Wyzga On Words

Now THAT'S A Salty Gal.

I love reading obits.  The whole story is there from start to finish.  You don't have to slog through a memoir or biography to get the real scoop on who someone was when they walked this earth.  A well-written obituary is like salt on grapefruit: it brings out the flavor bite by juicy bite.

As reported by Paul Vitello writing for the NYTimes, Pilar Montero, Bar Owner and Link to Brooklyn's Seafaring Past, Dies at 90, Montero's life may have been lived in a bar on a waterfront but she had a crow's nest view of the world of searfaring.

Just look at her sitting there on her corner stool.   If those walls could talk they might say the same thing the NYTimes wrote of Montero in 2006: "She is a human time machine." 

The facts of a life must not and cannot be the whole story.  Human life is always more than what meets the eye.  Pay careful attention to the facts in the context of what mattered to the person.  Like an argument for wrongful death damages, an obit can be a time capsule of drama, intrigue, history, truth and lies, and all the muddy human nostalgia of who said what to whom and when and what happened next.  All of it matters.

When you are charged with telling the story of one who has passed on - whether by the fault of another or natural causes - it is easy to slide over the dark sides of that person and focus only on the happy facts. Yet, how that person handled ridicule, diversity, challenge, despair, hard times, the luck of the draw, pulling the short straw and the like is what made their story an epic.  Each human story is an epic - a hero's journey. It takes a hero just to get out of bed in the morning to face what the world will howl at you. 

Begin by paying attention to those things for which they had affection.  Then move to what they were drawn to and what mattered.  These steps will guide you to the beating heart of your story.  We listeners will attend to the story of a life that sounds vaguely familiar to our own.

Is Generosity Better Than Sex?

Raised as I was in a family of 9 I was taught early on about sharing and generosity.

How could I not read this NYTimes article by Tara Parker-Pope, "Is Generosity Better Than Sex?",  especially since the research was conducted at my graduate alma mater, the University of Virginia, where "WhaHooWha!" now makes more sense. Excerpt.

"Generosity was defined as “the virtue of giving good things to one’s spouse freely and abundantly” — like simply making them coffee in the morning — and researchers quizzed men and women on how often they behaved generously toward their partners. How often did they express affection? How willing were they to forgive?

The responses went right to the core of their unions. Men and women with the highest scores on the generosity scale were far more likely to report that they were “very happy” in their marriages. The benefits of generosity were particularly pronounced among couples with children. Among the parents who posted above-average scores for marital generosity, about 50 percent reported being “very happy” together. Among those with lower generosity scores, only about 14 percent claimed to be “very happy,” according to the latest “State of Our Unions” report from the National Marriage Project.

While sexual intimacy, commitment and communication are important, the focus on generosity adds a new dimension to our understanding of marital success. Though this conclusion may seem fairly self-evident, it’s not always easy to be generous to a romantic partner. The noted marriage researcher John Gottman has found that successful couples say or do at least five positive things for each negative interaction with their partner — not an easy feat."

For litigators seeking ways to bring to life what was lost when a spouse is untimely taken by the actions of another, talking about all the ways in which they were generous to family and community may enhance the damages argument.

And for the rest of us, this being the official Season of Giving what better time to start being generous?  Caution:  "I gave at the office" is not what I mean.

 

 

Let Me Be Clear: Doctors Practice Medicine; Lawyers Practice Law; Litigation Consultants Practice Removing The Blinders.

I'll be the first to admit it: I'm biased. I'm biased toward two heads being better than one.  I'm biased toward more hands helping the project go faster.  I'm biased toward getting outside objective help that will encourage one to take off the blinders and see things as they are - not as we are.  Especially when it comes to clients and cases.

Over the years as my practice evolved my approach to focus group research has evolved.  I have come to learn that we take literal responses to questions at our own peril.  That's true whether we are listening to deliberations, moderated discussions or reading written responses on a questionnaire.  Yet, I hear this time and again when I am asked to review attorney-run research: "When he said X he meant X because he said X; therefore, X must be true". 

