Law Offices of Joseph C. Markowitz

Costs of Summary Judgment

joemarkowitz@fineartlaw.com (Joe Markowitz) — Wed, 21 Jul 2010 06:23:00 +0000

A recent California Court of Appeal case, Reeves v. MV Transportation, provides an illustration of the extent that current summary judgment doctrine operates to supplant the trial process. The plaintiff in Reeves was a 56 year old attorney (I can identify with this guy already), who was not granted an interview for a staff attorney position with MV Transportation. Instead MV hired a 40 year old whom Reeves contended was less qualified. No question that a prima facie case of age discrimination was thereby established. In such a situation, the employer must identify a non-discriminatory reason for its hiring decision, and the employee must show that the asserted reason is pretextual. It has always been a little unclear how this burden-shifting process is actually supposed to proceed at trial, but nowadays, it increasingly plays out in the context of a summary judgment motion filed by the employer. In that context, it becomes the employee's burden to show enough inconsistencies or implausibilities in the employer's declarations or deposition testimony as to allow the court to determine whether a potential fact finder could discredit the employer's asserted reasons for its hiring decision.

It is important to keep in mind that, unless an employer actually admits that it acted for discriminatory reasons (which is not usual), employees in discrimination cases always bear the burden of proving that the employer's claimed justifications for its conduct should not be accepted by the fact finder. The fact finder has the difficult job of looking behind the employer's explanations to discern its true motives. Juries happen to be pretty good at this. Summary judgment, on the other hand, does not seem to be as well-designed a tool for this purpose. For one reason, the court has no opportunity to assess the demeanor of the witness who is proffering the employer's stated reasons for its decision, and is not allowed to consider such factors in ruling on a summary judgment motion in any event. Instead the courts require the party opposing summary judgment in effect to accept the employer's testimony, and to introduce evidence or find enough inconsistencies in the record, to allow the court a basis for questioning it. In other words, while juries can and do discredit witness testimony in their entirety for no better reason than their assessment of the witness's manner or delivery, the court in ruling on summary judgment demands additional proof before discrediting such testimony. That allows for the possibility that cases can be lost on summary judgment that could have been won at trial. All of this is not to say that the court reached an incorrect result in this case as compared to the result that may have been reached at trial. A jury in this case could well have concluded that plaintiff's qualifications were not superior, or that the employer did not act for discriminatory reasons. But the jury never go that chance in the Reeves case, because the court found the alleged inconsistencies in the record insufficient to question the employer's explanations.

My concern is whether summary judgment is an efficient or appropriate tool to resolve such delicate issues as motivation in discrimination cases. Courts can justify the increased use of summary judgment in these circumstances as a way of weeding weak cases out of the system, and saving the court the time and trouble of holding trials. Defendants justify filing such motions on the ground that they may result in dismissal or at least in narrowing the issues for trial, without incurring the cost and risk of trial. But the courts and the parties filing summary judgment motions may not always fully consider the cost of the motions themselves. Often they are so voluminous, and require so much evidentiary preparation and court time that they may not save much in comparison with trial. And the cost of trial is not necessarily the relevant basis of comparison. In most cases, if summary judgment is denied, the case is still not going to trial. Instead, the case is usually going to get settled. In addition to over-valuing the potential risk of trial (which allows parties filing summary judgment motions to rationalize the enormous expenditure of the motion itself), courts and the parties filing summary judgment motions also do not always factor in the cost of an appeal, which adds many thousands of dollars of attorneys' fees, and years of delay and uncertainty. They also do not factor the cost imposed on the party who is being denied his day in court, and his opportunity to obtain some compensation for his injuries. A party such as the plaintiff in the Reeves case suffers his first perceived injustice when he is passed over in favor of a younger, perhaps-less qualified candidate. Then he suffers a second perceived injustice when he is denied the opportunity to challenge this employment decision in court. Thus summary judgment may generate considerable dissatisfaction with the system.

I have represented both employers and employees in discrimination cases, and I do not make these points to advocate a rule that is more favorable to one side or the other. My point is that current summary judgment doctrine, which in discrimination cases appears to favor the employer, may actually impose some serious costs on the employer, in the form of the summary judgment motion itself, and the resultant appeal. Those costs could in some cases exceed the costs of trial or settlement. Yet employers often do not take these costs into consideration because of the allure of possible dismissal of troublesome cases. From the employee's point of view, current summary judgment doctrine presents a formidable potential obstacle in every case, and one that increases the plaintiff's frustration with the system. If I were put in charge of reforming the Code of Civil Procedure, my goal would be to simplify the process of getting to trial, while at the same time encouraging settlements, and reducing wasteful discovery and motion practice. Our current heavy reliance on summary judgment to dispose of cases, as illustrated in a case like the Reeves case, does not seem to serve these ends.

(Thanks to California Labor & Employment Law Blog for bringing this case to my attention.)

