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How Lawyers Can Effectively Cross-Examine Psychiatrists and Psychologists

doctor

Illustration by David Owens

Lawyers often find themselves facing off against psychiatrists or psychologists during litigation. Whether it’s a personal injury or medical malpractice case, a hearing to determine fitness to stand trial or part of a sentencing hearing, courts nationwide are ringing with the testimony of these experts.

They are among the toughest witnesses to challenge because their testimony can have elements of hearsay as well as subjectivity. That’s because patients’ medical complaints to mental health professionals are subjective, and the diagnosis built on those complaints often is similarly subjective. Even if the testimony is based on data from tests mental health experts administer, few lawyers have the depth of knowledge about the field to match wits with psychiatrists or psychologists.

That’s a fact attorney William Chamblee knows all too well. He admits that when he began his career about 30 years ago, he was intimidated to cross-examine psychiatrists and psychologists. All it took to wipe out that fear was a baptism by fire.

“I crossed Dr. Phil [McGraw] as an expert in a med-mal case in the late 1980s in a little town out in West Texas,” says Chamblee, a founding partner of Chamblee Ryan in Dallas. “He hadn’t yet been an expert for Oprah Winfrey in the beef case in Amarillo. But he was often hired by plaintiffs lawyers to be an expert witness in litigation. I’d done some crosses before his, but he was the hardest one.”

Chamblee credits his win in that case in part to preparation and a strong cross-examination. “I’d read many of his previous depositions, and I knew if I didn’t get control of him during cross, I wouldn’t be successful,” Chamblee says. “A psychologist or psychiatrist is usually a more difficult cross than other types of experts—especially one with a strong personality.”

QUESTIONING CREDIBILITY

However, there are strategies to erode—even destroy—the validity of such witnesses, according to two people who counsel lawyers on how to effectively cross-examine mental health professionals.

Bruce Leckart, a Los Angeles-based forensic psychologist and professor emeritus of psychology at San Diego State University, has developed a set of rules for cross-examining mental health professionals. One rule is to never ask them about the patient directly but instead confine questions to their report. Another is to always determine whether they have taken a complete history of the patient’s symptoms and complaints to support the diagnosis.

Dorothy C. Sims of Ocala, Florida, focuses her practice almost entirely on cross-examining expert witnesses. Sims was a member of the three-lawyer defense team for Casey Anthony, who was acquitted in 2011 of the murder of her 2-year-old daughter, Caylee. Sims says psychiatrists’ and psychologists’ processes can be deeply flawed and vulnerable to attack. Your goal, she says, should be to hit early at the deposition stage, so your opponent is forced to withdraw the mental health expert—ideally after it’s permissible to name a replacement.

It’s also important to understand the differences in training and education among mental health professionals. Psychiatrists have earned a medical degree and completed a general medical internship and then a residency in psychiatry, Leckart says. Because of their medical training, they can write prescriptions, order and interpret brain scans or blood work, and perform physicals, Sims says.

Psychologists typically don’t have a medical degree. Instead, they’ve earned a PhD or a PsyD (doctor of psychology). They’re trained in psychological diagnoses, in addition to psychological testing, which produces the only form of objective data in a mental health evaluation. “From what I’ve seen, most psychiatrists don’t have any training in psychological testing at all,” Leckart says.

LOOKING FOR COMMON MISTAKES

You’re not likely to see one kind of professional more than the other in any particular type of case. But Sims says certain types of mistakes are common with each. In her experience, psychiatrists often administer psychological tests without the proper training.

Psychologists, while trained to administer psychological tests, can misadminister them, misinterpret them or misrepresent the results, Sims says. These experts also often rely on nonscientific psychological tests, some of which Sims says are created by the mental health experts for the insurance companies for whom they testify.

Whatever the expert’s training, Leckart and Sims say effective cross-examination will be the same. It starts with a deep dive into the expert’s background and should include submitting freedom of information requests to licensing bodies and employers, along with a search of court records.

“A lot of these people misrepresent things on their resumé to the point where it’s absurd,” Sims says. “I’ve had them lie about even having a degree. … Experts will change things on their resumé depending on who they want to be that day.”

Sims says these experts typically deny having been sued and never admit to having had malpractice claims against them, which her digging often finds to be untruthful. “We go to the website of the court where the person lives or practices and check all the lawsuits against them,” she says. “I found that one expert had been charged twice with hitting a woman.”

When you meet the expert at a deposition, you come out swinging by attacking their biases, says Martin Hoffman, a senior partner at the North Miami Beach, Florida, office of Hoffman, Larin & Agnetti.

“I like to knock that expert off that high chair where he’s the instructor at some university, and therefore the voice of reason, very quickly,” he says. “I want to know what percentage of his income derived from testifying, which you can usually get through a subpoena to a university. I also find it very effective to draw out that he charges $150 an hour to see patients, but that here he’s charging $500 an hour.”

Don Carlson, the senior founding partner of San Francisco’s Carlson, Calladine & Peterson, impeaches experts by asking about “cash therapy,” in which plaintiffs miraculously get better upon receiving a judgment. Carlson also emphasizes that they base their opinions on claims made by the patient. He points out that experts can treat patients infrequently or that a treatment was related solely to the litigation.

EXAMINING PROCESSES

You also can attack someone’s credibility by attacking their processes. The Diagnostic and Statistical Manual of Mental Disorders is the American Psychiatric Association’s seminal guide on mental health disorders. Leckart says many experts don’t even match their diagnosis to the symptoms listed in the tome.

“It’s clear what the diagnostic criteria are, and the doctors always have an enormous gap between the diagnostic criteria and the data in their report—they don’t have the appropriate data to diagnose the disorder they diagnose,” he says. “One of the most frequent disorders plaintiffs allege is a major depressive disorder. DSM requires that at least five of nine symptoms be present for that diagnosis. If you compare the doctor’s report against the DSM criteria, the doctor often hasn’t provided enough information to support that diagnosis.”

You don’t have to rely on the DSM, says Carlson, who gets similar information from Neuropsychological Assessment by Muriel Lezak, which he calls a “must-review” before crossing a psychologist.

Hoffman calls the government’s Social Security disability evaluation criteria “an unbelievable source of information.”

According to Leckart, many diagnoses also are built on an inadequate patient history, which lawyers can cross effectively by remembering a mnemonic that he calls FIDO-C.

“To take a complete history of a patient’s symptoms, the doctor must obtain information about the frequency of the symptoms, their intensity, their duration, their onset and their course over time,” he says.

Another part of every psychiatrist’s and psychologist’s evaluation is the mental status exam, in which an expert sits face to face with a patient and asks standard questions that elicit relatively observable responses, Leckart says. This tests memory, attention, concentration, insight, judgment and verbal skills. Experts’ reports often include only conclusions, such as: “Ms. Jones’ memory was impaired.”

“That’s not good enough,” Leckart says. “That’s a summary conclusion. Ask during the deposition or trial: ‘What techniques did you employ that led you to conclude that Ms. Jones’ memory was impaired?’ Also, you know there are no data in the report, so ask: ‘Where in your report can I find the data collected that demonstrate the impairment?’”

It’s all about asking the right questions and taking nothing at face value.

This article appeared in the July 2017 issue of the ABA Journal with the headline “Facing the Challenge: How lawyers can effectively cross-examine psychiatrists and psychologists.”

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Posted in Litigation

ANNOUNCING the winners of this year’s Roll Out the Barrels Food Drive!

Congratulations to all the firms who donated the most within their firm size categories!
 
McConnell Fleischner Houghtaling, LLC – firm size 1-21
Gordon & Rees LLC – firm size 22-60
Kilpatrick Townsend & Stockton LLP – firm size 61-100
Faegre Baker Daniels LLP – firm size 101-150
Lewis Brisbois Bisgaard & Smith LLP – firm size 151+
 
And a BIG THANK YOU to everyone who participated and helped us raise more than $17,000 to benefit Metro Caring!!!
Posted in Community

Cross Examination and the Perfect Question

During cross-examination, asking perfect questions will force the witness to give only answers that help you persuade the jury and win the trial.

To Lead Is Not Enough

Cross-examination—when you ask questions of the opposing counsel’s witness—allows leading questions. A leading question suggests a particular answer. For example, if you ask “You work at Acme Dynamite, right?” the only possible responses are “yes” or “no” (and you already know the truthful answer is “yes.”)

But asking a perfect leading question is more than just making a statement and adding, “right?”, “correct?”, or, “isn’t that true?”

The perfect question is designed to get the answer you anticipate (and one that helps you persuade the jury). It also denies the witness time to think of any response other than exactly the response you are looking for. And it elicits only one or two facts, making the question and the answer easy to understand.

The perfect question also saves the powerful fact for the end. The imperfect question is diluted by prematurely revealing the powerful fact too soon.

