February 19th, 2018|
Living in the Washington, D.C., area, one of the first questions a new acquaintance will ask is, “What do you do?” When I respond that I practice workers’ compensation law, a common follow-up question in the midst of our conversation may be, “Have you ever met someone who faked an injury to get compensation benefits?” Here is where I cringe. What may seem like a harmless, conversation-starting question makes me cringe because in my years of practice, I have never met an injured worker who would do that. I have never met a worker who wanted to be in a position of uncertainty or to ask his or her employer to provide workers’ compensation benefits.
This common question I receive saddens me because it represents a societal view which is not rational but, tragically, remains prevalent and stigmatizing. My view is that protecting another’s right to work protects families and human rights. Workers’ compensation laws should be a just and effective protection of injured workers and their families. Workers’ compensation laws should be a societal good and should respect the dignity of workers. When I do receive the above question (which still makes me cringe), I embrace the opportunity to share my views of workers’ compensation coverage as a protection of human rights.
This post will identify work as a human right, recognize the historical, moral obligation of employers and insurers to care for their workers and will briefly discuss the threatening legislative erosion of workers’ compensation benefits across the United States. My hope is that the thoughts shared here can shift minds away from any false stigma associated with making a workers’ compensation claim to a view of it as a protection of the right to work—a human right.
Dignity of the Person Through Work
The right to work is a basic human right, a universal dignity that each human deserves, due to the fact that they are human. It is more than just “making a living.” Work is the daily way that we secure our present and our future as individuals. Through work, we protect and feed our families and build a future for our family units. Through work, we express who we are. Through work, we can express and live out what we value. Through work, we develop and share our talents and skills with others. Interactions in the work force allow opportunities to interact with others that we would not experience otherwise.
The people that I represent have a diverse range of physical skills, creative ideas and interpersonal talents which they express through their occupations. They have immediate needs for their growing families and dreams to build for them. Earning a fair wage for fair hours affords most the resources to engage in recreational activities that they enjoy outside of work. Considering the foregoing reality and common interests of the average worker, it would not be rational for that worker to voluntarily threaten that most basic means to provide food, shelter and security to one’s self and one’s family. One who would do so is the vast, vast exception, not the rule.
Employers Must Respect the Dignity of Workers, as Should Their Insurers
“Woe to him who treats his workers unjustly.” Jeremiah 22:13.
“Those who become rich by abusing their workers have sinned against God.” James 5:1-6.
“And O my people! Give just measure and weight, nor withhold from the people the things that are their due” (Quran 11:85).
The above scriptural quotes, while ancient and hard-hitting, apply to the present-day obligation for employers to respect the dignity of their workers. These historic texts encapsulate the compelling worth of each and every worker, a worth that should be appreciated from a secular sense as well. The right to work and the moral obligation for employers to provide decent and fair wages, to allow for organization and the joining of unions and to provide workplace safety really is a hallowed and fundamental concept. With this historical and ethical perspective, modern employment laws should be designed and applied with deference to human rights, and employers and their agents should appreciate the gravity of their responsibility.
Saint John Paul II recognized, “While work, in all its many senses, is an obligation, that is to say a duty, it is also a source of rights on the part of the worker.” (St. John Paul II, On Human Work (Laborem Exercens), no. 16). He continued,
[S]ocial benefits intended to ensure the life and health of workers and their families play a part here. The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. [Another social benefit] concerns the right to a pension and to insurance for old age and in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer. Among these rights there should never be overlooked the right to a working environment and to manufacturing processes which are not harmful to the workers’ physical health or to their moral integrity. (St. John Paul II, On Human Work (Laborem Exercens), no. 19).
I utilize the above texts from major world religions merely to demonstrate the universality and seriousness of a just employee to employer relationship. The obligations that an employer holds towards its workforce are serious and support the basic human rights of each worker by protecting their safety and providing an ability to have affordable healthcare and insurance in case of injury.
