Aversion Therapy

On one of our walks this week, sweet-natured Bear accidentally traumatized a toddler. I gave the mother some pamphlets about Post-Traumatic Stress Disorder.

Unresolved trauma can leave psychic scars, resulting in everything from claustrophobia to fear of flying. There’s a whole cadre of mental health counselors offering “systematic desensitization therapy.” They attempt to reprogram the patient’s amgydala – the almond-shaped brain structure that controls our ancient “fight or flight” instinct. As patients are gradually exposed to a phobic situation, their amygdala gets increasingly accustomed to the specific stressor. Eventually the patient’s brain stops releasing hormones like adrenaline and cortisol into the bloodstream.  

In a version of this therapy called “flooding,” counselors simply expose their clients to the full horror of their phobic situation. Repeatedly. Supposedly the amygdala learns from this experience that things aren’t so bad, and stops releasing stress hormones. Laypeople call this approach “sink or swim.” Or “abuse.”

Buster and Bear watching WWU students play Quidditch

As I wrote earlier this year in “Passive Aggression,” some people are born with a profound sense of place. For example, as you’ve probably figured out by now, I’m mad about Vancouver, British Columbia. Everyone should be – Vancouver is stunningly gorgeous and warmly welcoming. Other than being close to family, the best thing about my move to Bellingham has been spending as much time as possible in Vancouver. 

I originally moved up from Seattle four years ago to take a job with the Washington Attorney General’s Office as chief legal advisor to Western Washington University. As I’ve chronicled on this blog, the job didn’t work out. But the kids are thriving here. Despite the occasional biblical plague, now I’m thriving here too. Even though my parents moved to Bellingham thirty-eight years ago, this summer for the first time Bellingham felt like my home. 

Western Washington University is Bellingham’s largest employer and our dominating community presence. Other than when I worked at Western during 2015-16, I’ve always been a townie. Nevertheless, I’d occasionally visit the university for school events and community meetings. The girls' high school is across the street from Western. Despite my PTSD and various unpleasant work memories, I haven’t had any serious qualms about visiting campus. At least most places on campus.  

A couple of years ago I needed to meet someone in Old Main, where my office as the university's general counsel was located. Although I’d walked by the building a few times, I hadn’t been back inside since the Monday morning in 2016 when my supervisor’s supervisor’s supervisor arrived to take away my keys, and sent me home forever.

I was nervous as I walked through Old Main's long halls. However, as with my other cautious visits elsewhere on campus, I was relieved to find the building itself didn’t trigger any PTSD symptoms. Then I unexpectedly saw one of my abusers.

Except I didn’t see actually her. Half my visual field disappeared. I literally, clinically, and visually disassociated. This was one of only two or three times in my life when something like that has ever happened to me. 

I haven’t been back inside Old Main since then. And I became nervous about returning to campus at all.  

“Aversion therapy” actually refers to treatment where the patient is exposed to a stimulus while simultaneously subjected to some form of discomfort. The purpose of aversion therapy is reduce the likelihood of engaging in the targeted behavior. For example, when one of my children developed a nail-biting habit, I ordered a nausea-inducing nail polish. Of course my child merely acquired a taste for nasty nail polish.

Aversion therapy has been around for a while. According to Wikipedia, Pliny the Elder attempted to cure alcoholism in first-century Rome by putting putrid spiders into the wine goblets of suspected substance abusers. When I attended Brigham Young University in the 1980s, doctors were still attaching electrodes to the genitals of desperate Mormon gay boys as they exposed these youths to gay porn, in a futile and cruel attempt to shock them into heterosexuality. 

The dogs' anti-barking shock collar

In August my ex and his husband filed for divorce, and my ex moved to the Midwest to start a new life. The kids will be staying with me fulltime, but they look forward to visiting Daddy during school breaks. 

To make the transition as smooth as possible for the kids, I ended up taking over their lease on a comfortable ranch house. It’s been an adventure. After all these years living with Victorian antiques under cathedral ceilings, who knew I really belonged in a mid-century modern rambler? With a couple of dogs?

Our house is perfectly located up the hill from historic Fairhaven Village and Bellingham’s charming waterfront boardwalk. The neighbors are comically friendly. We’re close to the kids’ schools. 

We’re also just a block from the university. All of the dogs' favorite routes for walks go through campus. They're particularly fond of the rose garden next to Old Main.

