2 Trial Lawyer • Spring 2022
1 Trial Lawyer • Spring 2022 Board of Governors Spring 2022 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-246-1126, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@andersenlaw.com, 541-773-7000 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles Circles and Lines Karen Ruga Schoenfeld................................................................................... 6 Meditation for Lawyers Shangar Meman........................................................................................... 10 I Fell In Love with Running and you can too Dana Sullivan................................................................................................ 13 Outdoor Ventures Jill Rizk......................................................................................................... 18 Paddle Onward Derek Johnson. ............................................................................................. 22 How to Stay Healthy in the midst of it all Kristen West McCall, Mónica Valenzuela...................................................... 26 Search and Rescue David Linthorst ............................................................................................ 30 Pickleball and how it helps me in my practice Jane Paulson.................................................................................................. 34 Karaoke for you and your health Barb Long..................................................................................................... 38 Departments President’s Message: The trials of a pandemic Lara Johnson................................................................................................... 2 View from the Bench: Achieving work-life balance Judge Andrew Lavin........................................................................................ 4 Annual Partners donors............................................................................................................. 9 OTLA Guardians of Civil Justice donors........................................................................................................... 24 Comp Corner: Preexisting conditions Julene Quinn. ............................................................................................... 41 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 45 Officers President Lara Johnson President-elect Blair Townsend Secretary-Treasurer Rob Kline Parliamentarian Melissa Bobadilla Immediate Past President Tim Williams District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Brian Dretke — District 2 Rob Beatty-Walters — District 3 Neil Jackson — District 3 Derek Johnson — District 4 Robert Johnson — District 4 Ryan Jennings — District 5 Brent Barton — District 5 Governors-at-Large Steve Berman Erin Christison Diego Conde Ronn Elzinga Sonya Fischer Quinn Kuranz Paul Loving Jeremiah Ross Thanh Tran Greg Zeuthen New Lawyer Governors Ron Cheng Emily Johnson AAJ Governors Kathryn Clarke Tom D’Amore Nadia Dahab AAJ State Delegates Shenoa Payne Michael Wise Apolinar Montero-Sánchez OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Executive Director Nora Fogarty, 503-223-5587 x104 Development Dir. & Publications Mgr. Caroline Greenlaw, 503-223-5587 x100 Education Director Arthur Towers, 503-345-0045 Political Director/Lobbyist
2 Trial Lawyer • Spring 2022 By Lara Johnson OTLA Guardian Brandon Moore, an attorney in our office, and I were recently conducting a virtual focus group for an upcoming trial. In listening to the deliberation, we heard one person express their “I just can’t get over it” concern. They said, essentially, “If this person was so badly The trials of a pandemic hurt, why are we considering her case only now, after so much time has passed?” Their valuation of our client’s injuries was relatively low. People assume serious matters are handled seriously, and urgent matters are handled urgently. If not, maybe the matter is not important and does not deserve serious consideration. Here is one more challenge created by COVID and the corresponding delays in scheduling trials. Focus groups are often a prelude to trials, an opportunity to identify problems and strategize about how to overcome them. After hearing our focus group member’s comments, we may discuss in voir dire the impact COVID has had on the courts. We don’t know whether that explanation will immunize our client against any prejudice surrounding the delay between her injury and her trial. That is unclear. Focus groups can also give deeper insights into larger issues, outside the specifics of the unique case. Having trials set promptly, with a date certain not too distant from the date of filing, is important to our clients. A prompt trial reflects well on our judicial system. It tells the jury that we value justice, that this case matters. Time is of the essence Delays in trials interfere with the court’s truth-seeking role. Memories fade. Witnesses and parties get ill or die, or move away. Postponements mean additional expert fees as prep sessions are repeated and late cancellation fees are incurred. Delays in trials also prevent the delivery of justice. British Prime Minister William E. Gladstone’s 1868 maxim is “justice delayed is justice denied.” The concept is even older. William Penn, in President’s Message Lara Johnson