The moral obligation to treat workers with dignity and respect should not cease when a worker is upon the bridge of workers’ compensation. Employers provide or purchase workers’ compensation insurance in the event of a work injury. For employers who insure themselves, the obligations to respect the dignity of the worker outlined above do not cease during the pendency of a workers’ compensation claim. It follows that the entities tasked by employers to insure them in the case of a work injury, thereby stepping into the shoes of the employer in providing wage replacement and medical benefits, should adhere to the same fundamental respect for the dignity of the worker. Too often, insurance companies, who are far removed from the value human capital, will dehumanize the worker through failing to pay wage-replacement benefits, by denying medical care recommended by physicians, by delinquency in paying medical bills to cause a disincentive for doctors to treat injured workers and through a general tenor of disrespect and cynicism towards injured workers. This insurance industry goal of discouraging injured workers at the expense of protecting margins runs afoul of the human rights of the worker.
I urge those who are employed in the workers’ compensation insurance industry, who step into the obligations of an employer in the event of a work injury, to evaluate the grave effect of their practices and habits on the precious lives of workers and their families. Human rights should supersede market-based or business interests without fail.
Laws Limiting Workers’ Compensation Benefits Threaten Human Rights
Workers’ compensation laws were founded on a societal good: to promote safe workplaces and to ensure that, in the case of a work injury, a worker received efficient, expedient medical care and wage-replacement benefits. In exchange for this right, employers received protection from civil suits brought against them by injured workers in negligence. The foundation of these laws put human rights first in protecting a worker’s ability to heal his body and protecting a workers’ right to provide for himself and his family after sacrificing his or her body for the employer’s business.
In the past couple decades, several states have amended their workers’ compensation laws to make them more favorable to industry over the individual worker victims. These changes, fueled by business-oriented interests and lobbying, interfere with the purpose of workers’ compensation laws. The reduction and limitation of benefits for injured workers, accomplished in the name of economic interests, profoundly affects families who depend on the earnings of the household. Even at their best, workers’ compensation benefits do not compensate an injured worker for the far-reaching effects that a serious injury and resulting job loss can have: loss of earning potential, depression, inability to afford childcare and strain on spousal and familial relationships. Therefore, any abridgement on benefits is a punch in the gut to the dignity of the worker. Legislatures should value workers’ compensation benefits as a protection of human rights, not a protection of uncertain economic theories based on drawing business to one’s jurisdiction.
There should not be any stigma in protecting the fundamental human right to work. Workers’ compensation laws are based on protecting the ability of workers to endure the disruption caused by the unfortunate happening of a work injury. If you or a loved one have been injured at work, I encourage you to seek an attorney who will advocate against employers and insurance companies that do not value fundamental rights. Seek an advocate who views workers’ compensation benefits as a protection of human rights and a process in which the injured worker should be treated with dignity and respect.
February 12th, 2018|
What is voir dire?
Voir dire, also known as “jury selection,” is a critical component of our civil justice system. In most jurisdictions throughout the country, voir dire is a process that is led by attorneys and not by judges. In fact, as recently as 2015, Massachusetts became the 40th state to allow attorney-led voir dire. Clearly the trend and the vast majority of our country allow for attorney-led voir dire. In fact, neighboring Virginia is among those states that allows for attorney-led voir dire.
However, Maryland and DC remain in the minority of jurisdictions that do not have attorney-led voir dire. At this point you may be wondering, What does that really mean? Does this really matter? Well, the simple truth is that it does matter, and it means that attorneys are being limited in their ability to actively participate in the jury selection process.
The way things typically work in Maryland and DC is that attorneys submit written questions prior to trial and the trial judge determines, in his or her own discretion, which of those questions get read to the jury. Sometimes, a few follow-up questions will be asked at the bench. Other times, potential jurors will be asked to provide their answers in front of the entire gallery. The whole process often concludes quickly, typically in less than an hour. There is little to no opportunity for attorneys to follow up with the jurors. Oftentimes, a potential juror won’t answer any questions, and the attorneys on both sides are left in the dark as to what is really on that potential juror’s mind and what their potential biases may be.