Despite the unfortunate circumstances of my departure from the Washington Attorney General’s Office three years ago, I bear no ill-will toward any of my former clients at Western Washington University. To the contrary, I enjoyed my time at the university, and would welcome the opportunity to be part of the campus community again. Folks in Seattle can only dream about such a lovely setting and effortless commute.

Unlike typical wrongful termination settlements with the State, the Settlement Agreement that my lawyer negotiated does not bar me from seeking employment with Western or other state agencies. Indeed, one of the parties’ intentions when we mediated my claim was to facilitate efforts to find suitable employment in the Bellingham area. Every time there’s a lawyer-adjacent job opening at the university, I submit an application. 

So far I haven’t gotten any interviews. My mother says it’s because my blog writing is too frank. But the Washington Law Against Discrimination forbids employers from retaliating against applicants who previously asserted their right to be free from discrimination. My Settlement Agreement with the State goes an step further and prohibits my former employers from saying anything about me beyond my name, rank, and serial number.  

I think Western hasn't invited me to interview for any of these jobs because I’m a middle-aged white guy. Or gay. Or lavishly overqualified. In any event, hopefully by the time Western is ready to hire me, I’ll be ready to go back to work.

The modern words “aversion” and “avert” come from old Latin and English roots meaning “to turn away.” Who can forget the classic exchange in Monty Python and the Holy Grail between King Arthur and God:

God:       Arthur, King of the Britons! [Arthur and the Knights grovel] Oh, don’t grovel!  If there’s one thing I can't stand, it’s people groveling.

Arthur:   Sorry.

God:       And don’t apologize! Every time I try to talk to someone, it's “I’m sorry” this, and “forgive me” that, and “I’m not worthy”... What are you doing now?

Arthur:   Averting our eyes, oh Lord.

God:       Well, don’t. 

Avoidance, denial, and repression can be useful coping mechanisms in a crisis. But they’re not healthy longterm strategies.

Sometimes we can overcome the effects of traumatic experiences by desensitizing ourselves – directly facing the unpleasant stimuli, and persuading our brains we have nothing to fear. Other times we can channel negative energy into positive endeavors. Or we can avert disaster by plotting a new course. 

A couple of weeks ago, I was copied on an unexpected letter from a government lawyer who should have known better than to burden us all with clumsy lies. Reading the letter predictably triggered a rush of PTSD symptoms. Fortunately, I was able to take the dogs on a long walk through campus and the arboretum.   

Therapy can go from being a crutch, to a tool, to a muse. Recently I wrote about my experiences in "Walking the Dogs":

As we begin our walks, I’m often still stewing over some lawyerly letter, or another futile job application, or a Machiavellian public records request. I’ve turned into cranky R.P. Tyler from Good Omens as he walks Shutzi – writing letters to the editor in my head in response to each indignation. Fortunately, Bear and Buster refuse to put up with lawyer talk. 

On this day we all needed an extra long walk. As we left the house, I was mentally drafting an outraged response letter, plus a snarky bonus email. It helped me soothe my symptoms, process my anger, and channel my energy into something arguably productive.  

Then we ran into a lesbian walking her gentle golden retriever through the Quidditch quad on campus. The sun was shining. We chatted as dog people do. For the first time in weeks, Bear and Buster miraculously didn’t bark at the other dog.

As the dogs and I continued our walk, I abandoned my indignant mental letter. Instead, I started thinking about the ways people can learn to overcome adversity. When we got home the dogs napped on the couch. And I wrote down this essay.

Fall quarter started last week. On one of our walks, the dogs and I wandered by a horde of students waiting for convocation outside Old Main. I kept hearing sighs of “Ah, cute....” It's never going to be about me.

Change takes time. That can be a good thing. By the time I finally get a job interview in Old Main, Buster and Bear will be certified as “Service Dogs,” rather than mere “Comfort Animals.” So I’ll get to bring them with me. It’s the law.

Pivot

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

This summer I sensed change in the air.   

I could see big changes happening all over – in my mood, health, parenting, writing, life. Change for the better. Sadly, no signs of improvement on the employment or dating fronts, but that’s probably too much to ask. 

Now fall has brought a new normal. Or at least the new abnormal.

