Tuesday, November 26, 2019

The Western Comma


Even though it’s still November, the sun came back today. After waiting for the plumber to finish roto-rooting our sewer line, the dogs and I decided to go on their favourite walk. Our route includes a long loop though neighbouring Western Washington University. When we crossed the “Quidditch Quad,” the dogs became adorably tangled in a pack of teens and parents on their campus tour. 

The student guide had met us before. He told the campus visitors “Bear and Buster are among Western’s many amenities.”


Last week when I was in Seattle I ran into an old friend. He sheepishly told me he’d given up reading my blog posts. I happened to be in town for tedious lawyer meetings that had already triggered either déjà vu or PTSD. So I steeled myself for another complaint about too much painful law stuff. 

Even worse:  “They’re all too damn long.”

Ever since my friend Nancy interrupted my endless elevator speech a couple of months ago, I’ve been terribly self-conscious about size. By some measures, good editing involves removing as many words as possible. Yet look at the summary in “My Story So Far”: a crushing 1,711 words. Plus six pictures. And a zillion hyperlinks.

Unfortunately, I’m still trapped in legal disputes where every other party follows the same two-page playbook their only options appear to be “Stall” or “Lie.” As a result, I don’t have many opportunities to compare my nonfiction storytelling skills with anyone else’s.


So far there’s one other writer who’s interested in getting at the truth about my experience with PTSD, lawyers, and bureaucrats – the judge who recently wrote the opinion in my case for the Washington Court of Appeals

Lawyers and judges prefer their written work product to follow a predictable format. Maybe it’s because we want to keep our focus on the merits of each case, rather than hiding behind distracting bells and whistles. Or maybe it’s because we’re a hopelessly hidebound profession on the road to extinction. (It’s still an open question.) Anyway, a huge proportion of all legal writing – including most court opinions – begins with a short “factual background” section. Ideally, these summaries objectively encapsulate the evidentiary record and describe the parties’ claims in a manner that permits either side to argue for their position, and that helps readers quickly figure out what the case is about.

Lazy legal writers tend to pad their fact sections with too much extraneous information. Meanwhile, overzealous advocates can't resist applying too much spin. Paring your fact section down to the objective essentials is hard work. 

Here is how the Court of Appeals summarized my story so far. It's a lean 212 words:

In November 2015, Leishman’s physician diagnosed him with post-traumatic stress disorder (PTSD) and serious codependency. Leishman informed the Attorney General’s Office of his new diagnosis and ultimately submitted a formal request for reasonable accommodation of his disability in February 2016. In March 2016, Leishman, an openly gay man, also filed a complaint with the Attorney General’s Office, alleging that his supervisor, Kerena Higgins, made homophobic comments towards him. Leishman felt that his PTSD was triggered by Higgins’s comments and her micromanagement of his work. During a meeting with Higgins to discuss Leishman’s disability accommodation and Higgins’s comments, Leishman became aggressive, raised his voice, and pounded his fists. [As the Complaint states, this occurred when my supervisor accused me of faking my disability.] 

Higgins complained to the Attorney General’s Office about Leishman’s inappropriate conduct and the Attorney General’s Office placed Leishman on home assignment. The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins, and Higgins’s allegation that Leishman was inappropriate during their meeting. 

Ogden Murphy Wallace drafted a report concluding that “Leishman has not established support for his complaint of discrimination against him based on sexual orientation as prohibited by Attorney General’s Office polices.” The Ogden Murphy Wallace Report also concluded that “Mr. Leishman’s conduct during the March 1 meeting [with Higgins] violated expected standards of conduct for his position as reflected in his job description.” The Attorney General's Office terminated Leishman on May 7, 2016.

The Court of Appeals opinion goes on for several pages to explain how various legal authorities apply to these facts in this specific procedural posture. The end result of the appeal is my complete vindication:  the Court reinstated my claims against Ogden Murphy Wallace PLLC, Seattle’s sleaziest bottom-feeding law firm®.” It only took two years for the legal system to correct the judge's mistaken dismissal of my claims based on an inapplicable technicality.

The Courts of Appeals’ three simple factual paragraphs aren’t exactly the summary I would have written if I were a judge. Frankly they’re shorter than I’m capable of at this stage of my recovery. Nevertheless, the court fairly and concisely identified the essential players; summarized the background context; and included all the essential factual information a reader would need in order to understand the court’s legal analysis. 


One sentence from the Court of Appeals’ factual recitation encapsulates the entire tragic story:
The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins, and Higgins’s allegation that Leishman was inappropriate during their meeting.
As the pro se plaintiff in this case, I happen to know the highlighted text is the crux of every subsequent legal dispute related to my doomed employment by the Attorney General’s Office as Chief Legal Advisor to Western Washington University. 

