Office for Rent

We have a large window office available in our four lawyer suite.  It is a prime location right across the street from the downtown LA public library.  On the 17th floor of a prestigious, Class A office building.  Large shared conference room, kitchen and storage available.  Use of copier, postage meter, internet, phone service (VOIP service available), and secretarial services at cost.  Furnished (as shown in picture below) or empty. You would be sharing space with three talented and very amiable attorneys.  Rent is negotiable.  Please forward this post to anyone you know who may be interested (just click on the little envelope below the picture).

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Shortened Time Period to File Wage and Hour Claims Unenforceable

In Pellegrino v. Robert Half International, Inc., the Fourth District Court of Appeal in California affirmed summary judgment in the employees' favor, holding that a provision in the parties' employment agreements requiring that any claims be brought within six months of termination of employment, was unenforceable as to plaintiffs' statutory claims. Building on prior cases holding that Labor Code provisions governing wages and hours are unwaivable, the Court of Appeal determined that it would contravene public policy to deny these employees a remedy for unpaid wages. It could be argued that Section 17200 itself sets an arbitrary cut-off date for wage and hour claims that has nothing to do with any public policies in the Labor Code, but since the limitations period under the unfair business practices statute is longer than the periods in the Labor Code, presumably that could not violate any public policies regarding the payment of required wages.

The Court also affirmed a finding after trial that the plaintiffs in this case, who were account executives at a temporary employment agency, had been improperly mis-classified as exempt.

Finally, in another interesting discussion, the Court of Appeal found that defendant had not been denied the right to jury trial by the court's decision to try the equitable issues under Business and Professions Code Section 17200, which included the classification issues, to the court. (The parties' stipulation regarding the amount of damages applicable to each employee's claim made trial of any legal issues unnecessary.)

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Corporate Free Speech

Today the United States Supreme Court decided the long-awaited case of  Citizens United v. FEC, overruling established precedent to declare unconstitutional statutory restrictions on the ability of corporations to pay for political advertisements. Back when most free speech cases were about obscenity or civil rights or anti-war protests, the more liberal members of the Court tended to take an expansive view of the First Amendment, while the more conservative members generally supported restrictions on speech. So today, when the five most conservative members of the Court are extolling the virtues of free speech as protected by the Fist Amendment, you have to wonder whether this case is primarily about free speech.

The Court conflated the issue of free speech with the issue of the money that is spent to air political advertising.  Restrictions on corporate spending for political advertisements could have been distinguished from restrictions on speech itself, by treating them as "time, place and manner" restrictions, for example. Instead the Court justified allowing corporations virtually unlimited ability to pay for campaign commercials by invoking the values behind the First Amendment. 

The Court also conflated the rights of corporate "persons" with the rights of natural persons.  There are good reasons for treating corporations as persons under the law. It may even be necessary for the law to have adopted that legal fiction in order to hold corporations legally accountable for their actions. But it does not necessarily follow that fictional persons should have exactly the same rights as human beings.   Corporations are legal creations of the state.  If they are to be considered as being "endowed by their Creator with certain inalienable rights," their Creator is still a different creator than the one who created human beings.  It would not even make sense to grant certain human rights to corporations, such as the right to vote (mentioned in the dissent), or the right to marry.  As Justice Stevens stated in dissent:

[C]orporations have no consciences, no beliefs, no feelings, no thoughts, no desires. . . . [T]hey are not themselves members of "We the People" by whom and for whom our Constitution was established.

Instead of treating corporations as disfavored persons, however, as Justice Stevens and the other dissenters advocated, the Supreme Court invoked the values behind the First Amendment to support a vision in which all interests groups can freely participate, limited only by their imaginations and their wallets.  It may be worrisome to imagine a world in which the networks are flooded with corporate political advertising, and candidates appear to be sponsored by corporations, but that is the wide-open world the Supreme Court now envisions, in which the best remedy for potentially harmful or misleading speech may be the opportunity to present more speech.

Of one thing we can be certain.  This decision opens the door to a lot of new and interesting legal questions, such as whether Congress can devise new restrictions on campaign expenditures without amending the Constitution; whether Congress or the states can re-define what it means to be a corporation so as to limit corporations' ability to participate in electioneering; whether other remedies (e.g., derivative suits, defamation suits) can be pursued against corporations that spend excessively on campaign-related advertising.  If government is forced to exit the field, that may leave it up to private parties to fight these and other issues out in the legislatures, the courts and other places.

