The Supreme Court says it is permissible to protest at funerals for dead service members with very provocative signs, such as "You are Going to hell," "Thank God for dead soldiers" and worse.  See Yahoo news report.  As an Iraq veteran, I would like to "free speech" that pastor in the face.  He is deliberately trying to incite a reaction from those attending the funeral for those killed in Iraq and Afghanistan.  But, I also know from several published reports that in this case, the father did not see the signs at the funeral.  It was only weeks later that he saw the signs in various news reports.

It was still extremely upsetting for him to see hateful signs directed toward his son’s death.  There is a rule of law that 1st Amendment would not trump "fighting words" – words that have no value other than inciting riot or violence.  I had hoped these signs would rise to that level.  I have not read the decision but am sure the fact that the father did not see the signs until weeks after the funeral were an important factor.  

Whatever.    I would still like to "free speech" that pastor in the kisser…… 

Alex Colvin of Cornell University has published one of the first empirical studies of arbitration in the employment context.  He looked at the reports submitted by the American Arbitration Association, one of the leading providers of arbitrations, in California.  The study looked at 3,945 arbitrations, of which 1,213 were decided by an arbitration award.  See abstract of this study. 

Key conclusions include: 1) employees win 21.4% which is considerably lower than win rates in trials, 2) among those few wins by employees, the median award amount was $36,500 and the median award was $109,858, both amounts substantially lower than that reported in litigation awards, 3) mean arbitration fees were $6,340 in cases overall and $11.070 for cases disposed of by an award following a hearing (In 97% of these, the employer paid 100% of the fees other than a small filing fee – pursuant to AAA rules), 4) in 82.4% of the arbitrations, the employee was paid less than $100,000 per year.  Note that the author must be comparing California arbitrations to California state court trials.  The success rate of employees in california state courts is generally higher than that found in federal courts.  See my prior post regarding success rates in federal courts on a national level.   

The study also examined whether there was a repeat player effect, that is, wherher employers who appear repeatedly would receive favorable treatment.  The study indicates that yes, employers who appear more than once achieve significantly lower awards.  The study indicates that when the same arbitrator decides a case with the same employer from prior arbitrations, then those employees receive lower awards and win less often. These findings support the anecdotal evidence suggesting that repeat employers do better and they do better in particular when they use the same arbitrator.  

The repeat player effect has a large impact on employees, since employees will very rarely have more than one arbitration.  Employment arbitrations are far different than labor arbitrations, in which the union would also receive some repeat player effect. 

If anyone has crazier lawsuits than the US, its the Brits.  In this post by Workplace Prof, we see a picture of an employee who was caught stealing money from his employer.  The employee made out a check to himself drawing on company funds and cashed it.  Do not try this at home, but the employer then paraded the miscreant through the town and to the police station displaying a sign proclaiming his thievery.  The owner of a flooring business, Simon Cremer, paraded Mark Gilbert through the streets of Wiltham in Essex, U.K.  

So, of course, Mr. Gilbert then later sued Cremer for humiliation and two years of lost earnings.  The case settled with Cremer paying 5,000 pounds in damages and 8,000 pounds in court costs.  

I think such a lawsuit would not do nearly that well, here.  Many members of the juries I have heard from would have no tolerance for a thief – despite the perp parade.  But, I would advise any employer not to take that chance…..

I love lawsuits and everything a lawsuit represents.  Anyone can file any lawsuit anytime.  Subject to a few consequences for those of us who get too crazy.  In many countries, that is not the norm, at all.  

In Los Anglees, one restuarant customer filed suit because he was forced to eat rice at a sushi restaurant.  The restaurant, Studio City offered a deal: $28 for all the sushi you can eat.  David Martin liked that deal, but he only wanted the raw fish (sounds so yummy…).  So, really, what he wanted was the all you can eat sashimi, which is just raw fish.  Mr. Martin is diabetic and must restrict his carbohydrates.  But, the owner Jay Oh insisted he could not fill up only on the fish.  See Los Angeles Times news report.  

Mr. Oh offered to prepare two orders of sashimi for $25, but Mr. Martin was not satisfied. He left the restaurant after being charged ala carte for the sushi and a green tea.  

Mr. Martin sued for discrimination on the basis of his disability, Type 2 Diabetes.  He claims $4,000 in damages.  Mr. Oh says he will fight to the end.  The plaintff’s attorney says they do not seek money but a chnage in policy at the restaurant.  

Mr. Oh says he would go broke offering endless raw fish and no rice for $28.  But, I am wondering why people want to eat raw fish and then sue when they are prevented from eating raw fish….

Some plaintiff clients want "revenge" of some sort when they file suit.  That is, they see the defense lawyer pursuing some outrageous litigation tactic and the client then asks me what will I do in response?  The client wants some comparable tactic.  Tit for tat.  You see this in Allen Sanford’s litigation mess.  He recently field suit against a dozen federal agencies, the FBI, the SEc, etc.  See Texas Lawyer report.  Mr. Sanford accuses these agencies of unfair and abusive law enforcement tactics.  Mr. Sanford, of course, is the former high-living investment counselor who is accused of swindling his clients out of billions of dollars.  

His lawyers surely tried to dissuade him from this suit.  But, if they are being paid by the hour, their persuasive attempts may have been brief.  Federal courts see these lawsuits with some frequency, although not always from someone with Sanford’s resources.  Many pro se clients file similar suits. Such suits are usually based on nothing more than speculation.  These retaliation suits do nothing more than make it clear that they are scared. 