This is a leading question, but it isn’t quite right:

Q1: You saw your roommate face-down on the floor when you walked in the room, right?

Same question (in essence) but closer to perfect:

Q2: You walked in the room…and saw your roommate face down on the floor. Right?

Q2 gives the witness no time to think. If they do not immediately answer in the positive, their credibility is damaged. The jury will wonder why they need to think about the question before answering. Q1 also reduces the dramatic impact of the fact itself. Strive to present the dramatic facts in a dramatic fashion.

Questions Without Beginnings

The simplest and at times most effective way to save the powerful fact for the end of the question is to ask questions with no beginnings. For example:

You left work at eleven?
Got home at eleven-twenty?
Parked in the garage?
Walked up the sidewalk?
Opened the door?
Saw your roommate face-down on the floor?

There is an inevitability to this series of questions. They give the witness no time to think, evade, or argue. You get exactly the facts you need, in order, with no chance for even the least-sophisticated fact-finder to miss anything.

Compare this effective approach to:

So you saw your roommate face-down on the floor when you walked in the room after driving home from work, which took twenty minutes, and you got home at eleven-twenty. Correct?

Don’t laugh. Lawyers ask questions like that, every day. You are not one of those lawyers. Are you?

No further questions.

Tip of the hat to David Ball’s great book, Theater Tips and Strategies for Jury Trials.

Originally published 2011-09-21. Republished 2017-07-07.

Cross-Examination and the Perfect Question was originally published on Lawyerist.com.

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Posted in Professionalism

Re-post: 5 tips to achieve better work-life balance this summer

Summer is officially here, and while it is no shorter than other seasons, it seems to fly by much more quickly. As such, it is critical that we maximize the fun while still maintaining, and hopefully, growing our law practice. While this sounds impossible, the five tips below will make it really quite easy:

1. Plan vacations early and often

Everyone is entitled to a vacation — even busy lawyers. And there is no better time to plan for the well-deserved vacation than summer. This is because summer is traditionally the time that most people take their vacations. Let’s face it, when you tell your clients that you are going to a beach resort in October, they are likely to grimace and groan and even perhaps question your dedication to your practice. But when you talk about taking the same beach vacation in August, no one will bat an eyelash. That is because vacation is expected, and even encouraged during the summer months. And if you can take more than one vacation during the summer, most clients will not even notice. In fact, they will be thankful to find you in the office at all during the summer!

2. Take advantage of everyone else being away

Summer, being the relaxed time that it is, gives us all a chance to catch our breath. Since our colleagues, adversaries, and Judges are often vacationing at different times during the summer, the rest of us who are working have the opportunity to focus on work that’s been piling up, special projects we haven’t tackled and client development that we put on the back burner. In fact, there is no better time than summer to take clients out to special events such as baseball games, outdoor cafes for lunch, concerts in the park etc. They will appreciate the special attention and you will enjoy the benefit of the outdoor activity as well.

3. Schedule some outdoor time each and every day

The best parts of summer are the longer days and beautiful weather. When the sun is shining, no one should be cooped up in an office for too long. So, to make the most of the summer, be sure to schedule some outside time each and every day. Go for a walk at lunch, take your coffee break in the park, walk or ride your bike to and from work. Grab that outside time as much and in any way that you can.

4. TGIF

You will be hard pressed to reach most lawyers on a Friday afternoon in the summer. If your work is done, or you can take it with you for the weekend, take advantage of some extended weekend time in the summer. Nothing is better than arriving at the beach in time for sunset or taking a late afternoon swim to kick off the weekend. You can make up for the lost work hours in the winter.

5. Remember that summertime is limited

Summer does not go on forever, which is a good thing for productivity. Come September, the kids will be back in school, judges will be back from vacation, our staff will be back from the beach and everything will resume normal operation. Keep this in mind when becoming frustrated about the summertime schedule. Since you cannot change the chaos, you might as well join it by following tips 1 through 4 above.

Work-life balance in the summertime often favors life over work, and this is a good thing. After all, during the remaining nine months of the year, the balance often tips in favor of work. So embrace the summer and savor every delicious moment. Winter will be back before you know it!

Posted in Modern JD, Practice management

Posted in Wellness

Your DBA Membership Is a Portal to Priceless Possibilities: Introducing 2017–18 DBA President Franz Hardy

By Jessica Volz

In an era where even lawyers are reevaluating how they spend their money, the definition of value becomes the conundrum du jour. “I want to reinforce the value in being a member of the Denver Bar Association. It’s a two-way relationship. It’s about what lawyers bring to the DBA and what the DBA provides in return.” Such clarity of vision and unbeatable precision are emblematic of incoming DBA President Franz Hardy’s leadership style within the legal and broader communities. Hardy, a partner at Gordon & Rees LLP, is an accomplished trial attorney whose focus pertains to business and insurance litigation, including representing lawyers and law firms. Beyond that, he is someone with an amiable and down-to-earth disposition with whom your time is always well spent.

At a moment when the world seems to be yielding, however paradoxically, to the gravitational waves of complexity, Hardy’s faith in simplicity presents a beacon of hope for a goal-oriented community. When quizzed whether his approach would embrace Henry David Thoreau’s “simplify, simplify,” Hardy nodded with visible gusto. Actions, after all, speak louder than words.

With the DBA’s 125th anniversary in the not-so-distant past and the implementation of the strategic plan in full swing, Hardy knows that greater prospects lie before us than behind us; the bar association’s future shines with more luminescence than its past. Still, Hardy knows that he has big shoes to fill and relishes the challenge of reinforcing the perception that DBA membership is a portal to priceless possibilities, career oriented and otherwise.

The DBA’s incoming president is not a newcomer when it comes to leadership roles. Hardy serves as chair of Gordon & Rees’s Diversity Committee, where he has overseen diversity initiatives in more than 35 offices across the country. He is also a past president of the Asian Pacific American Bar Association of Colorado and a past chair of the University of Colorado Law School Alumni Board.

Franz Hardy stands with his Davis Award next to DBA Past President James Benjamin.

Franz Hardy stands with his Davis Award next to DBA Past President James Benjamin.

Hardy attributes one of the most pivotal points in his career to receiving the Richard Marden Davis Award in 2012. Each year, Davis Graham & Stubbs LLP joins the Denver Bar Foundation and the Davis family to sponsor the award, which is presented to a Denver lawyer “under the age of 40 who so combines excellence as a lawyer with creative civic, cultural, educational and charitable leadership as to best exemplify the character and promise of Richard Marden Davis at that stage in his career.” Being placed in the company of such inspiring individuals as Justices Monica Márquez and Richard Gabriel impressed upon him the idea that he had come into great expectations of what he could and should accomplish.

Hardy is passionate about the DBA’s spectrum of work and feels honored to have the opportunity to serve the bar association’s members in a more all-encompassing capacity. While he hails from Colorado Springs, he now considers Denver to be his home. He feels fortunate to live in a city where a wellbeing-centric lifestyle continues to reign under typically sunny skies. Hardy is living proof that leading a balanced life and excelling at the practice of law do not have to be mutually exclusive. He is one of those role models who is convinced that promptitude does not require replying to emails in one’s sleep. Destressing at the gym and spending quality time with his family are fundamental pillars in his life. Among other adventures, he and his wife, Mari, recently took their two boys, Jackson (12) and Tyson (9), to Paris and London. “You can learn so much by traveling and experiencing other cultures,” he avers. It seems fitting that the bar associations’ push for diversity and inclusivity inspired him to propose an “Around the World” theme for the 2017 Barristers Benefit Ball.

Franz and his wife, Mari, at the "Around the World" Barristers Benefit Ball.

Franz and his wife, Mari, at the “Around the World” Barristers Benefit Ball.

It is that same worldly outlook that Hardy aspires to embrace during his term as DBA president which kicked off July 1. Hardy is someone who recognizes that we live in an increasingly interdependent world and who is capable of serving as an ambassador to specialty and diversity bar associations. His commitment to addressing the access to justice gap positions his vision in line with that of incoming Colorado Bar Association President Richard Gast. Unlike Gast, however, whose great-grandfather was the second president of the CBA, Hardy confesses that the practice of law found him somewhat unexpectedly. Like his predecessor, Hardy was the first in his family to go to law school. He hopes that his undefined path and aspirations as a diverse attorney will inspire the next generation of lawyers to pursue their individual passions and see the transferable value in being a member of the DBA. “It’s a value that you can customize. Everyone is welcome here,” he says. Hardy readily acknowledges that the legal ecosystem has been subject to its own form of climate change. To adapt to the shifting demands in the forecast, he plans to build upon Immediate Past President Nancy Cohen’s “The Denver Bar Association is Here for You” campaign and Past President Janet Drake’s “Make a Difference” call to action.

