Whether we like it or not, adversity is in an inevitable part of our life. Problems are going to happen and the secret is to know how to deal with them when it happenss. Challenges, large and small, the occur continually through our lifetime. Our attitude determines our personal reality in dealing with adversity. We know from our past experience that Nietzsche was right: “that which does not kill you will make you stronger.” We see the benefit of adversity illustrated in the 1949 British film, The Third Man, Harry lime,Played by the great actor Orson Welles, says:

“Don’t be so gloomy. After all, it’s not that awful. Like the fella says, in Italy for 30 years under the Borgias they had warfare, terror, murder and bloodshed, but they produced Michelangelo, Leonardo Da Vinci and the Renaissance. In Switzerland they had brotherly love – they had 500 years of democracy and peace, and what did that produce? – The cuckoo clock!”

Difficult situations help us appreciate when things are going well for us. Learning to be appreciative of our blessings is enhanced by experiencing adversity. In addition every adversity has within it an opportunity for learning. Many years ago the motivational writer and speaker Napoleon Hill said: “Every adversity, every failure, every heart ache carries with it the seed of an equal or greater benefit.” He also wrote in his classic book, Think and Grow Rich, this:

“Before success comes in any man’s life, he is sure to meet with much temporary defeat, and, perhaps, some failure. When defeat overtakes a man, the easiest and most logical thing to do is to quit. That is exactly what the majority of men do. More than 500 of the most successful men in this country has ever known, told the author their greatest success came just one step beyond the point at which defeat had overtaken them.”

Research from the University of Kent shows that positive reframing of adversity, along with acceptance and humor are the most effective coping strategy for people dealing with failures and adversities. Researchers from the University’s school of psychology published a paper in the International Journal, Anxiety, Stress and Coping, which reported that these three approaches were the most effective in dealing with failure and setbacks. The researchers found that looking for positive aspects in the outcomes they regarded as “failures” and reframing in a more positive way were beneficial.

Og Mandino wrote a best selling motivational book, The Greatest Salesman in the World. In it he writes:

“Obstacles are necessary for success because in selling, as in all careers of importance, victory comes only after many struggles and countless defeats. Yet, each struggle, each defeat, sharpens your skills and strengths, your courage and your endurance, your ability and your confidence and thus each obstacle is a comrade in arms forcing you to become better – or quit. Each rebuff is an opportunity to move forward; away from them, avoid them, and you throw away your future.”

There are three suggestions for handling adversity in the blog for Shorten the Gap

  1. See the situation for what it really is. Too often we make things a lot worse than they really are. Everybody experiences problems defeat in adversity. It’s something we all experience. The first step is to see things the way they are and not worse than what they are. See it as an opportunity for you to grow. Every challenge or diversity you will ever face in your life is a period of strengthening and growth. The hard part is recognizing the gifts hidden within the shadows of the problems.
  2. Find the gifts. Look for the lessons, the gifts, that are in the situation. Within every problem adversity challenge or defeat there is some gift wraped within the problem. To find them ask yourself questions like these: what can I learn from this situation? What are the benefits it brings to me? What am I happy about in my life right now? What do I have to feel grateful for right now? Who loves me and who do I love?
  3. Focus on gratitude and contribution. Focus on being grateful and finding ways to contribute to others. Motivational speaker Tony Robbins says: “when you are grateful, fear disappears and and abundance appears.” Gratitude can defeat a motions of depression fear regret anxiety and sadness.

Haruk Murakamii Is a best-selling Japanese writer. In writing about adversity he has said:

“And once the storm is over, you won’t remember how you made it through, how you managed to survive. You won’t even be sure, whether the storm is really over. But one thing is certain. When you come out of the storm, you won’t be the same person who walked in. That’s what this storm’s all about.”

I believe that trial lawyers have to have in their “tool kit” the necessary tools to deal with the inevitable adversity, anxiety and failure. Being a great lawyer involves the skills required to fight on after suffering obstacles. One of my favorite lines is from John Dryden’s poem, Johnny Armstrong Last Goodnight “Fight on my merry men all, I’m a little wounded, but I am not slain; I will lay me down for to bleed a while, then I’ll rise and fight with you again.” In the words of William Ernst Henley poem Invictus We need to say: “under the bludgeoning of chance my head is bloody, but unbowed.”