Arbitrability Up to the Arbitrator

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 22 Jun 2010 18:50:00 +0000

Antonio Jackson sued his employer for discrimination in federal district court in Nevada, but the court granted the employer's motion to compel arbitration and dismissed the case. The Ninth Circuit reversed in part, holding that the trial court was obligated to determine whether the arbitration agreement was unconscionable as Jackson claimed, rather than leaving that determination up to the arbitrator. Yesterday, the U.S. Supreme Court, in a 5-4 ruling in Rent-a-Center, West, Inc. v. Jackson held that the district court was correct to enforce an arbitration clause that plainly granted the arbitrator exclusive authority to resolve any disputes about whether the arbitration agreement itself was enforceable.

No question that the arbitration agreement in this case clearly left the determination of arbitrability up to the arbitrator. But Jackson claimed the arbitration agreement itself was a contract of adhesion, meaning he was compelled to sign it as a condition of employment, and that he had no appreciation of its meaning at the time. He also claimed that the arbitration agreement was substantively unfair, and should therefore be unenforceable, because it required the parties to arbitrate claims that employees typically bring (e.g., his claim of discrimination), while allowing the parties access to court for claims that employers typically bring (intellectual property and unfair competition claims). (I successfully challenged a similar arbitration clause on behalf of an employee in Abramson v. Juniper Networks, although that case arose in California state courts.)

Is it fair to bind the employee to a provision requiring that the enforceability of the arbitration agreement itself should be determined by the arbitrator, in the face of the employee's claims that the entire contract is unconscionable and unenforceable? The Supreme Court decided that the employee could be compelled to submit to the arbitrator's determination of whether the arbitration agreement itself was valid. What that means as a practical matter is that the employee may still be required to advance the substantial filing and hearing fee for the arbitration (which was another one of the employee's challenges to the fairness of being required to arbitrate), and may even be required to present his entire case on the merits to the arbitrator, before ever receiving a determination from the arbitrator himself as to whether he entered into a valid agreement to arbitrate the dispute. In addition, the arbitrator's decision on that issue would not be reviewable by any court except on the very narrow grounds available for challenges to arbitration decisions on the merits. So the Court's decision either precludes the employee from obtaining any remedy at all for the claimed discrimination (if he cannot afford his share of the filing and hearing fees), or it may require him to arbitrate his claims before he can find out whether he was required to submit them to arbitration.

The dissent, written by the retiring Justice Stevens, called the majority's reasoning "fantastic," and Stevens did not mean that in a good way. I am not going to labor through that reasoning here, but would only raise the question whether we should be comfortable in general with entrusting arbitrators with threshold questions in which the arbitrator himself has a vested interest in the outcome. It seems to me that such a rule is bound to make people more distrustful of arbitration, and to lend fuel to efforts in Congress to abolish mandatory, pre-dispute arbitration agreements altogether in consumer cases.

(photo from Mises Institute website)

Who is an Employer?

joemarkowitz@fineartlaw.com (Joe Markowitz) — Sat, 29 May 2010 20:47:00 +0000

The California Supreme Court last week decided Martinez v. Combs, which clarified the definition of "employer" under California labor law. Plaintiffs were seasonal agricultural workers who had been hired by a strawberry farming company, now bankrupt. Lacking a remedy for their wage and hour claims against the owner, plaintiffs also named as defendants the merchants through which the growers sold their strawberries. Plaintiffs contended that these merchants could be deemed their "employers" because they advanced payments for Munoz's strawberries, and because they "supervised" the plaintiffs to the extent that they sent representatives to the fields to inspect the crops and to instruct the workers in how they should be packed. (slip opin. at 5-6)

Although the Court upheld the findings of the lower court that these merchants did not exercise sufficient control over the plaintiffs to qualify as their employer, because they were not responsible for the hiring and firing decisions, in the course of doing so the California Supreme Court made clear that it would pay deference to the definitions in the applicable Industrial Welfare Commission's (IWC) wage orders. (Defendants had argued, in reliance on a prior California Supreme Court decision in Reynolds v. Bement, 36 Cal.4th 1075 (2005), that "employer" should be defined by common law.) In the case of agricultural workers, wage order 14 defines "employ" as "to engage, suffer, or permit to work," and "employer" as a person who "employs or exercises control over the wages, hours, or working conditions of any person." In this case, the defendants were found not to have engaged or suffered or permitted the plaintiffs to work, because Munoz had exclusive control over hiring and firing decisions, and the defendants had no power to prevent the plaintiffs from working. (slip opin. at 43)

While the decision went against the employees in this case, the Court's analysis could in different circumstances permit a broader definition of employer than that established by common law, because of the Court's deference to the IWC definitions. Therefore even greater attention must be paid to the definitions in the applicable wage orders in order to ascertain the potential responsibility of the parties who exercise control over employees' activities.