No doubt I’ll be writing more about these changes. In fact, the easiest way for me to track change is to observe what’s happening in my own writing, including my published blog essays. Recent posts have been thoughtful, well-crafted, and measured, regardless of their topics. Even the most difficult topics. A little long-winded, perhaps, but not too long.

For example, at the beginning of the summer I published a weeklong series of essays about my former employers at the Washington Attorney General’s office. I accused them of a pattern of incompetence, defensiveness, and dishonesty, and provided extensive documentation supporting my accusations. After a couple of years of research and pondering, it was time to say everything I had to say about my employer-abusers, tie it all up in a bow, and move on.

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. (Apparently close observers of this blog had an inkling after the first installment that things might go either way.)

I told my mother there would be no ranting. Lately I’d achieved so much serenity that I could finally write about some of my most painful experiences. In fact, as I explained to my mom on the phone, I’d already written most of the final essay in the series, to be called "Pivot," explaining how I’m cheerfully moving on with my life. This essay. I’m done writing about my former colleagues and my workplace trauma, at least until some interesting new development comes along.

At the end of the week, my mother invited me out for a lovely dinner together Friday evening – I’d just handed the kids off to my ex, and she’d just sent my father off to a bridge tournament. Mom said she enjoyed the five essays. She agreed that I hadn’t gone too far. 

I forgot to tell her I’d been inspired to share just a few additional blog posts about my legal travails before I finished Pivoting.

The bonus non-ranting essays weren’t really my fault. I had too much time on my hands. 

As summer began, I was waiting for the Washington Court of Appeals to issue its opinion in my appeal regarding the scope of Washington’s whistleblower immunity statute. The Legislature passed the “Brenda Hill Bill” in 1989 to protect private citizens who report misconduct to the appropriate government agency. Brenda Hill's family went bankrupt because her homebuilder retaliated against her with frivolous lawsuits after she reported the contractors' failure to pay taxes on hundreds of new homes. 

After settling my employment claims, I filed a separate lawsuit against the outside private investigator firm my employers hired to do their dirty work. Two years ago, the trial judge in my case erroneously concluded that the Brenda Hill Bill grants absolute immunity from civil liability for any injuries caused by government vendors during the course of their contractual engagements. The lower court also ordered me to compensate defendants as supposed "whistleblowers" under the statute, which obviously would have bankrupted me.

I argued my appeal in April. Ordinarily the Court of Appeals takes about five weeks to issue its opinion. However, five weeks passed. Then ten weeks. It became increasingly difficult to plan for two vastly different alternative futures. How can you pivot when you don't know which direction you'll end up facing? I was trapped in Schrödinger's Summer Vacation – paralyzed as I waited for the court to issue its opinion. 

I thought the blog’s burst of productivity in July meant my long wait was almost over. However, my subconscious is not on the same schedule as the Court of Appeals. On September 3, 2019 – twenty weeks after oral argument – the Court of Appeals finally agreed with my position, and reversed the lower court’s ruling. My family’s path forward is now clear. At least from a lawyerly perspective.

Meanwhile, it turned out even bigger changes were in the air. For the last few years my ex and I amicably alternated kid weeks. Frankly, alternate weeks is about the ideal amount of kid time – when everyone is sick of each other, it’s time for a break. Meanwhile Rosalind, Eleanor, and Oliver enjoyed the benefits of two loving households. Each of the kids is thriving in Bellingham.

All good things come to an end. In August my ex and his husband filed for divorce, and my ex moved to the Midwest to start a new life. The kids will be staying with me fulltime, but they look forward to visiting Daddy during school breaks. There will be changes and sacrifices for everyone. I respect my ex’s decision, and the new arrangement is the least bad alternative. 

The same week as we got the Court’s favourable ruling, the kids and I finished setting up the house, started school, and began our new routine together. So far things are going great.

Last week I visited my regular Bellingham physician Dr. Heuristic. He confirmed I had a “mild case of MRSA.” (And you thought that was an oxymoron.) We debated whether Job would prefer a bunch of small boils, or one big one.

Despite a few stress-induced bumps in the road, my doctor is impressed with the progress I’ve made. We discussed whether it’s time to ramp down the dosage on my meds. Dr. Heuristic wrote a flexible new prescription. We both know I’m going to do whatever I want, and that’s excellent.

However, when he popped into the examining room Dr. Heuristic’s first words were “When are we going to see that book?”  

