Emerging Law Around LGBTQA+ Issues

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode, Debby Merritt interviews a general practitioner who specializes in LGBTQ issues at a small, but mighty law firm.

Debby Merritt:

We're joined today by Meaghan Hearne, a 2008 graduate of Syracuse College of Law. Like many who began their careers during the Great Recession, Megan bounced through several jobs before finding her current full-time gig at Ackerman Brown, a small firm in Washington D.C. Why don't we start by you telling us a bit about your job search and how you ended up at Ackerman.

Meaghan Hearne:

As you said, I was a graduate of Syracuse University College of Law, and then right after taking and passing the New York and New Jersey Bars, I moved to D.C. When I moved down here, initially I thought it would be much easier to get a job, that they would be knocking down my door, but that necessarily wasn't the case, so I actually did some temp jobs in terms of document review. I was the contracts manager for a trade organization and I actually just happened one day to be doing... I was on a document review project and I met my boss, Glen Ackerman, who was the founding partner of Glen Ackerman Legal.

We got to talking and he asked me what type of law I practiced or I wanted to practice, and at the time I was really focused on criminal work and I was doing some pro bono work with the D.C. Public Defender service, and his response was, "Well, that's wonderful. I've always wanted to start a criminal law section of my practice group. You should join us." And that was back in October of 2009 that I joined Ackerman Legal part-time and by January, 2010, I was a full-time associate.

Debby Merritt:

Were you the one who actually started up the criminal practice there or did you have a more senior attorney to work with?

Meaghan Hearne:

No, it was really just me. My caseload was small, but it was a lot of trial by fire and just going to court, learning how the process went, learning the particular preferences of judges and how they handled their caseload and what they expected of attorneys. My boss was great because he was very encouraging of me to go to work, to observe what was going on, to observe the docket, to observe arraignments, and that allowed me to get that foundational knowledge to start really doing it on my own and of course, developing relationships with more senior criminal defense attorneys that I could go to for guidance, but really venturing out on my own and handling the caseload and getting an intimate knowledge of a lot of cases.

Debby Merritt:

That is a great way to start, just going and watching what other attorneys do. I was once in a position where I needed to represent somebody at a criminal arraignment, and I really didn't have the foggyist idea what I was doing. I walked into the courtroom and I looked around. I thought, "Okay, I think the lawyers on that side are the defense lawyers." Now you've switched to civil litigation. What happened there?

Meaghan Hearne:

The circumstances just called for it. Our firm was changing, our firm was growing and we had a lot more civil litigation cases, civil work coming in. Those were the cases my supervising partner Chris Brown needed help with, and I was the only litigation associate for quite some time, so I was juggling both, but when the civil started to get so much that I needed to focus on that more now, that's just what happened and it interested me. Criminal defense practice, I found it very difficult because I'm the type of person that I want to help people and I want to make people happy, but it's hard to do that when you have to tell a client, "Okay, you're not going to go to jail for a year, but you're going to go to jail for two months."

Debby Merritt:

It's hard to win in criminal defenses.

Meaghan Hearne:

It is, it is. And a win is a lot of times getting, depending on the circumstances, a win is a plea agreement and it's hard for clients to understand that, and it's hard for, at least I found that it was hard for me to explain that to clients and to say, "This is in fact a very good thing." And I saw people who really were getting the short end of the stick and because of financial constraints and because of the court docket, just they weren't getting really what they deserved in terms of attention that the court was paying to their cases. So it was very, very hard for me to do the criminal defense, and so when the civil stuff started popping up and I was able to hop on that and learn more about that, and I had somebody in the office who's able to help me who had a ton of experience, it just naturally gravitated towards that.

Debby Merritt:

Tell us now about the civil practice. What sort of cases are you working on?

Meaghan Hearne:

At this point, I have everything going from business disputes between partners of a closely held corporation here in D.C. One of the things that I'm actually working on right now is a deposition summary for an employment discrimination case that we have right now going before the US District Court here in the District of Columbia, but it's really... We are a general practice firm. We do have a lot of different cases, which is great because you really learn something new every day and it's never the same day repeated over and over again.