Imagine my professional concern when I come across copies of written questionnaires I prepared time out of mind for cases long since resolved that have been re-used and recycled just as they were written.  And not for the reason you think.  As much as the next person I owe what I know in great part to learning from the work of others.

My concern comes from seeing some lawyers churn out copies of written questionnaires in lawyer-run focus group research with little heed to what is being asked or why.  And compound the problem by not knowing what to do with the information they might have gotten.

I'm going out on a limb here because I believe this.  Yes, I have said: Get trusted, professional help to design, conduct and analyze the focus group research. Do not go it alone to figure out liability and damages.  Work with a litigation consultant to uncover your case landmines, blow them up, walk the decision-maker around them, and incorporate them into the story.

I say this with a measure of confidence because I know that despite my achievements as a practicing lawyer, do I feel I can try a case today?  Not with the same skill set I had when I was a practicing lawyer. 

My professional role has changed and my skill set along with it.  My medical and legal training brings a depth of knowledge to the trial table. What I know I can do is help develop a forensic fact pattern into a real life drama that will persuade the decision-maker.

Let me be clear: I am not averse to lawyers practicing as litigation consultants or even testing their own cases - as long as they do it with thought, care, consideration, objectivity, and arm's length dispassion about the subject matter with carefully chosen research participants who are not off the "been there done that" assembly line.  Know what you want to know, what you are asking, how you are asking, and how to interpret the response.  "It's not what we say - it's what they hear." [Frank Luntz]  And it's not what they say - it's what we hear.

Q&A Tuesday: Grief & Loss & Damages

Q:    How do I identify the grief and loss I need to prove damages in a wrongful death case?

A:    Go to what the deceased held in their affection.  Tell that story.  

In a materialist world such as ours, we tend first to list the achievements and accomplishments of those we have lost.  It's natural.  It's like asking someone at a cocktail party, "What do you do?"  The answer may open the door to a story we can recognize and respond to.  It's the great leveler.

However, what one did or accomplished in one's life is not the whole story; and, in fact, may be the least of what was lost in a wrongful death case.   Look to what the deceased held in their affection.  What uplifted her, charmed her, delighted her, perplexed her, and so on.  Tell that story.

How did those in her family and community benefit by what she held in her affection?  What was lost when the fabric of the family, the neighborhood, the community, the town was rent by her sudden passing?  Tell that story.

I recommend three books I have among many on my shelves: 

1. Grief and Loss by Robert T. Hall and Mila Ruiz Tecala
2. Black Sheep and Kissing Cousins (How our family stories shape us) by Elizabeth Stone
3. Why Do I Love These People? by Po Bronson

Tell me the story so I may know and by so knowing I may care enough to do what you need me to do.

What This Country Needs For Inspiration: A Movie Showing Brain Injured Survivors Going The Distance And Making A Comeback.

While at the BIACal conference I met David L. Brown, the producer and director of a spectacularly hopeful documentary entitled, "Going the Distance - Journeys of Recovery."  It is the perfect timely message for those with traumatic brain injuries (in particular) but any handicapped person, survivors, families, friends, caregivers, and so on to see that there is a way to be "A Comeback Kid."  You need faith, family, friends, assets and resources.  

To introduce you to the man behind the viewfinder, following are two sites that tell stories about what motivated David Brown to take on the personal journeys of four people, strangers really.

Bay Area Filmmaker Goes The Distance. 

Brown Follows Injuries.

This documentary has all the elements of great storytelling and movie-making: love, romance, danger, pathos, hope, despair, triumph, loss, gain, and the indomitable human spirit.

The four featured survivors are a young boy who gets back on a surf board with a "helper" dog; a young Marine injured in the war; a young woman thrown from a motorcycle; and a young man who was the victim of road rage. 

You can visit this website to see the trailer:
http://www.goingthedistance.info

There is a companion website to help raise the last $16 grand needed by Thanksgiving to get this movie out into the world:
http://www.indiegogo.com/Going-the-Distance.

Please check it out, reach into your pockets for a contribution, and pass this message along.