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The Cousin Vinny Syndrome

This weekend I found myself judging two rounds of college-level mock trial competition. I was quite impressed with the level of preparation and dedication these students showed, and how well these pre-law students knew the rules of evidence, and knew how to conduct themselves in the mock courtroom. But what really surprised me was the level of theatricality these students put into their witness characterizations. Each of the trials I judged had two witnesses in the car business, and three out of four of these car experts seemed to model their performance on Marisa Tomei's Oscar-winning role in My Cousin Vinny, right down to the mannerisms and heavy Brooklyn accent. I can't blame these students for being influenced by this performance.  This is one of my favorite trial movies also, and a lot of trial lawyers will say the same.  There are a lot of things this movie can actually teach aspiring trial attorneys.  For example, any trial lawyer could benefit from studying the cross-examinations of the three eyewitnesses, especially Vinny's brilliant questioning of the guy who claimed to have cooked his grits in five minutes.  And the friendly relationship between prosecution and defense counsel, even while both were going all out to win, should be a model for many lawyers today.

Nevertheless, I felt the need to remind these students after the competition that real life trials are quite different from trials on tv and the movies, and that since in real life witnesses usually try to tone down their colorful personalities, these mock trial witnesses might come across more believably if they toned down their performances a bit.  But the students understood something that a lot of trial lawyers sometimes forget: trials are a form of theatre, and jurors, who are conditioned by television and movies, appreciate some entertainment value in the presentation of evidence.  Even if a witness's or attorney's personality and mannerisms seem distracting from the issue the party needs to prove, an entertaining witness or attorney can still make parts of the trial memorable, and juries may be favorably disposed toward the party who provides a modicum of enjoyment in the course of sitting through what feels to the jury like an overly lengthy, dry and sometimes dull process.  So while the students perhaps need to learn to tone it down, they reminded me that sometimes you also have to think about spicing it up.

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Punitive Damages in California

In Roby v. McKesson Corp., the California Supreme Court held that under the facts of that case, the ratio of punitive damages to compensatory damages should not exceed one-to-one. The Court referenced guidelines set forth in the United States Supreme Court case of State Farm v. Campbell, 538 U.S. 408, 425 (2003), suggesting that in cases where the reprehensibility of the defendant's conduct is relatively low, while compensatory damages are relatively high, the due process clause may limit punitive damages to the amount of the compensatory damages.

That may now be the "rule" in California, a rule that should lend some predictability to the enforceability of punitive damages awards. Only in cases where the defendant's conduct was unusually egregious, and the plaintiff's compensatory damages relatively low, would plaintiffs now expect the courts to enforce punitive damages awards in excess of this one-to-one ratio.

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Truth and Fiction

People of the Book, by Geraldine Brooks, tells the imagined story of  the Sarajevo Haggadah, an actual illuminated manuscript from the Middle Ages that has miraculously survived to this day, and which was dramatically re-discovered at the end of the Bosnian civil war.  Each clue that the fictional archivist finds in the book reveals part of its history.  Each chapter allows the reader to reach further back in time.  Each crisis in the book's survival corresponds to an historical crisis, from the Inquisition to the Holocaust to the siege of Sarajevo.

I did not think about the book's relevance to a trial lawyer's view of the world until after I finished it.  But now it occurs to me that a lot of what we trial lawyers do is similar to the method and story of this novel.  We pore over documents in detail--letters, contracts, hospital records, financial records, whatever--searching for every clue that might help or harm a client's case.  We choose the clues that seem most relevant.  Since judges or juries have no direct knowledge of the events at issue in a case, they must base their decisions on documentary evidence only, or witness's recollections of past events.  Sometimes witnesses are not even permitted, or are not available, to testify to the meaning of a document.  Therefore we must suggest for the fact finder an imagined narrative to give meaning to the documentary evidence.  That imagined narrative must seem true, and it must accord with all the known facts, but the contrasting explanations that we and the opposing counsel and the fact-finder are creating might still be described as fictions, not much different from the world created by a novelist with a similar attention to detail and history. That is because an imagined narrative may be easier for the jury to accept than the messy, non-sensical reality of what we are describing. Or as Mark Twain supposedly said, "the difference between fiction and non-fiction is that fiction must be absolutely believable."