Debby Merritt:

Your firm also has special standing in the LGBTQ community, isn't that right?

Meaghan Hearne:

Yeah, the firm was founded by Glen Ackerman as a firm that really worked on LGBTQ estate planning, on custody issues because there was a need within the community here in Washington D.C. for those services. As we've grown, we've still done a lot of work for the community here in D.C., but we've also been able to take on cases that have, I guess, greater meaning and greater impact throughout the country.

Debby Merritt:

What are some of those cases? Tell us about one.

Meaghan Hearne:

The one that I'm actually working on right now is TerVeer vs. Billington Library of Congress. That's the case in the US District Court for the District of Columbia, and it's an employment discrimination case where we argued that the Library of Congress violated Title VII because Mr. TerVeer was the victim of sex discrimination. His employer discriminate against him because he is a homosexual man.

Debby Merritt:

Megan, some of our listeners may not know yet about Title VII if they haven't been to law school. Tell us a bit about how discrimination lawsuits work.

Meaghan Hearne:

So Title VII of the Civil Rights Act of 1964 prohibits and prevents employers from discriminating against employees based upon their sex, race, color, national origin, or religion. What it doesn't do is protect employees from discrimination based upon sexual orientation or gender identity, and that is, in my view and in a lot of other people's views, a problem. Title VII doesn't explicitly say that you can't fire somebody based upon sexual orientation or gender identity. There's case law that has been building trying to expand the definition of sex to include sexual orientation or gender or gender identity.

Debby Merritt:

Have the courts been receptive to that?

Meaghan Hearne:

Well in TerVeer, we were pretty successful. The government filed a motion basically saying that Mr. TerVeer couldn't assert a claim under Title VII because discrimination based on sexual orientation wasn't covered. Judge Kollar-Kotelly came back and said, "No, he may have a cognizable claim under Title VII for discrimination based on sexual orientation." That was a pretty big win. The importance is twofold. It added to this growing case law of the courts acknowledging that Title VII, there needs to be something done and it's entirely possible that we can expand this definition of sex to include sexual orientation and gender identity.

Debby Merritt:

So your case isn't the very first one to have recognized this, but it's an important building block in this change in the law, is that right?

Meaghan Hearne:

Certainly. Certainly. Yeah. We've got cases beforehand that say that because someone does not fit with an expected gender norm or an expected role in terms of their sex... If you perceive me as having to be straight or having a husband and then all of a sudden you find out that I'm in fact a lesbian and I have a wife, well, that goes against your concept of what I should be, what my sex should be, what my gender identity should be, what my sexual orientation or my sexual preferences should be. We're seeing that case law building in the US where that's could be a cognizable claim under Title VII.

Debby Merritt:

That's a very good argument, and it must be exciting to be making new law at the same time that you're helping an individual.

Meaghan Hearne:

It's actually... It's cool. I mean, for lack of a better word. When we got the ruling that our complaint survived and that we are building new law, it sunk in what this meant. I took a step back and looked at my other cases and I'm like, "Wow, this is great." Not very many people that I graduated law school with are in positions where they're actually making new law or they have the ability to make new law. It's powerful to realize that you're playing this role of changing case law and of changing public perception and of working towards making somebody's life better and a group of people protecting their rights.

Debby Merritt:

And your firm is part of a much larger movement, of course, that's quite dramatic right now. Tell us about June 26th, the day the Supreme Court recognized a constitutional right to same sex marriage. Were there any discussions or celebrations at the firm? How did your clients feel?

Meaghan Hearne:

We certainly got emails from clients saying that this is great. I was actually here at my office. I followed on SCOTUS blog. I wanted to see it from myself. I wasn't surprised by it. I thought it was coming. I think everybody thought that it was coming, but it was more of a relief and just this weight lifted off going, "Oh, finally. Finally, we are recognized as valid, that we just wanted equal dignity and to be recognized as equals with our peers." And it took a couple of days to sink in, at least for me personally. Everybody was ecstatic. I know a couple of my coworkers left early. A bunch of people went down to the Supreme Court to celebrate. There were rallies all over D.C. I'm a little bit more quiet and reserved, and I sat back and let it sink in for a couple of days, the importance of the decision.