The lucky ones get to the finish line - this movie is also to raise awareness of the on-going need for assets and resources to enable those who are not so lucky.

What better Thanksgiving gift than to help David meet his $16,000.00 matching challenge to get this movie out in the world for all of us, especially we who are temporarily able-bodied.

If they can do it, we can.

  

Playing This Weekend In Napa, CA: Medical-Legal Conference On TBI.

The Brain Injury Association of California is hosting its annual Neuroscience of Brain Injury Conference November 4th and 5th at the Silverado Resort in Napa, CA.

The Conference Program--2011 is enticing.  We intend to come together to do good work.  Hope to see you there.

Q&A Tuesday: What's The Value Of A Dad?

Q:    I was talking with my dad the other day and the subject of my mom came up as it often does.  Together we remember anew who she was to us.  My father asked, "What did I do?  Your mother was the spark."

A:    Well, let me tell you a few of the things that matter to me, dad, as a way of saying "Happy Birthday" across a crowded country.

As I recall the stories you were the next-to-youngest in a Polish Catholic family.  This is you and your mom on your First Communion Day.  You were first generation American and you taught us to sing Christmas Caroles in Polish.  Still today enough of the old language remains so you can read a Polish newspaper. 

Your family, like so many others was a working class family.  The least who could afford it took in the children who were orphaned by the flu epidemic.  The Christmas you got a crystal radio set is still a highlight in your memory, as is the tangerine in the stocking.  You taught us the value of generosity and thrift.

One of my favorite stories is how you and your brothers would go down to the rail yard and throw stones at the men on the coal trains.  They would throw back coal pieces aiming to hit you and when the train rolled on you and your brothers gathered that coal to heat the house.  You taught us to make use of what we had - and to be ingenious.

You and those brothers of yours all volunteered for millitary service in World War II.  At one time all six sons were serving Uncle Sam.  All six made it home safely - probably due to those candles your mother was burning at St. Hedwig's.  Your example encouraged me to join the USNavy as a nurse in the corps.  Those were some of my best years.  

Your Polish heritage meant so much that you instilled in us the customs of Easter.  Even after the local priest stopped making visits to the house to bless our Easter table you would carry a basket, a few dyed eggs, the loaf of babka to the rectory to receive the blessing.  Decades later your 7 children have mastered kielbasa, Polish babka, mamacia's potato salad, and the cake in the shape of the Paschal Lamb, just like your mother Helen did. 

You taught us that Christmas Eve was just as important as Christmas Day because of the preparation and the waiting.  The straw under the tablecloth, the place setting for the unexpected guest, the blessing of the Christmas tree and Nativity were all a prelude to the magnificence of Christmas.

You were a dad of the 50's so a lot of your "job" was supposed to be going to work.  Still and all you made it a practice to drive home every lunch time to have a quick fried egg or tuna sandwich with mom before going back to the "Labs."  And when mom started to work your lunchtime became a stroll in the local park where armed with your camera you recorded on film the changing seasons as you saw them through your lens.  You taught us beauty, imagination and creativity.

You loved our mother and there is no higher praise a girl can give a prospective partner than how well he loves his own mother.  It's a clue to how well he will treat his bride.

Money was always tight.  Yet, as mom reminded us, "We are rich; we just don't have a lot of money."  We never went without.  You found the resources to make sure we had what we needed. And a little bit more.

What's curious is that you were raised in a city.  The closest you ever came to camping was a weekend on the property of the father of the actress Loretta Swit with other "disadvantaged boys."  So what were we doing with a borrowed tent and sleeping bags in the rain in the Pocono Mountains?  You wanted us to experience the outdoors.

Cashing in books of Green Stamps we accumulated first one and then another piece of camping gear: Coleman lantern, Coleman stove, sleeping bags, and eventually a tent that would house all 9 of us.  You taught us to put up a tent, gather firewood, not wash our dishes (or our hair) in the lake, to appreciate the call of owls and the soft tread tread of deer - as well as the sight of black bears feasting in the local trash dump.  You drove us there and you drove us back, mile after highway mile.

