said he only left her at home alone for short periods and never alone overnight. He has some assistance part-time in the home. He is able to work out of his house and has a radio’s show and gives speeches.

When asked why he had written the book he said that: “More than 65 million Americans serve as volunteer caregivers for vulnerable loved ones. If we are not in a healthy place, we risk becoming a Petri dish of resentment.” Rosenberger says  that caregivers should take some breaks – “even if those breaks only come an hour at a time. You help them better if you are healthier, not just physically but fiscally, emotionally and spiritually.”

Rosenberger talks about what he calls the “three I’s” He says these are: (1) loss of independence (2) loss of identity and (3) isolation. He explains that caregivers frequently are so wrapped up in the person they are dealing with that they lose their own identity. For example if you ask a caregiver how they are doing they are likely to say “we” just got home from the hospital. Caregivers often speak in the third person because they have lost their identification. Certainly, caregivers lose significant independence because of the dependence on them by the person they are caring for. If one’s life is largely confined to caring for a person needing around-the-clock care one does not have much of an opportunity to mix with and be with others. That also  creates a sense of isolation and aloneness.

Rosenberger recommends support groups as well as the ” three W’s.”  He says these are wait, water and walk. In times of high stress learn to wait, bite your tongue  drank a glass of water and go for a walk. He recommends taking a moment before responding in a stress situation. Practice breathing slowly until you feel yourself growing calmer. Walking he says also is helpful in removing tension.

While there is no substitute  for spending time  with  your injured client and their families a book like this  can provide  helpful insight in  gaining an understanding  of what it is  the people you represent  are really going through.

DON KEENAN’S THE KEENAN EDGE 2 – A book you should own

Don Keenan has been my friend for 25 years. We are both past presidents of the inner circle of advocates, one of the nations most prestigious plaintiff trial organizations. We have also shared a lot of ideas about plaintiff trial work. I listen to what he has to say. One of the reasons that I have placed on lot of credibility in Don is he has always been on the cutting edge of communication and persuasion. Like me, he has a curiosity about what works and what doesn’t in our profession. In addition, I agree with him about most things relating to plaintiff’s trial work and in particular human decision-making.

Don’s numerous awards, honors, professional accomplishments and significant cases are too numerous to list here. The highlights include the fact he has appeared on every major national news program, received most of the significant awards for professional and community work and has served as an  officer or president of the most significant trial organizations. His record of million-dollar verdicts and settlements stands alone.

His popular blog, the Keenan trial blog: ,http://www.keenantrialblog.com/ is a must read for those of us who are trying to improve our trial skills. Don has now published a second collection of  selected blog publications in: “The Keenan Edge 2.” This book is available at the special price of $63.75  For more information see:  http://www.shop.reptilekeenanball.com/products/the-keenan-edge-2-pre-order.html 

By way of the disclaimer I should point out that Don was kind enough to include a couple of contributions I made to his blog, but I have no financial interest in it. The reason you should be familiar with this book is because it has leading edge information about what works for us doing plaintiffs trial work. It won’t substitute for attending one of the many seminars he and David Ball put on regarding witness preparation, discovery or trial, but it is an excellent collection of  great communication and trial ideas.

As an example, there is a section in the book about something I feel passionate about.  That is my belief it is to prove not just negligence but motive. A trial is a battle of impression and not logic. As Don says in law school you were taught that if you could prove liability causation and damages you won. He writes:

“If you could establish all three, then “shazam!” Like Gomer Pyle, a plaintiff’s verdict would certainly appear.”

Nothing could be farther from reality.  Only uninformed  lawyers  and mediocre judges believe that anymore. Yet that’s what we were taught as law students and what is believed by plaintiff lawyers for too many years. As Don puts it: “every case must have a MOTIVE unless the case surrounding the defense is substantiated by outrageous facts or you have an unlikable defendant.”

Don and I also agree about something that not everyone would join us in agreement about.  We both feel partial settlements shouldbe avoided as much as is possible in all cases.Don’s characterization is: “partial settlements: the self-inflicted wound.” I’m with Don. And we both agree that it doesn’t make a difference even if partial settlement is with just a peripheral defendant. There are too many downsides. An obvious defendant who is not in the case allows the jurors to speculate and assume you already collected money or have not done something right. And allows into many cases  the remaining defendants to point their finger at the empty chair. It opens the door to legal issues that could complicate the trial and your ability to collect the verdict.

Other helpful sections involve: negative attribution, focus group studies and voir dire. There is just enough information to make a point without a lot of extra complicated ideas.

Of course, Don talks about his copyrighted Reptile concepts, but this book is more than simply a rehash or extended discussion of that subject.

I also like the contributions made by other lawyers about their cases and how they handle issues.

We have a lot of ways to spend our money on instructional materials. This one is a good investment. I thought it was a valuable addition to my library, but if  you are unhappy with the book ask Don  for the refund, not me.