(photo from Typar Landscape Products website)

Economical Litigation

joemarkowitz@fineartlaw.com (Joe Markowitz) — Sat, 17 Apr 2010 02:02:00 +0000

At a conference this week at Pepperdine, Daniel Winslow, a Boston attorney, and the International Institute for Conflict Prevention & Resolution unveiled a model agreement aimed at controlling litigation costs. The draft agreement includes a mandatory pre-litigation dispute resolution clause, as well as limits on the amount of discovery that can be taken in a commercial dispute, depending on the amount in controversy.

I find the idea of conducting litigation efficiently to be something of an oxymoron, akin to the idea of conducting war efficiently. As I've said before, the best way to conduct litigation efficiently is not to litigate, just as the best way to conduct war efficiently is to try diplomacy first. Once you are involved in a lawsuit, the primary goal is not to make life easy and pleasant for the other side. The goal in a lawsuit--indeed the attorney's ethical imperative--is to win. Nevertheless, pre-dispute agreements aimed at controlling costs seem an admirable idea. If they operate to save parties from self-destructive and unnecessary expenses, they are serving a useful purpose. Like any set of rules, however, they may incentivize parties to try to achieve the maximum bang for the buck under the rules, rather than actually to reduce the time and effort expended in a lawsuit. For example, if you can only serve four interrogatories, a litigator's instinct would be to draft those interrogatories as broadly as possible. If parties can only take a limited number of depositions, they may be tempted to seek the maximum they are allowed under the rules. Such rules also present the opposing party with a new opportunity to argue that the rules are being violated or abused.

Another approach might be to simplify and reduce the number of rules, with the goal of creating fewer tangential issues for parties to argue about. Since the great revision and simplification of the Federal Rules of Civil Procedure in 1938, rules and their interpretation have seemed only to become more cumbersome and complicated. A thorough housecleaning of the rules is long overdue, and efforts such as the one discussed this week may represent a step in that direction.

(illustration from about 1540 of trial by combat in Germany: I wonder if the lawyers of that time sat around thinking of ways to conduct litigation more efficiently.)

Copyright Registration: conditional, not jurisdictional

joemarkowitz@fineartlaw.com (Joe Markowitz) — Thu, 04 Mar 2010 00:12:00 +0000

On Tuesday, the Supreme Court handed down yet another decision that may be mainly of interest to civil procedure aficionados such as myself. But since it deals with an issue that causes some confusion in copyright cases, and also because it has some bearing on whether such global agreements in the electronic publishing field can move forward, it probably deserves some attention. In Reed Elsevier, Inc. v. Muchnick, the District Court had approved the settlement of a class action resolving a dispute between authors and online publishers. (not to be confused with the Google book settlement, which is a different case) The named plaintiffs in the case had all registered their copyrights in at least one article that was reproduced electronically without their permission. The class also included, however, a number of authors who had never registered their works. Because of these class members' failure to comply with the requirement of Section 411(a) of the Copyright Act that no civil action for copyright infringement may be brought without registration of the copyright, the Second Circuit Court of Appeal on it s own motion refused to approve the settlement of claims of those authors of unregistered works. (It is interesting that although these authors objected to certain terms of the settlement, none of the parties to the case objected to the courts' ability to hear and determine the case.)

Under these unusual circumstances, the Supreme Court held that although Section 411(a) creates a condition to an infringement action, that requirement is not jurisdictional. That means the court had the power to determine the claims of authors of unregistered works, even though these authors had not satisfied what appears to be an essential condition of bringing suit. This result can be justified as a matter of statutory construction. It can also be justified as a practical resolution of a dispute that all of the parties wanted the federal courts to resolve. Does it make a difference for a copyright-holder considering an infringement action whether the registration requirement is jurisdictional or is just a condition of filing suit? Probably not, unless the copyright holder can figure out some other way to piggy-back his infringement claims into a federal court action, as the non-registering authors did in this case.

As for what Muchnick thinks of the case named after him, go here.

Supreme Court rejects "place of operations" test.

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 23 Feb 2010 23:37:00 +0000

Today the U.S. Supreme Court decided Hertz Corp. v. Friend, 9-0, which overrules the Ninth Circuit's decision that Hertz Corporation should be deemed a citizen of the State of California because its California operations are larger than those of any other state. (My commentary on the Ninth Circuit case is here.) Since I saw some commentary elsewhere wondering whether this is another example of the corporatist federal courts once again making it more difficult for the little guy to sue, I feel the need to point out that this decision has limited impact, and does not seem based on any intent to prevent people from suing corporations. (Otherwise the case would likely not have been decided by a 9-0 margin.)