It is better not to give in to our "inner Mongo" as James McElhaney, well known writer of litigation tactics would say.  See ABA Bar Journal article.  Judges are suspicious of counter-suits.  Counter-suits naming a dozen different federal agencies go to the head of the list of apparently frivolous lawsuits.  

In one lawsuit eons ago, the defense lawyer asked several questions about personal issues regarding my client.  The personal issues had no relationship to whether he suffered discrimination at work.  None.  The questions were designed solely to frighten my client.  Client asked me to retaliate in kind.  He thought we could do the same thing to one of the managers.  i told him, no, let the defense lawyer do this at trial and see how the jury responds.  As Mr. McElhaney explains, the jury will mot see this as fair.  They will only see tit for tat and become disgusted with both sides. Resist the call of your inner Mongo when you are in the midst of a lawsuit…..

 A Kerrville woman was fired for sending a text message on a city-owned phone that was allegedly vulgar.  Janet Holmes has filed suit claiming she was fired for conduct similar to that of male employees who were not fired.  See San Antonio Express News story.  Plaintiff Holmes, a former administrative assistant was fired from Kerrville City Hall.  Ms. Holmes field suit in US District Court in San Antonio. 

This is the basis for many discrimination suits: a person (in a protected category) is fired for the very same conduct for which another person (not in the protected category) is not fired for.  To succeed, such cases require that the employee show the conduct is truly similar and that the managers making the decisions to terminate or not terminate are the same. 

A San Antonio man was awarded $263,000 in a religious discrimination lawsuit.  Steven Hecht worked three years at Million Air San Antonio, a small plane servicing firm.  Million Air would mix religion and business routinely.  The owner, Mark Fessler, told Mr. Hecht to fire two employees because the Lord told Mr. Fessler they should be fired.  Mr. Hecht was required to attend lunch meetings that mixed religion and business.  A "prophet" came to work and said Mr. Hecht was unclean, unrighteous and struggling with pornography issues.

The prophecies were ok with the two owners, Mark and Richard Fessler, so long as Mr. Hecht attended their church.  But, when he stopped attending, he was fired.  

The defense attorney pointed out that the employee had accepted another weekend job when he was fired.  He was apparently suggesting Mr. Hecht was planning to leave Million Air.  I am not sure what that argument is supposed to indicate.  In any event, the  Bexar County jury did not buy that argument.  The jury awarded lost pay and compensatory (emotional suffering) damages.  The plaintiff had been making in excess of $100,000.  They also awarded punitive damages of $150,000.  

 In employment cases, the employer will always depose the plaintiff employee.  The defense lawyer will ask a wide variety of questions, not necessarily directly related to whether discrimination occurred or not.  They may ask for driver’s license numbers, acquaintances at work, out of work.  In one disability case, the defense lawyer even asked a few questions of my client regarding her love life.  I don’t know.  Depositions are a discovery device.  So, any question that relates reasonably to potentially admissible evidence is fair game.  

Lately, many defense lawyers are asking questions regarding the social security number of an employee.  The SSN is a pretty good tool for searching public data bases.  I am sure they also hope to add to the employee’s apprehension about the lawsuit process.  If the employee is Hispanic, then apprehension will increase substantially.  if the Hispanic client is here illegally, then he/she will not have a valid SSN.  Many defense lawyers know that.  Mike Maslanka discusses a case where that issue was raised in a deposition.  See Mike’s blog post. 

The defense lawyer had the SSN from when the employee, Bella Viveros applied for the job.  But, the defense started asking questions regarding the validity of her SSN.  The employee’s lawyer told her to not answer those questions.  The employee’s lawyer then sought a protective order, a ruling from the trial judge that the employee did not have to answer such questions.  The trial judge granted the protective order.  The defense then moved for a mandamus, a ruling by an appellate court to force the trial judge to change its ruling. 

On appeal to the Fourth Court of Appeals in San Antonio, the court ruled for the defense lawyer. See decision in In Re K.L. & J. Limited Partnership.  

The court found that the defense lawyer should have an opportunity to ask questions regarding the validity of the SSN and toi make sure she is truly who she says she is – supposedly to determine whether she has made similar (employment) claims in the past or has criminal history.  The employer says they could not locate the employee’s name in any national data base of SSN holders. So, they should have the opportunity to examine the validfity of her SSN.  The court of appeals did find that the employer could not ask questions regarding the employee’s citizenship. 

As Mike Maslanka adds, this is an area of hot debate.  I am sure there will be more caselaw and more disputes regarding this issue.  At first blush, it seems this should be a non-issue.  If the employer had concerns about citizenship, then it should not have hired the employee in the first place.  But, it is true that if an employer learns of details later that would have caused concern at the time of hiring, then that new information could undermine the employee’s claim for lost pay.  But, this could all lead to questions regarding what the employer knew and when did it know it.  In the end, questions regarding citizenship and SSN’s could cause more trouble for the employer than they are worth. 

 

You cannot sue the state without permission.  This law is as old as the United States.  The principle provides essentially that a state must waive its sovereign immunity.  

Coach Mike Leach has run into this challenge when he sued Texas Tech for violating the terms of his contract.  See report.  Coach Leach claims the Texas Tech University violated his employment contract when they allegedly fired him for cause.  The 7th Court of Appeals in Lubbock disagreed and rejected his claim.  Coach Leach says he will appeal to the Texas Supreme Court.  Coach Leach, as some know, is a law school graduate. 

His suit is based on breach of contract.  One would expect that if the state has entered into a contract, then it has waived sovereign immunity for purposes of that one contract.  So, I will be interested to read this opinion when/if it becomes public.