Hard-working, dedicated, resilient, confident and optimistic. Those are some of the many qualities that the DBA has to look forward to in its incoming president. And don’t forget that one of the DBA’s most valuable assets is YOU!

 

Jessica A. Volz, Ph.D. is the editor of The Docket and an editor for The Colorado Lawyer. She can be reached at jvolz@cobar.org. This post originally appeared in The Docket.

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Posted in DBA YLD News

Metro Volunteer Lawyers’ Power of Attorney Clinic

By Paul Miller

Metro Volunteer Lawyers’ Power of Attorney Clinic is the brainchild of Joey Scott, who founded this award-winning program in 2015 during his tenure as an MVL Rovira Scholar. The Rovira Scholarship is given to a recent law school graduate committed to MVL’s mission “to bridge the gap to access to justice by coordinating the provision of pro bono legal services by volunteer lawyers within the Denver metro area to people who could not otherwise afford legal services for their civil legal issues.” Scott’s objective as a Rovira Scholar was to implement a program through MVL that addresses a gap in legal services for indigent clients. As a result of his hard work, foresight and dedication, MVL’s Power of Attorney Clinic received the 2016 DBA Outstanding Program of the Year Award. The Power of Attorney Clinic assists low-income seniors by helping them complete advance planning documents for free. This, in turn, relieves qualifying individuals of the cost, worry and burden that can arise without these incapacity documents. As a result, families of low-income seniors are able to live worry-free in case their loved one can no longer understand or communicate.

The genius of MVL’s Power of Attorney Clinic lies in its simplicity. MVL typically coordinates the clinics with senior centers and has them promote two dates. The first session educates attendees on powers of attorney and living wills. The presentation is usually given by elder law attorney John Hershey. Hershey delivers his presentation in an approachable and straightforward manner. He explains to his audience the necessity of having advance planning documents, as well as the clinic’s overarching procedures. Hershey next fields questions from the group in the same down-to-earth manner that he used during his presentation. The last item on the agenda for the day is the scheduling of appointments for the second workshop.

The following week, a second workshop is given at the same location. To maintain confidentiality, each participant is assigned his or her own attorney. Upon arrival, each attendee completes a brief intake, and both attorney and client sign a Limited Client Agreement. The client, with the help and assistance of an MVL volunteer attorney, fills out and completes a financial power of attorney, a medical power of attorney, and a living will. Because clients have been previously educated on these documents, the attorney’s role is significantly reduced. After the client and attorney have finished drafting the documents, they are signed, witnessed and notarized. The client leaves the clinic with his or her financial and medical powers of attorney, a living will, and a CBA “So Now You’re an Agent” brochure to give to the agent.

MVL Power of Attorney Clinics are scheduled each month at various senior centers that need this sort of help. The Power of Attorney Clinics needs your help too! The clinic requires approximately 20 volunteer attorneys. There are currently 10 attorneys who consistently volunteer. This is a great opportunity to lend a helping hand to your community while networking with other attorneys and clocking pro bono hours.

For more information and to volunteer, contact MVL Director Toni-Anne Dasent at tdasent@denbar.org.

 

Paul Miller is a sole practitioner whose firm specializes in estate planning, nonprofits and small business law. He can be reached at paul@pmillerlawoffice.com. This post originally appeared in The Docket.

Posted in Volunteering

How Implicit Bias Impacts Equality

This is a review of the June 27 CLE presentation, How Implicit Bias Impacts Decision Making In Our Legal Profession

By Gwen Abler

All attorneys are taught in law school to treat everyone respectfully, equally, and professionally. We are supposed to masters at controlling our emotions; we are supposed to be able to make fair and just decisions; and we are supposed to be able to treat our clients without personal prejudices, biases, and judgments getting in the way of our work. Unfortunately, sometimes our personal judgments get in the way; decisions are made quickly instead of fairly; and our emotions control our reactions. This all occurs without us realizing what is happening. Implicit bias exists within every person, in every community, and influences our decisions without our realization.

During a CLE (continuing legal education) talk, present Brenidy Rice, the criminal justice program’s manager of the Colorado Judicial Department explained what implicit bias is, how it affects everyone, including attorneys, and what we can do to reduce these biases’ negative consequences. Her talk was meant to be “depressing” but give us “bumpers” to help us realize when our biases are affecting our decision-making and work on controlling biases.

What is Implicit Bias?

Implicit bias occurs everywhere, in all communities and countries, and occurs unconsciously. Human brains tend to take unconscious mental shortcuts in decision making; these shortcuts usually consist of past stereotypes or attitudes that affect our decisions. These mental shortcuts are called schemas, and they make snap judgments about behavior rather than allowing the frontal lobe to rationally process each situation and make the appropriate decision. This mental process does not just present itself in attorneys, but the general population. One way that implicit bias presents itself in the community is when we consider the disproportionate amount of African American young men within our criminal justice system. Data shows that African American young men are less likely to be placed in prison diversion programs and more likely to be placed in juvenile detention or prison. These decisions often compound together, putting these young men further into the system instead of helping them. So why does this happen?

People do not like making judgments based on observations but we do it anyways. We have aligned categories in our brain and associated people with feelings due to our upbringing, past experiences, culture, and media. Unfortunately, we favor our own groups or races and we associate different groups (or races) as “bad.” These associations start at a young age, as early as three, and are engrained into us by exposure to our culture, community, family and upbringing. We are automatically taught to associate certain things with certain feelings unconsciously. Scientists have defined this phenomena as implicit bias, where attitudes or stereotypes affect our understanding, actions, and decisions in an unconscious manner.

Furthermore, our biological processes are affected by implicit bias. Studies have shown that our amygdala, or “flight or fight” center of the brain, lights up when we see African American men. Our amygdala, or fear center, is triggered causing us to react unconsciously. More often than not, the amygdala causes the brain to bypass any rational decision making from the frontal cortex and causes us to respond, unconsciously, without using our more developed frontal cortex. These implicit biases are pervasive within every person and often contain a racial aspect. Although we may explicate our beliefs verbally after logical reasoning, implicit associations and decisions are often different and based on snap-reactions rather than the logical reasoning of our frontal cortex.

Depressed yet about the fact that we make decisions that do not involve rational decision-making? Fortunately, implicit biases are malleable. We can set up decision making to realize that implicit bias is controlling our thinking and then react accordingly. However, we cannot fully remove implicit biases from our brain. Here are some ways that implicit bias may affect our work:

  • Credibility: Why do you have a “gut feeling” that your client seems untrustworthy?
  • Comfort level: Why are you more comfortable talking to certain people?
  • Level of due diligence: Why do some clients experience more due diligence than others?
  • Various retainer amounts

In Colorado alone, many attorneys of color have reported that they have been mistaken for court reporters, clerks, and even the defendant. Furthermore, Harvard found that judges, who are supposed to be neutral, score within 1% of the general population for having implicit biases.

How to Fix Implicit Bias

Implicit bias has led to a young African American girl of the age of 6 becoming arrested and charged with multiple misdemeanors and felonies because the teacher’s fear reaction bypassed her rational frontal cortex. Instead of ignoring race or other biases, we should unpack and reshape associations. Within implicit bias exists five types of biases but here are ways to prevent this biases from occurring.

Similarity bias exists when we associate ourselves with another person due to a physical feature. Instead, we should identify other similarities, such as mutual hobbies. We must keep an open mind. As attorneys, we must know what questions we ask to our clients beforehand, without changing them. If we have to change our questions, we have to ask ourselves why. We also cannot get information about people beforehand. Another suggestion would be to ensure that both parties get equal time during mediation in order to prevent one side from talking and allowing the other side to share entire story.

Implicit bias also consists of expediency bias, which occurs when we make quick decisions. These quick decisions are often based on stereotypes. To prevent this, we must take time to make decisions (which is difficult in this age) but we must also take notes of our decisions, analyze previous decisions, and identify stereotypes in hopes of preventing them from influencing our decisions.

We also are biased due to our experiences. We may think that we know “everything”, especially as attorneys. We have to assume that we do not have all the information. We should use our coworkers and value their opinions and different takes on a situation. The same prevention techniques need to be used for distance bias: awareness, document, and review. We also experience “safety” bias where we feel unsafe due to implicit biases, leading to quick decisions. Therefore, we must critically self-reflect on why we reacted so quickly, stay curious, and become more aware of how we are seen when entering a room.

Finally, as a community, we must engage in open and honest dialogue, cross-train employees, diversity our teams, receive and implement client feedback, offer culturally specific services (when appropriate), and actively ensure that our institutions remain accountable.

Implicit bias affects every member of the population, including attorneys and judges. We cannot erase these biases but by becoming more aware of them, we can take time to rationally make decisions when we notice these biases creeping in. By doing so, we will create a more fair and more just legal community for Colorado and for the future.