All the decision does do is allow corporations like Hertz to remove cases to federal court even in states where the bulk of their operations are found. Every corporation is deemed a citizen of at most two states, its place of incorporation and its principal place of business. Now it is clear that principal place of business is the place where the corporation's activities are directed, and not necessarily the place where the bulk of those activities are conducted. That might seem unfair in some cases, but it does seem to accord with the common sense view of what a corporate headquarters is. This case does not change the fact that those are the only two states where corporations cannot remove state law-based cases brought by citizens of those states. Corporations could, both before and after this decision, remove diversity cases in the other 48 or 49 (depending on whether a corporation is headquartered in the same state as it is incorporated) states. The Hertz decision only impairs the ability of plaintiffs in states where corporations maintain their largest share of operations--which might have been deemed the corporate headquarters under the Ninth Circuit's rejected test--to maintain their actions in state court.

So while Hertz gets to remove cases in California to federal court, and thus escapes the terrible fate of being forced to defend actions by California citizens in California state courts, Hertz will still have to face the citizens of New Jersey in state court, since no diversity of citizenship will be present in cases brought in New Jersey, where Hertz maintains what the federal courts now must uniformly define as its principal place of business. Since I spend a lot of time practicing in the California state courts, and have a lot of respect for California state judges, I can't say that Hertz will really be better off trading the Golden State's courts for the state courts of the Garden State. Or is it possible that Hertz took this case all the way up to the Supreme Court merely to establish its pride in its New Jersey headquarters?

(photo of Hertz headquarters in Park Ridge, New Jersey, from American Companies.com)

Pages

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 16 Feb 2010 03:58:00 +0000

It has taken me years, but I finally have this website functioning more or less the way I have been envisioning it for some time. That is because Blogger finally allows you to set up pages that allow bloggers to post static messages such as "About Me," "Contact," etc. These are perfect for setting up pages for biographical information, and information about various practice areas. Of course I could have changed a while ago to a more sophisticated blogging platform, but Blogger has the advantage of being pretty easy to use. There were also some work-arounds I could have tried, but never did. I waited until Blogger set it up for me. So even though I don't know much about the programming necessary to set up a website--my 14 year old kid probably knows more HTML code than I do--I have been able through trial and error and experience to figure out how to create a pretty decent-looking site, if I do say so myself. So thank you Google and Blogger.

Comments, and especially compliments, are welcome. The site could probably still use a little tweaking here and there.

Office for Rent

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 02 Feb 2010 23:49:00 +0000

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).

Shortened Time Period to File Wage and Hour Claims Unenforceable

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 02 Feb 2010 19:04:00 +0000

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.)

Corporate Free Speech

joemarkowitz@fineartlaw.com (Joe Markowitz) — Fri, 22 Jan 2010 03:51:00 +0000

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. The whole point of forming a corporation is to create an entity that is separate and distinct from any real person, so that the corporation's owners are not generally liable for the corporation's actions. At the same time, it may be necessary for the law to have adopted the legal fiction of corporate personhood in order to hold corporations legally accountable for their actions. But it seems inconsistent with that vision of treating a corporation as a distinct legal entity to at the same time treat the corporation as a collection or association of individuals expressing ideas protected by the First Amendment. Even though a corporation may be owned by human beings, directed by human beings, and may employ human beings, the corporation is still distinct from any human being. Therefore, such fictional persons, while they do have rights and responsibilities, need not 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.

(photo by pccapitalist from photobucket)

The Cousin Vinny Syndrome

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 19 Jan 2010 08:27:00 +0000

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.

Punitive Damages in California

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 15 Dec 2009 01:22:00 +0000

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.

Truth and Fiction

joemarkowitz@fineartlaw.com (Joe Markowitz) — Wed, 02 Dec 2009 07:25:00 +0000

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)

Dealing with "Frivolous" Lawsuits

joemarkowitz@fineartlaw.com (Joe Markowitz) — Thu, 12 Nov 2009 18:55:00 +0000

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.

Hard Cases Create Hard Times for Arbitration.

joemarkowitz@fineartlaw.com (Joe Markowitz) — Wed, 07 Oct 2009 23:07:00 +0000

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).

Boilerplate Discovery Objections

joemarkowitz@fineartlaw.com (Joe Markowitz) — Fri, 25 Sep 2009 22:35:00 +0000

It is common practice, at least in California, for parties to serve written objections to nearly every interrogatory and document demand to which they respond. Notwithstanding those objections, parties frequently provide answers to the objected-to interrogatories, and produce some documents in response to objected-to document requests. The problem then is that the requesting party is never certain whether he has received complete answers or all responsive documents, without either litigating over the objections, or making follow-up inquiries.

Sadly, there are actually sound reasons for this convoluted practice. By making blanket objections, even ridiculous objections, parties may avoid possible sanctions for failing to provide full answers or responsive documents. Parties also gain some control over their responses by essentially telling the other side that they are only getting what the producing party deigns to produce out of the goodness of its heart. Responding parties also may believe there is a benefit to the confusion they create by objecting and answering at the same time. This tactic forces the demanding party to follow up with additional requests or motions to chase ever-diminishing returns, and could even avoid the disclosure of information that could be damaging to the producing party.