3 Trial Lawyer • Spring 2022 1693, said, “To delay justice is injustice.” As far back as 1215, the Magna Carta declared, “To no man will we sell, or deny, or delay, right or justice.” There is good news. Civil jury trials are now moving forward in Oregon. As things change Until recently, our colleagues were trying cases with pandemic protocols in place. In March, Chief Justice Walters lifted the mask mandate in state courthouses. Now, precautions and practices in each county will likely vary. Multnomah County Presiding Judge Judith Matarazzo has made a commitment to set and hold more civil jury trials. InMultnomah County, the default civil jury trial involves virtual voir dire with an in-person trial with twelve jurors plus alternates. In a joint meeting with representatives fromOTLA and OADC, Multnomah County Presiding Judge Judith Matazarro acknowledged the importance to trial lawyers and their clients to have a date certain for trial. She expressed a willingness to consider jury trials with smaller jury panels by mutual agreement or other alternatives which could expedite the docket. One possibility — fully remote trials. Multnomah County Judge Eric Dahlin presided over a fully remote civil jury trial between OTLA member Stephen Voorhees and OADC member Glenn Barger. It was by mutual consent with a detailed pre-trial order. I am not aware of other fully remote civil jury trials in Oregon, but it is standard practice in other states. Some OTLAmembers were fortunate enough to get live jury trials after the pandemic hit in February 2020. Eugene OTLA members Tina Stupasky and Bryan Lessley had a dental negligence trial in Lane County in spring of 2020. Ralph Rayburn tried a motor vehicle crash case in Washington County in November 2021. That same month, our office tried a motor vehicle crash brain injury case in Lane County. Stephen Voorhees tried a medical negligence case with Bill Savage in Jackson County in December 2021. Stupasky shared with me it was important to know the COVID safety protocols before trial and to get clarification, if necessary, from the presiding judge before proceeding. Lane County required exhibits to be placed in plastic sleeves, for example. Live witnesses were behind plexiglass screens. Everyone in court was required to wear masks at all times. Angles As with all other cases, it is important to look at your courtroom set-up and figure out where your presentation media should be located for best results. If jurors are spaced around the courtroom, you’ll have jurors viewing your displays from a variety of angles. This complicates the decision on how to position screens and boards. There may be more witness testimony to present virtually. Stupasky had an outof-state witness appear remotely, and she reports it went well. The testimony was displayed on a courtroom TV using Webex. In our trial, we had an out-of- state neuroradiologist testify by Webex. He had created graphics of brain images with his markings on them to highlight areas for the jury. The doctor shared his screen. When he was talking about the brain MRIs, the jury’s attention was not split between the doctor and the exhibits, as the only image on the screen was the MRI. Stupasky noted one of the courtroom “upsides” to the COVID epidemic is we have grown used to seeing people talking to us on screens, “Jurors understand the circumstances. They are used to it.” She said jurors understand why an expert would not travel in these times and that does not affect their credibility the way it might have before. Risk v. reward The risk of screen fatigue and mask fatigue (for the jury, both wearing one and listening to others speak through one), may argue for a more efficient presentation of the evidence. A long, rambling cross-examination did not hit well before the pandemic. Wearing a mask does not help. Voorhees shared that both in his remote and in-person COVID trials, he placed a premium on efficient presentation of evidence, with shorter openings and closings. Rayburn said he placed a premium on speed and hitting of high points in his recent trial but still wanted enough time in voir dire and a generous enough sized venire panel to select a jury which would be fair to both sides. Social distancing may impact the size of a panel unless voir dire is done remotely or with a second remote courtroom, as is the practice in Lane County. In speaking with Stupasky, Voorhees and Rayburn, I was grateful to be a member of OTLA. As trial lawyers during a global pandemic, we are facing new challenges. We are engaged in problem solving as to how to represent our clients best under different circumstances, circumstances which continue to evolve. In all of this, we have each other. We can learn from each other, share our experiences, celebrate our victories and examine our set-backs. I invite those of you who try cases post-pandemic, regardless of the results, to share your case experiences with your fellow OTLA members. Lara Johnson is serving as president of OTLA. She is a shareholder in the Corson & Johnson Law Firm. She specializes in motor vehicle collisions, nursing home abuse and neglect, and medical negligence. She contributes to the OTLA Guardians of Civi l Jus t i ce at the Guardians Club Level. Johnson’s office is located at 940 Willamette St., Ste. 500, Eugene OR 97401. She can be reached at 541-484-2525 or ljohnson@corsonjohnsonlaw.com.