Interestingly, the same sentence also jumped out to me as an experienced editor. When someone is trying to trim down a document, you look for certain quirks of language. Some of the literary “tells” signaling potential bloat include excessive use of passive voice, clichéd phrases, run-on sentences, and mismatched parallels. One example of that last category is when a sentence includes a list containing only two brief items. My eyebrows go up whenever a writer marks his or her subconscious need to pause for breath by putting a comma before the “and” connecting two supposedly equal and closely linked concepts. 

Such as the comma in the highlighted text from the Court of Appeals’ opinion.


Despite all the overlong blog posts, my argument actually is very simple. And quite English Major-y. There should be a period where the comma appears in the Court’s key sentence:  
The Attorney General’s Office retained Ogden Murphy Wallace to conduct an independent investigation into Leishman’s sexual orientation discrimination claim against Higgins.
Period.

That’s what the Attorney General’s Office and Ogden Murphy Wallace said publicly when they identified Ogden Murphy Wallace’s assignment as part of the State’s rigorous and transparent contract procurement process. That’s what the lawyers from the Attorney General’s Office and their attorney-investigator told me. That’s what my Complaint alleges. And that’s the only way the rest of the story makes sense. My lawyer would never have allowed me be interrogated alone for over an hour if she or I had known my employers were secretly looking for a way to justify firing me, rather than asking their investigator to conduct a thorough and independent investigation into a specific complaint regarding discrimination based on sexual orientation.  

It’s true that senior lawyers from the Attorney General’s Office made the mistake of asking their investigator to also look into a separate supervisor complaint about my workplace conduct, without amending the contract documents. But that’s not what they told the public, my lawyer, and me. And that’s not what the State's vendor contract authorized. 

The sad result speaks for itself. The final Ogden Murphy Report ignored extensive evidence documenting explicit and implicit homophobia. Instead, the Attorney General’s Office had their lawyer-investigator whitewash my superiors’ conduct while repeating a litany of secret complaints from the same dishonest and bigoted bureaucrats who’d already decided to get rid of me – all without giving my lawyer or me a chance to respond. To the contrary, my former employers refused to listen when my lawyer and doctor tried to tell them about the relationship between my disability and my frustrated behaviour. Then when they realized their mistake they tried to cover it up with more lies and abuse. That seems wrong to me. 

So I guess I’ve managed to edit my elevator speech down not just to a single sentence, but to a single period replacing a suspicious comma. Now let’s see what the other side can say to top that. 





Thursday, November 7, 2019

Maximum Leverage - A Rock Bottom Story


November is the cruelest month. Many of the darkest times of my life occurred in this light- and joy-deficient time of year:  when I was suicidally depressed (three decades apart at Brigham Young University and at Western Washington University); getting diagnosed with Post-Traumatic Stress Disorder and severe codependency; being pressured into signing a Settlement Agreement with fraudulent and unethical government lawyers; losing my home; losing my virginity; breaking my heart; health and family crises; being abused by malignant narcissists at every level; and having my whistleblower lawsuit erroneously dismissed on a frivolous legal technicality two years ago.

This November, I feel better than I've felt in my entire life. I give all the credit for my improved mental health to my family, and to writing. In particular, this month marks two and a half years, two hundred and fifty essays, and over 300,000 words of therapeutic, honest, sometimes sad but often funny storytelling and public advocacy.

To celebrate Movember, today's blog essay brings together many of the great themes you'll find at the heart of all my stories:  Pivot, Rock Bottom, My Story So Far, Mindset, This is what 'Impact Litigation' Looks Like, Dear Evan Hansen, and of course "I Come From Good People."



This summer I published a series of connected blog essays about my former employers at the Washington Attorney General’s office. I accused them of a pattern of unethical, incompetent, and dishonest conduct, and presented extensive documentation supporting my accusations. My subconscious apparently determined it was time to say everything I had to say about my employer-abusers, tie it all up in a bow, and move on. 

I intended to post one final essay in the "My Story So Far" series, to be called "Pivot," in which I described how I’m cheerfully moving on with my life. But I still didn’t know how the Court of Appeals was going to rule on my pending appeal. As the summer passed without a ruling, I started drafting two separate “Pivot” essays discussing the relationship between the eventual litigation milestone  win or lose  and the new directions my life and writing were taking regardless.  

After the Court of Appeals ruled in my favour, I published the cheerier version of my essay. In “Pivot,” I announced that I was “done writing about my former colleagues and my workplace trauma.” It was time to write about other things.

