In March, DAYL hosted an important discussion downtown inspired by a January 2014 CNN.com article entitled “Why Are So Many Lawyers Killing Themselves?” Young lawyers in DFW and around the country are especially prone to depression, addiction, and suicidal thoughts. Dr. Carlos Davis, Ph.D., a former president of the Dallas Psychological Association and a therapist in private practice in Dallas, offered some insight into why young lawyers are especially susceptible to these problems:
1. Pessimistic explanatory style: lawyers are trained to prepare for the worst on behalf of their clients. We tend to think and speak in permanent and pervasive terms about risk and trouble ahead. Our vigilance for our clients can spill over into our personal lives and mindsets.
2. High stress: Young lawyers deal with demands from many sources in their careers: the list starts with partners, clients, and student loan lenders. We can also meet these demands with unhealthy perceptions about our available resources (financial and otherwise). Think of the times when you or a colleague has said that “I HAVE to win this hearing/argument/case, or else…(insert gloom-and-doom phrase here about student loans, career prospects, or life itself).” The point at which we perceive our demands to exceed our available resources is the point at which hopelessness, fatalistic thinking, or the search for coping mechanisms (e.g. alcohol and drugs) begins.
3. Adversarial profession: we are in the stressful business of winning and losing, whether it’s a motion, negotiation, or case. Results matter, and they are often judged on an all-or-nothing basis.
4. Hedonic adaptation (ever-rising expectations): Lawyers and non-lawyers share a tendency to get used to good things. Hefty paychecks, fancy new offices, cars, suits, and living arrangements can accompany a law degree and career. These things, however, can lose their luster as our expectations continue to rise. We can become insatiable in our pursuit of success, creating an unhealthy feeling that we never reach a point of success.
Perhaps most importantly, Dr. Davis also offered invaluable advice to young lawyers about how to deal with or avoid these problems altogether:
1. Exploratory conversations: We all have instrumental conversations, which involve solving problems, as a part of our jobs. Supplement these conversations with exploratory conversations—conversations where you risk vulnerability, explore your experiences, and have someone (family or a close friend) listen to you empathically.
2. Define success and go easy on yourself: instead of pursuing ever-rising status and greatness, think in more realistic terms. For instance, pursue a feeling that you have given “a good effort at a worthwhile cause.” Find satisfaction in your effort, not the results you achieve for clients. Don’t necessarily lower your expectations, but perhaps frame them more realistically.
3. Pursue the two pillars of healthy self-esteem: Seek two feelings—1) feeling competent to meet life’s challenges and 2) feeling loved and accepted for who you are. One shortcut to these feelings is to stop basing your self-esteem only on the latest winning case or raise. These values lead to chronic dissatisfaction.Read More
By now, we should all be sensitive to the evolving groundswell of law which could affect those of us (I’m among the guilty) who text and drive. As lawyers, we are waiting to see where all of the various state legislatures end up drawing the lines and how severe the penalties they will ascribe? Although not illegal in every jurisdiction yet, we know that while we are operating a motor vehicle, we ought not be reading or sending texts. The National Safety Council informs us that texting while driving (“TWD”) causes 1,600,000 accidents per year and that number will likely only continue to swell. Given the volume of accidents caused by TWD, it should come as no surprise that 330,000 people are injured each year and that 11 teens die every day in TWD accidents. Additionally, the National Highway Transportation and Safety Administration reports that TWD makes us twenty-three times more susceptible to crashing. Insurance companies and various safety organizations have done a fairly good job of educating us all on the dangers of TWD. That is, much as the MADD battle cry of the 90’s became “Don’t Drink and Drive,” we have now added “Don’t Text and Drive” to the automobile safety lexicon.
But should the driver who TWD or who reads texts while driving be the only responsible party in the unfortunate event of an accident caused by the driver’s temporary inattention to the road? A recent case out of New Jersey could completely re-shape the jurisprudence on TWD. In Kubert v. Best, et al. and Shannon Colonna, the Superior Court of New Jersey – Appellate Division took up an issue of first impression; whether, as a matter of civil common law, one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.
On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came around a curve, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of traffic. David Kubert attempted to evade the pick-up truck but could not. The front driver’s side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David’s left leg. It shattered Linda’s left leg, resulting in a compound fracture of her femur. Ultimately, both David and Linda each lost a leg as a result of the accident. The Kuberts’ attorney subsequently developed evidence which demonstrated that Kyle Best and his girlfriend, Shannon Colonna, had been texting each other all day long, including at the moment that the accident occurred. Although the Kuberts were able to prove that Best and Colonna were texting at the moment of the accident, it was not proven that Colonna knew that Best was driving while she was sending him texts that day. Without sufficient proof of Colonna’s knowledge of Best’s whereabouts at the time she was texting him, the Kuberts were not able to prevail in their novel legal theory against Colonna. However, the New Jersey court held that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. And with that, the sure-to-be controversial gauntlet has been thrown down and legislatures and courts from other states will likely soon follow with similarly reasoned laws and opinions. Will Texas follow?