Why is attorney-led voir dire important?
So, why is this a problem? Well, people who try to stand up for their rights and go through the litigation process often have to wait at least 12-15 months or longer from the time their lawsuit is filed until the time they have their case heard in front of a jury. The right to a jury trial is guaranteed by the 7th Amendment and is a fundamental part of our civil justice system. That said, litigants deserve a fair jury of their peers. In order to get a fair jury, the individual, who has waited for their day in court in front of a jury of their peers, should have the opportunity to have some sense of who the people are who will ultimately decide their fate.
The attorney role, as it stands currently, is very limited in the jury selection process in Maryland and DC. This is problematic because it is the goal of both sides, Plaintiff and Defense, to be able to make informed decisions in their efforts to decide who to “strike” (or remove) from the jury pool. Attorneys in Maryland get four and attorneys in DC get three of what are called peremptory challenges, meaning they can exercise strikes without having to state a reason so long as those strikes are not made based on race. In Maryland and DC, attorneys are given unlimited strikes to remove a potential juror “for cause,” meaning it is clear from a juror’s answers that someone is clearly biased for one side or the other. However, with little to no opportunity for follow-up with jurors, it is very often difficult to ascertain who should really be struck for cause. To make matters worse, oftentimes there are jurors who don’t answer a single question, leaving attorneys on both sides guessing who might be a good juror and who could be problematic.
Would attorney-led voir dire make any difference?
The short answer is yes. Attorney-led voir dire would allow for an opportunity to build a rapport with potential jurors. Attorney-led voir dire would allow for an opportunity to probe jurors’ thoughts and biases by asking follow-up questions. This is not to suggest that this process would last for weeks on end. However, it would be a more comprehensive process where attorneys and their clients would feel empowered that they have some sense of who the jurors in their community are that will be making the ultimate decision on their case. The shortcut of not allowing attorneys this opportunity for their clients is not in the clients’ best interests. It is incredibly frustrating for litigants to be patient for their day in court, only to be shortchanged by a juror whose biases they had no real opportunity to uncover.
The clear trend throughout the country is to allow for attorney-led voir dire to address some of these problems. Other states like Massachusetts tried unsuccessfully for years to obtain attorney-led voir dire. Fortunately, after years of efforts, they finally had a breakthrough. It seems like Maryland and DC are ripe to follow suit, and there would be clear benefits for attorneys on both sides of the case.
Will Maryland and DC ever allow for attorney-led voir dire? If so, when could we expect something like that to happen? The optimistic answer is yes; they will follow the trend toward attorney-led voir dire and, ideally, sooner rather than later. Unfortunately, this is unlikely to be resolved overnight. It will take a concerted and mobilized effort to show the realities and the benefits of attorney-led voir dire. However, this is not some concept pulled out of thin air, and in many jurisdictions, attorney-led voir dire exists on a daily basis.
Would there be a learning curve for many attorneys? Of course. With anything new, there always is. That said, knowing full well the potential benefits to their clients of conducting quality voir dire, it is not a stretch to think that many attorneys would work hard to hone their craft as quickly as possible. With practice and experience, the process would become seamless. There may be stylistic differences among attorneys and the leeway certain judges allow, but that would be no different than the way attorney-led voir dire is conducted throughout the entire country. At a minimum, it would be nice to see attorney-led voir dire permitted on a trial basis in the near future. This would allow skeptics to realize the value of attorney-led voir dire.
It is important that skeptics be educated on the benefits of voir dire. Allowing attorney-led voir dire is not a novel idea. It is not overly creative. It is not an aberration. Rather, it is the norm throughout the country. As mentioned above, skeptics can head over to neighboring Virginia to see how things are done and the benefits of attorney-led voir dire. With a mobilized effort and armed with data to support the benefits of attorney-led voir dire, hopefully Maryland and DC can join the trend everywhere. This is important because the biggest beneficiary will be the clients.