Even as my priorities change, I’m still busy reading, writing, and parenting. Lately I’ve been focused on other writing projects besides this blog. Nevertheless, I intend to keep regularly posting blog essays here once or twice a week, probably on Tuesdays and Thursdays. As the story unfolds, my storytelling continues. I don’t know where we’re going. But I can tell we’re going in a new direction. 

A good direction. I think. In the past two years I’ve made a lot of progress in many areas, including both my mental health and my writing. But too much of my writing’s subject matter was beginning to feel old and dark. I felt trapped with unpleasant characters, humming songs in minor keys. The Trump backdrop doesn't help. It’s exhausting – to both the reader and the writer – when the top candidates for your story’s Great Theme are “Is the rule of law hopelessly broken?” and “How many biblical plagues is it mathematically possible to endure?”

I for one am weary. But also hopeful. Shouldn’t we live in a world where a truly Great Theme like “Am I a dog person?” competes for dominance with “Will having a green iPhone change my life?”?

[Ed. Note: Tentatively, the answers are “yes,” “yes,” and “yes.”]

There's a Fine, Fine Line

The furry creatures at our house have a barking problem. 

In general, both dogs are fine with humans. Too fine – they get so excited they want to jump on everyone and lick their faces. I keep explaining to Bear and Buster that the little old ladies in our neighborhood have brittle bones. 

On the other hand, the moment Bear or Buster spots another dog, they immediately yank on the leash. As we get closer, the dogs used to participate in the whole butt-sniffing Kabuki ritual. Lately, however, Bear has decided to treat all canines as enemies, preemptively unleashing his deceptively aggressive bark.   

Yesterday as we walked through campus we had an unfortunate encounter with a terrier. I explained to an observer that Bear and Buster much prefer people to dogs. As she petted the boys, she said she prefers dogs to people herself. Obviously she’s smarter than an Aussiedoodle.

In theory Bear and Buster are my children’s dogs. When I complained to them that Bear was humiliating me in public by barking at every dog he met, they told me to get out the “shock collar.”

According to my heartless children, you put the shock collar around Bear’s neck. When the audio sensor hears a loud noise, the little steel prongs give him a little shock. You can choose a setting from 1 to 5.  

I’ve tried putting the shock collar on Bear, but it makes me feel like I’m participating in one of Dr. Mengele’s experiments. For now, the most I can bring myself to do is to display the collar prominently near the back door. Hopefully it will have a deterrent effect on the dogs. The last time the shock collar actually went off was when Eleanor was five feet away squealing.

I'm a nice person. I don't want to use the shock collar. All the other dog owners would judge me. More importantly, Bear and Buster would judge me.

Instead I put the dogs on a short leash. Literally, as Eleanor would say, but this time she’d be correct for once.

According to Bear and Buster, it’s okay to bark at houseguests as long as you’re also wagging your poofy tail. This is not true. 

Every time the kids have friends over, the dogs greet them with a frenzy of wags, licks, and barks. Usually the dogs settle down eventually. However, whenever someone sleeps over, by morning Bear and Buster tend to forget we have a guest. So the unsuspecting teen is likely to be greeted with suspicious growls and barks on the way to the Lucky Charms. Especially from Buster. He’s the dumb one. And the fat one. Rosalind doesn’t like to hear it, but it’s true.

As they say in Avenue Q, Buster also is a little bit racist. I’ve noticed when the guest is Latino or African-American, Buster won’t let up with the barking. The other day Rosalind had a sleepover guest who is a person of color. Buster refused to chill. 

Exasperated, I finally blurted out, “Buster, do you realize you’re black?”

A Great Lawyer

As a longtime reader of mystery fiction, here’s my advice:  if someone is murdered in your home, the last thing you want to do is call a Great Detective. One murder is never enough for them. Instead, the keen intellect of a Great Detective demands a pile of corpses that will eventually be high enough to appear in the final scene of Hamlet.

While the Great Detective is busy monologuing and fiddling with his pipe or mustache, the bored murderer inevitably commits additional crimes. Meanwhile some dim-witted sidekick destroys key evidence. Everyone else gets distracted by red herrings as further mayhem ensues. 

In the last chapter, the Great Detective displays his Greatness with a final monologue and a convoluted explanation. That’s how folks like Sherlock Holmes and Hercule Poirot become famous. No one wants to read a crime novel where the obviously guilty party is arrested on page 4, and everyone just moves on with their lives.