Where the courts seem to draw the line, however, is when the objecting party actually withholds or substantially delays producing obviously relevant information that the demanding party is making reasonable efforts to obtain, or where the objecting party appears to be playing games with the meet and confer process. I came across one such case thanks to the blog California Appellate Report
which has a note describing Clement v. Alegre. In that case, the Court of Appeal upheld sanctions against a party that not only asserted the usual boilerplate interrogatory objections, but also appeared to be playing unacceptable discovery games. In particular, this party had objected to the term "economic damages," and only provided information relative to a very narrow definition of the term, instead of the customary, and statutorily-defined meaning. The court found the contention that this term was ambiguous to be "preposterous," and upheld an award of sanctions of more than $6000. A nice citation to throw at someone who appears to be obstructing the discovery process.

Constitutional Rights for High Schoolers

joemarkowitz@fineartlaw.com (Joe Markowitz) — Sun, 20 Sep 2009 07:42:00 +0000

This week I volunteered for the first time to participate in a program the Los Angeles County Bar Association has been running for seven years, called Dialogues on Freedom, in which lawyers and judges lead class discussions in public high schools about constitutional rights. The hypothetical situations presented to the students deal with issues that could affect them personally, and that at the same time raise constitutional issues implicating practically every amendment in the Bill of Rights. This year the hypothetical dealt with enhanced police powers that the hypothetical city counsel was thinking of putting into place to deal with suspected gang activity.

The students at Lincoln High School, where I was assigned, were a lot more energized than I expected about these issues. I was also surprised that the majority of them seemed to take the civil libertarian side of most of these issues. Every time we suggested such measures as imposing a curfew, searching students' backpacks, censoring violent television shows, or even gun control, we were met with cries that the council was attempting to impose a police state. Given that a lot of these students understand that they are themselves at risk from potential gang activity, it was heartening to know that many of them still demanded that the police have at least reasonable suspicions before depriving them of their rights.

Federal Rules Counter-Revolution

joemarkowitz@fineartlaw.com (Joe Markowitz) — Mon, 17 Aug 2009 16:36:00 +0000

A report issued this spring by the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System, made a number of recommendations that would reverse many of the most basic reforms of the Federal Rules of Civil Procedure. These include replacing notice pleading with fact-based pleading, a change that the Supreme Court is already well on its way to imposing (see this post); more flexibility in the rules for different kinds of cases; new summary adjudication procedures; and substantial limitations on discovery, which the authors themselves call their most "radical proposal."

To appreciate the change in direction that these recommendations would represent, it is useful to remember the thinking behind the Federal Rules of Civil Procedure when they were adopted back in the 1930's. One idea was to replace archaic and complicated pleading rules, that caused much litigation, with modern, simplified pleading rules. The concepts of causes of action and demurrers would be abolished. Technical pleading requirements would be abandoned in favor of allowing short statements of the claim that were merely intended to give the defendant notice of what the case was about. As these concepts have evolved over the years, however, outmoded pleading concepts seem have crept back into practice. Demurrers may have been abolished, but 12(b)(6) motions as to individual claims are allowed, and courts have also permitted motions for "partial summary judgment," which do not appear in the rules, as another means of reviving the function of the abolished demurrer. Short and plain statements of the claim have gotten longer and more convoluted, and the courts now expect substantially more than notice pleading. The ACTL and IAALS report would wholly abandon the original idea of the Federal Rules to simplify the early stages of litigation, in favor of even more beefed-up pleading requirements presumably designed to weed out weak cases at the pleading stage, instead of opening them up to expensive discovery proceedings.

As to discovery, the original idea of the Federal Rules, that discovery should be essentially open-ended, was also supposed to simplify prior practice and make it more fair. If all conceivably relevant information were made discoverable, that was supposed to eliminate battles over discovery, and encourage parties to share information freely. As practically everyone recognizes, discovery has not worked out that way at all. Particularly with the advent of electronic data, almost everyone would agree that the process is too expensive, too contentious, and too time-consuming, well beyond the useful purposes of exchanging information that is needed for trial. This report is correct to focus on curtailing the abuse and expense of discovery, and its central concept of proportionality in discovery is an important concept. I question, however, whether the report's more detailed recommendations on limiting discovery will truly serve the purpose of curtailing wasteful discovery, or whether they will provide new opportunities for battling over new issues. The report makes 11 pages of recommendations on discovery, demonstrating that its own proposed solutions may generate as much complexity as the current system. I agree with the ideas of proportionality and limitations on discovery, but instead of such detailed limitations, I would rather see a drastic simplification of the discovery rules. My proposal, discussed in an earlier post, would eliminate all rules on discovery with a single rule saying something like: "Parties are permitted only such discovery as they may obtain by agreement, or as the court allows." The idea would be to encourage negotiated solutions to discovery issues, and to replace the motion to compel with more simplified requests to the court to allow reasonable additional discovery.