As a result of all those summers and autumns in New England 6 of the 7 of us went to college in one of its several states.  I guess it became our second home.

You forged a partnership with mom as we hiked in those New England woods.  As she bent to point out this or that flora and fauna you would shoot a picture.  Eventually your photographs would hang in a gallery.  Today they are a treasure trove of some 10,000 memories.

Few of those photographs have you in the picture. You were the one behind the viewfinder.  So those we have are precious.  And your skills at capturing a "Kodak moment" have found their way into others of us who shoot in digital now.

Many is the night you sat listening to finer music and chiding us about the radio tunes we enjoyed.  All those arias paid off: my appreciation of music spans across the genres.

As does my love of food. You still say there are two kinds of people in this world, "Those who eat to live and those who live to eat."  Food is family and enjoyment.  What's a home-cooked meal without people to share it with?  And be sure when you go to visit someone you take enough with you that you have to ring their doorbell with your elbows.

You taught me the importance of faith, family and friends.  You taught me to dance the Polka.  You taught me that even though I was the firstborn I couldn't be a heavy-handed Charles In Charge; that sometimes honey is better than vinegar.  You have encouraged my hair-brained ideas; supported me when my marriage didn't go the distance; taught me the value of affection, compassion and human decency.

I could go on but I think for now I will wish you "Happy Birthday, dad, across a crowded country.  We'll lift a brewski real soon.  Meanwhile, make a wish on the candles." 

Giving Credit Where Credit Is Due: Media Demonizes Defendants, Too.

Recently I wrote about a white paper published by the Center for Justice and Democracy at New York Law School, "The "New" Media May Be Distorting Civil Justice And Verdicts, reporting on the inaccuracies in the media when it comes to headlines on civil justice system and verdicts. 

I should know better.  There are two sides to every story. I may have been biased toward one.

Alerted by my friend and colleague, Arizona trial consultant Dennis Elias, I discovered Stuart Silverstein reporting for FairWarning, "Online Media Mislead Readers About Jury Awards, Report Says, about some of the flaws in the CJ&D research.  Excerpt.

"In addition, the center’s review of the articles found coverage of six plaintiff victories for every one defense victory. Yet, throughout the civil justice system, plaintiffs win just over half of the time in cases that go to trial. And the vast majority of cases never get to that stage — they are dismissed or settled.

Another flaw the center cited in news coverage was a frequent failure to mention prominently, if at all, state-imposed caps on damages that can limit payouts to a fraction of the amounts awarded by a jury. The report said “these terrible journalistic failures … perpetuate the same kind of myths about the frequency of high jury awards that led to legislative caps in the first place.”

But Ted Frank, a litigation reform expert at the conservative Manhattan Institute for Policy Research in New York, said the report was guilty of an omission of its own – it neglected to mention that defendants are hurt by shallow news coverage, too. He said defendants sometimes are demonized in news stories about lawsuits, only to get relatively scant coverage when the cases are thrown out.

In other cases, even if defendants never suffer a defeat in court, they may pay out large sums in settlements to plaintiffs. That might limit a company’s negative publicity, but it also can leave the public in the dark about the costs of litigation."

I stand corrected and better informed. 

Even if it's not obvious, seek out the other side to the story.  
 

The "New" Media May Be Distorting Civil Justice And Verdicts.

In 2001 the Center For Justice & Democracy at New York Law School tackled the question of justice and the media.  At that time the headlines noted large awards but generally neglected to report on the misconduct that was reflected in the award.  This led to cries of "jackpot justice!" as well as vilifying trial lawyers. 

CJ&D's conclusions were fortified in 2004 with the publication of the book, "Distorting the Law: Politics, Media and the Litigation Crisis" which illuminated how the public received a distorted view of tort litigation.

Today, CJ&D examines the continuing explosion in forms of media exchanges (Facebook, Twitter, and the like) to determine what the public is learning about civil jury verdicts.  "Coverage is still not providing an accurate picture of the civil justice system and in fact, certain new media trends are making the situation worse."