Any flat-footed cop can solve one murder. To be a truly Great Detective, you need to justify your hiring with a lot more blood and bodies. 

Lately I’ve been wondering whether a similar principle applies to being a Great Lawyer.

American English has an idiomatic phrase, “Don’t make a federal case out of it.” It’s a way of telling someone to chill. But as someone who has practiced in both federal and state court, you should be thanking your lucky stars if you can figure out a way to justify federal jurisdiction. Federal judges enjoy lifetime appointments, luxurious courtrooms, smart and hardworking law clerks, and manageably-sized case dockets. Everything in federal court is civilized and predictable, and everyone is civil and prepared. In contrast, most state trial courts are so crowded and overwhelmed that litigation can feel like you're playing CalvinBall, or buying a lottery ticket.

On the other hand, most people’s legal problems cannot justify big firm tactics or billing rates. When you practice law at the ACLU or at a white shoe law firm, every case is a custom job. In real life, cases typically involve routine issues that can be handled much more efficiently by lawyers who do that kind of work every day. Most of my former law partners are incapable of providing anything other than Cadillac treatment. They’re exactly who'd you call in a bet-the-company situation. But they’d be completely useless in a simple landlord-tenant or child custody dispute.   

You wouldn’t hire Sherlock Holmes to find your lost cat. The Hound of the Baskervilles would probably eat Bootsie. Nevertheless, other kinds of mysteries may indeed require Great Thinking and/or great thinking. Similarly, some legal cases justify hiring a Great Lawyer, or at least a great lawyer. The important thing is to be in the right court for each case, with the right lawyer. Preferably a pretty good one.

I spent my two decades in private practice at a couple of Seattle’s largest and most respected law firms. If anyone ever even hinted at an accusation of attorney wrongdoing, the first names we would think of to advise us were the lawyers at Seattle litigation boutique Byrnes Keller Cromwell. If Brad or Ralph were unavailable, both of my former law firms maintained a very short list of other similarly sophisticated and principled Seattle attorneys we would trust with our reputations.

Two years ago I approached Ogden Murphy Wallace, "Seattle’s sleaziest bottom-feeding law firm®," in an attempt to clear my name after the firm prepared a character-assassinating personnel report at the behest of my former employers at the Washington Attorney General's Office. 

Ogden Murphy Wallace's response was to lawyer up. However, they didn’t call Byrnes Keller Cromwell. Instead, their cheapskate insurers hired the prominent Seattle insurance defense firm Lee Smart, P.S., Inc. 

The lawyers at Lee Smart are good at many things. They have trial experience and skills I can only envy. On the other hand, they are also known for less savory traits, like a penchant for gaslighting opponents and lying to the judge. Tactics a lawyer would never get away with in federal court.

As I wrote in “Sometimes We Are All Less Smart,” when I was a naïve young lawyer I was easily duped by Lee Smart’s approach to state court litigation. Since then, however, I’ve figured out lots of ways to take advantage of Lee Smart’s corner-cutting tactics. A couple of years into my lawsuit, Defendants Ogden Murphy Wallace and its partner Patrick Pearce continue to pay the price for early blunders by their Lee Smart attorney.

Unsurprisingly, several months into the litigation Ogden Murphy Wallace fired Lee Smart. (Defendants’ former attorney no longer is a partner at the firm.) Defendants didn’t learn their lesson and try to bring in Byrnes Keller Cromwell. However, they did hire an experienced Seattle malpractice lawyer from another prominent boutique firm. I’d never met Bob, but I was familiar with his reputation. 

I still haven’t met Bob. Unfortunately, other than an introductory telephone conversation, I have yet to interact with the Great Lawyer himself. Instead, Bob handed the case over to a junior colleague.  

My father is a retired insurance claims adjustor. When he was handling high-value commercial liability claims, there was nothing he hated more than the bait-and-switch experience of hiring a name-brand lawyer and getting stuck instead with some generic junior associate.  

Perhaps Defendants’ staffing choice was chosen as a clever litigation strategy, intended to send the message to the judge that he shouldn’t waste his time and energy on Roger’s silly little claim. Or perhaps defendants’ insurance carrier is just cheap.

