ENOUGH TO KILL YOU

By Larry Delano Coleman, Esq. Enough to kill you: confessions of a solo practitioner October 15, 2010 Dread tinctured by angst discomfits me, as I write this epitaph on 33 years of professional life as a lawyer. This was not how it was supposed to end, this concluding phase of my private law practice. I suppose I shall be deemed a failure by some. I was, after all, felled, finally, by an evolving stroke, which started out mildly and which culminated in complete paralysis—hemiplegia- left-sided. The doctors, despite multiple inquiries, have never told me what precisely caused my cardiovascular accident (CVA). There were, of course, the usual suspects; diabetes, high blood pressure, morbid obesity, a crushing work load, unappreciative and/or non-paying clients, persecution by IRS and the Office of Chief Disciplinary Counsel of the Missouri Supreme Court, swarms of creditors, and no employees to help bear the load. Enough! It was enough to kill you. It almost did. But God, in his infinite mercy, spared me. I express my gratitude to him by heeding his word and warning, by returning to my first love: WRITING. This first love has impelled me to read impulsively, compulsively since childhood, and to write impulsively, compulsively from childhood. I have read deeply and yet read: Shakespeare, Dumas, Mark Twain, Richard Wright, Saint Augustine, Frederick Douglass, Booker T. Washington, The Bible, The Koran, Machiavelli, Herodotus, Homer and many, many others. A writer is perforce a reader, and a reader is perforce a writer. At the end of ninth grade Civics, I initially listed ‚writer‛ as my future vocation, only to change it to ‚lawyer,‛ later. I feared the proverbial, if apocryphal, Greenwich Village table-waiting vocation looming as a less-than-desirable occupation, pre-publication. ‚Lawyer‛ was more emotionally satisfying, more financially promising, and also conformed to my skill sets. One could always do both, right? I rationalized. Along the way, I took a Bachelor of Arts degree in Print Journalism (cum laude) at Howard University in 1973, while serving as Editor in Chief of THE HILLTOP, which was founded by the great writer, and folklorist, Zora Neal Hurston, whom I’ve also read, during her student years at Howard in the 1920’s. http://www.zoranealehurston.com/ While a student in Howard’s School of Communications, my senior year, I took a course in Communications Law, which was taught by then-attorney, now Judge Paul Webber. What amazed me about the class was the fact that although the cases in our textbook were written in pristine English, and although I deemed myself to be a master of the English language, even then, I could not understand what they were saying. The language was too arcane, obtuse. How can something be written in English, and I not understand it? I enrolled in Howard Law School to find out that specific answer. I obtained my Juris Doctor from the fountainhead of American civil rights law, Howard Law School in Washington, D.C. in 1976, http://en.wikipedia.org/wiki/Howard_University_School_of_Law#cite_note-howard-6 being admitted to the Missouri Bar in 1977. So armed, I set out to conquer the world. Or, at least to mollify it. Along the way, I learned that ‚legalese‛ is a language unto itself, with its own devices, idioms, conventions, and vocabulary; and that what plainly appears may not be as plain as it appears. Cervantes’ Don Quixote at least had the loyal, if wistful, Sancho Panza, as a sidekick. http://www.online-literature.com/cervantes/don_quixote/ I, however, was utterly alone, having left the District of Columbia where I knew many, and moving to Kansas City, Missouri, where I knew few. Yet, therein, was the vortex of my spirit perfected: in the wilderness of western Missouri, in the land where the Civil War began. My first job was with the U.S. Department of Labor, Office of the Regional Solicitor in 1976. There, I enforced Occupational Safety and Health Administration (OSHA) rules and regulations in a four state region. I also enforced minimum wage and overtime laws. After a 2 ½ year stint, I left to become an Assistant U.S. Attorney for the Western District of Missouri in February 1979, the only black AUSA in that office at that time, and until I left in August 1986 to launch my own practice. At the U.S. Justice Department I did exclusively civil litigation, by choice, trial and appellate. I left, because my soul cried out for ‚freedom.‛ No law firm, black or white, to which I applied, would hire me, so I struck out on my own, emulating thereby the Horatio Alger http://en.wikipedia.org/wiki/Horatio_Alger%2C_Jr. legend, which I had not read – although I did read Gerald Singer’s classic, How to go into Private Practice Without Missing A Meal. http://www.amazon.com/Directly-Into-Your-Practice-Succeed/dp/B0006E7XNC/ref=pd_rhf_p_t_1. I’m happy to say I never missed a meal either! Au contraire, I easily gained 100 pounds during my 23 years of private practice! I could not have chosen a more inauspicious time to launch a solo, largely civil rights, practice in the western district of Missouri. The Western District of Missouri is historically‚conservative,‛a popular and palatable euphemism for racist. Jackson County, which houses Kansas City and Independence, was one of four western Missouri counties which were subject to General Thomas Ewing’s infamous and efficacious General Order # 11, issued four days following Confederate guerilla leader William Quantrill’s fiery raid and massacre at Lawrence, Kansas in August 21,1863. http://www.theamericanmuseum.org/december.09.cover.html That order resulted in the forced evacuation of all rural Confederate sympathizers from the counties of Jackson, Cass, Bates, and Vernon from which Quantrill and others drew comfort and support in the execution of their depredations. The U.S. District Court for the Western District of Missouri, along with its two-mile-distant counterpart, the District of Kansas, across the wide Missouri River in Kansas, were instrumental in aborting post-Civil War civil rights ‚Reconstruction‛efforts, while ushering in ‚Jim Crow,‛separate-but-equal segregation practices, through decisions invalidating the Rights Act of 1875. http://www.answers.com/topic/civil-rights-cases The U.S. Supreme Court subsequently affirmed these decisions. Civil Rights Cases, 109 U.S. 3 (1883);;; http://www.learner.org/courses/democracyinamerica/dia_5/dia_5_readings.html; http://en.wikipedia.org/wiki/Civil_Rights_Cases. This decision, also featured an admonitory dissent by Mr. Justice Harlan, which preceded his more famous dissent in the infamous Plessy v. Ferguson by 13 years.PLESSY v. FERGUSON, 163 U.S. 537 (1896) ; http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=163&invol=53 http://www.pbs.org/wnet/jimcrow/stories_events_uncivil.html I had long been aware of this rancid legacy, and this region’s role in it. From Lloyd Gaines, the honor student from Lincoln University who was purposefully denied admission to the University of Missouri School of Law because of race, Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)[1], which sable hue, doubtless, contributed to his March 19, 1938, sudden and mysterious ‚disappearance‛ in Chicago, Illinois http://en.wikipedia.org/wiki/Lloyd_L._Gaines to Brown v. Board of Education of Topeka, Kansas, which needs no introduction. An astute student of African American legal history, the historical precedents were well known to me. What I did not know, and could not have known, without honest mentoring and actual experience—both of which I lacked—was the day-to-day situation on the ground, as it related to black solos in light of the legacy. I had heard, for example, that black lawyers, at one time, were prohibited from sitting inside the ‚bar‛ of the court room. It had also been widely reported that certain judges at court en banc meetings would openly, and with impunity, use the epithet, ‚nigger.‛ Black lawyers, in short, were viewed as grasshoppers and saw themselves as grasshoppers. Black clients overwhelmingly patronized white lawyers, perversely believing that would cancel their racial disadvantage, from which there was no escape. But, hope sprang eternal, until Ronald Reagan was re-elected President of the United States, in 1984. By 1986, when I opened my office, his so-called ‚revolution‛ had imperiously polluted the private practice of law. Unsupported and ubiquitous claims of ‚frivolous‛ lawsuits presaged numerous changes to the form and substance of the law practice. Amendments to the Federal Rules of Civil Procedure, particularly Rule 11’s ‘sanctions’ provision , would destroy the traditional fiber of collegiality among plaintiff and defense lawyers. Monetary sanctions in the thousands of dollars were routinely sought and awarded against plaintiffs’ lawyers by federal judges who were appointed during the Reagan era, and Bush eras. Secondly, insurance companies, the ‚third rail‛ in American litigation tightened their purse strings, so claims adjusters who were formerly content to ‚move along and get along, ‛were now obliged to reject and discard old formulas for dispute resolution. This resulted in more lawsuits being filed, which appreciably increased the costs of civil litigation for plaintiffs’ lawyers, especially solo practitioners. As these ‚costs‛ are often borne, whether voluntarily or involuntarily, by plaintiffs’ lawyers, their income decreased as their expenses increased. In a similar vein the insurance lobby had blanketed the airwaves with lies about ‚run-away‛ juries, which would award millions of dollars for minimal slights or for manufactured injuries. Their favorite involved the elderly passenger who put the McDonald’s hot coffee cup between her knees, which spilled, scalding her. http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants This case became the poster child for frivolous lawsuits to a gullible and non-empathetic public, conditioned by media ads. A corollary consequence to this was one-sided media hype was that the plaintiffs themselves came to have an exaggerated and distorted views of the value of their own case, based upon media reports about other cases. If that guy got $5 million from a jury, why can’t I ? These expectations belied the reality that well over 90% of civil rights cases are lost in U.S. District Court before they ever get to a jury. This truth is not reported in the media, and is not generally known. Plaintiffs labor under an illusion of judicial liberality in civil rights litigation, where none exists on the federal level at all. So, the plaintiff either resents, distrusts, or files a bar complaint against the lawyer, believing the lawyer is breaching his duty of representation. I have had such a complaint filed against me. As a consequence, my license was ‚probated.‛ That means it was suspended and placed on probation for one year, while I completed certain conditions. During this period of probation I was able to practice law, while making quarterly reports to the Office of Chief Disciplinary Counsel. http://www.courts.mo.gov/file.jsp?id=34347 Another corollary consequence of federal judicial hubris is that civil rights defense counsel, aware of their hostile reception in federal courts, routinely ‚remove‛ civil rights cases from state court, where they may have been originally filed, to federal court where they are routinely dismissed, or subjected to ‚summary judgment.‛ Plaintiffs’ lawyers rightfully fear federal court. Summary Judgment is a procedural mechanism whereby a court can dispose of a case summarily, without hearing any evidence in open court, basing its ruling solely on documents filed and legal inferences. When the court determines there to be no genuine issues of material fact, warranting trial, it can grant judgment for the defendant, without more. Plaintiffs can’t get summary judgment in employment cases, however. So, none ever has. It’s enough to kill you, if you are a black, plaintiff’s civil rights attorney, and enough to sicken you if you’re white. All of these factors, and others, have an adverse economic impact from which there is no apparent relief. Tax woes and debt collectors vamp. It’s enough to kill you! It almost did! #30