Toughening Up

I sometimes wonder whether I ought to toughen up a little bit and make my reactions to things that are said or happen in my personal life resemble my reactions to things that are said or happen in my professional life.

The professional part is so much easier for me. I don't think too many people would disagree that an insult, however obnoxious, can be easily shaken off, particularly when your job largely involves working with lawyers who are expected to zealously advocate for a client. As most trial lawyers would probably tell you, they have been insulted, threatened (not with violence for the most part), belittled, laughed at and otherwise treated uncivilly by opponents, judges, arbitrators, employers and clients. Most learn very early that it is an occupational hazard and is ordinarily not necessarily personal. My favorite insult (if one can have a favorite insult) was lobbed at a friend of mine during a hearing when her opponent suggested that she consult a psychiatrist to get past what he considered to be some character defect on her part. In some ways, trial practice has become a sport where substance often takes a back seat to style and where an advocate cannot necessarily depend on a judge or arbitrator to admonish a particularly obnoxious lawyer who behaves as if the case is about him and the other lawyer - not the clients. When I was an advocate, I was repeatedly told that personalizing a case and making it about the lawyers was the worst thing you could do for your client and among the worst things you could do for your professional reputation.

After a couple of decades of advocacy, mostly as an attorney and mostly before neutral arbitrators, I have not seen a great deal of evidence that personalizing cases or hurling invectives at opponents makes any real difference in the reputation of the lawyers who engage in that kind of behavior. In fact, some lawyers are bold enough to go after the judge or the arbitrator (my very unscientific survey suggests to me that it happens to arbitrators much more than it does to judges). I admit to having made some snide remarks to my opponents, mostly when I was provoked and mostly when I thought my opponent was late to hearings or in some other way was wasting everyone's time and dragging out the process for no reason other than to bill the client for more time than was necessary to try the case. Ideology (or presumed differences in ideology) is sometimes to blame. Being overworked can contribute to it as well.

I think the first thing I learned was that the louder and more personal my opponents sometimes were, the more obvious it was to me that they did not have much of a case and knew it. There is the old adage that when the law is on your side, pound on the law; when the facts are on your side, pound on the facts; if neither the law nor the facts were on your side, pound on the table. The last bit of strategy happens more frequently than we like to admit. Early in my career I recall telling my boss that I wasn't sure I had the temperment to try cases because I have no natural inclination to yell or engage in name-calling. He told me that I did not need to change my personality to do my job and if I tried, no one would believe it was authentic, anyway. I don't know whether that was the best advice I ever received but it's pretty close. The more my opponents yelled and "pounded on the table", the quieter my own voice became. Whether it is universally true or not, the arbitrators before whom I appeared would actually lean in to listen to my arguments and attempt to tune out the yelling. I didn't always win but I am certain I was heard. The many times I was personally attacked, I said absolutely nothing and just smiled (or, sometimes, let's face it, smirked) back at him or her. Ironically, that usually infuriated my opponents more than if I had "given as good as I got." A former colleague of mine was defending a case before an arbitrator and while her opponent wasn't listening, she told the arbitrator in the presence of all parties that she acknowledged that her client was wrong from a contractual perspective and that she would grant the relief sought by her opponent without the necessity of an arbitrator's decision. Her opponent then continued the earlier argument until the arbitrator told him that my colleague had rendered the case moot because she was willing to grant the remedy sought. Rule? Listening is a good skill.

When I stopped advocating cases and became an independent arbitrator - something I had long wanted to do - I had at least a dozen examples to follow given the number of arbitrators before whom I appeared over the years. Arbitrators have their own personal styles of conducting hearings, come from different backgrounds and often disagree amongst themselves about the 'right way' to behave as a neutral. As soon as I was present at a hearing as an arbitrator, a few things became very clear to me. I cannot copy anyone I had appeared before whether I want to or not. I am not predisposed to asking lots of questions of witnesses and instead rely on the advocates to put on their cases the way they choose, rule on objections and limit my questions to clearing up any confusion I might have had relating to their testimony. I may change as I mature but if want to be happy with my work, I have to remain true to myself, subject of course, to contractual and legal constraints to which every arbitrator must adhere. There is a lot of room for many different approaches, one of the best parts of choosing this as a profession.