January 15th, 2018|
Why do I need a trial lawyer if I have suffered a concussion, head injury or traumatic brain injury in a car wreck, fall or sports injury?
The brain is the world’s greatest computer and the least understood part of our anatomy. Our brain has three parts: the rational, the emotional, and, buried deep beneath those, the instinctive. Injuries to the brain, from catastrophic to minor, change the way we think, feel and act. Many of these changes go unnoticed by the person who suffers the brain injury. In fact, many people who suffer brain injuries may not even consider an injury to the brain as a reason for changes in the way they feel or act. This is because we believe that if we do not get hit in the head or lose consciousness, we cannot have hurt our brains. Brain injuries, such as concussions, in car wrecks and falls are underreported, underdiagnosed and undertreated. Many times, medical professionals tell us that the changes in the way we are feeling or acting are the result of emotional or psychological problems as opposed to an injury to our brains.
Since concussions and brain injuries are so difficult to understand, it is extremely important to hire a trial lawyer who understands the brain and concussions and who has experience representing people who have suffered traumatic brain injuries. Car wrecks, falls and sports injuries are three very common causes of head injuries.
The Brain, Skull and Their Functions
Understanding the reason why you need a trial lawyer to handle a personal injury case involving a head injury begins with a basic understanding of the brain and the skull. The brain is a very fatty organ. Seventy-five percent (75%) of the brain is made of water. It is the consistency of Jello. The brain floats in cerebrospinal fluid. The fluid is contained by a membrane and sits within the skull. Quite simply, the skull is the armor for the brain.
Your lawyer must also understand what the different parts of the brain do. The front part of the brain, comprised of the frontal and temporal lobes, generally controls thinking, voluntary movement, hearing and feeling. The right side of the brain controls the left side of the body, and the left side of the brain controls the right side of the body. The back of the brain, or the cerebellum, controls coordination and balance.
As the image below shows, the brain is divided into four parts, or lobes: the frontal, the temporal, the parietal and the occipital.
Since the causes and frequency of concussions are misunderstood by most people, your lawyer must understand concussions and the wide range of symptoms they produce. The average person believes that a concussion happens when someone is hit in the head or loses consciousness. This is not correct. According to Merriam-Webster’s Online Dictionary, a concussion is “a jarring injury of the brain resulting in disturbance of brain function sometimes marked by permanent damage.” In order to suffer a concussion, one does not need to be struck in the head or lose consciousness. A concussion is simply an injury to your brain.
What are the symptoms of a traumatic brain injury?
Like all other injuries, brain injuries can be mild, moderate or severe. Generally speaking, a moderate brain injury occurs from a loss of consciousness from 20 minutes to 6 hours, and a severe brain injury occurs from a loss of consciousness for more than 6 hours. The focus of this blog is mild traumatic brain injury, which occurs when there is a brain injury with either no loss of consciousness or a loss of consciousness for less than 20 minutes. One of the principal ways to identify a mild traumatic brain injury is based on the symptoms that follow car wrecks, falls or sports injuries. The symptoms of a mild traumatic brain injury include fatigue, headaches, visual disturbances, memory loss, poor attention or concentration, sleep disturbances, dizziness or loss of balance, irritability, emotional disturbances, feelings of depression, seizures, nausea, loss of smell, sensitivity to light and sounds, mood changes, getting lost or confused and/or slowness in thinking.
How do brain injuries happen?
The most common way to suffer a traumatic brain injury is from a direct blow to the head. Head injuries frequently occur in car wrecks when a person’s head hits the windshield or the side of the car. Head injuries also frequently occur when someone trips and falls and hits the back of their head. Head injuries are especially common in sports with head-to-head contact between players.