 

Posted in Professionalism

You Really Aren’t Alone: An Anonymous Testimonial

If wellness and professionalism go hand-in hand, then illness must be its antithesis. As an outwardly successful professional who struggled with alcohol abuse and the fear, shame, isolation, and loneliness that it engendered, I tell my story. If you get nothing else from this article, know that if you have an alcohol or substance abuse, or any compulsive or self-destructive concern, you’re not the only attorney in such a situation. The bad news is that it will continue to get worse. The good news is that you can get confidential help in a non-judgmental environment, maintain your practice, and obtain a solution without admitting anything to your employer or a regulatory agency. I’m no finger-pointer; I am just a person who was able to find his way out of “life’s falling apart faster than I can lower my standards.” You can too. I write this article from the perspective of alcohol abuse, but it applies to any substance use disorder.

Do I Have an Alcohol Problem?

I really knew it all along. In my job as an attorney, I had to maintain a security clearance. I’d draw meaningless distinctions between “alcoholic” and “one who occasionally drinks too much.” I would search the Internet to ensure that I was only the latter and to confirm that my clearance was not in jeopardy. I spent four days sober in the hospital for an unrelated condition without the DTs — positive proof that I wasn’t an alcoholic, right? I’d leave a shooter on the nightstand untouched. I drank as much as I wanted because I persuaded myself that I could quit. But deep inside I knew that I had a big problem. The increasingly double life that I led to hide my drinking was killing me. The exact label didn’t and doesn’t matter. Drinking adversely affected my life, both at work and at play. There is no such thing as a “functioning alcoholic.” Do you suspect a problem?

While I denied having a “problem,” in my small town, most everyone else knew I had one. I smelled of alcohol at the grocery store. I wobbled at Rotary picnics. I mumbled and repeated myself at parties. I slurred my speech at the community supper. I kicked a beer bottle in a movie theater during a quiet part. I looked disheveled. My wife (at the time) even scheduled a neurological exam suspecting organic brain disease. So, despite my self-deception, my alcohol abuse was an open secret.

What about My License?

“What about my license to practice law?” is a familiar and understandable concern among all attorneys facing a lonely substance abuse problem. “What if Attorney Regulation finds out I drink too much?” I worried about this too. But this question is off the mark. The right question to ask is, “What can I do to address my substance abuse?” My substance abuse — not the Colorado Supreme Court — presented the risk. Whatever you’ve done, whatever steaming pile you’ve stepped in, it will only get worse if you delay fixing it. That’s as close to a certainty as there is.

I worried that if Attorney Regulation were to find out about my problem, I would be left to exclaim, “There goes my livelihood, my profession and my passion!” I wondered how I would be able to practice law in a small town when everybody knew I had a substance abuse problem. Should I change my name? Should I move to Florida for a fresh start?

I ignored the problem until it got so bad that the law stepped in. Attorney Regulation and my employer were necessarily involved. When I could no longer ignore the problem because my professional identity was crumbling, I dealt with what I know to be the real issue: my alcohol abuse. I should not have waited, and neither should you. Seek professional help. Getting help shows you are taking responsibility for your actions. Find someone you trust. Be completely honest with her or him. Address the problem before it inevitably gets worse.

My second biggest fear was that people in my small rural community would find out that I had admitted that I had a problem — as though this were worse than my hiding it. “What if they hear my admission?” is the second biggest wrong question. As I later realized, they already knew, and for them the disconnect was my failure to do something about it. I failed in grand style. I was arrested twice on the same day for DUI, with my name appearing the following week twice in the local police blotter. One resident said it best: “That’s our Sam.” I had waited too long.

Living in a rural community is no bar to action. In the unlikely event you have anonymity to protect, you can remain anonymous in the quest for peace. You can contact a local practitioner who is covered by confidentiality. Call someone local for an out-of-town referral if you don’t want to be seen at a professional office. A local professional will understand. My point is: Do something. There’s a solution for everyone who wants one. In my town, alcohol abuse affects professionals just as it does all people. Those who seek help are rewarded, not shunned. You will be treated no differently. Whatever has happened, stop the clock now. Seek help. Get well. Fix what you can. Retain an attorney who knows how to work with Regulation Counsel and who will want you to succeed. An honest, confidential self-evaluation with professional help is the best first step — regardless of where you live.

The Day After

After I was arrested, the sun rose the next day in my town. At least I think it did. I was over an hour away in jail. Once I admitted being an alcoholic to myself, my internal dissonance over drinking evaporated. There was no keeping that secret from myself anymore, and I immediately felt better for it.

When I returned home (on bail), life wasn’t so bad. People didn’t shun me. I thought I had a scarlet “A” on my chest, but other people did not seem to notice it. During the period when my driver’s license was suspended, my friends gave me rides. These people were supportive and non-judgmental; they went out of their way to be helpful and caring.

The Colorado Supreme Court gave me a chance to keep my license and prove that I was committed to being sober. I still am, two years later. As an attorney in a small town in my 31st year of practice, I was heavily involved in local affairs. I volunteered for all sorts of activities, and my ability to be an active member of the community remained unchanged. There was no whispering campaign. If anything, it was quite the opposite, as people had a fuller understanding of my character and who I was.

People are forgiving. As a decent human being who demonstrated a commitment to positive change, I am accepted in my community. People ask me for legal advice. They admire my willingness to be honest about my weaknesses and my work to overcome them. My town is not out of line or unusual in this regard.

Small Town vs. Large Town

Intuition might suggest that you’d find it easier to sober up in a large town and maintain a practice. Allow me to disagree. For me, the path to staying sober has been maintaining a congruent life, where who I am inwardly and outwardly are the same. That comes in part from not having to keep secrets. People here know I don’t drink, and I don’t have to put up with the common “oh, just have one.” I don’t have the temptation to go to a liquor store where no one will recognize me. Such a store doesn’t exist here. I don’t have the fear of disclosure or the idea of leading a double life. I’m not concerned that people will see my car parked at an AA meeting.

I hit my low in a small town. That meant there was nowhere else to go but up. I have no doubt that there are potential clients who won’t use me because intoxication was once my lifestyle. Many more will retain me because I am a competent, hardworking, and fully functional advisor and advocate. We don’t rub my past in each other’s faces. We all have rough patches. What separates the sheep from the goats is how we deal with them. People instinctively respect that. In a small town, there are few surprises. I think that benefits me in my practice.

Conclusion

Confronting substance abuse as a professional can be challenging and potentially humiliating. In my view, trying to keep it a secret only compounds the struggle and exacerbates the problem. After I sobered up, I found that my rural pre-existing support system, the lack of need to maintain secrecy any longer, and the generally understanding nature of the people in my town all contributed to a successful recovery and a satisfying professional life. I had no idea that living a sober life could be so rewarding!

It is beyond the scope of this article to outline tools for self-diagnosis. If you are experiencing a medical emergency, call 9-1-1 immediately. If you have a less pressing concern, please reach out to one or more of the following resources: Colorado Lawyer Assistance Program (COLAP), coloradolap.org; Colorado Lawyers Helping Lawyers (CLHL), clhl.org; the National Institute on Drug Abuse, drugabuse.gov; and the Substance Abuse and Mental Health Services Administration, samhsa.gov. Be careful about completing online questionnaires, as there may be no guarantee of confidentiality.

This post originally appeared in The Docket.

Posted in Wellness

Fulfilling Ethical Obligations and Finding Happiness by Giving Back

By Amy DeVan

When I first started working in the field of legal ethics, I was surprised to discover that the Colorado Rules of Professional Conduct contain one aspirational rule — a rule that isn’t really a “Rule” but rather an attempt to get us to be the best version of ourselves by embracing the power of our position as lawyers and addressing needs that we may not otherwise be aware of. The rule in question is 6.1, the Voluntary Pro Bono Publico Service rule. The rule begins by stating, “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay […].”

I have talked to lawyers who say they feel like access to justice is discussed in every other article they read or CLE they attend. Maybe we are experiencing some fatigue over the topic, but it’s brought up for good reason. It is indisputable that we have an issue in Colorado and elsewhere in this country, where those who are most in need of legal advice and assistance are the ones who can least afford to pay for it. As noted by the Colorado courts, two thirds of litigants in domestic relations cases from 2013 to 2016 were unrepresented. In county court civil cases, 98 percent of the litigants appeared pro se. At the same time, the resources of Colorado Legal Services are stretched to the limit, and they turn away far more people than they can help. When I talk to lawyers about this, I always ask them, “If you got in trouble, could you afford legal assistance yourself?” For many, I would suspect that the answer would be a resounding “no.”

While there may be other solutions to the problem, there is no denying that lawyers play an important role in filling the gap in access to justice.

There is also a need for many other types of pro bono service that may not fit into the access to justice category but are nonetheless in high demand. In our uncertain political and economic climate, many nonprofits, organizations, and individuals find themselves in need of legal advice or assistance they simply cannot afford.