When you represent a defendant, one of your top goals is to figure out a way to get rid of the case without having to go to trial. Judges aren’t supposed to decide issues of fact (that’s the jury’s job), but they are more than happy to resolve legal issues that have the potential to substantially narrow or even eliminate the plaintiff’s claims. When I was still in private practice, I would often moonlight from my primary role as an appellate specialist by writing motions to dismiss or for summary judgment, or by drafting briefs in opposition to motions filed by the other side. 

As I’ve previously chronicled, early in my lawsuit the defendants’ attorneys zeroed in on a 

shiny silver-colored bullet – Washington’s whistleblower protection statute. Sure enough, they convinced our trial judge to dismiss all of my claims based on this inapplicable technicality. This was the erroneous legal ruling the Court of Appeals reversed earlier this month.

It turns out that Ogden Murphy’s defense lawyers didn’t even write their whistleblower argument. Instead, they plagiarized it from several pages of a brief that attorneys from the Byrnes Keller Cromwell firm had recently filed on behalf of one of their clients in a totally unrelated lawsuit. In the case handled by Byrnes Keller, the whistleblower question was one of many issues before the trial judge at the same time. It didn’t dispose of the entire case, and it was never subject to close judicial scrutiny. 

The folks at Byrnes Keller Cromwell would never have bet their client’s future on such a dubious legal argument. In contrast, Ogden Murphy Wallace and its lawyers hoped that the trial judge’s hasty and incorrect ruling in their favor would slip through a crack in the overburdened state court system. Fortunately, that didn’t happen.

In his novel I Claudius, Robert Graves tells the story of a famous Greek oracle who offered to sell a stack of her prophecies to the emperor. He was notoriously cheap and refused. So she burned half the stack and offered the remainder for the same price. Again he refused. And again she burnt half and offered the rest for the same price. Finally his curiosity overcame him, and he accepted the oracle’s deal.  

He must have been a Great Emperor.

Before filing my lawsuit, I shared Graves’ story of the emperor and the oracle with the defendants’ original attorney. I offered to settle my claim for much less than they’ve now spent on the litigation. So far. I also offered to leave the Ogden Murphy Wallace firm and its partner Patrick Pearce out of the story as I tried to educate the public about the challenges facing people living with mental illness, and about the pattern of incompetence and dishonesty at the Washington Attorney General’s Office.

Defendents and their attorneys never even responded to my offer. In fact, Defendants ignored each of my subsequent efforts to resolve the case. Instead, they’ve stonewalled and relied on futile litigation tricks. When you’re a Great Lawyer, apparently it makes more sense to put your clients’ professional reputations at risk. Perhaps they’re still in denial. God forbid that anyone at Ogden Murphy Wallace should actually examine the damning evidence. Or take responsibility for their actions.

Meanwhile, the amount of money Ogden Murphy Wallace and Patrick Pearce (or rather their penny-pinching insurers) will eventually pay to extricate themselves from our shared disaster continues to increase, even though the relief they ultimately obtain will be less and less complete. Sounds great to me.

Thirty days after the Court of Appeals issued its opinion, the case will be “remanded” back to the Superior Court. We'll start over with more discovery and trial preparation, two years older and hopefully a little wiser.

I wonder when and if the defendants’ Great Lawyer will finally show up. Will Bob turn out to be an empty suit, as so often happens with these Baby Boomer legal dinosaurs? Or will I miss out on ever meeting him, and instead read Bob’s Notice of Withdrawal when his clients fire him? 

I’m not sure which I look forward to more. Actually I expect the latter to occur, because that’s what happened last time the attorneys provided by Ogden Murphy Wallace’s cheapskate insurers fucked things up in the case, and exponentially increased Defendants’ exposure. 

Either way I’m zen. This month I won my appeal, and life in Bellingham for my family has been going well. Maybe I’m a Great Lawyer after all. Or at least a pretty good one.

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce

Schrödinger's Summer Vacation

The most famous thought experiment in modern science is about an imaginary cat.

Quantum mechanics is the branch of physics that attempts to describe the universe at the level of atoms and subatomic particles. It involves a lot of uncertainty. In 1935, Austrian physicist Erwin Schrödinger devised a paradox involving a cat in a closed box. Schrödinger's Cat is alive when it's placed in the box. When the box is opened, the cat is already dead. The timing of the cat’s demise depends on the state of a particular radioactive atom in the box, which may or may not have emitted its radiation yet. According to Einstein, Heisenberg, and their uncertain physicist buddies, the cat is simultaneously both alive and dead – at least until someone observes the state of the atom.