In each of these types of injuries, the brain strikes the inside of the skull. The head and the brain are moving together, either forward or backward. When the car crash victim’s head hits the windshield, it stops. Unfortunately, their brain, which is floating in fluid, keeps moving. The only thing that stops the brain from moving is the skull. Similarly, when the fall victim or athlete falls and hits the back of their head, the brain slams into the inside of the back of the skull. The same thing happens when someone hits the right or left side of their head. The only thing that stops the brain from moving to the right or the left is when it hits the inside of the skull. Brain damage can occur when the brain slams into the side of the skull. The damage can range from a bruise to bleeding. In addition, axons that are long threadlike nerve tissues that transmit impulses from one cell to another cell can be sheared or torn during the injury. Significant bleeding or axonal shearing can be seen on MRI.
The more difficult to recognize traumatic brain injuries occur when there is not direct injury to the head or loss of consciousness. In any car wreck, fall or sports injury where there is a whiplash type injury, a concussion or traumatic brain injury frequently occurs. The mechanism of injury is exactly the same. The head is snapped forward and the brain moves with it. When nature stops our head from moving forward, the brain keeps moving until it slams into the inside of the skull. Then as the head is snapped in the opposite direction, the brain begins to travel in the opposite direction. When nature stops our head from moving in the opposite direction, the brain keeps moving until it slams into the inside of the skull. Each time the brain smashes into the skull, it is damaged. In cases like this, the bruising or tearing of the axons, or nerve tissues, cannot be seen on an MRI. The resulting brain injury is just as real and can be permanent.
What are some challenges for sufferers of a mild traumatic brain injury?
The brain controls all physical and emotional activity. As a result, the symptoms of a traumatic brain injury overlap the symptoms of other injuries or conditions. When someone is in a car wreck, fall or sports injury, neck problems are a frequent result. Neck injuries frequently cause head pain and headaches. More importantly, severe pain in the neck interferes with concentration and sleep and can cause irritability or depression. These overlapping symptoms frequently prevent the injured person from recognizing that they have suffered a concussion. The overlapping symptoms frequently mask the traumatic brain injury so that medical professionals may not focus on it. Doctors tend to focus on the physical injury first, believing that when the physical injury heals, the symptoms will go away. This leads to a delay in the diagnosis and treatment of a traumatic brain injury.
When someone suffers from a history of anxiety, depression or any other emotional issues, the symptoms of those diseases can include fatigue, headaches, poor attention or concentration, sleep disturbances, irritability and emotional disturbances, feelings of depression, mood changes, confusion and slowness in thinking. When a person with a history of emotional or psychological issues is hurt in a car wreck, fall or sports injury and experiences these symptoms, they understandably believe that this is related to their pre-existing emotional or psychological problems. Medical professionals may also frequently confuse the symptoms of traumatic brain injury with a recurrence of the injured person’s emotional or psychological condition.
Two major problems are caused by the fact that the problems an injured person experiences as a result of a concussion or mild traumatic brain injury mimic the problems caused by neck injuries or emotional problems. First, the confusion about the cause of the problems often results in a delay in diagnosis. The delay in diagnosis causes a delay in treatment. The delay in treatment makes it less likely that the traumatic brain injury will get better. Second, and more significantly, the delay in treatment makes it far less likely that the treating doctor will quickly relate the symptoms to the car wreck, fall or sports injury.
Do you need a trial lawyer if you were hurt in car wreck, fall or sports injury?
Anyone who suffers a traumatic brain injury in a car wreck, fall or sports injury should consider contacting an experienced trial lawyer. The attorney you choose must have experience in handling cases like these. Experience will teach your lawyer:
- How to recognize the symptoms of concussion or traumatic brain injury.
- How to help you get the medical care and treatment you need in order to recover.
More importantly, you should make sure the lawyer you hire has courtroom experience in representing people with concussions or traumatic brain injury for the following reasons:
- First, your lawyer should be able to explain, in plain English, what a concussion is. Your lawyer should be able to explain to both you and a judge or jury how your brain injury resulted from the car wreck, fall or sports injury.
- Second, your lawyer’s experience will provide them with essential knowledge of how insurance companies and their lawyers will defend your case. Insurance companies and their lawyers have a game plan for defending cases in which a person has a concussion or traumatic brain injury as a result of a car wreck, fall or sports injury.