Section 545.425 of the Texas Transportation Code provides that it is unlawful for:
- Bus drivers to operate cell phones (handheld or hands-free) while driving
- Novice drivers to operate cell phones (handheld or hands-free) while driving
- All drivers to use hand-held phones and to TWD in school zones
Texas is currently among the most conservative venues in the United States and is likely to lag the rest of the country in doing anything to strengthen the theories of negligence for injured Plaintiffs. And, frankly, I could understand a reluctance to broaden theories of liability in TWD cases. The anti-texting laws fall broadly into a category called “Distracted Driving” laws. But aren’t there many other elements on our Texas roadways that distract us from the road? What about giant billboards designed to seduce our eyes into reading and digesting the billboard’s message? Should advertisers then also be liable if a distracted driver causes an accident because he took his eyes off the road to read a billboard? What about a commercial hot air balloon outfitter? I have gawked at those multi-colored giant dirigibles on many occasions as they hovered overhead while I drove down the road. Surely the operator of those balloons knows their vibrant colors will catch the eye of anyone (including drivers) as they traverse the sky. Is there a difference in a driver’s culpability in an accident if he took his eyes off the road in favor of one distraction (say, a beeping cell phone) over another distraction (a billboard challenging us to consume a 64 ounce steak at a restaurant in Amarillo)?
TWD accidents are unnecessarily injuring and killing thousands of people a year. So I get it. Our human nature motivates us to do something quick and extreme to curb this alarming trend, especially in the name of political expediency. On the other hand, opponents of broader TWD laws argue that the fundamental issue is rather simple. They say whether or not your spouse or your friend knows you’re driving at the time they send you a text, you are not required to respond to them while you are behind the wheel. Furthermore, they argue that if you relent and succumb to the enticing ring/beep on your phone while you are driving, it is your conscious decision alone that recklessly diverts your eyes from the roadway.
In any event, TWD is a lightning rod legal issue right now and there will undoubtedly be other states which adopt the holding of the Kubert court. Accordingly, text senders across the country should proceed with caution. Don’t be the one who sends the wrong message.Read More
Facebook: I lose sleep over it
Postings on Social Media like Facebook & Twitter are quickly finding their way into the courtroom
Facebook sometimes keeps me up at nights. And not for the reasons you might think. While I admit that I am prone to browse my Facebook newsfeed every couple of days, and even less frequently post a picture or a thought, I wouldn’t classify myself as a Facebook junkie. No, Facebook (and other social media platforms, for that matter) impairs my slumbering at times because I worry about its effect on my clients’ cases. To otherwise bury my head in the sand and not have angst about the material my clients feel the need to post on their Facebook pages would render me negligent in the care of their legal matter. I learned my lesson the hard way. Let me explain by telling you about a case I once handled.
A cautionary tale:
Not too long ago, Jim called me to report that he had suffered a head injury which resulted in significant impairment of his olfactory sense. That is, he claimed that his injury caused him to lose his sense of smell. I won’t go into the cause of his injury, but suffice it to say someone else’s negligence caused it and liability was never a disputed issue in the case. What most certainly was at issue was the measure of his “damages.” After all, how does one quantify (in dollars) what it means to a person when he can no longer smell?
Think about it. For you coffee lovers, what would your mornings be like without the distinctive smell of your java brewing as you get ready for your day? For movie lovers, can you imagine walking into a movie theater and seeing that bubbling cauldron of buttery popcorn spilling into your carton, but not being able to enjoy the aroma as you consume this favorite treat? Granted, I grew up near the stinky refineries of the Houston Ship Channel, so I can recall times as a child when I regretted that my olfactory nerve hadn’t been mortally severed. But even putting aside the future prospect of not being able to smell the good (and the bad) things in life, there’s a safety component too. What if my client was alone in his house and couldn’t smell the fumes promulgated by a burning stove or an attic fire? Its certainly conceivable that one’s sense of smell could be a life-saver in those unfortunate situations.
But hey, I promised you a story related to Facebook. And by now you’re asking yourself what any of this has to do with Facebook. At the time that I filed my client’s case it was not my general practice to snoop their social media pages to discern information which may be helpful or hurtful to their case. It turns out, however, that it was the practice of opposing counsel (or his paralegal) to wander around the social media pages of his adversaries. And for good reason.
Opposing counsel proceeded with taking Jim’s deposition at my office. With his questions, he drilled down on exactly how Jim’s purported total loss of his sense of smell was affecting his quality of life. In painstaking detail, Jim answered his questions. At the time, there was really not a conclusive medical test which could measure one’s ability to smell. After all, the result of such a test would be largely controlled by the subject’s subjective answers to questions. “Can you smell this? How about this? What does this smell like?” Etc.
In any event, at the conclusion of Jim’s deposition, I was as convinced as ever that he had a compelling story to tell to a jury and that he would receive a substantial damage award at trial. Except…. opposing counsel innocuously sent me a subpoena for my client’s Facebook page history/content one afternoon a couple of months before our trial date.
Curious, I called Jim and asked him if he had a Facebook page. Indeed, he did. After only a few minutes of browsing his page, I knew our case was in trouble. You see, Jim had commented on his page about the wonderful smell of the chocolate chip cookies coming out of his oven the night before. As I sit here now, I can still remember the temporary nausea that engulfed me as I read his comment. You can imagine how quickly that case headed south. Sure, he had also suffered a small fracture and had some medical bills that needed to be paid, but his credibility was shot.
There was no trial and only a very small settlement, which was undoubtedly paid only as a professional courtesy to me. What’s the old adage? “Fool me once, shame on you; fool me twice, shame on me.” I’m confident this won’t ever happen to me again. To be sure, if you hire me, I’m going to ask you for passwords to your social media pages. And if you post something on your pages which undermine your credibility (or mine) or could jeopardize your case, I will badger you until you take it down. I might even fire you.
Sleep is important to me.Read More