4 Trial Lawyer • Spring 2022 By Judge Andrew Lavin Oregon Circuit Court, Multnomah Co. Almost every lawyer understands the importance of a good work-life balance. At least in theory. But in practice, many of us neglect two crucial ingredients —mental and physical health. It’s easy to let those things take a backseat to the immediate demands of a law practice. But if we’re not careful, forgoing healthy habits can become the norm. I see it often among the attorneys who appear in my courtroom. I don’t have a one-size-fits-all solution. But I can share some approaches I have discovered in the last 20 years that work for me. Maintain boundaries Avoid letting work intrude into other areas of your life. One way is to keep work confined to specific hours. Be efficient and present during your work hours and let others know your off hours are off limits. Avoid checking emails and voice mails when you’re not on the clock. Of course, as professionals, it isn’t always possible to confine our work to a traditional 40-hour week. And with increased telecommuting during the pandemic, the line between work and home has become even fuzzier. But it’s important to find ways to leave work at work so you can enjoy the rest of your life. Find a buffer between leaving work and coming home. When I was starting View From The Bench Hon. Andrew Lavin Achieving work-life balance my career, my buffer was a bar called the Lotus. I would meet friends from the DA’s office there, have a few drinks and decompress. Although I wouldn’t trade the (blurred) memories of those evenings for anything, I soon discovered downing several Long Island ice teas every night was not sustainable. I transitioned to going to the gym after work instead. That was effective until my commute changed. Then, listening to a podcast during my drive home helped me unplug from work. Today, I enjoy a quiet, solitary walk home to clear my head. Unwinding for at least 30 minutes before I start my evening allows me to put a lid on work until the next day. Develop a routine and keep it fresh Exercise not only contributes to physical health, it improves mental health by relieving stress, increasing confidence, reducing depression and producing endorphins. Scheduling time for exercise and sticking to that schedule is key. Signing up for group classes, hiring a personal trainer or making plans to exercise with a friend will keep you accountable to your routine. Start off easy with realistic goals. Eventually, work toward a weekly schedule that has some variety. For example, don’t just go for a jog every morning or lift weights each evening. Variety will keep you from getting bored and diversify the benefits. My routine has changed over time, keeping it engaging. When it’s time to switch things up, I push myself out of my comfort zone enough that I’m challenged but not so much that I dread it. Weightlifting (which I like) and cardio exercise (which I hate) are the core of my routine. But at various times, I have added different things to keep my routine from getting stale. I discovered Pilates several years ago and now I’m addicted. A year ago, my partner convinced me to try yoga. Although he loves it, I just couldn’t get into it and I stopped after a couple of months. My most recent venture is CrossFit. I immediately noticed results. But after a few months, I tore my rotator cuff and had to take a break. I’m gradually easing myself back into the classes and modifying the exercises to protect my shoulder. Maintaining a balance between what you are comfortable doing and what challenges you, listening to your body when you need a break, including variety and occasionally trying something new will keep exercise a constant in your life. Prioritize sleep Although equally important, restful sleep has evaded me more than an effective exercise routine. Sometimes, I drink caffeine or alcohol too late in the day. Other times, I get sucked into a bingeworthy TV series and stay up too late. But even when I cut down on those habits, and despite seemingly sleeping
5 Trial Lawyer • Spring 2022 through the night, I used to wake up tired and without as much energy as other people. I finally consulted my doctor and discovered that I have sleep apnea. I got a CPAP and I now sleep far more restfully. Sleep is tricky for a lot of people for a lot of reasons. But it is essential, especially as we age. If you have trouble getting a restful night’s sleep, troubleshoot until you pinpoint the problem so you can develop a solution. Regular vacations There is no substitute for disengaging from your life and responsibilities for a while and going somewhere else. It’s easy to put off vacations when you’re busy. It might also be tempting to shortcut your time off with a staycation. But taking a break from your obligations is important, and truly doing so requires you to pack a bag and leave town. Some people enjoy exploring and sightseeing. Others like traveling to attend a special event. I prefer relaxing on a warm beach with great food where I have as little to do as possible. The pace forces me to slow down and let go of my inclination to rigidly control my schedule. Whatever kind of vacation you like, the renewing power of temporarily leaving behind your everyday life is undeniable. Although easier said than done, the longer the vacation the better. Many people can’t truly unplug from the stress of daily lives until two or three days into their vacations. And the anxiety of returning creeps in a day or two before going home. It’s the few days in between when you can actually relax. Even if you can get away only once or twice a year, put a trip on the calendar to look forward to. Find joy Despite best efforts to build a routine filled with healthy habits, most lawyers will inevitably face times when work must take priority, becoming all-encompassing and pushing everything else to the side. Although those periods might be necessary, they are like a sprint and are not sustainable over the long run. Finding simple things during those times that provide joy can help manage the stress and get you across the finish line. If you have a complicated brief to write, find a comfortable place to work, light a candle and make yourself a cup of tea. When you find yourself in the middle of a long trial, wake up early enough to give yourself a few extra minutes to get your favorite coffee beverage and to find a place near the courtroom to enjoy the sunrise. It makes a difference to look for and appreciate the little things when we’re going through difficult times at work. Allow routine to evolve Getting into a routine helps us stick with healthy habits. But just as important as the consistency of that routine is the flexibility to adapt it over time. Our lives and bodies change as we get older and, therefore, so should our routines. The path to good mental and physical health is different for everyone, and it requires a lot of trial and error to find. But putting in the effort to find it affords incomparable satisfaction and quality of life. Judge Andrew Lavin serves at Oregon Circuit Court, Multnomah County. His office is located at 1200 SW 1st Ave. Portland, OR 97204. He can be reached at andrew.m.lavin@ojd.state.or.us or 971274-0632.
