Litigation and trial practice

In federal court, sanctions are a real possibility. The parties need to behave themselves and act in a professional manner. That even applies to a settlement conference. In Chen v. Marvel Food Services, Inc., No. CV-15-6206 (E.D. N.Y. 11/21/2016) (FLSA), the court scheduled a settlement conference. The parties were required to come to court and discuss settlement. Under the local rules, that means both parties had to comply with certain deadlines in submitting settlement offers and responses. The plaintiff submitted his settlement offer weeks prior to the conference. But, minutes before the conference was to start in court, the plaintiff doubled his settlement demand. He explained that he had re-evaluated his case. The defendant was unable to proceed with the conference because he had come with authority to settle based on the prior amount.

The Defendant filed a motion for sanctions. The plaintiff did not oppose the motion, but he did move to strike the motion because it contained the prior settlement demands. The plaintiff argued that the motion for sanctions contained confidential information. The court denied the motion to strike. The court noted this was an action based on the Fair Labor Standards Act. Therefore, the ultimate settlement amount was not confidential. The court then found that in doubling his settlement demand just minutes before the conference was to start, the plaintiff acted in bad faith. It sanctioned the plaintiff $1,000, which were the expenses of the defendant’s lawyer for that day. See the decision here.

It is difficult to find a lawyer who specializes in employment law and who represents employees. Most employment lawyers represent the employer and are not willing to represent employees. The typical plaintiff starts out talking to Personal Injury lawyers, because PI lawyers advertise. So, many times, the employment plaintiff must file his/her own case pro se. Pro se means the person represents himself. How do pro se clients fare in court? I have no scientific evidence, but in my experience, they do not fare well.

We see one such case in Mzyk v. Northeast Independent School District, No. 14-00952 (W.D. Tex. 9/1/2015). Ms. Mzyk did not file an actual Complaint. Usually the Complaint is a summary of the allegations against the employer. It is always couched in legal language. But, Ms. Mzyk simply filed a copy of her EEOC charge and the right-to-sue Notice. The court generously accepted the copies as a complaint. The court is required to accord deference to the un-schooled layperson who files her own lawsuit. The suit did not go well for Ms. Mzyk. The employer quickly filed a motion for summary judgment. Responding to a motion for summary judgment requires considerable skill and training. It would be quite difficult for any layperson to respond. Ms. Mzyk filed two extensions seeking more time in which to respond. The judge granted each request. But, still, she did not file a response to the motion.

The judge noted rightly that just because no response was filed, a court may not issue a default judgment. So, the judge went through the process of discussing the evidence. The discussion was brief. The plaintiff had presented no contrary evidence. The judge did discuss Plaintiff Mzyk’s rebuttal information from her deposition. But, the judge was necessarily only seeing the rebuttal testimony provide by the defendant. Any information provided by the defendant, we can expect, would be favorable to the defendant. So, of course, the judge found Ms. Mzyk did not make out her case. Her lawsuit was dismissed. It is fortunate for her that the defendant did not seek sanctions. It did make a counter-claim in its Answer that her lawsuit was frivolous. So, clearly it did occur to the employer that it could seek sanctions.

But, it is unlikely a judge would award sanctions against a pro se plaintiff, anyway. Without the benefit of counsel, the true claims of the plaintiff would almost certainly not be revealed. The defendant did not even seek an award of expenses of defending the lawsuit, normally a routine matter once summary judgment has been granted. The plaintiff was fortunate indeed.

People new to lawsuits do not appreciate how depositions work. No judge is present at a deposition. So, the lawyers’ behavior, good or bad, depends entirely on them. We see this regarding objections. In front of a jury, we lawyers avoid objections, because the jury will not understand. They may think we are trying to hide something – which sometimes we are. But, with no judge and no jury, its “katy bar the door.” Some lawyers go crazy objecting at depositions. In one case, a lawyer was sanctioned by a New York federal court because she objected some 600 times in one deposition. At some point during the eight hour deposition, the parties called the judge’s office, but the judge could not take the call. He told them to make concise objections that only address the form of the question. But, the lawyer, Amatullah Booth, continued to make frequent objections that appeared to affect the testimony of the witness. Her objections appeared on 400 pages and 83% of the transcript.