In general, I would prefer to see reform take more of the shape of the original Federal Rules: a dramatic simplification and streamlining of the rules of procedure, designed to reduce the unnecessary issues that parties often litigate about. After 70 years of cluttering up the original Federal Rules with more and more complicated and arcane procedures, it is probably a good idea to try to start fresh.

Consumer Arbitration on the Way Out

joemarkowitz@fineartlaw.com (Joe Markowitz) — Fri, 14 Aug 2009 19:54:00 +0000

Another sign that consumer arbitration clauses are going the way of the dinosaur came from Bank of America, which has decided to remove pre-dispute arbitration clauses from its credit card agreements. The bank states that the decision was made in response to customer resistance to arbitration. In addition, the decision follows in the wake of regulatory pressures on some of the organizations conducting these arbitrations.

I outlined some of the problems with pre-dispute arbitration agreements in a previous post, which became the basis for an article published in the ABA's Conflict Management Newsletter in the Spring of 2008. Essentially, I argued that the only benefit to pre-dispute arbitration agreements in consumer cases is to save money for the company requiring the clause. Consumers who have a dispute do not benefit by waiving their rights in advance, because the parties can still agree to arbitration after the dispute arises. While courts, especially federal courts, have been generally favorable toward enforcing arbitration agreements, there has been a backlash against such agreements from consumers, as well as from Congress and state regulators, based on the perception that arbitration is an unfair and unfavorable forum for consumers.

Evidently, Bank of America made the calculation that it will increase its goodwill with customers, and avoid potential problems with regulators, at the risk of facing the occasional lawsuit.

Is blogging advertising?

joemarkowitz@fineartlaw.com (Joe Markowitz) — Thu, 06 Aug 2009 21:06:00 +0000

Some comfort for attorneys who might be worried that their blogs could be deemed to be advertising and therefore subject to bar association rules and the like, came from the New York Court of Appeals last month. In Stern v. Bluestone, New York's highest court ruled that a lawyer who fax-distributed copies of a flyer he called the Attorney Malpractice Report, did not run afoul of the federal statute against distributing unsolicited advertising by fax. The court held that these faxes constituted "information messages" and not advertising, even though they contained the sender's contact information, and even though the sender specialized in attorney malpractice actions.

Although not directly concerned with blogging, and not interpreting legal advertising rules, and although only applicable in New York state, this decision has been viewed (by bloggers naturally), and also in an ABA Litigation News article, as applicable to legal bloggers.

Blogging Tips and Tricks

joemarkowitz@fineartlaw.com (Joe Markowitz) — Fri, 31 Jul 2009 18:57:00 +0000

I started this blog 4 1/2 years ago, a time when blogging was not nearly so widespread as it is now. After all that time, I'm wondering if I have any useful advice to pass on to other prospective legal bloggers. It has taken me a long time to hit my stride as a blogger (actually, I'm not sure I have even hit it yet); I wonder if I can save others some time. My answer to my own question is probably not. Everyone has to approach this in their own way, and decide for themselves if it is worthwhile. I cannot tell anyone how to do it. I can only give some of my own experiences. So here goes, in the ever-popular Q and A format:

Q: Is blogging a useful marketing tool?
A: I would say the jury is still out on that for me. I set up this blog instead of a traditional law firm website, because I find traditional websites fairly useless. I still would not say that the blog drives a lot of potential clients to my door. What it does do is to allow a potential client to find out more about me, both in terms of checking out my credentials and expertise, and in terms of finding out whether my style and interests are compatible with those of someone who might want to retain my services. A blog allows people much greater opportunity to gain some insight into you as a person than a traditional website.

Q: Does blogging provide a useful forum for the exchange of ideas?
A: Yes, but it has taken a long time to build up enough readership to get any feedback from blogging. I originally thought that this blog might be a good place to try out some of my ideas on reforming the code of civil procedure, and similar legal issues, and I do post stuff like that sometimes, but I get very limited feedback. What blogging actually does is to force you to think through your own ideas. It's more of a diary than a dialogue, though it can be both.

Q: Is it important that a blog have a theme?
A: I have decided it is absolutely critical. The problem with this particular blog that you are now reading is that it does not have a well-defined theme. I have decided that that is why it has taken me so long to become any good at blogging, and I am still working on better defining the purpose of this blog. The way that I finally started to get better at blogging was actually to start another blog. I started blogging about politics on the Obama campaign website in late 2007, and developed a voice and a point of view on that site. Then I started my own blog on politics in the fall of 2008, which started with that well-developed point of view. It's called hope and change, and its purpose to be relentlessly positive about changes that are occurring in this country. I write about things that I am passionate about, and I always try to keep my posts in line with the theme and tone of voice of that blog. As a result, that blog is much more active than this one. I have made 93 posts on my politics blog in less than a year, while this one only has 44 posts after more than 4 years. (For a couple of years, this blog went almost completely moribund, because I couldn't figure out what to do with it.) But starting that second blog helped me make this one more active and effective. Where I really went overboard was starting yet a third blog just a few months ago, to discuss mediation, which I did because I thought it was a good idea to separate my discussions of my mediation practice from those of my litigation practice. That blog, called Mediation's Place, also has a well-defined theme and a point of view. Therefore my newest blog is in some ways also more successful than my original blog.