Click here to read the white paper. 

What do you think?  Is it accurate?  Do folks have a fair shot in the courtroom?  Or has the new media effectively barred the courtroom doors?

A Must Read About Traumatic Brain Injury & The Issue That Besets Litigators.

An issue that besets and bedevils personal injury litigators representing the harms and losses suffered by a client with traumatic brain injury (TBI) is how to tell the story of those harms and losses.  TBI damages are often "hidden in plain view" leaving the decision-maker less inclined to comprehend and believe the depth and breadth of the injuries.  Far easier to see third degree burns.  It's a real work of art and science to expose the damages for what they are. 

Jane Rosett eloquently writing her own story for the NYTimes, "Starting Again After a Brain Injury," relates the remarkable fight for her life beginning with what goes wrong with the brain when it is slammed in a traumatic event - and what can happen to rebuild, albeit not replace, what was lost. Excerpt.

“WANT a piece of gum, Jane?” asked my friend Andrée.

“What?” I asked her.

“Gum!”

I didn’t know what she was talking about.

“It’s Trident.”

It was delicious.

That evening, I told my friend David about my day’s big discovery. “It’s called gum and you chew it and it’s fun and there’s this one kind that will let me blow bubbles!”

“Yes, it’s called bubble gum, Jane,” he told me, patiently."

Here I am struggling to function with a newly acquired Logitech WAVE keyboard after decades of using the Microsoft ergonomic one in the misplaced hope that it would stave off carpal tunnel.  I remind myself that it's a simple matter of relearning where to place my fingers with confidence and dexterity.  And it frustrates me.

With TBI how does one "rethread" the lines of one's life?  What does it take?  59 months ago Rosett was jolted at the age of 45 into a new existence.  26 months of rigorous work allowed her back into the home where she had lived independently for 17 years.

Ironically, who she was, her activism for AIDS organizations, and the diverse interests she had engaged in previously created a perverse dress rehearsal for dealing with the challenges of her life today.  How does the past reassert itself?  One vehicle is neuroplasticity.  Excerpt.

"I once believed that I could not grieve for what I do not remember. I no longer believe that. I do grieve for what I can no longer connect with. Phantom memories. “Your pies!” “Your bread!” Friends tell me they miss my baking. One woman whom I still don’t recognize told me I used to shred beets into my chocolate cake batter. Her comment reintroduced me to an evaporated passion I no longer remembered and had not missed until then.

More than four and a half years post brain damage, memories still do not serenely knit back together as in those nifty “How the Brain Heals” neurology cartoons. Shards of memories pierce my consciousness before fragmenting and melting into fresh half-syllables. Some memories hover in shadows. Others gouge and flee.

Initially, memories came back in my dreams and later through my writing and photography. It’s the images, not the words, that come back to me.

My friend Andrée, a physician who treats patients with traumatic brain injuries (though she isn’t one of my doctors), offers me the clinical word for what I am describing: diaschisis, sometimes said to be Greek for “shocked throughout.” She explains that neuroplasticity lets me bypass damaged parts of my brain and forge new neuronal communication routes so I can access, or remember, sensory information that I received as a word, from another place from within my brain and in an entirely different format. Like an image. “So for example, if your brain receives the word ‘love,’ it can recall the word ‘love’ as an image of a heart,” Andrée explains.

Thank you, neuroplasticity!"

Rosett closes with a plea for all of us temporarily able-bodied folks to heed:

"If you want to connect with someone who has a traumatic brain injury, hire us, include us in conversations that regard us instead of speaking about us in the third person in front of our faces. And instead of pressing us about what we “must” remember from our past, simply be present with us. People with traumatic brain injuries are often scolded for having “no sense of time,” but the present is, for many of us, our only authentic time.

So when you see us, please don’t be offended if we don’t remember weathering earthquakes with you, baking your birthday cakes or bouncing your babies on our knees. We’re struggling to make sense of a world that seems brand-new — sometimes wonderful, often overwhelming — with all the courage we can muster."