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We’re in Arizona enjoying  the sun and I’ve been too lazy to write a blog. But because I’m late in publishing my regular blog, I’m going to share an article I wrote for our state trial judges. I was invited to speak at their convention last Fall and wrote this for the convention. It deals with the Washington State jury selection process and issues involved in it. Perhaps something of interest is in here and I promise to do a better job on my next entry Happy New Year to you all.

The right to a fair and impartial jury in civil and criminal cases is well established. Washington’s Constitution has adopted language of the sixth Amendment to the U.S. Constitution in Article 1 Section 22 reserving the right to a jury trial in civil. The right to an impartial jury is provided in RCW 4.40.010 – 070 and by CR 38 (a). It is well established that allowing a juror who has an actual bias to sit on a jury in a criminal or civil trial is reversible error. State v Gosser 33 WA App 428 (1982). How well do our present procedures in jury selection accomplish the constitutional right of trial by impartial jurors?

Our procedure for challenging perspective jurors involves a voir dire examination of the panel to be “… conducted for the purpose of discovering any basis for challenge for cause and to permit the intelligent exercise of peremptory challenges.” (RCW4.44.120) However, the courts have generally adopted a policy of fixing an arbitrary time limit allowed attorneys to question the prospective jurors. The time limitations force the attorneys to resort to group questions and group responses by raising hands. This group approach is far less accurate and meaningful than individual questioning and discussion. The lack of time to talk briefly to each person on the panel impairs the ability to determine people with pre- existing bias. One significant improvement in assuring an impartial jury would be to consider whether these time limits have more to do with judicial efficiency rather than assuring a jury of impartial members.

However, there is a more significant and fundamental flaw in our procedures for determining bias. It involves the method by which attorneys exercise challenges for cause. There are two kinds of challenges, challenges for cause and peremptory challenges. (RCW 4.44.130) A peremptory challenge is one for which no reason need be given (RCW 4.44.140) and generally each side is allowed three peremptory challenges (CR 47).
Challenges for cause are either general or particular.(RCW 4.44.150) General challenges relate to a failure to qualify as a juror and particular challenges for cause are of three kinds (RCW 4.44.170) ‘These are (1) For implied bias as outlined in RCW 4.40 4.180 (2) for defects in juror functions of organ or body which make the person incapable of being a juror and (3) “for the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.” How well does our present procedure in jury selection succeed in assuring that people with actual bias are not permitted on the jury? The evidence is that it doesn’t work very well.

Under our procedures regarding challenges for cause, the process of determining impartiality is a two-step one. First, the bias or opinion must be demonstrated or admitted. However, RCW 4.44.190 provides that showing actual bias is not enough to justify granting a challenge for cause. The second step is that “the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the case impartially”

We know from experience juror bias arises in every trial and, while the Constitution requires an impartial jury, under this procedure showing the existence of a bias is not enough to disqualify the perspective juror. In addition, the perspective juror is asked to search their mind and decide whether they can ignore their bias and be fair in spite of it. Relying upon their response, the judge then decides whether to let them serve in the face of the established bias. How reliable is this practice of essentially leaving it to the perspective juror to decide if they can be fair in spite of fixed opinions or bias?

In 2013 Dr. Christopher Robinson, David Yoakum and Matt Palmer answered this question in a research paper Can Jurors Self – Diagnose Bias? Two Randomized Controlled Trials. (Arizona Legal Studies Discussion Paper No. 12-35) Their study involved other research and their own controlled trials involving 248 mock jurors. They studied the practice of asking potential jurors whether they have any feelings or opinions about the litigants, attorneys, facts or law of the case. If the juror divulges a formed opinion or a bias the next step is to ask if they “can set aside that opinion and decide the case on the basis of evidence to be presented and the law as instructed.” The writers note that judges rely upon their personal evaluation of the panel member’s response to this inquiry in making a decision on a challenge for cause for bias.

One example of judges relying upon the answers received is the prosecution of Gerry Sandusky. Motions for change of venue were denied by the judge who held that: “the answer to whether a juror can be fair and impartial, despite the myriad of influences to which he or she may be exposed, cannot be known until the juror is actually asked.” Our procedure regarding actual bias of jurors relies upon perspective juror ability to make self-examination and then upon their responses to whether the bias will have any influence on their decisions in the case. Knowing human nature is that a reliable indicator? The authors conclude that it is not reliable.