Q: How often should you post to your blog?
A: I have read that quantity is more important than quality, and I think, sadly, that that might be true, but I am somewhat resistant to the idea of just posting a lot of quick links to other people's stuff, or random offhand notes that are not well-written or well thought-out. It is probably true that the more you post, the more traffic you drive to your site, but then you have to wonder whether your only object is to drive a lot of traffic to your site. If your object is to help yourself develop your own ideas and style, and to help people who want to find out more about you, then maybe you shouldn't care about how many people actually read your blog. But of course we all care about that too, so I guess I would advise trying to post regularly.

Q: How else do you drive traffic to your blog?
A: Besides posting regularly and having something interesting to say, it is also helpful to post comments on other people's blogs, and link back to your blog. Bloggers form a large community, and spend a lot of time talking to each other. Listing your blog in blog directories also seems to be of some use.

Q: What do you blog about?
A: Anything that interests me. If you're not interested in the subject, and you don't have anything particularly compelling to say about it, what's the point? But I do think that whatever I am posting about should always fit in somehow with the theme of the blog. Maybe if you're The Huffington Post, you can get away with talking about anything in the world, and you can fit in multiple points of view. But even the Huffington Post has a guiding spirit, albeit a fairly eclectic one. If you're not as well known as Arianna Huffington, then I don't think you can expect anyone to read your blog regularly unless they can expect to see postings on a particular subject matter, or from a certain perspective. Because I have three blogs, it is now easier to find a place to put a posting on whatever I might be thinking about, but I still try to make it fit in somehow with the theme and purpose of the blog.

Q: How do you strike a balance between the personal and the professional?
A: I do that by having one personal blog and two professional blogs. But even on the professional blogs, it is sometimes difficult to decide how casual or personal to make my postings. Of course I have certain standards of professionalism, and I want to make my postings on legal issues authoritative and erudite. But at the same time I recognize that I am not writing law review articles here. Also, I do think it's permissible, even desirable, to let your personality show through even on a professional site. On the other hand, you aren't likely to see any family pictures on this site. That kind of stuff is for facebook.

Q: Do you ever revise your posts?
A: I know there are some journalists who try to adhere to standards similar to those used by newspapers and magazines. Once it appears in print, it is somehow a matter of record, and revisions should be shown as such. I do not feel bound by such constraints, and I revise previous posts whenever I think of something I want to change, or see a way to improve the writing. This post, for example, I have already edited twice to add several more questions and answers, including this one.

Card Check without Card Check

joemarkowitz@fineartlaw.com (Joe Markowitz) — Mon, 20 Jul 2009 21:33:00 +0000

It now appears that the version of the Employee Free Choice Act that is likely to pass Congress will not include its most controversial provision, which would have made it possible to certify a union without an election. The bill will, however, contain a number of provisions that will make it substantially easier for unions to organize. They will be able to call elections on very short notice, perhaps as little as five days, if they collect a sufficient number of cards. They will obtain access to the employer's property to campaign. And employers may be prohibited from requiring employees to attend meetings at which the company presents its reasons for opposing a union.

While many who have been pushing for card check legislation will be disappointed, it appears that union advocates recognize that these are substantial changes, that should provide lots of opportunities for unions to organize. At the same time, employers preserve the principle of the secret ballot, and many of the perceived dangers of the original version of card check legislation are avoided.

Corporations and Diversity Jurisdiction

joemarkowitz@fineartlaw.com (Joe Markowitz) — Wed, 15 Jul 2009 17:29:00 +0000

Last month the U.S. Supreme Court granted certiorari in Friend v. Hertz Corporation, in which the Ninth Circuit had affirmed the remand of a class action case against Hertz for lack of diversity jurisdiction, applying the circuit's "place of operations" test. For a company like Hertz, what that means is that even though their executive offices and place of incorporation are elsewhere, they are still being deemed a citizen of California simply because they have more employees and operations in California than any other state. Hertz argues in its petition for certiorari first that the Supreme Court should resolve a split in the Circuits as to how to define a corporation's citizenship based on such potentially conflicting formulations as "nerve center" or "place of operations," and second that it is unfair not to take California's huge population into account in applying whatever test the Supreme Court approves. In other words, national corporations like Hertz are likely to have more employees and operations in California than any other state, merely because that is required to serve California's much larger population than any other state, not because their operations are actually directed from California.