- Third, most mild traumatic brain injuries cannot be shown with any kind of test. As a result, doctors are forced to rely on their patients’ complaints in order to diagnose a traumatic brain injury. Insurance companies and their lawyers know that most people in American society view those who make claims for personal injuries as a result of a car wreck, fall or sports injury skeptically. This skepticism predisposes judges or juries who are asked to decide whether someone has a traumatic brain injury to think that the injured person is faking the symptoms in order to get money. Further, the skepticism predisposes judges or juries who believe that a person has a brain injury to think that the problem is not the result of the car wreck, fall or sports injury.
- Fourth, insurance companies and their lawyers also know that the people in our communities believe that it’s bad to award money to people who are hurt in a car wreck, fall or sports injury. The average person believes that awarding money for personal injuries, including concussions or traumatic brain injuries, caused by a car crash will cause our insurance payments to go up. The average person believes that awarding money for personal injuries, including concussions or traumatic brain injuries, caused by slipping and falling will drive businesses out of our state.
- Fifth, insurance companies and their lawyers know that it is hard for a person with a traumatic brain injury to fight them in Court. Insurance companies and their lawyers use the tactic of deny, defend, delay to discourage injured people to stand up for their rights. Insurance companies and their lawyers know it is expensive for a person with a traumatic brain injury to fight them in court.
- Finally, insurance companies and their lawyers know that people will not award money to people with traumatic brain injury if they think the person is a liar, faker or fraud. So, insurance companies and their lawyers use the medical records of the person with a traumatic brain injury to make it look like the person is lying. Insurance companies and their lawyers dig into the past of a person with a traumatic brain injury to try to show they are lying. Insurance companies and their lawyer will even hire private investigators to spy on a person with a traumatic brain injury to try to show they are lying. Insurance companies and their lawyers know that if they make a person with a traumatic brain injury seem like they are lying, they will not get compensated–and the insurance company gets to increase their profits.
An experienced trial lawyer will know how to fight insurance companies and their lawyers by knowing how to prove traumatic brain injuries are real with witnesses, documents, pictures and video. Experienced trial lawyers know how to overcome the false belief that awarding money to someone who suffers a traumatic brain injury from a car wreck, fall or sports injury is bad. Your trial lawyer should actually be able to show that making the person who caused the traumatic brain injury pay for what they caused is good for our community. An experienced trial lawyer will have the courage to fight the insurance company in court and the compassion to help the person with the traumatic brain injury deal with the deny, defend, delay strategy. Finally, an experienced trial lawyer will know how use the tactic of trying to turn the person with a traumatic brain injury into a liar against the insurance company.
Concussions and traumatic brain injuries are serious, life-changing injuries. They are hard to understand and treat. It is very hard to prove that a person has a traumatic brain injury, but it’s not impossible. Insurance companies and their lawyers know how to get their clients off the hook when a traumatic brain injury is caused by a car wreck, fall or sports injury. That’s why it is important for anyone suffering from a concussion or traumatic brain injury from a car crash, fall, or sports injury to talk with an experienced trial lawyer.
January 9th, 2018|
To me, the underdog is characterized by a lifelong fight. Things seem bleak, but the underdog fights to overcome. He fights and he struggles. He keeps his head down and works. Every once in a while, pop culture reminds us of how great the underdog story is: a JFK is elected or an Obama inspires us all. The Orioles beat the Yankees. But then, almost always on cue, the underdog is forced to endure more struggle. The underdog sees his fight stopped and his dream deterred.
However, what makes the underdog special is how he responds to struggle. The underdog responds to insurmountable odds by gritting his teeth and pushing forward. The underdog does not stop trying. I am intimately familiar with the underdog’s story, and it’s why I do what I do. Why? Because I am one.
I started ChasenBoscolo on March 5, 1986, to be a law firm for the underdog, by the underdog. Back then, it was just Law Offices of Barry M. Chasen, and it was just my secretary and me. My oldest son had just been born. He was two months old when I started the firm. My friends told me the timing seemed a little off, but when you’re driven by a passion and you’ve got the underdog’s fight, timing doesn’t matter.