The authors note that one of the reasons why the answers of prospective jurors may turn out to be unreliable deals with what is called “social desirability” bias. That is the juror, despite accurately assessing that he or she cannot overcome a bias, might nevertheless feel the need to publicly claiming that they can act impartially. This deals with conforming to the social norms of being a good and fair person. There is a pressure to respond consistent with this norm which can and does influence the truthfulness and accuracy of juror responses.

Another factor is that a large body of psychological research demonstrates evaluating personal bias can be surprisingly difficult. Too often we are certain we are not biased about a subject when we are in fact biased. Research shows people frequently believe they not biased on a matter, when subsequent testing demonstrates otherwise… This has been called suffering from an “illusion of objectivity.”

Not to be overlooked is the occasional juror who just doesn’t give honest answers. There may be people with a political agenda or people who believe in jury nullification whose answers are deliberately untruthful.

The authors offer a solution they suggest would satisfy obligation to seat an impartial jury. They note that federal laws require that a judge shall disqualify himself or herself from any proceeding in which his or her impartiality “might reasonably be questioned.” Under this standard, it is not whether the judge can be impartial, but whether his or her “impartiality might reasonably be questioned.” They argue applying the same standard to jurors whose bias is being questioned would provide a far superior solution than our present one. They recommend applying a fundamental question: Can a juror’s impartiality be reasonably being questioned for any reason? If so, the court should not allow that person to be on the jury irrespective of any assurances. Their recommendation, in that case, is to simply remove all prospective jurors whose partiality might reasonably be questioned applying the same test as that for judges.

This idea is generally compatible with our appearance of fairness doctrine requiring government decision makers to conduct non-court hearings and proceedings in a way that is fair and unbiased in both appearance and in fact. (RCW 42.36) Washington’s doctrine identifies areas which would indicate a non-appearance of fairness: (1) personal interests (2) financial gain (3) property ownership (4) employment by interested persons (5) prospective employment by interested persons (6) relationship and membership connections and (7) family or social relationships. These seem to be an appropriate outline for challenges as well. One of the criteria for determining whether the appearance of fairness doctrine has been appropriately evaluated is by asking whether a fair-minded person, observing the proceedings, be able to conclude the proceedings were fair and unbiased both in appearance and in fact. If that test were applied in jury selection the chances of an impartial jury are substantially increased over our present practice.
When we have prospective jurors whose circumstances obviously present a significant issue of bias why would we accept their personal assurances of the ability to be fair spite clear questions about the appearance of fairness. The safer and fair procedure would be to remove any question created by appearances of partiality.

This approach can be applied by trial judges under our present statute while exercising their subjective evaluation about whether an individual can disregard the opinion and try the case impartially. It’s reasonable for us to assume that trial judges would apply a standard in carrying out their responsibility to ensure an impartial jury which has a high likelihood of accomplishing this objective.

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Several months ago my friend Don Keenan wrote about mediators and mediation in his blog  “How to Handle the Bullying Mediator” I told him how on target his views were and gave him my views, which follow below.  To start with, when I began a plaintiff practice negotiation always involved discussions directly with the insurance adjuster, the insurance company or the defense lawyer. However, mediation has become a cottage industry and we should learn proper skills for doing it right. Particularly since most of our cases settle and do not go to trial. Here are some of my thoughts about mediation. I concede that not all lawyers view mediation and the role of the mediator in the same way as I do. I also acknowledge the essential role skillful mediators play in settlement of cases. However, my view of mediation has these policies:

Relationship with the Mediator The mediator is not our ally or our advocate. The mediator doesn’t have the duty of ensuring a favorable settlement for our client. The mediator isn’t in the role of a judge in a non-jury trial. The mediator’s goal is to settle the case if possible. We need to keep that in mind when we decide what information we decide to share with the mediator. We also need to screen and control all communication we allow between the mediator and our client.

The mediator’s authority. In a voluntary mediation, the mediator doesn’t have judicial or any other inherent power or authority. It shouldn’t be the mediator who sets the rules for mediation. The conditions of mediation should be an agreement between the parties involved.  We generally should be professionally civil with the mediator and our opponents at the mediation but, this is a voluntary process and we are not obligated to obey the mediator’s demands or directives if it’s against our best judgment. The mediator has no inherent authority to order us or require us to do anything we don’t want to do. Retired judges do not bring with them the inherent power of the judiciary when they retire and become mediators. I make very clear I will not be intimidated to follow any requiremkents of the mediator I don’t agree with as in my client’s best interests.