Later, the lawyers contacted the judge’s office again. The judge’s instructed Ms. Booth to just mark questions in the transcript which she felt should not be answered. Despite that instruction, Ms. Booth later instructed the witness, a police officer, not to answer those questions. Ms. Booth, an assistant corporate counsel, instructed the witness not to answer 20 times. Magistrate Judge Pollack ordered the City of New York to pay for the deposition. The judge found that Ms. Booth sometimes objected “asked and answered” even thought the question had not been answered. Sometimes, she objected based on relevance and harassment, even though the question was relevant.

Magistrate Judge Pollack cited some examples:

Opposing Counsel: “Did you see yourself on the video?”

Witness: “Yes”

Opposing counsel: “What were you doing?

Booth: “Objection. Vague”

Witness: “What — where?”

Another example:

Booth: “Objection. Asked and answered.”

Opposing counsel: “Asked and answered is not an appropriate objection.”

Booth: “Harassment.”

Opposing counsel: “None of those are.”

Booth: “It is harassment.”

See ABA Bar Journal report. It is harder to behave when no judge and no jury are present.

Howard Cohan visits many public establishments. Mr. Cohan is restricted to a wheelchair. He is disabled. But, he visits these public establishments in Florida to see if they are accessible to persons with disabilities. Many restaurants, stores and motels get nervous when they see him rolling toward their front door. See Cohan v. Southeastern Hotels Ltd. Partnership, et al, No. 3:14-cv-393 (N.D. Fla. 6/26/2015), in which he sued some two dozen different motels. See an order here in which instance he could not attend court due to medical treatment. According to one report, he has filed some 1200 lawsuits against non-compliant businesses.

He identifies himself as a “tester.” He tests these places to see if they comply with the ADA. The state of Texas just recently tried to pass a statute limiting the recovery for testers like Mr. Cohan. But, Mr. Cohan is genuinely impaired. And, he genuinely wants businesss to comply with the ADA. Speaking from experience, in some parts of my neighborhood, there are not enough sidewalks. Fredericksburg Road inside Loop 410 lacks sidewalks. So, one young man who uses a wheelchair is forced to travel in the busy street. He wears a huge cowboy hat, and has a tall bicycle flag attached to his chair to make himself more visible. Yet, just a few weeks ago, he was struck by a car. If you are in a wheelchair or suffer some impairment, the concerns of Mr. Cohan are quite genuine.

In Cohan v. Arvilla Motel, Inc., No. 8:15-cv-2174 (M.D. Fla. 1/18/2017), the court declined to award sanctions against Mr., Cohan after he dropped a lawsuit soon after filing it. The court noted rightly that Mr. Cohan has a genuine disability. He visited one motel as a “tester” with an ADA expert and found some violations. The court found that just because Mr. Cohan’s “calculated” presence on the property and his stated claim to return as a “tester” and using a “form” complaint that was not well drafted do not equate to bad faith. He might have failed to prevail on all his claimed violations, but it is apparent from the expert’s report and the photographs, that there was reasonable basis in law and in fact to support the allegations in his Complaint. See the decision here.

The court noted that it reached the same result in another lawsuit field by Mr. Cohan, Cohan v. Island House Resort Hotel, Inc., No. 8:15-cv-21-8 (M.D. Fla. 1/20/2017). Mr. Cohan does stay busy.

At least one news report suggests Mr. Cohan is motivated to sue by greedy lawyers. See a local Florida news station news report. But, the most the plaintiff can sue for is to rectify the barrier and for attorney’s fees. I do not know what Mr, Cohan’s lawyers are seeking as attorney’s fees, but the sooner the defendant settles, the lower the amount of attorney’s fees.

Well, I described the argument as a silly one, but it was not too silly for the Texas Supreme Court. In the case of Redus v. UIW, the Supreme Court ruled that the law enforcement department of a private university is a governmental body for purposes of qualified immunity. With qualified immunity, the law enforcement officers enjoy greater protection from lawsuits. As I indicated then, the Texas Supreme Court is remarkably friendly to defendants in suits for money damages. I previously wrote about the appeal here.