6 Trial Lawyer • Spring 2022 By Karen Ruga Schoenfeld OTLA Guardian “Hold up your mirror and just draw what you see.” I saw a person who was tired after a long work day who was trying to sit through a 3-hour drawing class. I saw a daughter who was sad and angry over the too soon loss of her mother who was also her best friend. I saw a hard-working, probably overworked lawyer. I saw a supported and loved mother and wife. But how to draw what I was seeing? All I could think to use were circles and lines. So I did. It was a few weeks earlier, at a friend’s barbecue, when an acquaintance suggested I try a drawing class. It was in our neighborhood, he said. I have no time. The teacher was great he assured me. I don’t want to go back to school on top of everything else I’m dealing with. My art really improved from the class, he shared. Yah. Must be nice to have talent. I had zero. He kept at it. It might help you with the loss of your mom. He struck a nerve. Maybe he had a point. What did I have to lose? I always kind of gravitated to making art when I had some spare time, though that was rare. My mother, an artist when she was much younger, encouraged art for her three kids. But like her, raising a family didn’t leave much time for art. And I was a lawyer. I had chosen a career that was fairly all consuming. Running a busy law practice in Portland with my husband was exhilarating and fulfilling. Did I even need another challenge? I was already a snowboarder and ran marathons. Wasn’t that enough of a life? But with the death earlier that year of my mom from Alzheimer’s and my kids getting older, if I listened carefully I could almost hear a clock ticking. It was faint yes, but it was there. What else? What else? What else…. Hmmm. Why not a drawing class? Pencil in hand In the first class we were asked to draw a self portrait. Pick up a graphite pencil. And a mirror. Draw what you see. I drew some circles and some lines. I must have seen a stick figure. This was not going to be easy. Over the next eleven weeks, every Tuesday night, I returned to class to hear the craziest prompts. “Don’t draw what you expect to see. Only draw what you actually see.” Now we were using photographs of faces, some famous and recognizable to all, some not. Not our own. (Thank God.) We selected among the photographs our teacher offered to us that evening. And as we drew, we were guided by our teacher. Make markings on your page that you feel when you look at the face in the photograph. Let your eyes wander around the face and wherever your eyes land, make a mark on your page that reflects what you see. Or reflects how you feel like moving your hands at that moment. Or reflects the feeling you feel when you simply look. Well this was not going to be a scientific process I could already see that. I can’t use my law brain to navigate these tasks. And the music he just turned up loud was so good. I am floating... dancing... drawing Don’t get attached to how you think this is supposed to look. Just keep looking at your photograph. Use different kinds of markings. Maybe the shadows are a bunch of x’es. Maybe they’re squiggly lines. Don’t lift your pencil off the paper. Search out the lights. Search out the darks. There were many such suggestions by the teacher. And most of them, while goofy, were fun. A lot of them didn’t even sound like he was teaching us art. Was he teaching us art? And he strayed. He digressed. He made his points in a circular fashion. He had been an architect. Karen Ruga Schoenfeld Circles and Lines
7 Trial Lawyer • Spring 2022 Too linear. He didn’t fit in. Against his father’s wishes he sought out art as a means to make a living. “Move your hand at the easel like you’re a real artist even though it’s just pretend. Just do it because it feels good.” It did. “Make a marking on your paper that scares you. Or that you think you shouldn’t make because that marking could never be part of a real drawing of a face. Do it anyway.” I did. It was silly. But it looked kind of like I just drew an eye. “Flip the photograph and your paper upside down and now draw.” Weird. “Now draw only how you feel tonight, doesn’t matter how it looks. Are you annoyed? Angry? Sad? Thrilled? But look only at the photograph as you draw.” I started to cry. I missed my mom. I left each class feeling like I had just had a deep, long cry or a great big uncontrollable belly laugh. I felt serene. And my drawings were somehow getting a little better. Just a little. So, I kept going back. For eleven weeks. And my life changed. Forever. I gained a new best friend – me at the easel. She was not the person who had to know the answer. She was new at something and was willing to show her mistakes. She was sometimes giddy and always unsure of herself and terrible at it and having fun. Protect time That was almost ten years ago. I still practice law with my husband. Though not full time anymore. Our beautiful children are both graduated from college and working or in graduate school. And I protect time every day to spend in my art studio (I have my own art studio!) to paint and draw and make the markings I feel that day. I waste time there. I make art and art makes me there. It is a more balanced life for me. Art and law and so much more. I am told my art is one of movement and color. That sounds about right as it suits my personality. I’ve always been drawn to sports and color is simply fun to work with. My current favorite medium is oil. My first love is charcoal. I often dabble in pen and ink and gouache (Google it, it’s cool stuff). I do a lot of portraits but also am inspired by the human form and on occasion landscapes or a dear friend’s dog. I have had two showings in local art galleries, and I only hope that trend grows. But my story does not end there, it only begins. Because art has also changed me as a lawyer. Art has shown me there are many ways to do things, so why not choose the way that brings the greatest joy? I have met many lawyers who demonstrate passion for what they do, and compassion for their clients and others around them. I have also met lawyers who exude frustration with their work and with their clients. I can choose every day which lawyer I am. I have learned I can only expect of myself that I will show up and focus on the issue, not on the outcome. That can come later. If I allow time to really look at the questions before me, I relieve myself of the stress of whether I will win, or See Circles and Lines 8 The author in her studio.