Five years before going out on my own, when I got my first job as a lawyer, it was the first time that I had ever set foot in a law firm. I was 33 years old. I was the 19th lawyer in a firm that represented injured workers in workers’ compensation claims and plaintiffs in personal injury cases in Maryland, DC and Virginia. However, over the five years that I worked for another firm, I learned a sad truth: lawyers in the industry made decisions and gave counsel to their clients that were in the firm’s best interest rather than the client’s. The goal was to increase the fee that the firm made. That felt wrong to me. Frankly, that is wrong.
So I left and started my own firm, the firm that today is called ChasenBoscolo. I did it, no matter how odd the timing, because I was sure that I could represent my clients and do a better job than the old firm. Of the cases that I wanted to take with me, 91% of the clients elected to stay with me. They wanted me to fight for them. I was committed to working in their best interest. I was committed to a philosophy then that still guides our firm today: if you take care of the clients, the money will take care of itself.
But all of this started long before I started fighting independently for my clients. Much earlier than my career as a lawyer, I had to fight for myself. Because we don’t have all day, and because in the interest of your time, I’ve edited my first draft of this post down from nearly 5,000 words. I’ll simply share three short segments of my own “underdogging” so that you can see why the fight we take on at ChasenBoscolo really hits home for me.
I’m ten years old. I’m poor—well, my family is poor. My father, a taxi driver with an eighth-grade education, is working through the night. Last week he was robbed at gunpoint, so we don’t have any money. This week, we’ll be lucky if he brings home a hundred dollars. Me and a classmate both rip our jeans sliding into base at recess. He returns to school the next day with a new pair. I return with a patch on my ass. I realize I’m poor when my friends go to summer camp, to swimming pools and to amusement parks. I don’t do any of that. I’m lucky if my father drives us to the ocean for a day trip in his cab. Despite our poverty, my parents constantly reinforce that even though we have no money, I will get a college education. They ensure me that we will figure it out. At ten, that doesn’t mean much to me, but I feel supported.
As I get older, it means the world. I’m confident in myself because of their support. Then my father dies from a fatal heart attack on the street. He’s 51 years old. Things get worse. My mother cannot not maintain the mortgage payments on our house. It’s sold at auction and then rented back to us. Our phone service is shut off; our lights don’t turn on. I don’t know where our next meal is coming from.
I’m an underdog though. I’m a fighter. I don’t give up. Although I want to go to college, I work instead. I’m hired by the Social Security Administration as a GS-2 file clerk making $3,680 a year. I get promoted multiple times over a few years. I end up being promoted to the level of a computer programmer. I even start taking college courses at night and finish enough credits to be about a quarter of the way done. The light inside me will not flicker out.
I’m drafted into the army. The 1960s are a time of unrest. College students, African-Americans and others protest against the actions of our government. We are engaged in an unpopular war and the rights of African-Americans are being infringed from equal accommodations to voting rights to economic equality. The anti-war protests become increasingly violent with flag burnings, bombings, rock throwing. Groups like the Weather Underground, Students for a Democratic Society, The Black Panthers, The Symbionese Liberation Army and The Youth International Party are all active in the ‘60s. In the Civil Rights Movement, there is a mix of violent and non-violent protests. They are fighting for justice, equality and opposing a war that is remote to the interests of the United States and is taking place half a world away.
I am anti-war. I don’t consider moving to Canada, but I don’t understand what we’re doing in Vietnam. I keep my head down and I push myself during our basic training. I have no other choice but to fight, to do my best. I’m offered an opportunity to train to become an officer, and I take it. I understand that I may be safer as an officer than as an artillery man. Things are looking up. But of course, as always, the underdog is faced with challenges no matter how good things seem to get.