The court reasoned that charter schools are afforded governmental immunity. Although, charter schools are also expressly provided with governmental immunity by the statute creating charter schools. The court then pointed to the various functions performed by campus police officers which equate to the same functions performed by true governmental police officers.

The court notes that the Texas Tort Claims Act provides that to receive governmental immunity, an entity must be an “institution, agency or organ of government” and derive its status and authority as such from laws passed by the Legislature. The court then asks if the UIW campus police department is part of a larger governmental system. The court pointed to the statutory scheme that makes private charter schools part of the broader public school system in Texas. The statutory scheme that created charter schools expressly provides governmnental immunity to those schools. The Legislature did not say anything similar when it allowed private universities to establish campus police departments. But, said the court, the Legislature allowed private universities to use the same resources true governmental entities use to enforce laws: commissioned peace officers. The court concluded that the UIW police department satisfies the requirements of a governmental entity. It left to the court of appeals to determine the final question, whether sovereign immunity would apply to the lawsuit regarding the death of Cameron Redus in 2013. See the decision here. But, if UIW is now an “organ” of government, that result is essentially decided by this opinion.

No dissent was filed, so we assume the decision was unanimous. The court went to great lengths to reach its intended aim, limiting the lawsuit against UIW. No law gives UIW its status as an organ of government. The reasoning tends to suggest a result oriented decision. The court’s opinion would apparently not apply to private security guards, who are not commissioned peace officers. But, otherwise, it appears that any entity that hires commissioned peace officers for security may become a governmental entity for purposes of the Texas Tort Claims Act. That is a remarkable result. For example, under this reasoning, a celebrity passing through Texas who hires a commissioned peace officer for security would probably achieve governmental entity protections just like UIW.

I do not know whether I should laugh or cry as a lawyer at the latest antics of the Trump administration. They have been litigating the Moslem travel ban for some time. Last week, the Fourth Circuit Court of Appeals in Virginia heard oral arguments about the ban. One of the key issues is whether the ban intentionally targets a religion, the Muslim religion. The judges asked several pointed questions about past statements by Pres. Trump advocating a Moslem ban. The DOJ lawyers argued the Executive Order was not intended to apply to Muslims in particular. The judges even noted that on Pres. Trump’s campaign website, he still advocates a Moslem immigration ban.

Then, on Monday, a reporter asked Sean Spicer at a press briefing if the Trump Pence website still included the language advocating a ban on Moslem immigration. Mr. Spicer said he was not aware of any such language on the website. There was at the time a link that said, “DONALD J. TRUMP STATEMENT ON PREVENTING MUSLIM IMMIGRATION.” Within minutes of that question to Mr. Spicer, the link and the language disappeared. It became a blank URL. Within minutes. See CBS news report.

As a lawyer, I do not know whether I should laugh or cry. Fudging with evidence within minutes of a question like that almost guarantees a conclusion of guilt. It just highlights a web page that might have been ignored for a little longer. How can the administration claim in court that the ban is secular when it has language targeting Muslims on its website? If it has language targeting Muslims, how can it seriously bring attention to that language by making it go away so suddenly? From the Administration’s perspective, this is no way to manage a lawsuit.

Our judicial system requires juries to review only evidence produced at trial. That is the system we have had since before 1776. A juror who brings in a medical dictionary to better understand medical testimony would violate the oath they take as jurors. The theory is that a jury should review only the evidence that has passed judicial scrutiny. We have an adversarial system that relies on two different parties battling it out in court. If a juror does her own research, that turns everything upside down.

So, what happens when a juror looks something up on the internet? Everyone, well, almost everyone carries a little computer with him –  a cell phone. It has become second nature to some folks to pull out the phone and look something up. But, that is all wrong for the jury. A jury cannot review or consider something that was not introduced as evidence during the trial. Courts have been wrestling with this phenomenon. In U.S. v. Zimny, 846 F.3d 458 (1st Cir. 2017), a juror did violate her oath as a juror.