8 Trial Lawyer • Spring 2022 Circles and Lines Continued from p 7 lose. That, again, will come later. First, I must make the markings by fully engaging in the task at hand and nothing else. This process, borrowed from my art practice, has helped relieve the stress that naturally comes with an important project. And art has made me more playful and that has carried over to my lawyer self. When I meet someone new and they ask me what I do, it is fun to sometimes first tell them I am an artist. Their reaction is often remarkably different than when I first identify myself as a lawyer. I get eyebrows up, mouth wide and grinning, and many, many questions about my art, my process, my studio space. Then I tell them I am also a lawyer so they get a fuller picture of who I am. Or sometimes during depositions when I’m chatting with defense counsel, we’ll get to talking about our personal selves. I love sharing a photo of a recent painting and get their reaction. Many times they have an artist in their family and express a desire to try their hand at art. Or they themselves have a background in art, or do art on the side as a means to relax. At this point in my life, practicing law and making art share equal footing in my life. I am extremely grateful for my law practice. It has brought me financial stability beyond my wildest dreams. In working with and against other lawyers. I have met the most interesting, helpful and insightful people in Oregon and beyond. Law has given me a sense of doing good in this world, helping clients at a time in their life that is stressful and alleviating some of that stress for them. It is a full life. Art is, for me, a perfect pairing with law. It is the right-brained activity that balances my naturally leftbrained self. If anyone reading this story would like to learn more about making art, or see my studio in Hood River, please give me a ring. You might even get inspired to make some circles and lines. Karen Ruga Schoenfeld is an attorney at Schoenfeld & Schoenfeld PC. Her office is located at 2051 SE Belmont, Portland,OR 97214. She contributes to the OTLA Guardians at the Guardians Club Plus level. Schoenfeld can be reached at 503 236-8170 or karen@schoenfeldlawyers. com. Self-portrait.
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10 Trial Lawyer • Spring 2022 By Shangar Meman OTLA Guardian “The untrained mind is stupid.” – Ajahn Chah The “why.” Not the “what.” Let’s face it —we lawyers are skeptics and the “why” is much more interesting than the “what.” Not long after lockdown began, mindfulness and mental health suddenly became priorities. Prior to the pandemic — at least for me — they were not. I rarely, if ever, took the time to pause and be mindful of the present. I subscribed to the fast-paced life and the belief that open days meant wasted days. The more commitments, the better was my motto. And then came March 2020 and a wholly unprecedented global challenge. Disregarding my mental health was no longer an option. In fact, my mental health had to become my number one priority. Shortly before the pandemic, I got married, became a stepmom of three, and switched to the plaintiff side of the bar. It was a lot of change. I struggled to adjust to my new normal. Then came COVID, and, suddenly, there was no such thing as normal — anywhere or for anyone. The first three to five months of the pandemic were rough for me. I was experiencing daily panic attacks, insomnia and anxiety. The world felt like it was crashing down. The closest I had come to feeling like this in my life was as a child — in Iraq — during war. As toilet paper aisles were being scavenged in Portland, I was worried about a more dystopic future, where food supply was scarce and humans savagely and ruthlessly attacked one another to survive. Ridiculous? You tell me. Then, in summer 2020, I watched OTLA’s first virtual conference. One of the speakers touted the benefits of reading “The Body Keeps the Score” by Dr. Bassel Van Der Kolk — not only for lawyers, but for clients who had experienced trauma. So, I bought the book (the Audible version of course). I wanted to understand why my brain was leading me down dark paths. The book was as Shangar Meman good as advertised. At its suggestion, I began taking daily walks and focusing on my breathing. Through doing various exercises, journaling and self-application, I came to learn the pandemic had triggered unresolved trauma within me. I needed to pause, take care of my mental health and dig deeper into my experience. Why am I sharing all this? Because trauma, anxiety and depression are extremely common, and I want you to know that you are not alone. Most of us have struggled with or are struggling with mental health, which puts us in a dark place that seems impossible to get out of. The “what” The concept of meditation and mindfulness is not new to most of us. If this is new to you,meditation is simply breathing techniques utilized to pause and focus. Easy, right? Not for most of us. Our lawyer brains are trained to race at all times. We have this voice in our heads that fixates on things and often robs us of the present moment. I make to-do lists in my head before I sleep. When I wake up the next day, the to-do list is the first thing I think about. I know I am not alone in this. Our world is a little chaotic. It is extremely easy to live in the past or worry about the future. How nice would it be to tune all of that out and have some peace? That is what meditation does. It allows you to pause Meditation for Lawyers
11 Trial Lawyer • Spring 2022 and through breathing, tune it all out. In essence, you are training your brain to do what you want it to do. Recent studies support the notion that meditation has been shown to reduce blood pressure, boost recovery after the release of the stress hormone cortisol, improve immune system functioning and response, slow age-related atrophy of the brain, and mitigate the symptoms of depression and anxiety. Those reasons alone are convincing enough to meditate. Additionally, meditation has been shown to increase calm, focus and mindfulness. As attorneys, we are advocates for people in crisis. Almost every call and inquiry we receive is from clients who are experiencing some form of crisis. It is essential we keep calm. It is even more important that we are able to focus and be mindful of our present moment. “How” I started to take control of my panic attacks and anxiety by paying attention to my breath. As embarrassing as this is to admit, I can honestly say I had never p a i d a t t e n t i on t o my b r e a t h . I never had time for that. I began to research and read more books to begin my meditation journey. I read Thinch Nhat Janh’s “The Miracle of Mindfulness,” which hones in on the concept of meditation and its effect on the human brain, the body, and most importantly (for me), anxiety. The book teaches how to meditate. Full disclosure — this book was hard for me to read and even harder to apply. With all due respect, taking direction from a Buddhist monk, who likely never had any exposure to what a lawyer’s life is like, was extremely difficult. I found a thousand excuses to postpone what I thought the beginning of my meditation journey was supposed to look like. I began with one minute. Yes, 60 seconds. And I would be so proud of myself at the end of those 60 seconds. Then my practice expanded to five minutes, then 10 minutes a day. The longest meditation I have ever done is a whopping twenty minutes! In the interest of being fully transparent with you, I was not able to turn it off those entire twenty minutes. I thought about what I needed to prepare for dinner, whether I’d have time for laundry that day and, oh, that legal pad with the never-ending todo list. But in the end, I was able to bring myself back to my breath and that was something to be proud of. Let’s be clear, my standard meditation time is five to See Meditation p 12 I found a thousand excuses to postpone what I thought t h e b e g i n n i n g o f my medi tat ion journey was supposed to look like. I began with one minute. Yes, 60 seconds.