Debby Merritt:

It was a big day for the country. I graduated from law school in 1980, and I don't think we even ever mentioned the words gay, lesbian, homosexual, much less used words like rights in connection with those groups. How do you think the court's decision will affect your practice?

Meaghan Hearne:

Well, certainly it's going to have a big effect on estate planning documents and also medical directives. We've had clients who were moving, who were residents of Washington D.C. and one was moving to Louisiana and the other husband was going to Florida. They were separating for grad school. Well, neither one of those states recognized their Washington D.C. marriage. So we had to draft up documents that gave the other one a medical power of attorney, financial power of attorney, and various other estate planning documents that protected our clients when they made this move.

And we've had other clients who, if they travel cross country or if they were traveling cross country and somebody got sick, and they were stuck in a state that didn't recognize their Washington D.C. union or their Washington D.C. marriage, what was going to happen when partner number one is sick, and partner number two says, "Well, I'm that person's wife. I need to make decisions for them." And they said, "No, you don't. You can't make decisions. We don't recognize your marriage." So this was a very real concern for our clients. But now when you have the Supreme Court coming down saying every state must recognize a valid same sex marriage from another state, that's going to change what our practice looks like in terms of drafting those documents.

Debby Merritt:

There'll be less work of that type, but probably more work of other kinds.

Meaghan Hearne:

Right. It sounds a little bit harsh to say, but everybody gets so excited and everybody is thrilled that they now have equal rights and that they can now get married, that sometimes people jump the gun on it. And that's what we saw, was we had couples who are coming in who were only married for a couple of months, who just were sitting in the same room together and looking at us saying it was just a mistake. We just rushed into it.

Debby Merritt:

Let's talk a little bit about what you do day to day. It's very exciting to work on these cutting edge issues, but even those cases involve deposition summaries.

Meaghan Hearne:

Exactly.

Debby Merritt:

So tell us a bit about what you do when you come into the office and how a day goes.

Meaghan Hearne:

Usually I'm at the office by about nine o'clock. It's actually nice. I get to ride my bike to work every day. I'm at the office, downstairs in the gym, up at my desk, showered and ready to go by about 9:00, 9:30. Catch up on emails, I'm sure like you do in the morning, have that first cup of coffee, and then it can be anything from scheduling depositions to scheduling client meetings, doing depositions summaries, or drafting contracts for a business owner or getting a phone call from a mother who has a child and the child has said something to her, basically a dispute that's going on between parents who are in an ongoing custody battle. So we'll deal with emails about that and try to figure out a way to fix a situation or a way to help this person just get over this one hurdle.

I've had a lot of motions lately that I've had to do, motions in limine to set the parameters for a trial, for cases that are going to trial. I've had a couple of those that have had to get done in the past couple of weeks. I'm actually working on the research aspect of a motion in limine that we'll probably wind up filing in a case that our client is a business and a former customer of the business has filed suit. And so now we're working on getting those parameters set for trial of what opposing party can and cannot talk about at trial and who they can and cannot call as a witness.

Debby Merritt:

How do you approach that type of research project? Do you have to start from ground zero?

Meaghan Hearne:

I remember drafting them in law school. When I first had to start drafting these at work, I was like, "Oh, I think I did one of those in legal writing." So I'm not going to lie, I did look at my legal writing book to figure out exactly-

Debby Merritt:

Perfect.

Meaghan Hearne:

Yeah. So don't throw those away listeners, but I had to refresh my memory as to what exactly... What is this supposed to look like? What are my arguments here? Looked at my evidence materials from the Bar exam and said, "Okay, all right. I remember that a witness cannot testify about this." Or, I remember had to go over the rules of relevance and figure out, "Okay, is this proffer testimony going to be relevant to this case?" And that's how I approach it, is figuring out the one or two questions that this particular issue is presenting to the court. What are the questions that I want the court to say, "Yes, Ms. Hearn, you are right. I'm going to rule in your favor." And how do I craft those and how do I word those so that the court is going to find in my favor?