Mark Zimny operated a business known as Ivy Admit. The business helped Chinese and South Korean students get into prestigious American boarding schools in return for the parents making surreptitious donations to the school. The donations would be processed through Ivy Admit. But, Mr. Zimny kept much of the donations. So, he was charged and his trial attracted the attention of a blog post. Several hundred comments were made to the blog. People were very upset with Mr. Zimney. The comments were very angry and contained threats against the defendant. One of the comments was apparently made by a juror. Juror No.  8 said when she left the jury, half of the jury supported conviction, while half favored acquittal. Juror No. 8 had left the jury before trial ended for medical reasons. The judge called her back and asked her about the comments. She assured the judge she had visited the blog only after she was removed from the jury. A few days later, another purported juror made a comment on the blog. That comment referred to Juror No. 8.

The judge did not ask the other jurors if they had been affected or even if they were aware of Juror No. 8’s visits to the blog during the trial. Defendant Zimney appealed the court’s failure to interview other members of the jury. The appellate court found that Zimney did not suggest questions to the court to ask Juror No. 8 about whether she was affected by the comments on the blog. Not having asked to pose such questions, the defendant cannot appeal the court’s failure to ask such questions.

But, regarding the other juror, the court found some concern. The second juror who commented on the blog post remarked that Juror No. 8 was “spouting about” some things she had seen on the blog, at the trial. That comment indicated that Juror No. 8 had indeed discussed with jurors what she had seen on the blog. The court of appeals felt this would “inflame” the passions of the jury. The First Circuit panel concluded that the Defendant’s concern was legitimate. There was a colorable claim that Juror No. 8 saw things on the blog post and shared them with other members of the jury.

The court recognized the possibility that in the future, some defendant could prolong a trial by making inflammatory comments online. That is, a friend of an accused could help him avoid trial by making inflammatory comments online in the hopes of contaminating the jury. But, in the circumstances of this case, the district court should have investigated the actions of Juror No. 8 and of the second juror more closely. Zimney, at p. 468.

Mr. Zimney urged the appellate court to overturn his conviction and order a new trial. But, the higher court would not go there. Instead, the panel ordered the district court to investigate the actions of the jurors and determine if those actions were prejudicial to the jury. See decision here. The court of appeals retained jurisdiction over the remaining points of appeal.

No one wants to overturn a jury verdict. But, what do you do if the jury was contaminated by outside influence? Way back when, in 1807, Aaron Burr was tried for treason. In the early days of the Republic, that was the OJ Simpson case of the era. The Burr prosecution received overwhelming media attention. The justices had to work mightily to find jurors not contaminated by media accounts. Justice Marshall presided over the trial. He wrote in the opinion that an impartial jury must be seated. But, what does that mean? It means a jury that not only states it will abide by the evidence, but one that truly means it. Justice Marshall said a man (they were all men at the time) must come to jury duty “with a perfect freedom from previous impressions.” U.S. v. Burr, 25 F.Cas. 49, 50 (No. 14,692g) (CC Va. 1807). That is high burden, but one that is required by our system of justice.

 

Most lawyers avoid discovery sanctions like the plague. Yet, some parties accept the risk. One recent sanctions award amounted to $2.7 million. In a lawsuit entitled Goodyear Tire & Rubber Co. v. Haeger, the U.S. Supreme Court heard an appeal regarding that very lag sanction award. Justice Elena Kagan ruled in a unanimous opinion that the amount was too large. It exceeds the fees incurred by the wronged party due to Goodyear’s discovery abuse.

The parties had reached an agreement to settle the lawsuit when the plaintiffs learned that Goodyear had failed to produce the results of a tire test. The Arizona judge awarded sanctions based on the legal fees incurred since the date when the defendant failed to produce the requested information. The Supreme Court court, however, said that was error. The amount of the fees should be based on fees incurred due to the discovery abuse. The higher court required a “But for” standard that looks at the expenses incurred due to the discovery abuse. The court asks what would have been incurred but for the discovery abuse.

The plaintiffs responded that $2 million in attorney fees were incurred after the abuse was discovered. The parties would have settled otherwise, they argued. But, the Supreme Court noted the district court awarded $2 million in fees if the $2.7 million was overturned, indicating the district court did not believe the $2.7 million was directly due to the discovery abuse. The federal district court would have to reconsider its $2 million contingent award in night of the Supreme Court ruling. See ABA Bar Journal report.