12 Trial Lawyer • Spring 2022 10 minutes. That is what I am comfortable with and have time for. This varies from individual to individual. In short, if I can do it, so can you. The instructions to meditate are as follows: 1. Take a seat. Find a quiet and comfortable space to practice in. 2. Set a time limit. Silence your phone and set an alarm. Allow yourself to let go, until it goes off. 3. Notice your body. Mentally scan your body from head to toe, relax and get comfortable. 4. Focus on your breath. Begin to breathe in and out in counts of three and take it from there. 5. Notice your thoughts. This is the most challenging part. Your mind will inevitably wander. Acknowledge those thoughts, be graceful with yourself and work your way back to your breath. This is where you train your brain the most. These five steps are generally the setup. There are various ways to begin this practice that I found particularly helpful. I utilized the Calm meditation app, which includes actual guides or just music to get you through it. This app comes with free guided meditations as well as an extended version that requires an annual membership. If memberships aren’t your thing, there are many other resources, such as other free meditation apps, Spotify, YouTube and podcasts. Guided meditations are helpful for those who struggle to tune the thoughts out. When you have a guided mediation, it is easier to be present and focus on your breathing. No matter what your approach is, it is important to be intentional about the practice and commit to doing it. For me, what works is first thing in the morning before everyone wakes up or at the end of my workout, when I still have my garage to myself and can pop my headphones on. The point is, you can mediMeditation Continued from p 11 tate anywhere, so long as you can stay still and focused. Start small and do away with expectations. Meditation is not going to change your life overnight. Practice and patience are key. Begin your practice with three or so days a week and take it from there. You will begin to crave it, and it eventually becomes a part of your day and lifestyle. According to Headspace (another mediation application and blog), the following are the best tips to making meditation a daily habit: • Choose a realistic amount of time. • Do it in the morning. • Do it anywhere and everywhere. • Keep the streak going. • Scale back when you need to. • Accept that you won’t be perfect. • Make it about others. • Remember it is not magic. • Enjoy the journey. Incorporate it into to your calendar and set a reminder. Even if you don’t get around to meditating every day, it will be on your radar to get back to it. Another way to begin this practice and actually maintain it is to do it with a friend and hold each other accountable. Back to “why” The “why” is because the benefits are endless, and we can all use those benefits. The fact that pausing, focusing on your breath and gifting yourself five to 10 minutes a day brings such peace and solace is truly priceless. Our profession is to show up for others. True excellence at this practice lies in first showing up for ourselves. Shangar Meman specializes in plaintiff’s personal injury, medical malpractice, products liability and employment liability law. She contributes to the OTLA Guardians at the Sustaining Member level. Meman is an attorney at Pickett Dummigan McCall, 210 SWMorrison St., 4th Floor, Portland, OR 97204. She can be reached at 503575-9743 or shangar@pdm.legal.