This year I experienced Schrödinger's Summer Vacation. It was as if an Amazon box would arrive at our house once a week, at some point each Monday afternoon. The box might be empty, or it might contain a couple of adorable Aussiedoodles. The dogs would either be alive or dead. Like my dreams.

Actually, my family and I spent the summer of 2019 waiting for the Washington Court of Appeals to issue its ruling in my lawsuit against the private investigators that my former employers hired to do their dirty work: Ogden Murphy Wallace PLLC, “Seattle’s sleaziest bottom-feeding law firm®."

One major factor contributing to the problems with my former employer was that Human Resources engaged these supposedly “independent” private investigators to investigate my original complaint about homophobia in the workplace. After I settled my claims against the State, in an attempt to clear my name I naively reached out to Ogden Murphy and asked for a meeting with their Managing Partner. They responded by lawyering up. I was forced to file a lawsuit against the firm in order to obtain answers and relief. 

A few months later, the defendants’ lawyers convinced the judge to dismiss the case. They relied on an obscure Washington statute that protects citizen whistleblowers who report potential wrongdoing to the appropriate government agency, RCW 4.24.510. The Legislature passed the “Brenda Hill Bill” in 1989 to protect private citizens who report misconduct to the appropriate government agency. 

The trial judge in my case erroneously concluded that this law also grants absolute immunity from civil liability for any injuries caused by government vendors during the course of their contractual engagements. In addition, the lower court ordered me to pay for all of the other side's legal expenses as supposed "whistleblowers" under the statute.

The wheels of justice grind very slowly, particularly in Washington’s underfunded court system. A year after the parties filed all their briefs, the Court of Appeals set April 16, 2019 as the date for oral argument. A panel of three judges was assigned to hear my appeal that day, along with several other cases. 

I'm an experienced appellate lawyer. For better or for worse, I not only wrote my own appeal briefs but also handled the oral argument myself. I thought overall the hearing went well. However, opposing counsel made yet another dodgy misstatement that left me tongue-tied for a minute – always a risk when someone with PTSD represents himself. Particularly when you only have ten minutes in front of the tribunal. (No wonder I'm looking forward to someone else being the lawyer when my case returns to the trial court.)

After surviving the appeal argument in April, I was hopeful about my prospects. But I steeled myself for the inevitable impact of living with uncertainty as we waited for the Court of Appeals to reveal its decision.

I’ve been living with chronic anxiety for over thirty years. I’m always looking for ways to understand and manage my body's response to life's inevitable stressors.

We’ve learned a lot about stress from a few decades' worth of scientific experiments on rats and college students, as well as from a new generation of brain scanning technology. Some of the factors that aggravate the effects of stress include uncertainty; a perceived or real lack of control; looming and/or indeterminate deadlines; delay; overwhelming responsibilities; and high stakes.

Sounds like my summer.

Neil Gaiman and Terry Pratchett’s classic novel Good Omens is the story of how the Apocalypse gets derailed when the Spawn of Satan is accidentally switched at birth. Instead of being raised surrounded by demonic power, he grows up in an idyllic English village. 

The new Amazon TV series is fun and true to the book, with David Tennant playing the ambivalent demon Crowley, and Michael Shannon playing the fussy angel Aziraphale. Frances McDormand provides the omniscient voiceover narration, including the following revelation:

“God does not play dice with the universe; He plays an ineffable game of His own devising, which might be compared, from the perspective of any of the other players [i.e. everybody], to being involved in an obscure and complex variant of poker in a pitch-dark room, with blank cards, for infinite stakes, with a Dealer who won't tell you the rules, and who smiles all the time.”

I spent the summer playing a similar cosmic game. Every Monday afternoon from April until September, I repeatedly attempted to log onto the website that lists the Washington appellate courts’ most recent opinions. Each week’s batch of new rulings from Division One of the Court of Appeals would appear at a mysteriously random time between noon and 3 pm. 

Some weeks I started intensely fretting several days before. Usually by Sunday evening I could barely function. Once I actually made it all the way until noon before I remembered it was a Monday. To pass the time, most weeks I would analyze all the new decisions and crunch the numbers – looking for potential patterns that might hint at the outcome in my own appeal, from the type of lawsuit to the identity of the lawyers and judges. It was all noise, no signal. Pure uncertainty.

