California Lawyer


September 2014

Clashing Over Coverage
Thank you for your coverage of "Uncovered" [June]. As a feminist and a California taxpayer, I was disturbed to read that Santa Clara University and Loyola Marymount University have adopted policies denying "elective" abortions to their thousands of employees. These institutions, which depend heavily on public subsidies and grants, should not be allowed to invade the privacy of their employees or force them to follow the employer's religious views in making highly personal decisions.

From the article, it appears that all parties agree that the Department of Mental Health Care erroneously approved the plans in question in 2008. I hope to read in a later issue of your magazine or in the Daily Journal that the governor and his DMHC have corrected the error, and that the universities' employees regain their long-standing reproductive health care access.
- Gay Crosthwait Grunfeld, San Francisco

I was very disappointed by the lack of any real effort to provide a balanced overview of a very controversial and relevant issue. There is no one opinion on whether abortions should be legal or any restrictions should be placed on abortion services. It is equally clear that the Catholic Church opposes abortions as morally wrong (for the taking of an innocent human life). It should not be surprising, then, that institutions that were formed to promote the core teachings and values of the Catholic Church should oppose having to fund abortion services.

The real question is, what right does a religious institution have to exclude abortion from its insurance coverage, or to decline to pay for such services? Isn't it incumbent on institutions that espouse to be Catholic to promote values consistent with Catholic teaching? Doesn't our Constitution enshrine these rights to express our religious views even in the public square? Presumably, organizations such as RenewLMU were formed to challenge these institutions to be true to their Catholic identity, which isn't easy.

I suspect that only a small part of insurance premiums go to cover abortion services. Another alternative could be provided to pay for abortion services without requiring religious institutions that oppose abortion to pay for them. I wonder if those faculty quoted in the article would still want to work at Santa Clara if it started to discard all of its values simply because some opposed them.
- Edward Murphy, Benicia

I commend California Lawyer for publishing "Uncovered." The article unearthed a loophole largely unknown by the general public in California's health care insurance coverage laws. It also was particularly timely given the U.S. Supreme Court's recent decisions undermining women's health care rights in Hobby Lobby and Wheaton College.

I hope the magazine continues to monitor and report on any further developments, be it in the form of more regulation concerning the activities of the Department of Managed Health Care (or not-as that would also be a story) and the ultimate outcome of this dispute at Santa Clara University.
- Jenica D. Mariani, San Francisco

I am a former Santa Clara University student (BA and JD), and well remember the battle to simply get birth control information for students available on campus. We had a doctor who was willing to volunteer for clinic work, and the university finally agreed to let her, but with severe restrictions. I also remember a discussion panel dealing with similar issues affecting women-an all-male panel.

Some things never change, and this debate is just one more obstacle to overcome for those who believe in a woman's right to choose. I see the attacks nationwide, and I am amazed at the lengths to which some institutions, organizations, and now certain employers will go to prevent women from getting appropriate medical care, while imposing no such restrictions on their male employees' benefits. I am sorry to see that SCU is taking another step back.
- Lynne Yates-Carter, San Jose

Author Pamela A. MacLean establishes "reproductive rights" as some sort of inviolate demigod under California law and is highly critical of private Catholic institutions' determination that these rights (in actuality, abortion) are immoral and wholly incompatible with tenets of their faith. What is truly scary is that MacLean is not satisfied with the current legal status of abortion rights in California but bemoans abortion rights advocates' inability, to date, to force their pro-abortion orthodoxy upon religious institutions. Hence the clash of free exercise and free association versus MacLean's abortion rights orthodoxy. The article is bereft of the philosophical and legal debate that has divided this country's legal community for four decades-nice journalism.
- Gregory N. Weiler, Irvine

The professors at Santa Clara University profess to be "shocked" and "outraged" about the university's decision to no longer provide abortion coverage in its health care plans. However, the professors knew that SCU was a Catholic school before they accepted teaching positions there. They knew, or should have known, that it is the Catholic Church's long-held teaching that abortion cannot be condoned or abetted.