Looking at the narrow issue of how to define a corporation's principal place of business, Hertz's argument does seem to have some appeal. But perhaps this case will prompt a re-examination of the broader question of the reasons for diversity jurisdiction in the first place. Diversity jurisdiction is justified to allow an out-of-state person (including corporations of course) to avoid the prejudice that might exist in the state court system by removing a case to federal court, which is supposedly above such parochial concerns. In practice diversity jurisdiction is rarely invoked for that reason. In fact, I can only recall one case in nearly 30 years of practice where I sought out a federal forum because I was seriously concerned about the prejudice that might have affected the result in state court. More often, the federal forum is preferred for other reasons, such as different procedural rules, supposedly greater attention to complex legal issues, or advantages that might accrue from a more suburban jury. In the Hertz case, the Ninth Circuit mentioned the policy considerations behind diversity jurisdiction, noting that because of its extensive California operations, "Hertz is not in jeopardy of being mistreated in California courts."

So while on the one hand it may seem unfair to make national corporations like Hertz citizens of California, when they can seek the perceived advantages of federal court in most other states, on the other hand it is not obvious that they are prejudiced by being required to defend cases by California citizens in California state courts. It will be interesting to see how the U.S. Supreme Court resolves this issue.

Wage and Hour Class Actions

joemarkowitz@fineartlaw.com (Joe Markowitz) — Tue, 30 Jun 2009 00:47:00 +0000

The California Supreme Court today clarified several issues under the unfair competition, or unfair business practices statute (Business and Professions Code Section 17200 et seq.), and under the Labor Code Private Attorneys General Act (Labor Code Section 2698 et seq.)("PAGA"), two commonly used statutes for pursuing alleged wage and hour violations. In the Arias v. Superior Court case, the Court held that purported representative actions brought under the unfair business practices statute must satisfy class action requirements, basing this holding on an analysis of the language and intent of Proposition 64, which tightened the standing requirements under this statute. (The concurring opinion points out some of the quirky features of Section 382 of the Code of Civil Procedure, which actually pre-dates modern class action practice, but concedes that viewing Proposition 64's reference to Section 382 more broadly than as a requirement that representative unfair business practices cases must satisfy class action rules may make little practical difference.)

In contrast to the voters' fairly clear tightening of the rules for unfair competition cases by means of Proposition 64, the court held that the PAGA contains no requirement that class action rules be satisfied. The Supreme Court was not troubled by employers' claims of due process violations when various individual plaintiffs attempt to obtain relief against an employer that will bind the employer in subsequent litigation but will not bind other plaintiffs pursuing similar relief. That is because, according to the Supreme Court, any plaintiff taking advantage of PAGA is proceeding as the "proxy or agent of the state's labor law enforcement agencies . . . ." (slip opin. at 16)

In a second case, Amalgamated Transit Union v. Superior Court, the California Supreme Court held that labor unions are not entitled to bring actions for alleged wage and hour violations under either the unfair competition statute or PAGA. A labor union has not suffered actual injury as a result of wage and hour violations, and is therefore disqualified under the Proposition 64 amendments to the unfair competition statute. A labor union is also not an "aggrieved employee" entitled to sue under PAGA for such violations.

Mixed Motives in Age Discrimination Cases

joemarkowitz@fineartlaw.com (Joe Markowitz) — Fri, 19 Jun 2009 22:18:00 +0000

Yesterday, the U.S. Supreme Court, in Gross v. FBL Financial Services, Inc., decided that age discrimination cases should not follow the same burden of proof analysis that the Court has applied in other kinds of discrimination cases. Specifically, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a case under Title VII of the Civil Rights Act of 1964, the Court had held that if an employee showed that discrimination was a motivating factor in the employer's challenged employment action, the burden of persuasion should shift to the employer to show that the employer would have taken the same action in the absence of the discriminatory motive. The Court has now held that courts should not follow this analysis in cases brought under the Age Discrimination in Employment Act, a different statute. Instead, an age discrimination plaintiff is simply required to prove that his or her age was a "but-for" cause of the challenged employment action.

Evidently the majority of the current court never cared much for the Price Waterhouse analysis, and specifically stated that it might not have adopted this analysis if the question were being considered for the first time today. (slip opin. at p. 10) Does this mean that the whole reason we now have to apply a different analysis in age discrimination cases as opposed to other discrimination cases is that Justice O'Connor has been replaced by Justice Alito? I think it does. If so, maybe we could call the appointment of Justice Alito a "but-for" cause of this latest decision.

In any case, the various burden-shifting tests developed by the Supreme Court in discrimination cases have always proved somewhat incompatible with the way cases are actually presented and understood by the trier of fact. Therefore it is probably too early to tell whether this latest explanation of the way the way burdens of persuasion are supposed to be allocated will make a large difference in practice. Further, judging from what I read in the Los Angeles Times this morning about this case, it appears likely that Congress will take action to reverse this latest Supreme Court ruling, similarly to what they did with the Lilly Ledbetter case, and clarify that age discrimination cases should be handled in a similar manner to other types of discrimination cases.