We love our dogs in this state, but many small-scale rescue organizations start out as concerned individuals who want to help animals. They don’t know what it means to be a 501(c)(3) or how to go about obtaining that status. What about insurance or liability protection? For these individuals, the focus is on feeding, housing and obtaining medical care for abandoned animals; extra dollars to be spent on lawyers are not in abundant supply, if they even exist. Lawyers who volunteer their time help ensure that fundraising money goes directly to helping even more animals. The same principles apply to environmental organizations, religious groups, people who want to bring First Amendment or civil rights claims but haven’t the slightest idea how to do it, and any number of other worthy causes. The issue isn’t that there is no place for us to give of ourselves and our time, it’s that there are so many options to choose from. So, how do you decide?!

We can also give our time to each other. I often choose to spend my pro bono time working and talking with other lawyers, primarily solo practitioners or small-firm lawyers, who need help ensuring that they are practicing in compliance with the Rules of Professional Conduct. In so doing, I am not only forming relationships with my fellow lawyers, giving them a resource to call on when the need arises, but I am also helping the public by working with lawyers to be better lawyers. This, in turn, helps me. I have never walked away from a conversation where someone asked me for advice without feeling like I also learned something and benefited from the exchange.

This brings up an important point: Giving of yourself and your time not only makes you a good person and a better lawyer, it also serves to make you happier. It’s a win–win! There are roughly as many studies about the profession as there are lawyers, and they all tell us that we are among the most depressed people, generally speaking, and that we have the highest depression rates of any professional occupation. Super! However, studies have also shown that lawyers, like other humans, experience elevated levels of happiness when they are doing good and giving back.

A May 1, 2015 New York Times article by Douglas Quenqua, “Lawyers with Lowest Pay Report More Happiness,” is exceptionally thought-provoking; it has stayed in my mind since I read it two years ago. The author states that lawyers and law students are focusing on the wrong rewards:

Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being. However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy. […] The problem with the more prestigious jobs […] is that they do not provide feelings of competence, autonomy or connection to others — three pillars of self-determination theory, the psychological model of human happiness on which the study was based. Public-service jobs do.

We can’t all be public defenders nor should we be. There is a need for lawyers at each end of the spectrum, from the public defender or solo family law practitioner to the associate or partner handling high-pressure litigation on behalf of large corporate clients in a big firm. We all serve a vital need in the legal market. But no matter where we earn our paychecks, we can still contribute on a very basic level by giving back to people, organizations or causes that need us. And we need them to bring us the fulfillment that comes from knowing that we made a difference.

We’re fortunate; we can’t forget that. And if honoring what that means also brings us back to where we started and allows us to fulfill our professional and ethical obligations, whether aspirational or not, that is a good place to be. Let’s embrace the expectations of Rule 6.1 and uphold our obligations as legal professionals who have something very valuable to offer. We are at our best when we give back to those who need us.

In closing, I would like you to think about this quote from that great life philosopher Goldie Hawn: “Giving back is as good for you as it is for those you are helping, because giving gives you purpose. When you have a purpose-driven life, you’re a happier person.” These are words to live by, today and every day.

 

Amy DeVan works as Conflicts and Resource Staff Counsel with the law firm Wheeler Trigg O’Donnell LLP. She can be reached at devan@wtotrial.com. This post originally appeared in The Docket.

 

Posted in Volunteering

Celebrate the DBA Young Lawyer of the Year (our very own council member, Robin Hoogerhyde!) — June 20

The DBA Annual Awards Ceremony and Reception is just around the corner — come help us honor our very own council member Robin Hoogerhyde who will be receiving the Young Lawyer of the Year Award on June 20!!!!

The awards ceremony will take place in the Supreme Court Courtroom from 5:30 to 6 p.m. and will be followed by a reception in the atrium. Other winners being honored include:

• Award of Merit: Sheila Gutterman
• Young Lawyer of the Year: Robin Hoogerhyde
• Judicial Excellence: Judge Maria (Terry) Fox
• Volunteer Lawyers of the Year: Jennifer Holt and Leo Milan
• Outstanding Program/Project: Colorado Attorney Mentoring Program

Free drinks and apps. RSVP today!

Check out the profile of Robin that originally appeared in the June/July issue of The Docket.

ROBIN HOOGERHYDE

Born and raised just north of Boston by parents from Southern California, I always had a sense of adventure. Enjoying Rutgers University’s atmosphere, and after enrolling in the barristers’ program at the University of Glasgow during my semester abroad, I decided to attend law school at the biggest university that would accept me. Michigan State University gave me the campus I desired and the scholarships I needed. And while at MSU, I met my husband, who always wanted to move to Colorado.

I accepted a clerkship with Judge Gilbert Román at the Colorado Court of Appeals, and I liked it so much that I have refused to leave. I have had the immense luck of being Judge Dennis Graham’s permanent law clerk since 2010. I’ve grown personally and professionally under his mentorship.

My DBA membership has been invaluable. Appellate practice is insular at times, and by joining the DBA, I have met all sorts of wonderful lawyers from all practice areas. My membership has also provided me with opportunities to get involved in the larger Denver community through service projects and social events.

Being selected as the Young Lawyer of the Year is a huge honor. When I received the call, I immediately thought back to a conversation I had with my grandmother when I told her I was going to law school. A devout Catholic, she looked me right in the eye and said, “Good. Now you can help poor people.” Her highest and best self was when she was helping others, and while I dare not compare myself to her (she raised eight children on a police officer’s salary and ALWAYS ate her greens), I am glad that I am making her proud.

Posted in DBA YLD News

“Communication Snacks: 52 Bite-Sized Communication Tips for the Busy Professional” — A Book Review

By Eric Jaworski

Sometimes you do not know you are hungry until you see or smell a plate of food. I did not know I was in need of a “Communication Snack” until I started reading this book. Whether lawyers are talking with prospective or current clients about their legal needs or communicating with the other side in litigation or transactional matters, the ability to communicate our position, strategy and goals is essential to what we do. Yet, once we are out of law school, do we actually spend any time refining the craft of communication?

If, as it was for me, the answer to that question is “no,” you are likely to find something enlightening, helpful or just plain interesting in Communication Snacks: 52 Bite-Sized Communication Tips for the Busy Professional. As its title suggests, this pocket-sized compendium is broken into 52 “communication snacks” that the authors suggest be ingested one at a time. Each snack is approximately a page in length, which makes them easily digestible, whether you want to review and practice one snack a week over a year or gorge on them in a much shorter period of time. True to form, I could not control my snacking and finished this pint-sized book over the course of a few evenings. The snacks address a diverse set of written and oral communication topics, ranging from common grammar mix-ups to the proper amount of eye contact to how cultural differences impact how we communicate.

As I was reading the book, I was struck by how many of the topics reminded me of discussions and issues addressed in a National Institute for Trial Advocacy (NITA) course that I took several years ago. The snacks provided a great refresher on some key communication strategies covered in that course. For example, in Communication Snack No. 10, titled “Command Attention Through Silence,” the authors note that many speakers too often start their presentations with a throwaway word or phrase like “so,” “um” or “okay, well.” The authors recommend countering this somewhat natural urge with the “use of a deliberate 2-3 second silent pause before you speak.” This snack echoed NITA’s suggestion that a slight pause before beginning an argument or before moving on to the next line of questioning can be invaluable both as a way of focusing on what was just said (by you or the other party) and as a way of avoiding throwaway words that only distract from the force of your presentation.

While some snacks directly reminded me of communication strategies that I could use every day, I found many of the other snacks interesting even though I did not immediately see their relevance to my professional life. For example, the authors pose the following question in Snack No. 18: “In a presentation, conversation, or meeting, who is responsible for making sure the key message is understood and the proper conclusion reached?” It seemed obvious to me that the presenter is responsible for ensuring that the proper message and conclusion are delivered to all participants. However, the authors note that this is true because in the United States we have a “speaker-responsible” culture. In many cultures, those that the authors define as “listener-responsible,” the presenter is tasked with presenting all of the relevant facts, and the onus is on the listener to reach the proper conclusion from those facts. As I deal almost exclusively with others who live and work in our speaker-responsible culture, this particular snack did not seem to apply to my professional life. However, upon fully digesting it, I realized that the speaker/listener-responsible dichotomy is actually highly relevant to litigation. A trial is essentially a miniature version of what happens in a listener-responsible culture, where the attorney’s job is to present the relevant information so that the judge or jury reaches the conclusion he or she wants. A well-planned strategy on how to convey your side’s message to the trier of fact is an essential part of trial preparation.

Snack No. 18 is just one example of the main reason why Communication Snacks could be useful to any attorney: It reminds the reader to focus intently on tailoring the method of our various professional communications to the end goal of those communications. Most importantly, communication, like any other craft, takes conscious effort and practice to improve.