13 Trial Lawyer • Spring 2022 I Fell in Love With Running ...And You Can Too By Dana Sullivan OTLA Guardian For the past 20 years, I have had a love affair with running. Running motivates me to get out of bed in the morning. Running is convenient and accessible. I love that in ten minutes I can throw on my running clothes, tie up my shoes and be ready to head out the door, no matter where I am. Running is flexible. It offers me whatever I need on a given day. I can set a goal for my run or can simply enjoy an opportunity to meditate, focusing only on my breath and the rhythm of my steps. Running can be communal. It has brought me wonderful friendships and provides me a regular opportunity for connection and conversation. Running has taught me a lot about myself and has inspired me to pursue goals that once seemed impossible. My feelings toward running have not always been affectionate. In elementary school, I was a chunky kid whose preferred form of exercise was walking from the couch to the television to change the channel. While I spent a lot of time on my bicycle roaming our suburban subdivision with neighborhood friends, that was more adolescent diversion than “exercise.” The bane of my existence was the Presidential Physical Fitness Test. Implemented by the Johnson administration to promote health and fitness among children, the Presidential Fitness Test was an annual requirement at my school. It included various physical challenges, including sit-ups, push-ups and pull-ups. You also had to complete a mile run in under 12 minutes. Unlike academic testing, which I felt allowed me to demonstrate my strengths, each year when the time came for the Presidential Fitness Test, I found myself filled with despair as my classmates lapped me several times as I trudged around the perimeter of the field, never certain I would finish within the target time. In high school, I participated in team sports, which I enjoyed. Yet, even then, running was simply a means to an end rather than an activity that brought me joy in and of itself. In fact, I continued to view it as an unwelcome challenge that I was never completely confident I could master. My junior year, a coach told me if I wanted to make varsity, I would need to improve my overall fitness. She suggested I start running after practice. Since it was important to me to move up to the varsity team and running was essential for me to get there, I put in the time to improve my pace and agility. However, I found little joy in those after-practice sessions even though, in the end, I accomplished my goal. As a young adult, I ran off and on. However, it was an exercise regimen I turned to only when I felt I needed an expeditious way to slim down. My episodic running was generally paired with a fad diet and feelings of inadequacy. It never lasted for very long. More to offer In 2002, at the age of 35, I took up running again. But this time it was different. I was the mother of two small children — a newborn and a three-yearold. I had recently changed jobs and was adjusting to the responsibilities of being a partner. I had an aging father on the east coast whose health was declining. My husband was working full time as a high school teacher. As had been my pattern in the past, the notion to resume running was motivated primarily by the desire to lose weight and improve my fitness. However, this time I saw running had more to offer than just an effective way to fit into old jeans. It offered a challenging workout I could squeeze in Dana Sullivan See Running p 14
14 Trial Lawyer • Spring 2022 during the wee hours of the morning before the gyms in my neighborhood were open. I could go out for 30 to 40 minutes and be back before my kids had begun to stir. The fact that no one even knew I was gone made my running workout completely guilt free, a gift at a time when the length of my list of responsibilities often left me feeling like I was falling short in one or more areas of my life. I also found I was able to stick with running this time around, largely because I found in my across-the-street neighbor, Santha, the perfect running partner. Santha and I had always been friendly but we weren’t particularly close. Twenty years later, neither of us can actually remember how the notion of running together first developed. She and I were about the same age. Like me, she had a small child at home, a full-time job, a working spouse and a busy life. If I were to guess, I would say one of us likely shared with the other a desire to get in shape and a frustration that it was hard to devise an exercise regimen that fit within our time constraints. That spurred one of us to propose to the other that we would run together a few days a week. We agreed on a schedule and then we stuck to it, rain or shine, summer and winter, through head colds and hangovers. We met at 5 a.m. each day. The conviction that she would be standing on my front porch at the designated time was the impetus I needed to get out of bed on those all-too-frequent rainy and dark winter mornings. For the first time, I appreciated running as much more than a means to an end. It guaranteed me regular one-onone time with a friend who I could talk to about everything from parenting frustrations to the news of the day. Running is one of the few sports that you can engage in while carrying on an extended conversation. Over the years, Santha, who is not a lawyer, has also been a oneperson focus group for every case I’ve tried. She has been an objective voice when I’ve felt frustrated by a challenging client or opposing counsel. Pursuing new goals Once running became integral to my weekly routine, I found myself hooked. Before I knew it, Santha and I had been running regularly for more than a year. We decided we needed to mix it up and to structure our workouts by training for races. We opted to train for a half marathon. If you had asked the elementary school student who dreaded the Presidential Fitness Test whether she would ever run 13 miles, she would have said it would never happen. Yet in my mid-30s, after a few months of training, I not only completed a half marathon but did so with a time well under the 12-minuteper-mile pace that seemed an impossibility when I was young. Having accomplished the milestone Running Continued from p 13
15 Trial Lawyer • Spring 2022 of completing a half marathon, we found great joy in pursuing new goals. For several years, Santha and I ran half marathons, trying new races and aiming to improve our time. We joined a women’s running club that organized weekly track workouts. We started trail running, spending our Saturday mornings exploring Forest Park. We ran the Hood to Coast Relay. And then we decided to train for a marathon. Training for a marathon is a lot like preparing for trial. You start with a goal and then you need to plan how you will make the best use of the time you have to prepare. Most marathon training plans span a period of 16 to 20 weeks, during which you spend roughly 10 to 20 hours per week running and cross-training. Just as a trial lawyer has to block out time to prepare the different components of a trial — voir dire, opening and witness examinations — a marathon runner needs to devise a training plan that incorporates speed work, strength training and long runs. If you put the time in, the goal is attainable. Running a marathon is a lot like being in trial. The feeling of excitement and anticipation you feel in the pit of your stomach in the starting corral before a race is just like the feeling of sitting at counsel table waiting for the judge to take the bench. No matter how well prepared you are, there is inevitably at least one unexpected challenge. The weather can be hotter or colder than anticipated, you might get a blister at mile 18, or you might start too fast and experience a crash in your energy toward the end of the race. You have to remain calm and focus on putting one foot in front of the other and you have to dig deep at mile 19 when exhaustion sets in and you have to silence the voices in your head that are telling you that running another 7.2 miles is an impossibility. After a positive experience running the Portland Marathon, Santha and I decided to run it again with the aim of qualifying for the 2013 Boston Marathon. For me, at the age of 46, that required a marathon finish time of 3:50, i.e. an average pace of 8:47 minutes per mile. We completed the Portland Marathon together in 2012, just a hair’s breadth under the qualifying time. We travelled together to Boston the following April and ran our first Boston Marathon the year of the bombing, a story for another time. Thankfully, we and those who had come to cheer us on were all unharmed, as were the numerous other runners we knew from the Portland runSee Running 16 Sullivan’s family cheered her on at Mile 19 of the 2013 Boston Marathon.