Role of Mediator From my standpoint, the primary role of the mediator is to communicate relevant information back and forth between the parties, determine the likelihood of settlement and relate insight gained in the process. It is the role of the mediator to keep people focused on issues relating to settlement. It is not the role of the mediator to determine the settlement value of my case nor to determine my chances of winning. That’s the lawyer’s exclusive role. The attorneys in mediation are expected to be fully prepared and know their case better than anyone. They are expected to have fully and carefully evaluated their case and the settlement ranges before the mediation takes place. No lawyer should go to a mediation relying upon the mediator to evaluate their case or chances of winning.  Nor should we give any credence to a mediator’s attempt to evaluate our case based on other settlements or other verdicts. There is no validity to such attempts to compare what can’t be reasonably compared given all the unique factors in each case outcome.

Mediation Policies I believe we should have guidelines we follow in mediation. The time to establish ground rules for you to participate in mediation is before the mediation begins not at the mediation. The best way to accomplish that is by a preliminary mediation letter sent to the mediator and the opponents so everyone knows your conditions of mediation. Here are some of my mediation policies:

  • Confidentiality.While not all lawyers agree, my policy was that we would not agree to confidentiality about the settlement. If the client wanted to keep the matter confidential, we honored that as a client choice but, not as a condition imposed as a condition of settlement by the defendant or insurance company.If that is your policy, you need to make it clear before the mediation begins.
  • Written agreement. To avoid post mediation disputes, I required that all parties sign a written memorandum of all terms of settlement before we left  the mediation or there was no settlement. To facilitate this, we had a written memorandum with blanks dealing with the important issues such as the amount, the time for payment and other conditions of settlement. We brought this to the mediation and before we left it had to be signed by all responsible parties involved. Otherwise there was no settlement.
  • Meeting the opponents. My requirement was that I met and talked with everyone involved in the mediation from the other side. I also needed to know their role. Most mediators are reluctant to do this probably fearing a confrontation that would sour the mediation. But, I don’t negotiate with unknown people I haven’t personally appraised. Relying upon the mediator to give an overall view of the people you’re negotiating with is not the same as meeting and talking to them face-to-face. Know who you’re negotiating with before you start mediation.
  • Limit the time. I always had fixed time limits for the negotiation to take place. It’s been shown that in a great majority of situations 80% of the progress is made in the last 20% of the available time left before a negotiation ends. I had firm, non-flexible established hours set for the negotiation. If you have no deadlines and fixed hours set, you can count on the mediation going on indefinitely. With an experienced and qualified mediator focused on moving the mediation forward he or she should know in less than two to three hours whether there is a reasonable potential for settling the case. If not, it is a waste of time to remain. You can usually reschedule another mediation. If not, try the case. My standard time allowed for mediation, even in major cases was four hours starting in the morning. I made it clear that if at the end of that time it was my view that the case was not likely to settle the client and I would leave. I always held the option of staying longer if beneficial, but also set a fixed deadline to end the mediation. Even if the mediation continued I made it clear there was an afternoon final and inflexible deadline. Otherwise, mediation would continue to drag out forever.
  • Make the first subject money. There are usually more issues than just money in a negotiation of a personal injury case. If you want to know whether there is a reasonable chance the case will settle insist that it start with money and not other issues in dispute. Do not let the mediator or your opponent’s waste time on other issues until you know there is a likely potential for agreeing on the amount. If not, none of the other issues count anyway. Furthermore, once the money is agreed upon those issues are a lot more easy to resolve. When negotiating money my policy was to refuse to engage in the game of multiple back and forth demands and counter offers of small amounts extending over a long period of time. The parties are either are in a potential settlement range or they aren’t. Find that out as soon as you can. It’s a waste of time to engage in negotiation games.
  • Control the mediator’s communication with you client. Our client has hired us as their lawyer, not the mediator. We are the only persons who should give advice to our clients. Our clients didn’t hire the mediator for advice. Therefore, we should decide what information is shared and what advice is given our client. No one else should be allowed to talk to our clients about settlement issues. The mediator is not our client’s advocate nor our ally in the mediation. The mediator should have all relevant information to do their job, but not by uncontrolled communication with our client. We should never allow a mediator to talk to our client’s privately. Nor should we allow the mediator to question the client, advise the client or otherwise have any unsupervised involvement with the client. We should control what information the client does give to the mediator for the same reason.

These and other considerations about mediation can be of significant help in mediation procedures.

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