Eric Jaworski is an attorney at Heizer Paul LLP, where he leads the firm’s Real Estate Practice Team and participates in the Litigation Practice Team. He can be reached at ejaworski@hpfirm.com. This post originally appeared in The Docket.

 

Posted in Communication

Ethics in the Electronic Age: Social Media Guidance for Attorneys

Do you have a LinkedIn account? How about a Facebook page? Twitter handle? Instagram? Blog? All of the above?

Have you ever considered the Rules of Professional Conduct when commenting on someone else’s Facebook post, or sharing a clever tweet, or even writing on your personal blog? If not, then you should.

Most lawyers are probably aware that there could be ethical implications to their professional use of social media, but personal use can also implicate the Rules. Learn more from Katrin Miller Rothgery of Brownstein Hyatt Farber Schreck in the video, below.

 

This post originally appeared on the CBA CLE Connection blog.

Posted in Professionalism

Professionalism Matters CLE and Happy Hour — Tuesday, June 13

Join the Downtown Denver Solo Small Firm networking group on Tuesday, June 13, at 5:00 p.m., at Rathod Mohamedbhai LLC (2701 Lawrence St. – plenty of free on street parking), for a free happy hour and CLE presentation on Professionalism. Approved for one ethics credit! Questions? Contact Paul Miller at (303) 900-2529 or pmillerlawoffice@gmail.com.

Interested in joining one of the CBA’s other regional Solo and Small Firm networking groups? Solo Small Firm Section networking meetings are a great opportunity to connect with your peers, as well as a practice management and technology discussion forum. The meetings are open to all CBA members, not just Solo Small Firm Section members. Click here for a list of June events.

Facilitators:

Donald W. Alperstein, is a principal of Alperstein & Covell, P.C., a Denver law firm founded in 1985. His practice includes general business matters, commercial litigation, arbitrations and amateur sports law. In recent years, he has devoted much of his time to matters concerning legal fee analysis and assessment, including work as an expert witness, arbitrator, mediator and special master.

He served as Denver Bar Association Chair of the DBA/CBA Professionalism Coordinating Council from 2007 to 2012, and was instrumental in the creation and production of the PCC’s original video vignettes and teaching manual and oversaw the revamping of the Principals of Professionalism and their adoption by the CBA and DBA. Donald’s passion is the sport of fencing, which he has served nationally and internationally in many capacities, and he still takes up the sword from time to time. Donald graduated from Wheat Ridge High School, and he attended Whitman College and Harvard Law School.

Richard Pennington has been general counsel to NASPO ValuePoint, the nonprofit subsidiary of the National Association of State Procurement Officials that supports the states in their national cooperative procurements. Richard is the former director of the Colorado Division of Finance and Procurement, State Purchasing Director, and first assistant attorney general (procurement and construction litigation counsel).

Richard is a retired Air Force Colonel and judge advocate who started his career as a B-52 pilot and later became a judge advocate specializing in federal procurement. Richard attended the Air Force Academy, the University of Denver College of Law, and The George Washington University (LL.M. in government procurement law).

 

 

Posted in Networking

DBA Annual Golf Tournament — June 23

Join us for the DBA’s Annual Golf Tournament and fundraiser for MVL on Friday, June 23, at City Park Golf Course in Denver. We’ll kick things off with a shot gun start at 1 p.m. YLDers get a discounted rate of $60 which includes golf and a happy hour with apps at Bogey’s after play.

Various prizes will be awarded so choose wisely when picking your team mates!!! It’s a great afternoon out of the office benefiting a great cause. Sign up today as a complete team or not and we can match you with other players.

Litigation Solutions Inc is sponsoring two YLDers to play for FREE. Email Heather for details. First come first serve!!!!

 

Posted in Networking

All in the Family: How Stress Affects Attorneys and Those They Love

By Jessica Warren and Zach Warren

From the most recent COLAP Wellness corner, we all know that the practice of law can exact a toll in terms of stress, anxiety and overall quality of life. For decades, these challenges were considered occupational hazards — side effects of committing to such a career. More recently, however, there has been a growing chorus within the legal field that seeks to combat this notion by considering meaningful ways to support attorneys and other legal professionals. Larger firms and legal organizations are implementing meaningful employee wellness initiatives; bar associations and other trade groups provide support programs for their respective members; and traditional models of compensation are shifting toward a system that rewards quality over quantity. While these are positive developments, life as an attorney still has its challenges, and the potential consequences can extend to families as well.

In order to address the many challenges attendant to practicing law, we must first examine them from individual and systemic perspectives. This means marshalling the courage to share when we are struggling as practitioners and also shining a bright light in the dark corners of our industry to make manifest the prevalence of substance abuse, feelings of isolation and suicidal thoughts. By acknowledging these issues, we can send a clear and unequivocal message: No one is immune to the stress of practicing law, and we are prepared to advocate for ourselves and our community.

Many of the articles detailing the hardships of practicing law suggest that all lawyers face similar challenges in terms of stress and the rigors of maintaining a high-quality practice, regardless of individual circumstances. But this characterization flies in the face of the on-the-ground realities of practicing law in very different contexts. To be sure, there are some issues that seem nearly universal to the practice of law, the effects of which may extend to law partners, friends, associates and family members. But not all practices are built the same and many have unique challenges. For instance, in a BigLaw context, many lawyers point to the tyranny of the billable hour as the primary source of stress. For the sole practitioner, balancing practice management, business development and legal practice can feel overwhelming. Plaintiff-side lawyers similarly face the prospect of feast-or-famine business cycles and the difficult decision to walk away from a meritorious but “low-value” case due to financial realities within the firm.

The culture within the legal profession necessarily holds practitioners to a high standard. Representing another’s interest within the legal system is an honor and a privilege, and something worth safeguarding at all costs. Nevertheless, lawyers are human too! Mistakes happen; deadlines are missed; and meaningful opportunities to advance a client’s interest are squandered. The consequences are real — and so is the pressure. As a result, it can sometimes feel as though every second you’re not tending to your law practice, you’re failing your client(s) and increasing the risk of professional liability. Yet focusing exclusively on one’s practice and neglecting the very things which support wellness and wholeness is perhaps the ultimate personal risk. In the zero-sum game of time management, this feeling is familiar to most of us, and it has surely scuttled more than one law practice.

Within the family system, these issues can play out in ways that are fundamentally damaging to intimate partner relationships and the early attachment needs of young children. When it comes to coping with stress, attorneys often find themselves in a catch-22 situation: Stress at work leads to long hours, which takes the place of healthy coping strategies (e.g., exercise, connecting with friends, good sleep hygiene and nutrition), which then leads to greater stress and increased unhealthy coping strategies (e.g., substance abuse, poor diet and lack of sleep). This negative feedback loop can have an outsized impact on important relationships and fuel undesirable behaviors, such as irritability, argumentativeness, disconnection and detachment.

Chronic stress can also result in clinical depression if left unaddressed or untreated. Researchers at Johns Hopkins University found that lawyers suffer from major depression at a rate of 3.6 times higher than other employed persons. As we all know, there is a difference between being physically present and being emotionally present, or truly engaged and attuned to those around us. When stress and anxiety occupy a lot of emotional space, partners can be left feeling abandoned, alone and disconnected from their attorney–partner. Similarly, children may feel as though their own social, emotional or psychological needs are secondary to the pressures of an attorney–parent’s career, despite the best intentions of attorney–parents.

The long-term effects of disconnection can leave lawyers at an increased risk for divorce, infidelity and a fragmented family life. Recent studies have estimated that the divorce rate among attorneys is at least 25 percent. Similarly, workplace pressures often seem incompatible with the realities of maintaining a healthy home life, especially with respect to childcare. According to the National Association of Law Placement Foundation, two-thirds of female associates will leave their firms within five years. Many attorney–parents feel like the only viable option is to leave the field altogether. In short, where the organizational culture requires a full commitment in terms of time, attention and talent, it is easy to abandon other important things in life in the pursuit of a successful legal career.

There is good news, however, and not all is lost! There are many healthy, proactive ways of managing stress and its impact on our relationships — from counseling and meditation to exercise and volunteering. One of the most effective ways of addressing stress and anxiety is slowing down to increase our personal awareness of it in the first place. This could be as simple as implementing a daily body scan. Pay attention to where you’re holding stress in your body. Start at the top of your head and slowly move down your body to identify areas that feel tense, tight, heavy or painful. With each area of your body, acknowledge the sensation and release it, softening that specific area while taking a deep breath before moving on. This small practice might run counter to fast-paced workplace environments, which is precisely the point that it is important to slow down.