Of course we lawyers may not create characters out of whole cloth, as fiction writers are permitted to do, but we can sometimes suggest actions that might have been taken by unknown characters, and we frequently have to ascribe motivations to actions that can only be discerned by making inferences from the known facts.  We have evidentiary rules that make it objectionable to ask a witness to testify as to what the witness thinks was going on in someone else's mind, but we ask the fact finder to engage in this kind of exercise all the time.  If the issue in the case is whether a party committed fraud, or engaged in discrimination, for examples, each side asks the jury to draw a different set of inferences from the same facts, and the jury often constructs yet a third version of what somebody might have been thinking that more closely accords with their view of the truth.

To take an even more speculative example, I spent several years of my life trying a series of employment discrimination cases, in which the main issue in each case was whether the plaintiff would have applied to become an insurance agent had the company been more open to the recruitment of female agents.  In other words, in each of these cases, we had to imagine a fictional world and then try to determine how the real  person before us would have acted in that imaginary world.  A writer of historical fiction also tries to imagine how either real historical figures or fictional characters would act in the world of the historical novel the writer is creating.  In both situations, we are always endeavoring to get as close as we can to the truth, but we may have to use our imaginations to get there.

(page from the Sarajevo Haggadah from Geraldine Brooks's website)

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Dealing with "Frivolous" Lawsuits

Congress is currently considering legislation that would reverse the Supreme Court's decisions in Iqbal and Twombley, discussed here previously. These decisions have significantly raised the standard for pleading a viable complaint in federal court, and enhanced the power of judges to dismiss cases that do not appear plausible, before allowing any discovery or further proceedings to occur. One danger of these Supreme Court decisions is that they have already led to increased wasteful motion practice in early stages of lawsuits. Another is that they have caused the dismissal of cases that could actually be viable after further discovery and investigation.

Twombley and Iqbal, combined with prior Supreme Court decisions embracing the use of summary judgment to increase the courts' power to dismiss lawsuits prior to trial, represent a trend to provide the judiciary with tools for dealing with meritless lawsuits that clog the courts for no useful purpose. Should Congress decide to overrule these decisions, Congress will no doubt be criticized for caving in to the trial lawyers' lobbies and bending over backwards to help the "little guy" attack American business unfairly.

The question that perhaps should be asked instead is whether we can design better tools to deal with meritless lawsuits than tightened pleading standards and more liberal use of summary judgment. The problem with heightened pleading standards is that they encourage even more motions to dismiss, the majority of which are still going to be denied. So, ironically, efforts to curtail frivolous plaintiffs' suits could lead to wasteful motion practice on defendants' part. The other problem is making it easier for courts to dismiss cases without a trial raises the potential for throwing out cases that could actually be won at trial. The same problems exist at the summary judgment stage. Summary judgments are expensive, complicated motions that use up a lot of the litigants' time as well as the court's time. Many of those motions are denied also, and many are filed at least in part to wear down the other side. Summary judgment also has the potential for dismissing cases that could have been won at trial.

Perhaps it would make sense to study simplified discovery and trial procedures, or early evaluation procedures, or even some sort of counseling for litigants who insist on proceeding with cases that are not likely to result in a recovery that exceeds their cost. The courts' and the parties' desire to weed frivolous cases out of the system is a legitimate one. But when the courts or the Congress try to bend the rules to accommodate that desire, they may be denying other parties the right to test their claims in court, and may be adding procedures that increase costs in many cases. It might be better to recognize the rights of litigants to proceed with difficult cases, but to allow those cases to proceed in a way that will not break the back of the court system.

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Hard Cases Create Hard Times for Arbitration.

Senator Al Franken succeeded in getting his first piece of legislation passed, an amendment to a defense appropriations bill that would prohibit defense contractors from requiring employees to submit to mandatory arbitration. The amendment was prompted by the case of Jamie Leigh Jones, who has been attempting to sue Haliburton and KBR over claims that she was raped and held against her will by co-workers. The amendment passed overwhelmingly, with only 30 Senators opposed.

What is interesting is the use of a compelling story--who could vote against giving an alleged rape victim her day in court?--to accomplish a broader purpose. Because the bill goes beyond assault cases to also preclude mandatory arbitration of discrimination claims, clauses that Congress and especially the federal courts have generally upheld for years. Therefore this bill might be viewed as part of a broader trend away from arbitration of workplace and other consumer disputes. (See my previous posts on this topic here and here).

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