I give the court a reason to find in my favor and they like the question that I'm asking. I work very methodically. If I have one question, I go, "Okay, I need to answer this question." If another question or another issue pops up as I'm flushing out my answer to the first question, then I might have to deal with the second sub-issue. Now that I've been doing it for a while, I have it on a... I don't want to say like autopilot, but I'm a little bit more comfortable with it where I know where I need to go on West Law and I know the issue and I know how I need to phrase the question and the answer.

Debby Merritt:

Sure. You develop patterns where you know that in this type of business litigation, there's often somebody who wants to testify about the records and business, and there's a hearsay exception for that. And if you've done it before, it makes it easier to go find it again.

Meaghan Hearne:

Right. And some of the issues pop up consistently in cases, issues in terms of excluding witnesses, inadmissible evidence of trying to resolve all of these concerns that you think are going to pop up at trial, trying to get those all out of the way so that when you get to trial, it goes as smoothly as possible. Judges everywhere, if they want cases to go as smooth as possible, they don't want to have to have attorneys keep coming up to the bench and doing sidebar outside the presence of the jury. It's disruptive. It doesn't facilitate a quickly resolved case.

Debby Merritt:

It sometimes produces a erroneous ruling from the judge who doesn't remember the rules of evidence as well as you do.

Meaghan Hearne:

Exactly. Exactly, right. And so what I've found, I mean you have to make... Even if you think the motion is going to lose, you still want to make it because you want to give the judge, you want to put this bug in the judge's ear that, "Okay, this may be something that I need to keep an eye out for in trial." So even if they deny your motion, you get to trial and you can renew your motion to the judge and maybe you get a second bite at the apple and avoid an erroneous ruling that can cost your client the case.

Debby Merritt:

Let me ask you about something a bit different, because you also spend a good part of your day talking with clients, you said. And that's something that I'm afraid we don't give you much preparation on in law school. How did you learn to relate to clients and do you have any stories to tell us about that?

Meaghan Hearne:

Oh, man. I think you hit the nail on the head. They really don't prepare you for client relations in law school and dealing with clients and building a good relationship with your clients. It's all about people skills. If you can have a conversation with somebody and if you can empathize with somebody and at least try and understand where this person is coming from... I don't have kids, but when I meet with a client who has children and is going through a custody dispute, you need to find a way to empathize with this person. Because if you can't relate and if you can't connect to somebody, then something is missing in that attorney-client relationship. And it's hard, at least for me, to advocate and to argue and to really do my job as an attorney if I can't find that common ground. And it's something that I've had to work on, finding that common ground. Even in some of my criminal cases, it's very difficult, but you have to learn to either overcome it or you've got to find that common ground.

Debby Merritt:

Because if you don't have that trust and common ground, you first of all can't figure out exactly what the client's goals are. The client may be saying, "I don't want my husband to have any contact with these children." But she really would be willing to let him see the children on weekends. But you need to get to that point of trust. You also... The facts change. People's first story is one that tends to favor them pretty heavily.

Meaghan Hearne:

Right. What I have found and what I think is so important is, yes, you are an attorney, and yes, you are this person's advocate, but you also are in this position of trust with your client where they're not lawyers, or even if they are lawyers, they're not lawyers in a particular area that they're coming to you for representation in. And so they're looking to you to give them advice and to give them an opinion and to really explain things that are foreign to them. So you really have this duty, and I take this very, very seriously, where you want to educate the person that you're with and you want them to trust your advice. And if you say to them something to the effect of, "I think that this is in your best interest." Or, "This is the best that you are going to get." You want them to know that that is coming from somebody who you trust.

Debby Merritt:

That makes perfect sense to me that we have a duty that we, as lawyers, sometimes forget about to educate the clients so that they understand what's happening to them. It's not enough to walk into a room and say, "The judge is going to order shared custody, live with it." You need to explain to the client how the family law court system works and how different interests are accommodated, and help them understand why this will be the result.