Within the family system, creating small rituals of connection — tucking children into bed, recurring date nights, reading a book together, walking the dog and journaling — can be immediate steps of reaching out to your children or your partner. Creating space and intention to focus just on the couple’s relationship is vital, especially when children are present. Family therapists will often encourage couples to focus intently on the partner relationship first, including suggesting specific activities like creating vision statements for their relationship, identifying what each person wants for themselves and what they want to give the relationship, and sharing them together. If these activities are too overwhelming, family therapy can also be a safe space for couples or families to navigate themes of disconnection, misunderstanding and miscommunication.

Another protective factor for attorneys and others facing demanding professional expectations is creating a strong sense of community. The benefits of building and maintaining strong relationships with other attorneys extend far beyond business development or networking opportunities: They create a sense of belonging. We all know that sharing our experiences and relating to our peers can feel cathartic. But research also demonstrates that surrounding ourselves with people who can truly empathize with our challenges and celebrate our successes is key to our sense of wholeness. And when we feel “seen” in our personal and professional lives, the quality of our work improves, and we are more able to invest in the things that provide lasting meaning and contentment in our lives.

There is tremendous strength and courage in first acknowledging that practicing law is a privilege — but one that comes with a cost. It is up to attorneys and others in the legal services industry to advocate for ourselves in the way that we advocate for our clients. When attorneys take care of themselves and one another, they continue providing excellent services to their clients. Attorneys owe it to their community, colleagues, friends, partners and children to be the best version of themselves possible at a given moment in time. But more than anything else, they owe it to themselves. If you are struggling (or know another attorney who may be struggling), please lean on the resources at the Colorado Lawyer’s Assistance Program and other attorneys in the community as well.

Jessica Warren, Ed.S., L.M.F.T., provides therapy to individuals, couples and families at Warren West Counseling, LLC. She provides clinical supervision to postgraduate therapists working toward licensure. Warren is a professional member on the Colorado Division of Regulatory Agencies Marriage and Family Therapist Examiners Board and can be reached at warrenwestcounseling@gmail.com.

Zach Warren, J.D., is a civil rights and disability rights attorney with the Highlands Law Firm in Denver. His practice focuses on §1983 litigation and actions under the Americans with Disabilities Act. He enjoys spending quality time with his bright and talented wife, Jessica, and their daughter. He can be reached at zwarren@highlandslawfirm.com. 

 

Posted in Wellness

Metro Caring Stories and Stats

ICYMI, the DBA YLD’s Annual Roll Out the Barrels Food Drive is June 5-30! We wanted to share some stories and stats to help explain the need and reliance of people in Denver for help from Metro Caring, as well as its wider role in the community beyond the distribution of food.

Ready to help? Sign up your firm, and download some fliers to help promote the drive around your office.

 

Metro Caring Stories

Josh and his three kids. Josh is a single father who unexpectedly took on custody of his children when legal proceedings began against their stepfather. The children had been living in Texas with their mother, and Josh was working 60-hour weeks for an aerospace-electronics company to support them. When they moved to Colorado, he had to scale back his hours so he could take full-time care of his mentally challenged oldest daughter. Josh said he tried for a long time to go without help, but things got too tough with his reduction in income and three mouths to feed. Josh came to Metro Caring and was amazed. He received a week and a half’s worth of healthy food, assistance getting his son’s Texas birth certificate, and clothing referrals for his kids, who came to Colorado abruptly and without most of their clothes. His kids currently receive meals at school, but Josh is nervous about the summer. Thank goodness for Metro Caring.

Bob. Once a month, without fail, Carol brings her neighbor, Bob, on a Tuesday evening to shop in Metro Caring’s Fresh-Foods Market. Bob is wheelchair-bound and suffers from Cerebral Palsy. Unable to speak, he relies on his caretaker to select grocery items and prepare meals for him at home. They shop together in the market and Bob signals which food items he’d like for her to put in his grocery cart. Now, when not shopping on behalf of Bob, Carol volunteers at Metro Caring as a way to say thank you for everything the organization has done for her neighbor.

Gladys. Gladys came from another state escaping an abusive relationship. She was living most of the time in her car and jumping from motel to motel. She had a hard time finding a job or public assistance because her California driver’s license wasn’t enough proof that she was an American citizen. One morning she was eating breakfast at a church and heard about the ID assistance at Metro Caring. She was happy that Metro Caring could help with her birth certificate and ID. With this help, she was able to apply for a job, housing and public benefits.

Rose. Rose had never had to ask for help before. Despite being on a fixed income and having to raise her grandchildren. Just a couple of months ago, one of Rose’s grandsons was killed in a drive-by shooting in the middle of the day. Funeral expenses wiped out an entire month’s income. Rose had never been late on an Xcel payment, but didn’t have the money to pay her last month’s bill. A neighbor told her about Metro Caring, so she called in to the utility assistance line and requested help. Barring another disaster, Rose could manage her payments going forward. Metro Caring helped Rose keep the lights on and family comfortable.

 

Metro Caring Stats

The numbers are startling: 1 in 4 working households do not have enough food to meet their basic needs; 1 in 4 children in Denver will go to bed hungry tonight; 1 in 7 Coloradans experience hunger every day. What do all these numbers really mean? How does it feel and what does it look like to be hungry?

There is no single type of person that represents hunger.

  • Hunger is Aida, a refugee and young mother reliant upon help from family until her husband can get proper identification and a job.
  • Hunger is Fred, a homeless disabled veteran of the world’s strongest military power.
  • Hunger is Charlotte, a retired nurse struggling to make ends meet on social security.
  • Hunger is Harry, a father of three working a low-wage job and spending 40% of his salary on childcare.

For more than 60,000 children in Denver, summer break means no access to free or reduced meals at school. Already struggling to feed their families, parents now have to find a way to provide their kids with three meals a day. During a carefree summer, the biggest concern of children should be what game they are going to play, or which friend’s house they will go to that day. Instead, many are thinking about where or when they will eat next. Denver families need your help this summer and Metro Caring is counting on your generosity. Six out of seven (86%) low-income kids who eat free or reduced school lunches during the academic year do not receive a free meal during the summer. While nutrition is an essential component of health at all ages, it is especially important for children as they are still developing physically and mentally. Proper nutrition at an early age improves academic performance and helps fight disease. It also instills healthy habits that carry into adulthood.

Key statistics from our last fiscal year:

  • Metro Caring received 2.5 million pounds of food, almost 2/3 of which was rescued and would have ended up in landfills
  • 35% of the food in Metro Caring’s Fresh-Foods Market are fresh fruits and vegetables. Shoppers, on average, leave with more than a week’s worth of the most essential nutrients.
  • According to an MSU Denver study, Metro Caring shoppers leave with, on average, 8.4 days’ worth of food – or the equivalent of $250 worth of groceries.
  • 82% of Seeds for Success job-training program graduates have been placed in a job, with an average starting salary of $11.64, more than Colorado’s minimum wage of $9.30.
  • Each week, 400 volunteers help to make Metro Caring run. In total, our volunteers are equivalent to 26 full-time staff.
  • Last year, Metro Caring distributed $400,074 for people to keep their homes heated and lights on!
  • Last year, Metro Caring distributed almost $23,000 ID, driver’s license, birth certificate, and out-of-state birth certificate vouchers throughout Colorado.
  • $0.93 of every dollar donated to Metro Caring goes directly into programming.
Posted in Community

Improve Your Communication Style for Greater Success

By Paul Miller

A few weeks ago at a professional networking meeting, a question was asked; what is the best way to communicate with people who you interact with during the course of the day?  Most people chimed in with their preferential choice of communication along with valid reasons why they favored their preferential method.   One person stated that email was a coward’s way out, and to always phone. I thought to myself, everyone here is missing the mark. It’s not what way is best for you to communicate, it’s what’s they best way for their audience to receive the information.

As an attorney our job is to educate and communicate. A good educator will deliver content that can be clearly understood by the audience. As public servants we need to clearly convey our ideas to the people we work with. They need to understand the laws, processes, advice, and our viewpoints. Whether it’s clients, paralegals, secretaries, witnesses, investigators, insurance professionals, court personnel, other attorneys, the myriad of other people not mentioned above, the public in general, juries, and even judges, being an effective communicator is paramount to being an effective attorney.

Since people learn best when they can easily understand what is being presented, a strategy to employ when informing others is to match your communication style to their learning style.  There are three types of learning or communication styles; visual, auditory, and kinesthetic, and almost everyone uses a combination of at least two. If you learn how to identify someone’s learning style, and use techniques or methods that facilitate the processing of information being conveyed, you will save yourself time, and provide better service to your clients.

Visual Learners/Communicators tend to be fast talkers; they can be impatient and have a tendency to interrupt. The words or phrases that they use evoke visual images.  They best learn by seeing and visualizing. They’ll use phrases like, “I see what you’re saying.” They’ll choose professions that are visual such as photography and graphic design. When communicating with this type of individual use email, diagrams, drawings, pictures and PowerPoint presentations. Use imagery when communicating.