16 Trial Lawyer • Spring 2022 ning community who entered the race that year. I ran the Boston Marathon again in 2014. Because I was stopped roughly a mile from the finish line in 2013, I was given the opportunity to run again without having to qualify. Once I completed the Boston Marathon, I decided I had had enough of marathons. Running had started to feel like a second job. I wanted to return to running for fun or to accomplish smaller goals that required less of a time commitment. Explore and enjoy Santha and I are now back to where we started — running because it makes us feel great but with no particular goal in mind. During the COVID shutdown, we were particularly grateful to have a workout we could do together without masks. We made an effort to run in new locations, using our runs as a way to explore and enjoy the prized freedom that was only possible outdoors. One Saturday, we even went as far afield as Ramona Falls in the Mount Hood Wilderness. After a recent snowfall, we ran on the path along the Columbia Slough, following the one set of human tracks and one set of dog tracks that preceded ours. We encountered both a bald eagle and a great blue heron. It was physically challenging, rejuvenating and restorative all at the same time. Runs like that one are why I’m more enthralled with running than ever. I feel grateful I overcame my early distaste for running, not only because of the unforeseen experiences it unlocked for me but also because it has provided me with a critical counterbalance to the stresses associated with a career as a trial lawyer and the challenges of juggling family and work commitments. Running has contributed to my sense of selfconfidence. It has made me more resilient. It has provided me a healthy outlet Running Continued from p 15
17 Trial Lawyer • Spring 2022 to let off steam after a frustrating deposition, a devastating verdict or the discovery of teen misbehavior. Just having an hour or so in the morning, free of the temptation to check my email or shoot my paralegal a text message, helps me start my days feeling more centered. And there is nothing better to ward off the blues than a regular boost of endorphins, particularly at the start of the day. Getting started If you are not a runner, but the experiences I’ve described sound appealing, I urge you to try it. If I could fall in love with running, anyone can. Here are some recommendations for trying it out: Start with both small and large goals. If you’ve never run before, you might go out for a mile, breaking the run up by running three blocks, then walking three blocks. Aim over a particular period of time to increase the number of blocks that you run and decrease the number of blocks that you walk. If you’re a more experienced runner, registering for a virtual race can give you a way to add a little competition to your routine with minimal commitment. Try the Rock N’ Roll Virtual Running Club. You can register for races of all distances free of charge, as well as other weekly challenges, and see how your time measures up with runners of all ages from all over the world. Block a regular time for your runs and schedule around them. I highly recommend early mornings because the risk is lower that other demands will interfere. If you’re not a morning person, any time works, but be consistent. Run somewhere scenic or unfamiliar to you. Running in the woods or somewhere scenic provides a wonderful distraction and can make a run feel more like an adventure. Run with a friend. Having a companion who you commit to running with offers accountability, support and companionship. Having someone regularly available to you to serve as a sounding board might also provide a valuable emotional outlet. Law is a demanding profession. Bearing responsibility to try to right the wrongs that have been done to our clients can take its toll, particularly when we are also juggling personal obligations to our friends, family and community. Carving out time for yourself is important and exercise is a great way to do that. My relationship with running has enriched my life and provided me a vital outlet for stress. I urge you to try it, even if you believe, like I did, that running is an unappealing chore. You just might fall in love. Dana Sullivan specializes in employment and civil rights litigation. She is a member of the OTLA Guardians of Civil Justice at the Guardians Club level. She is a partner in the firm Buchanan Angeli Altschul & Sullivan LLP, 921 SW 4th Ave., Ste. 516, Portland, OR 97205. She can be reached at dana@baaslaw.com and 503-9745015. Because of the bombing at the 2013 Boston Marathon, Sullivan had to return to the finish line the next day to recover her race souvenirs.
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