Shortly after I hit “publish,” I discovered the insurance defense lawyers representing my opponents had made a strategic blunder, the impact litigation equivalent of getting involved in a land war in Asia. As I sheepishly acknowledged this week in Re-Pivot, during the coming months I expect to continue writing about the challenges facing disabled people  as well as about what happens when lawyers start lying, and then won’t stop. In the meantime, I'll end this particular trilogy by sharing what’s left of the less cheery version of my draft “Pivot” essay.


When I originally started writing my Pivot essays, I saved my drafts in separate “win appeal” / “lose appeal” folders. The two versions eventually evolved to “verb” and “noun” alternatives. 

Here’s how the published essay “Pivot” began:

The verb “pivot” means to reach a point and then turn in a new direction. Like a basketball player. Or the Titanic. 

Here’s the beginning of the rock-bottom version of “Pivot,” which I intended to use if I lost my appeal and was forced to declare bankruptcy:  
piv·ot  /ˈpivət/
noun:  the central point, pin, or shaft on which a mechanism turns or oscillates.
synonyms:  fulcrumaxisaxleswivelpinhubspindlehingekingpin, gudgeon   

The noun is the older, more literal meaning of the English word “pivot.” The verb usage reflects the word’s subsequent metaphorical expansion to cover any change in direction. But the key is the original image of a fulcrum.


An effective pivot gives you enough leverage to move a particular obstacle. As the classical mathematician and engineer Archimedes supposedly said, “Give me a lever long enough and a fulcrum on which to place it, and I shall move the world.”

Everyone quotes Archimedes when they’re looking for a big stick. Smart, funny people find the right fulcrum.


If the Court of Appeals had affirmed the trial court’s erroneous legal ruling, they would have eliminated my last hope for obtaining reasonable financial compensation for the injuries to my family. The Court would have also slammed the door shut on clearing my name and salvaging my professional reputation. Plus Washington’s easily-twisted “whistleblower protection” statute would have stuck me with an unjust bill for the other side’s legal fees, and forced me into bankruptcy. By many reasonable child-welfare measures, that significant risk meant rock bottom for my small family.

Some would say it’s been another tough year for the Leishmans. We are tough people. But kind. And funny. As I described in “Mindset” and other essays this year, I’ve learned to recognize even the biggest challenges as opportunities for growth and change. In particular, money is just money. 

By the time the Court of Appeals issued its decision in September, all that was left of the worst-case version of my “Pivot” essay was a noun and a couple of witty quotes about being broke and unemployed. I even made a list of the ten most likely outcomes that might come to pass over the next couple of years. The worst possible scenarios all involved the kids and me moving in with my sainted parents on the other side of Bellingham.  
                                                                                             
Is that really so bad?


But don’t take my word for it. 

Currently one of my nephews lives at my parents’ house while he finishes high school in Bellingham. On Monday nights I invite him over for dinner at our house so my parents can get a break, and so my unruly children can practice their table manners. 

As Oliver and I were peeling potatoes last week, I overheard my daughters tell their cousin how lucky he is because he goes to Squalicum High School and gets to eat Grandma food every day.

I pointed out that I was busy making delicious mashed potatoes for ungrateful mouths, and suggested my parents have been phoning it in since they retired. Most nights Grandpa probably picks up pizza from Little Caesar’s. My legalistic arguments were met with deaf ears and rolled eyes. Everyone knows I can’t compete with Grandma. 

When you have this much leverage to work with, rock bottom can’t scare you. It doesn’t matter how heavy your burdens become, or what direction you end up going next. My children and I are blessed because we come from good people.



Previously in Rock Bottom Stories: “Roger's House of Dreams.”


Tuesday, November 5, 2019

Re-Pivot


The Orson Welles I grew up with was not the brilliant director of Citizen Kane, nor the handsome provocateur behind the War of the Worlds radio scare. Instead, I got the obese wine pitchman of the 1970s.

Ever since, I’ve wondered how the folks at Paul Masson vineyards knew it was time to sell that particular bottle of Pinot Chardonnay.    


As I’ve written beforehydraulics have become my primary metaphor for the various stages of the writing process. Droughts and deluges. Sluicing and mixing. Pressure and release. 

Fluid imagery is particularly useful because it accommodates both natural and unnatural analogies. Inspiration can arrive like a gentle dew distilled from heaven, or like a flattening tsunami. Later in the process, words take their time simmering under pressure in your subconscious, or fermenting in various vats.

So how does a writer know when it’s time to open the valve labeled “publish”?


This summer I was inspired to finally finish a series of connected blog essays about my former employers at the Washington Attorney General’s office. I accused them of a pattern of unethical, incompetent, and dishonest conduct, and presented extensive documentation supporting my accusations. After a couple of years of research and pondering, my subconscious apparently determined it was time to say everything I had to say about my employer-abusers, tie it all up in a bow, and move on. 