Auditory Learners and Communicators tend to speak slowly and are natural listeners. They think in a linear manner and prefer spoken directions or explanations, rather than written instructions. They learn or communicate by listening and verbalizing. They’ll use phrases like, “I hear what you’re saying.” When communicating with this type of individual use the phone, or Skype rather than email. Use timelines and explain things using a step by step process. If possible, have the person repeat the information back to you. Use something like, “I lost my train of thought….what was I just saying?”

Kinesthetic Learners and Communicators are the slowest of all talkers. They are slow decision makers as well. Since these individuals use all of their senses to learn, they best learn by doing and problem solving. They’ll use phrases like, “I feel what you’re saying.” Their preferential way to learn is through a hands-on-approach or trial and error. When communicating with a Kinesthetic Learner give them hardcopies to hold during conferences, as well as use demonstrations and case examples.

In reality, you never going to know the learning or communication style of every single individual that you come interact with during the course of your day. Nevertheless, you should make an attempt to learn the communication style of people you frequently work with, especially your clients. Ask if they prefer phone, email, or text. Find out what their hobbies or activities are, what they do for a living, and just as important what they rather do for a living. These small observations, as well as the identifiers above should give you some insight on their prefered communication style.

By matching how you communicate to your client’s learning style, you will be saving yourself a lot of time, while better serving your client. Wouldn’t it be nice to just explain things once?

Paul Miller is a sole practitioner whose firm specializes in estate planning, nonprofits and small business law. In his spare time, he enjoys skateboarding, snowboarding, playing golf and working with young people. He can be reached at paul@pmillerlawoffice.com.

This post originally appeared on Solo in Colo.

 

Posted in Professionalism

DBA YLD’s Annual Food Drive Runs June 5-30

Sign up your office as a donation location to continue to fight hunger and feed hope in 2017. This year’s food drive runs from June 5-30 and benefits Metro Caring, whose mission is to provide nutritious food to hungry families and individuals while promoting self-sufficiency.

A $10,000 challenge grant, generously donated by Arnold & Porter Kaye Scholer, will be unlocked when $50,000 is raised for Roll Out the Barrels. Help us reach that goal and sign up your firm today!

Posted in Community

Getting Motivated to Save for Your Retirement

By Melanie Fischer

How old are you? Actually, the answer to this question doesn’t really matter. If you are old enough to have a job, or if you are old enough to own a (profitable) business, you are old enough to start saving for your retirement.

In fact, the well-known phrase it’s never too late to start saving for retirement should really be changed to it’s never too early to start saving for retirement.

Making a commitment to save for retirement is not easy, especially for new solo attorneys who are struggling to establish their law firm. There are a huge number of expenses for any new business owner. From paying rent to purchasing office furniture, it’s easy to spend every extra penny just keeping your business afloat.

The younger you are, the easier it is to put off saving for retirement. When you are in your 20s or 30s, it can be difficult to imagine that retirement is in your future. The idea of being 40 years older than you are today can be difficult to visualize. However, the years will pass faster than you think. Before you know it, you’ll be ready to retire.

It’s absolutely essential that everyone, regardless of profession, start saving for retirement as early as possible. The sooner you start, the more time your money and investments have to compound and grow. The possibility of exponential growth can only benefit you in the long run!

When it comes to saving for retirement, here are a few ideas to think about:

Analyzing financial dataRemember that a little bit of money goes a long way. Don’t underestimate the value of $100. Assuming a 12% average rate of return on a $100 stock market investment, your initial $100 can grow to $9,305 over the course of 40 years!

Keep the power of compound interest in mind. As outlined in the example above, compound interest works in your favor. The longer your retirement account sits, the larger it will grow over time.

Funding a retirement can result in a tax savings. Many retirement accounts are tax deductible, and your funds can grow tax free until you reach retirement age. To learn more about different types of retirement accounts, and which may be best for you, make sure to consult a financial professional.

Saving for retirement can be a challenge. Not all challenges are bad or difficult. If you look at your retirement savings as a good type of challenge, then you will be excited and happy when you reach your savings goal.

Keep in mind that you may not be able to work forever. Your retirement plan may be, “I’ll just keep working until I’m 80.” However, as you grow older you might find that it’s harder and harder to work. You can never predict with complete certainty how long you will be physically or mentally able to handle the responsibilities.

Knowing that you have a nest egg can be a huge relief. Imagine how good you will feel when you reach your retirement savings goal. Knowing that you have enough money to comfortably retire is enviable.

Believe it or not, you do not need an advanced degree in investment banking to successfully save for retirement. One of the most difficult aspects of saving for retirement is getting motivated to put money away. If you keep in mind the numerous benefits of saving – and start early – you should be able to keep yourself on the right track.

 

This post originally appeared on Solo in Colo.

Posted in Finances

DBA Member Appreciation Month Kicks Off on Monday!!!

memberappreciationIt is because of you, that the Denver Bar Association is currently in its 125th year of serving the Colorado legal community! There are no words that can fully express our appreciation for your continued membership, support and time, so the Denver Bar Association would like to express its gratitude!

On Monday we kick off our Member Appreciation Month!!! All events are FREE, and many include lunch and a raffled giveaway. Registration for all events is required, so sign up early as many are expected to reach capacity. And don’t forget to take advantage of free professional head shot sittings. Search our calendar for ‘member appreciation’ to find out all that is on offer this month!!! #DBAthanks

File Retention — May 3
Noon to 1 p.m. in the CBA-CLE 3rd Floor Large Classroom, Lunch provided
1 Ethics Credit

This program will address the practitioner’s obligations regarding client files including storage, retention, accessibility and destruction, as well as the requirements of Colo. RPCs 1.16 and 1.16A, and relevant cases and ethics opinions. Presented by The Office of Attorney Regulation, April McMurrey. RSVP

Client Communication: Grievance Avoidance Webinar — May 9
Noon to 1 p.m.
1 Ethics Credit

Discussion of the ethical rules and guidelines required in defining good communication, discussing goals with clients, handling difficult decisions, and improving communications so you can avoid grievances. Presented by LawPay (a FREE 3-month LawPay subscription will be raffled off to those in attendance). RSVP

How to Manage your Firm from India — May 12
Noon to 1 p.m.
1 General Credit

Build your life, not just your law firm. An attorney and founder of an immigration law firm in Washington, Greg McLawsen has found a way to combine his love of travel with his professional life. Join Greg as he offers his top tips on how to work virtually from anywhere in the world, even with an infant in tow.
Presented by Clio (an Amazon Echo Dot will be raffled off to those in attendance). RSVP

Manage Your Student Loans Webinar — May 17
Noon to 1 p.m.

One of the biggest struggles we face is keeping up with the sheer volume of emails. And it’s a battle most of us are losing. But there are things you can do to get it more under control. As with most battles, the best way to approach it is on several different fronts. This session, presented by Credible, will explore practical and proven strategies to help you get your email under control (and tips to keep it that way!)  An Amazon Echo Dot will be raffled off to those in attendance! RSVP

Mindfulness Yoga & Brews — May 17
4 to 7 p.m. at the Rackhouse Pub

An hour-long yoga class from CorePower Yoga. Please your own yoga mat or a limited amount can be rented for $2 (please bring cash). Cold brews, light appetizers and networking will close out the evening. 1 month unlimited at CorePower Yoga will be raffled off to those in attendance. RSVP

New Member Welcome Panel — May 18
5:30 to 7 p.m.

During this evening discussion and reception, attendees will hear from several of our ‘super engaged members’ coming from various practice areas and firm size. Whether you’re a new or long-time members, come hear from their colleagues on how to:

  • Build leadership through the DBA (sections, committees, volunteer opportunities and etc.)
  • Reacquaint with services and benefits that are available to you;
  • Ways to maximize your investment of membership dues and time; and
  • Other insider tips and tricks

Several prizes and giveaways will be raffled off to attendees. Food and drinks will also be provided. RSVP

Ethics of Social Media — May 22
Noon to 1 p.m.
1 Ethics Credit

This presentation discusses the Colorado Rules of Professional Conduct that may be implicated with different forms of social media and recent court decisions imposing discipline against attorneys for actions on social media websites. We will discuss common problems and issues to consider when attorneys use social media and what to consider when supervising support staff. Presented by The Office of Attorney Regulation, E. James Wilder. RSVP

FREE FIND A LAWYER HEADSHOTS DURING THE MONTH OF MAY

The DBA is offering free professional headshots at our offices during the month of May to be used in your online CBA Find A Lawyer profile. Additional headshots can be purchased for personal use. Register for your sitting today or contact Vanessa Babarsky with questions.

 

 

Posted in DBA YLD News, Uncategorized