The President has done it, again. He has said things that were later used against him in court. He issued an Executive Order a few weeks ago threatening to cut off funding to cities and communities that supposedly provide “sanctuary” to unlawful immigrants. The city of San Fransisco and other communities filed suit to stop that obstacle to funding. A federal district judge in San Fransisco found against the administration. The DOJ lawyers argued the cut to finding would only impact a small portion of funding. But, Pres. Trump’s comments indicated differently. The cut to funding, said the President, was a “weapon” against communities that disagreed with his policy. And, in February, Pres. Trump said he would cut off funding to the entire state of California, because it was “out of control.”

These statements, said the judge, indicated the administration intended a very broad cut to funding. Only Congress could tie funding (or no funding) to broad actions by state and local governments. Too, added the judge, the administration cannot tie a lack of funding to a program not related to the order. If the administration wants to control housing, for example it could only limit funding for housing. It could not enact broad limitations. See CBS News report.

Pres. Trump, as I have said before, is the worst client. He cannot avoid saying things that undercut his case. Even worse, he then attacks the judiciary for doing its job. He criticized the Ninth Circuit for this ruling, even though Judge Orrick does not sit on the Ninth Court of Appeals. He is a district judge, not an appellate judge. Reince Priebus, the President’s chief of staff, said Judge Orrick’s decision was the Ninth Circuit going “bananas.” These comments are irresponsible. We all need to respect the decision of the courts, If you cannot beat your adversary in court, do not cry about it later. Especially now when the the best evidence against Trump’s actions is Trump himself.

In a recent decision, the Fifth Circuit reversed the award of attorney fees to a prevailing plaintiff. In Cervantes v. Cotter, the lower court severely reduced the plaintiff’s fee request by some 75% because the plaintiff’s success was, in the view of the trial court, small. The plaintiffs, noted the trial court, were only warded $409 in lost overtime payments. The district court rejected the plaintiffs’ claim for liquidated damages and their claim for retaliation. So, their recovery was just the $409. Yet, the plaintiffs’ attorneys sought $14,000 in attorney fees. The trial court considered that to be an “extraordinary” amount in light of the relief obtained.

But, the purpose of the attorney fee provision in the Fair Labor Standard Act is to to encourage attorneys to accept these small cases. No attorney would accept a case in which the hard, economic damages was a mere $409. And, as the Fifth Circuit noted on appeal, there are twelve factors in assessing attorney’s fees, not just the one factor involving success at trial. See the Fifth Circuit decision here.

The lower court’s decision is not well thought out. The Magistrate discussed the settlement offers and lack of counter-offers by the parties. The Magistrate then concluded that the plaintiff lawyers were “greedy” and the defense attorney was “penny-pinching.” It is an extraordinary decision. The district court ignored eleven of the twelve factors in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Johnson requires lower courts to look at twelve factors, including the success of the plaintiff, when it assesses a request for attorney’s fees.

The lower court in Cervantes looked just at one factor, the success of the plaintiffs. Then, it went beyond that and looked at the relative settlement success of the two parties. It mentioned one offer of $17,000 in attorney fees and a second offer of $22,000 in attorney fees. It noted the response by the employer of $210 in overtime pay and $1,000 in attorney fees. It almost seemed like the judge was annoyed at having to hear a small case when the parties could have easily settled the matter. I find that unfortunate. These “small” cases are quite large to those involved. The Fair Labor Standards Act is a federal law. If federal courts will not enforce federal laws, who will? In truth, these apparently small cases are not small, at all. These relatively small cases reflect a wider problem with many employers underpaying their employees and generally getting away with it. The Department of Labor can enforce the FLSA, but it rarely does. It is left to these “small” lawsuits to stand up for the little guy whose pay is being stolen by employers. If there is one plaintiff filing a case for a lost overtime of $210, then there are ten others who also suffered similar losses, but chose not to file suit. There was a time when I was working my way through college and law school. In those days, $210 was a very large amount to me indeed.

In effect, the trial court imposed some new requirement that appears to involve second-guessing settlement strategy. I think it was this that caught the eye of the Fifth Circuit. It vacated the trial court’s ruling in a per curiam, unpublished decision. “Per curiam” decisions are those which the court views as simple, routine, not needing extensive explanation. The higher court is saying this should be a simple issue. Courts cannot truly second-guess settlement strategy. There are just too many unknowns.