Sometime in July, here’s how I described the situation to my ever-supportive parents:  

It feels like someone else is tossing a single six-sided die every week, and I have to wait until Monday afternoon to learn the results. If they rolled a 1, I lose everything I have left, and I have to declare bankruptcy. If they rolled a 2, 3, or 4, nothing happens, and we roll again next week. And if they rolled a 5 or 6, I get a chance to recover all the money I’ve borrowed from my retirement savings over the last couple of years, and the kids finally get braces. Someday. 

On September 3, 2019, someone somewhere rolled a 6. Whew. 

For as long as I’ve practiced law in Washington, Division One of the Court of Appeals has set a goal of issuing its opinions within thirty days after oral argument. Nevertheless, there can be various reasons for a delay beyond then, such as changes in court personnel, administrative responsibilities, the precedential significance of the case, its relationship to other pending cases, tangled precedents, and efforts by the three judges to reach a consensus on a particular issue or on specific language. 

Progress on the final opinion can also be stalled if the judges (or rather their poor law clerks) are required to examine additional legal authorities submitted immediately after the oral argument by underemployed obsessive lawyers with too much time on their hands. Er. I was just trying to be helpful.

From the outside, it’s impossible to guess the reason the Court is waiting to issue its opinion in a particular case. On the other hand, there are certain factors that appear to correlate with extended delay. For example, each case is preassigned to one of the three judges on the panel that hears the appeal. Writing assignments are allocated evenly among all the judges. In a civil case like mine, whenever the opinion is written by nine out of the ten judges currently serving on Division One, the Court releases the decision an average of five weeks after the argument. However, if the opinion is assigned to the Court's tenth judge, it won't come out until an average of sixteen weeks after oral argument.

At some point in June, I looked over the statistics and realized which judge was writing the opinion in my appeal. Yep, you guessed it. 

Despite my most recent attack of boils as well as the various other biblical plagues besetting me lately, I still try not to take these unfortunate coincidences personally. Nevertheless, am I the only one who thinks my experiences are beginning to defy the laws of statistics?

Anyway. So far this year, this judge’s longest bout of judicial writer’s block lasted 26 weeks. So I was prepared to endure spikes of anxiety every Monday well into fall. However, like everyone else, most judges are ready for a fresh start in September. That's also when their old law clerks leave and the new ones arrive. As I told my parents, Labour Day seemed a particularly auspicious date to circle on the calendar.

Sure enough, the day after Labour Day – twenty weeks after oral argument – the Court of Appeals issued its ruling. In an emphatic published opinion, the Court agreed with my legal arguments, and reversed the lower court’s decision. 

I’m immensely grateful for the Court’s ruling and what it means for may family. I’m also glad the Court removed any potential for confusion over the purpose of Washington’s whistleblower protection statute. The ruling prevents the Brenda Hill Bill from being weaponized against other actual whistleblowers in the future. If it took twenty weeks to get there, so be it. Luckily, while I waited I had a wonderful summer of kids, dogs, and good weather. Even on Mondays.

No doubt the judges had their reasons for waiting until September before they issued their opinion. I'll never know what factors contributed to the delay in my appeal, and I don’t take the long wait personally. That’s how well I’m doing these days.

I’m also confident that the judges did not harbour any ill-will toward me as a gay man living with a disability. I’d never personally encountered the judge who wrote the opinion before I appeared before him at oral argument in April. However, I know that prior to joining the bench he practiced as an environmental lawyer at a two-person law firm. For fifteen years, I served on the ACLU of Washington's Legal Committee together with the judge’s law partner. Several years ago our mutual colleague was in a terrible bicycle accident that left him paralyzed. No doubt the judge is intimately familiar with the daily challenges facing people with physical disabilities. 

And yet. 

In our efforts to promote diversity and inclusion, often the first step is to look around and ask yourself who is not in the room, and ask why. For example, people living with certain physical disabilities may be excluded by a lack of wheelchair access or sign-language interpretation. Similarly, sometimes the “reasonable accommodation” for particular mental illness symptoms should be self-evident.

Everyone knows people affected by mental illness. Their lives can be improved by simple courtesy and attention. We can all do better.

Click here for more information about my lawsuit against Ogden Murphy Wallace PLLC and Patrick Pearce