Nevertheless, after reading the first essay in the series, "Unrighteous Dominion," my mother called to ask if I was about to embark on the kind of semi-deranged rant I was known for in my early days of living with Post-Traumatic Stress Disorder. I assured her there would be no ranting. To the contrary, I’d already written most of the final essay in the series, to be called "Pivot," in which I described how I’m cheerfully moving on with my life. 

I told my mother I'm “done writing about my former colleagues and my workplace trauma, at least until some interesting new development comes along.” At least that's what I wrote in "Pivot."


Although I recognized my life was heading in a new direction, I still didn’t know how the Court of Appeals was going to rule on my pending appeal. As the summer passed without a court ruling, I started drafting two separate “Pivot” essays discussing the relationship between the eventual litigation milestone and my life and writing.  

Meanwhile I was surprised by other important life changes, like becoming a fulltime single dad again and moving into a new house near campus with three kids and two dogs. Life is good. Fortunately, I also won my appeal. On October 3, 2019, a month after the Court of Appeals issued its decision and the kids and I settled into our new routine, everyone got to read the cheerier version of my essay. 


A few minutes after posting “Pivot,” I realized I’d jumped the gun. 

Litigants in Washington are entitled to one appeal. In most cases, the Court of Appeals has the final word. Like the United States Supreme Court, the Washington Supreme Court accepts only a small number of appeals each year. Unsuccessful civil litigants like Ogden Murphy usually don’t waste time and money petitioning for discretionary review at the Supreme Court level. Nevertheless, thirty minutes before the court deadline, an automated email notification informed me Defendants had filed a Petition for Review.

No one over at Team Ogden Murphy actually believed the Supreme Court would accept review. Nor do they believe there’s a realistic chance the Supreme Court would actually reverse the Court of Appeals’ sensible and straightforward legal ruling. Rather, Defendants and their truth-impaired insurance defense lawyers were grasping at any opportunity to stall. As usual. 

The Washington Supreme Court grants fewer than one in ten requests for discretionary review. But there is one sure thing:  Defendants’ last-minute filing guaranteed we’d add at least another five months to the two years I’ve already lost while waiting for the Court of Appeals to correct the trial court’s legal error. As Martin Luther King wrote in his Letter from Birmingham Jail, “justice too long delayed is justice denied.”


On my way to chorus rehearsal in Vancouver that week I was seething. Not because Defendants Ogden Murphy Wallace and Patrick Pearce exercised their right to seek discretionary review of the Court of Appeals’ decision, or because their Petition for Review was predictably sleazy, or even because I’ll be waiting until at least Fall 2020 to finally have my day in court. No, I was frustrated because as a lawyer and a writer, I knew I wouldn't be able to resist filing an Answer to Petition for Review. I couldn't think of anything I could say to the Supreme Court that would make it even less likely for them to accept Defendants’ half-baked appeal. And I used to write exactly this kind of brief for a living.

Then like the Grinch I had a terrible, horrible, wonderful idea – why not try to make it more likely that the Washington Supreme Court will take the case? 

The result is described in my recent blog essay “This is what ‘Impact Litigation’ Looks Like.” I have joined the strategically clueless folks at Ogden Murphy in urging the Supreme Court to accept review. This case indeed presents important issues of substantial public interest that should be determined by our Supreme Court. Hopefully the Court will take this opportunity to provide guidance to lower courts and the public – not just about the proper interpretation of Washington’s whistleblower protection statute, but also about how the legal system should respond when lawyers start lying, and then won’t stop.


My original “Pivot” essay began like this:  

The verb “pivot” means to reach a point and then turn in a new direction. Like a basketball player. Or the Titanic. 

As I pivoted, I promised my parents and my lawyers that I would shut up and move on. I meant it. But thanks to the megaphone provided by Defendant Ogden Murphy Wallace PLLC, Seattle’s sleaziest bottom-feeding law firm®, this fall’s new direction has involved the kind of shuffling pivot that most referees would call traveling. 


Long ago, a grateful law firm partner gave me a bottle of vintage champagne. I still don't know what Dom Perignon’s 1999 vintage actually tastes like. For years it was impossible to identify any occasion that would justify opening a $200+ bottle of champagne. 

Eventually I zeroed in on three possibilities:  becoming a judge, saving my house on Whidbey Island, or finding a real boyfriend. All three turned out to be hopeless causes. The bottle is still sealed in its box.

According to Wine Spectator, the Dom Perignon 1999 vintage is “best from 2008 through 2020.” I’m running out of time. Fortunately, I’m confident there will be interesting developments soon in my ongoing litigation and public education campaigns. Whatever happens, I’ll be ready to write about it. Then propose a toast. And then write some more.