How can these professors now reasonably expect this Catholic university to violate the church's deeply held religious teaching? The professors will now just have to pay for their own abortions or seek employment elsewhere.
- William F. Terheyden, San Francisco

Anger Interrupted
In "Anger: A Frontal Approach" [Expert Advice, June], authors Russell E. Haddleton and Joseph A. Shrand mention several points for lawyers to consider in remaining calm in the face of others' anger. I'd like to suggest a short and simple method we teach lawyers and clients through the High Conflict Institute. Built on empathy, attention, and respect, it is termed E.A.R. Statements, which can be used to calm an angry person and help him or her move away from a limbic reaction.

For example: "I can understand how important this issue is for you (empathy)." "Don't worry, I'll take the time to pay attention to your concerns." "I have a lot of respect for your efforts to solve this problem." You can say this to clients and opposing counsel, and it quickly calms most people if you say it sincerely.

Thank you for an enlightening article.
- William A. Eddy, San Diego

Although I do not disagree with anything explicitly stated in the piece, I have some concern for what it may imply to a budding lawyer-that one might be led to believe that anger has no place in the practice of law, should be buried, and only creates a disadvantage when acted upon. We cannot forget that the practice of law, at least litigation, is rooted in the dispute-two combatants squaring off on a contested issue. As lawyers, we are the hired guns. The best litigators I know are very professional and polished. But when the fight turns to the street, watch out!

Imagine a scenario where your opposing counsel calls you to say that a third-party deposition has been cancelled, but then proceeds to "interview" the would-be deponent (with a court reporter), who appeared in response to the subpoena. This is a challenge to the profession and to you as an adversary. Your client is watching closely to see how you will respond. Do you politely remind your opposing counsel of the relevant rules and how they have been violated?

Absolutely not. You let him have it. This statement needs some qualification and boundaries:

First, never respond in the heat of the moment. If you are a successful litigator with passion in your veins, your anger will compel you to immediately compose an email or set of choice words in response to your opponent. Afterwards, wait at least an hour, then revisit what you have said, and if you have not been in practice for long, talk to a seasoned litigator for input.

Next, make sure that every word said in anger is warranted, not ad hominem, and benefits your client. In your anger, remain professional and extend respect to your opponent. "This underhanded move is not befitting of a lawyer with your experience and reputation," might be a statement to make your point and still convey a level of respect.

The point here is to welcome anger, embrace it. This emotion, and other related ones, fuels good litigators. But manage it when it comes-use it wisely to help your case.

Is there ever an appropriate time to raise your voice at opposing counsel? Yes, but only when his or her conduct is so obnoxious that no other response is appropriate-and only when what comes out of your mouth is something you would be proud to read in a transcript a month later.

If clients never see your passionate side, it won't be long before you have none.
- John F. Domingue, San Jose

In Praise of the 'Dream Team'
Frederick Hertz's otherwise laudatory review of David Boies and Ted Olson's book Redeeming the Dream [" 'Dream Team' to the Rescue," Books, June]-which he calls "riveting "-asks a couple of questions that merit comment. He questions whether the book shows too much "narcissism" by the authors, and wonders whether gay lawyers couldn't have reached the same victorious result (Olson and Boies are straight). Knowing the authors as I do (full disclosure: I represented them with their publisher), I can safely say that narcissism is not in their personal or professional makeup. Great self-confidence, yes. (News flash: "Big-Time Litigators Discovered to Be Highly Self-Confidant.") But narcissistic, no.

As for whether the outcome would have been different had gay advocates led the charge, Hertz almost answers his own question: "Perhaps it did take a posse of outsiders not worn down by the passage of Prop. 8 and not intimidated by the prospects of losing at the U.S. Supreme Court." History proves his tilt to be correct. Would the massive AIDS epidemic have been successfully attacked by someone other than Larry Kramer? Perhaps. Would the Northwest Passage have been discovered by someone other than Lewis and Clark? Perhaps. But even whatever mythical later-day champions you have in mind would deserve no more (or less) credit than that which we have rightly bestowed on those who actually did achieve these results.

So it is with Boies and Olson. Their credit has been earned. There is no "What if?" about it. Congratulations from the rest of us, straight and gay. And if one component of their victory was a level of self-confidence that some people mistake for narcissism, so be it. It's a small misconstruction that does nothing to diminish the magnitude of their huge leap forward.
- Stan Pottinger, South Salem, New York

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