I train to be an officer, and this is how it goes: after a hard day of training, our commanders show up at our barracks and tell us to put on our full-pack uniforms. They then take us for a long run which culminates with us crawling through a muddy stream. We’re exhausted and filthy when we get back to our barracks after 11:00 p.m. The training commanders then tell us that we have an inspection at 5:00 a.m. After we’re dismissed and go inside, we discover that our bunks have been trashed and our bookcases overturned. Our foot lockers and lockers have been turned upside down. We have six hours to get everything in order, and then we’ll do it all again the next day. That seems bad to me until I get to Vietnam.
I land in Vietnam and spend a few months doing basic intelligence reporting, but then everything changes. I’m walking back to my office with my commanding officer after a meeting and suddenly a succession of rocket blasts come closer and closer. The blasts do not stop. We start to run. My ears are ringing now but it’s my heartbeat that I hear. Me and my commanding officer slide into a bunker, a hollowed-out mound of wet sand bags. We look at each other but neither of us say a thing. Our faces say enough: fear. I hear my heart beat. I hear the blasts, still louder. And then finally, just before I’m sure the next one will land on our bunker, they stop. I sit there for a long time and consider how lucky I am. Then I think about how unlucky I am. Then again—lucky.
Sometimes, for some people, the blasts don’t stop before the bunker. For me they do, and I get to come home after another year. Within 30 minutes of landing at Travis Air Force Base in the Bay area, I am called a “baby killer” by protesters outside the gates. I cannot wear my uniform off base without being subjected to a constant barrage of verbal abuse. Whenever I appear in public in uniform, I am always insulted and attacked.
It’s 2018 and I’ve survived Vietnam. I’ve finished night school at the University of Maryland University College. I’ve finished law school at night too: the University of Baltimore. I’m a lawyer. I’ve found my calling, and I’ve made a career out of it. I’ve realized that my old employers had the wrong attitude. They didn’t know what it meant to be an underdog. When I leave that firm, I take almost all of my clients with me. Since then, I’ve helped thousands of other clients. I’ve won countless cases. I’m proud of myself. I’ve grown my firm.
I’ve married the love of my life, and I have three wonderful sons who are grown themselves. They didn’t have to go to night school. I’ve provided for them in a way that they’re not the same underdog I was. But they still are underdogs in some sense. We all are in different ways.
It’s 2018, and the firm is still growing. We’re successful; we have commercials. We’re hiring lawyers and winning cases. We’re delivering justice to underdogs. I’m checking every box by the measure of conventional success. But things are not easy. We haven’t cracked a code where winning cases is easy. Let me explain why: being an underdog means that you’re fighting a beast that’s bigger than you.
It’s 2018, and judges have been “tort reformed.” They default to side on the behalf of the insurance companies—the behemoth conglomerates making more than a billion dollars a year. Case decision makers—commissioners—suffer from “compassion fatigue.” The law is not applied fairly and impartially and the law is rarely construed in favor of the injured worker. Some of this is the result of politics. Some of it has occurred because of tort reform propaganda and lies.
It’s 2018, and the deck is still stacked against the underdog. On one side, you have the little guy represented by a firm not much larger than a football team. On the other side, you have big corporations or insurance companies with virtually unlimited resources. They will always present the best evidence that money can buy. These companies on the other side make more than $250 million per quarter. In three months, they make more money to use at their disposal than we can ever dream of.
It’s 2018, and I continue to fight. I continue to fight because it’s what I know how to do. I know how to push on, hungry and in the dark: my father has died. I know how to push on, heartbeat in my throat: the blasts get closer and closer and my commanding officer and I believe that we’re already dead. And I know how to push on when I walk into the courtroom and I see both representatives of a massive insurance company who have lobbied politicians in D.C. to pass legislation that helps them win cases. I see my client who, just like me, is an underdog.
Just like me—just like all of us—my clients are pushing forward to make a better life for themselves and their families. Then they are injured in an act of negligence. When that happens, they deserve representation. They deserve someone who will show up ready to fight, someone who won’t back down from a company with deep pockets who threatens to stand in the way of justice—someone who’s seen stuff a lot tougher than the representation and evidence that money can buy.