THE COMPETENCY OF TRIAL JUDGES

A long time attorney friend of mine who was an outstanding trial lawyer until his retirement recently pointed  out to me his concern that we seem to have numerous superior court  trial judges  in this state who simply aren’t experienced enough or qualified to do a competent job as a trial judge especially in jury cases.

What are  the minimum requirements to be a superior court judge  in  Washington state? Well, our constitution, in Article IV Sec. 17, says that to be eligible for the Supreme Court or Superior Court one must be admitted to the bar of the state.  That’s it. No age requirement. No educational or experience or proof of competency requirement. Anyone who is a lawyer can file for election to become a Supreme or Superior court judge. Any age. Any experience or lack  thereof.  You  just have to be a lawyer.

There is a judicial rule that once elected the judge must Complete the Washington Judicial College program. And, there is a requirement for 45 CLE hours over three years. The Judicial program takes a few days to complete. The National  Judicial College in Reno, Nevada has judicial courses to train judges. Three great plaintiff lawyers I know very well are involved in that College, Robert Parks, Jim Bartimus and Steve English so I know anything they are teaching would be top flight. However, there is no other requirement for either qualifications or training for a judge to be elected in this state and no requirement for full adequate training at the college on a madatory basis

For years there are those in the legal field who have been arguing that our elective system for judicial selection should be replaced with a commission system. The commission would consider applicants for a judicial office and recommend three to the governor who must appoint of the three. At the election the voters would decide whether to retain the judge or have another appointed.

There are those who feel the  elective system is the only fair system which avoid possible political wrong doing  in the selection of  judges. On the other hand, we have witnesses powerful special interest groups pouring millions into the judicial elective system trying to target judges they disagree with and putting their own type of judge on the bench. The most  recent gross  example of this was the supreme court election in Tennessee  where judges were unsuccessfully targeted by big money interests.

Isn’t ironic that in this state, if not all states, a criminal defendant is entitled to effective counsel.We have seen convictions reversed and even trials stopped because the judiciary has found that the trial counsel wasn’t competent. But, what about judges competency to hear cases?  The only real monitoring of the competency of judges is by appeal and review of the record for reversible error. We all know that only a small number of  trials result  in an appeal and we  also know  that too often the transcript and record is inadequate to fully illustrate what happened during the trial involving the competency of the judge.

The reality is that unless there is some screening  process for judicial competency the people can vote a judge into office who hasn’t the experience or qualifications to be an effective judge.

There really is no screening or monitoring of the performance  of judges. Yes, there are websites that seem to be focused  on issues  involving trial judges  in Washington like www.superiorcourtjudgesassociation.com and other websites. However, I’m not aware of any real monitoring  of the judiciary other than the Commission on Judicial Conduct. But, let’s face it, this body doesn’t evaluate day to day judicial ability to conduct trials with competence and experience. It punishes reported wrong doing after something rather ethically wrong has happened.

What is the  reality of the superior court judges in  this  state? Many judges get the position by appointment from the Governor. There is an informal screening of such applicants and there are opportunities to comment, but on the  whole it is a political  process which means it is  not done on an objective basis regarding real qualifications to serve as judge.

Those who file  for  election differ from the historical tradition of who ran for superior  court judge. It used to be that lawyers practiced until they felt the urge to retire and then ran for office. The result was  that a majority of trial judges had years  of  experience before they went on the bench.

That is not the current situation and  hasn’t been for a long time. We have judges who have never tried  a jury case. We have judges who have had virtually no trial experience whatsoever. We have judges who are  on the bench at a very young age. We have judges whose inexperience and  lack of understanding about civil litigation results in bad rulings and conduct which exhibits their having an agenda in cases which influence their  rulings.

As a result we have a significant number  of superior court judges who are only  marginally qualified to be a trial judge. When experience identifies such a judge the trial lawyers file disqualification motions if they are appointed  to their case, but this isn’t a practical solution to the problem. There are counties like King County where  the lawyers rate judges, but that system isn’t entirely fair  or accurate. In addition, there is no real sanction except an opponent could cite the vote in an election.

That  is not to say we don’t also have truly outstanding trial judges that are above  average in their ability to act as a judge. They are well known to the experienced trial lawyers who wish they could try  all their jury cases in front of  judges like this.

We have an uneven judicial system when it comes to trial judges. We  have some great ones, some  good ones and some who should never have been allowed on the bench. Over the years I’ve tried cases with each of these kinds  of  judges. However, there is no real effective means of dealing with this given our constitution. The proposal of  a commission is at best controversial. The elective system is subject to both error and manipulation by money contributions. I wish I had a solution to offer, but I don’t. I only point out the reality as I see it. Maybe you have a solution. I do think it needs discussion.