Meaghan Hearne:

I think that's incredibly important, whether it's family law, whether it's criminal law or even civil litigation, employment discrimination cases. And what I have found is that when a client understands something, even though he may not agree with the court's decision, they understand where it comes from, and that makes it a little bit easier to digest. One of the highest compliments that we can receive is, "My attorney was great. They really told me exactly what was going on, and they explained things to me." That's when I know that I am doing my job the way that I'm supposed to, is when a client says, "Thank you for explaining it to me," or, "Oh, I understand this now. Now that you've explained it, I get it."

Debby Merritt:

What about bringing in new clients? Are you responsible for that?

Meaghan Hearne:

Yeah. We're a small firm, so every little bit helps, and everybody here in the firm is expected to carry their weight and to bring in new clients and to generate business. Part of what I do here at Ackerman Brown and part of my employment was I had to serve on a board here in the community of a nonprofit. And that's a great thing, and I value that. I love that. Being out at events, and I'm on the board for Capital Pride here in Washington D.C. as well as the LGBTQ Bar Association of Washington D.C., and I also serve on the Legal Core Committee for Whitman-Walker's Walk to End HIV. By being out in the community, that generates buzz and people know my name, they know the firm name. We do bring in business where our people say, "Oh, I saw your picture in the paper. Oh, I saw your name on this program."

And that's one way that we've figured out is a great thing to do because we keep our legacy to the community. We keep doing work within the community, but by being present and by being active, we just naturally generate business. And when somebody says, "Oh, I need an attorney," the response is, "Oh, let me call Meaghan or let me call Glen." Somebody that you met a year ago at a networking event and saying, "I think you do LGBT issues. I'm not sure, but I have a friend who might need a lawyer." That's how... Nine out of 10 phone calls that I get, that's how it starts out.

Debby Merritt:

That's right. That's how it starts out.

Meaghan Hearne:

You know? Yeah. Yeah.

Debby Merritt:

We've talked about so many wonderful high points of your practice, all sorts of different work, helping people breaking ground with new law and so forth. What are the things you would change if you could? What are the frustrations in this type of practice?

Meaghan Hearne:

It's not the nine to five job, which sometimes I feel... I wax and wane a little bit. Every weekend, I'm here at least one day. And it's not because it's demanded of me, it's because we're really busy and we've got motions that are due. And I have my own cases as a fifth year associate where my partners don't even... They're not involved in them, and I've got to keep my own deadlines. So it's great because they're not telling me that I have to be here. I have to be here because we're that busy. Sometimes, I have a hard time dealing with... A lot of times I had have a hard time dealing with the fact that it's not a nine to five job. You will receive emails at 10 o'clock at night from clients who have true emergencies that need to be dealt with, but you'll also get emails from clients where it can wait until the morning, and it's hard.

I find it difficult to set those boundaries where I'm not checking my phone all the time, and I'm not losing sleep over a case that is demanding all of my attention. I think that's the hardest thing for me, is realizing that it's okay to put the phone down and to not check emails at 10 o'clock at night and to have time to recharge my batteries away from the office. But the highlights are, you're helping people. You're challenged on a daily basis. You get to think, you get to... My firm, we're encouraged to think outside of the box and to come up with creative ways and creative arguments. We keep getting rewarded for that in the cases that we work on. It's a delicate balance, and I think every lawyer has to work on that and has to maintain that the best ways that they can.

Debby Merritt:

But it's wonderful too.

Meaghan Hearne:

Yeah. You know, keep getting... I keep saying this, you keep getting knocked down and you keep getting these decisions by judges that are in your favor, but then you get the gem or you get that one good thing that happens to you during the day. You get that one thank you from a client or that one praise from a boss saying, "You did a great job on this motion." That's what you need to focus on. You need to focus on the good. You can't get lost in the bad. I stumbled upon this great opportunity, and I didn't realize it at the time, and I have been so fortunate and so lucky to be where I am, to be in the environment that I work in. I love it because I get to practice what I am passionate about, and that really is what keeps you going when it gets really tough.

Host:

I Am The Law is a LawHub production. Don't forget to subscribe and rate this show on your favorite podcast app.