As I indicated earlier, the separation of one's personal life from one's professional life presents its own challenges. Busy arbitrators are used to a certain amount of deference and have much more control over events than they may have at home. Spouses, families and friends can say very personal, sometimes hurtful things to each other and even if I object, I don't get to write a final and binding decision at the end telling them that I am right. Life doesn't work that way. It shouldn't. I am lucky that I am not subjected to very much criticism when I am at home. When I am, it is sometimes more than a little unnerving but is often understandable and is usually out of love. I have discovered that I am not a particularly good advocate for myself and rather than argue, my typical reaction is to remain silent or apologize. I'm not sure if I need to work on that but I get hurt like everyone else, especially when I feel powerless to defend myself. I suppose the answer to my own question - whether to toughen up a bit more or not - depends on being less sensitive or even ignoring what I believe to be unfair criticism and to develop a better sense of humor. I think it also has to include a deeper understanding of the people I love, especially their own frustrations with me or something else. That's the hardest part which means it's probably the most important part.

Tea Parties

I visit my local deli almost every morning at about 5:45 a.m. to get a mint tea. It's a sort of soothing ritual until I realize that the guy at the cash register at 5:45 a.m. is still there at 5:00-6:00 p.m. when I pick up some milk or some other item. The guy is about my age and is always really nice to everyone and seems almost oddly cheerful (or delerious). I think he works about 16 hours a day.

To me, that ought to be the basis for a Tea Party movement. (I already have the wardrobe and slogan in my head: "I sell or serve tea 16 hours a day and all I get is this lousy t-shirt.") I'll get the numbers a little bit wrong but a very large plurality of Americans pay no federal taxes (except their share of payroll taxes for Social Security and Medicare). It's not because they don't work. It's because they don't make enough money to justify the government taking a nickel from them.

I pulled double shifts when I was a kid working in a restaurant. (Not only does it build character as our parents probably told us; for many of us, it solidified our desire to get through undergraduate and graduate school.) I hardly ever logged the minimum hours when I became a manager at a state agency. Usually, it was about 10 hours a week more. Most of my colleagues did the exact same thing. Most of my colleagues ate at their desks. The difference is we were already getting paid a living wage and had health insurance.

Shouldn't the Tea Party movement be about the guy at my local deli? That would mean that people who do pay taxes would advocate for those whose incomes don't justify taxes. They would have to demand universal health care access and an increase in the minimum wage along with a willingness to pay more for groceries brought to your local market by people who earned a living wage. Wealthier people might not like to hear it, but they get government subsidies every day. They can usually write off mortgage interest for two residences. Renters can't. Their grocery bill is subsidized by tolerating poor wages for farm workers (and then decry the fact that we have uncontrolled, undocumented immigration that no concrete wall will fix). The domestic services they pay for are rarely above minimum wage. Those services are often supplied by the same ethnic groups who are undocumented immigrants who are afraid to speak up and risk deportation.

The economic elites in the Tea Party movement conveniently forget how lucky they are and then recruit poor people to show up at their events to protect the rights of the elite and work against their own interests.

Am I missing something here? I'm going to finish my tea, now.

Women and Economics

Since the middle part of the 1960s my mother earned more than either of her husbands. I am well aware of the general rule that women in the U.S. earn about 75 cents on the dollar as men do. That statistic, however, does not tell the whole story. Women of her generation with bachelor's and master's degrees could at least count on earnings sufficient to be economically independent of their husbands provided they worked full time and didn't spend much time on maternity leave. That fact alone probably contributed more to the quality of her relationships than anything else - good and bad. She had the power to abandon any men she believed were harmful to me or her, in that order.

We're still sold on the idea that men make more money than women who do the same work. One of the only places where that is not true is teaching. Leaving aside the benefits, including better-than-average health coverage, teaching is generally a pretty safe career with good pensions and a couple of months off per year.

When these women become widowed, as my mother did in 2008, they may be horribly depressed, despondent and alone for a year or two but their retirement income prevents them from being pulled from their houses. That's a big deal. It is an especially big deal to their children. In my case, my sister and I don't need to worry about my mother's economic situation. We can visit our ancestral home without the fear that she sold all the paintings, rugs, etc., in order to pay the mortgage, the pool guys and the utilities. She can travel modestly when she chooses.

Every time I hear a misogynist rant or a call for "traditional marriage", I always go back to my own life history. I loved my father and my stepfather but I know that the reason we lived a middle class life was because of her profession and willingness to stick with it even when times were tough. For those of you with daughters, take heed. They need to find their way to economic freedom. If you value having choices, it's doubly important.