There is a reason why lawyers are unpopular with some folks.  Above the Law reports one such instance.  A large New York law firm accepted a case regarding a landlord tenant issue because the tenant is the son of the founder of Actelion, a Swiss company.  The firm, Mayer Brown, is one of the largest law firms in the world with offices in the Americas, Europe and Asia (what?  not Australia?).  The client was not being billed – he was considered a "friend of the firm."  Yet, when the tenant won his tenant landlord dispute, the law firm requested attorney’s fees.  

It is true that "friend of the firm" lawsuits regularly require large firms to learn new areas of law very quickly.  The firm recovered the tenant’s security deposit of $6,400.  Good job.  But, they submitted a request for $126,026.88 in attorney’s fees and costs.  The judge said this was an "incredible" amount for a landlord tenant dispute and refused to award any attorney fees, at all.  See decision.  

Note that the judge points out such discrepancies as billing 4 hours at rates of $405/hour and higher to read simple court procedural rules and basic rules regarding security deposits.  As the court rightly notes, reading simple local rules unique to each court should take mere minutes.  And, that is just not something a client should not have to pay for.  The court addresses an important issue in lawyer billing.  A client has a right to expect a certain baseline knowledge by any lawyer.  

The client should not have to pay for the legal education of a lawyer.  Some of that education is simple cost of doing business, especially when a lawyer enters a new area of law.  Some lawyers refer to that practice as "going to school on the client’s dollar."  It is not ethical.  This is particularly true when the law firm, by its own admission, did not bill the client and represented the client to build "good will."  The firm doubtless hoped for some future legal business from Actelion. 

The associates on the $6400 matter charged $405/hour.  A more senior associate charged $615/hour.  And, a partner was billing at $895/hour.  

The Judge makes an appropriate observation: merely reading court rules is not legal research.  Yes, a lawyer can and should bill for legal research.  But, reading legal rules (i.e., local rules of court) is not legal research.  It only takes minutes to read pertinent portions of the court’s local rules.  

On Feb. 17, 2012, some part of 4.25 hours was spent revising a draft complaint.  Again, on Feb. 23, 2012, some part of 4.5 hours was spent revising the same complaint – although this time, it was based on "additional factual information and legal research."  The judge found those entries duplicative with no apparent reason for duplicating prior work.  And, I am sure the judge was also troubled that some eight hours were spent drafting a rather simple complaint. 

After the civil court complaint had been drafted, another seven hours were devoted to reviewing emails and documentation regarding the security deposit – at the rate of $405/hour.  The court found that it "defies the imagination" how a lawyer could spend seven hours reviewing one security deposit when the receipt was in the possession of the law firm from the beginning.  Apparently, the evidence for the "security deposit" was nothing more than a receipt.  How could it take seven hours to review one security deposit receipt?

The Judge said the matter at trial would last no more than 60 minutes.  Yet, on March 12, 13, 14 and 27, 2012, the associate spent 4.25 hours researching and discussing trial strategy with her client.  Over four hours discussing strategy for a less than one hour trial?  Please.  

There are more such entries.  Suffice it to say that the firm over-billed.  But, why did it over-bill?  Large firms are infamous for requiring an excruciating level of knowledge by any associate who briefs the most trivial matter to a senior lawyer.  The associate is expected to understand many issues, however trivial regarding a particular legal matter.  The system is designed to avoid any error.  But, the system, as it exists in the largest firms, is bloated and requires many duplicative tasks. Associate lawyers do often over-research simply to avoid being asked a question for which they do not have an answer.   Woe to the associate who does not know the answer to the senior partner’s most trivial question.  And, too many clients happily pay for that excess research and repetitive preparation even for a $6400 matter. 

I wrote previously about Texas Attorney General Greg Abbott engaging in frivolous defenses and frivolous lawsuits.  See my posts here and here.  Well, now a Travis County Judge has found AG Abbott’s opinion about the VIA Transit center to also "border on the frivolous."  See San Antonio Express News report.  The issue concerns a request by VIA to issue bonds to build a transit center, which would serve passengers of buses and a proposed streetcar system.  AG Abbott had earlier issued an opinion that VIA could not issue the bond because San Antonio voters had voted against using VIA funds for light rail.  VIA has been arguing that streetcars and light rail are not the same thing.  The transit system argues it can use the funds since the prior vote by San Antonio citizens did not concern a streetcar system. 

As noted by Judge Yelenosky, AG Abbott issued his opinion based on no evidence regarding the difference between light rail and streetcars.  That is why the judge suggested the head lawyer for the state of Texas’ opinion was frivolous.  In fact, the AG presented no evidence at the Jan. 23 hearing regarding the differences, if any, between light rail and streetcars.  VIA presented a few witnesses on that critical topic.  In the lawsuit business, when a party fails to introduce evidence on a critical subject, that indicates many things, among them that there are no witnesses on that subject.  The AG should have simply conceded the point if he could not locate supportive witnesses. 

So, yes, it is frivolous to issue an opinion with no apparent evidence.  The Attorney General’s opinion was based more on politics than on the law.  Again. 

I previously wrote about Judge Lynn Hughes of the Southern District of Texas here and here.  Again, he has ordered no discovery in a lawsuit that could not function without discovery.  And, again, he has been overruled by the Fifth Circuit Court of Appeals.  See opinion here.  The Fifth Circuit seems to be very familiar with Judge Hughes’ "extra-legal" orders.  But, they seem unable to deal with his strange orders, other than overruling them. 

One would hope for better from the U.S. Postal Service.  They employ many veterans.  They have a veterans hiring program.  But, in the case of Army Reserve Sergeant Major Richard Erickson, the USPS attempted to terminate his employment even before the wars in Iraq and Afghanistan started.  SGM Erickson was fired from his USPS job in Ft. Myers, Florida in 2000 because he had too much military leave.  He had worked for the USPS since 1988.  But, between 1996 and 2000, he worked only four days for the Postal Service.  He was on active duty with the National Guard.  Back in the days before the current statute, USERRA, there was no limit on how much active duty a National Guardsman could perform.  Now, under USERRA, there is a limit of five years, after which a Reservist or Guardsman can be terminated.  As SGM Erickson said, it was pretty hurtful to think he could be fired for serving his country. 

But, his legal odyssey was just beginning.  In 2005, the single father of three left active duty and went on unemployment benefits.  He entered the Army Reserve.  He filed his first complaint with the Merit Systems Protection Board in 2006.  He eventually ended up in front of the U.S. Court of Appeals for the Federal Circuit twice on appeals of various issues.  

In this latest ruling from the MSPB, the MSPB ordered that he be reinstated to the job he lost in 2000.  That reinstatement would include the back pay he would have earned if he had not been terminated.  The Army Times (20 Jan 2014 edition) says he could be entitlted to $1 million to $2 million in total damages, including attorney fees.  The court will allow an offset for the amount he has actually earned since 2000.  The award will likely be the largest ever assessed against the U.S. Postal Service.  

The latest issue for appeal was whether SGM Erickson timely submitted his request to return to his civilian job.  The Federal Circuit ruled that that issue did not matter.  What mattered was whether he lost his job due to his status as a member of the National Guard. 

As SGM Erickson said, this was not just about him.  It was about all service members who try to juggle two careers, one civilian and one military.  After he was terminated, he could not get a job with the federal government.  Speaking as a former Guardman and Reservist, we should not have to sacrifice our civilian career for our military career.  And, shame on the Postal Service for fighting so tenaciously over what appear to be technical, legal issues. 

You have worked as a clerk at a school district for some ten years.  You have sought promotion but have been turned down.  You are a woman and realize that some men are getting paid more than you for similar work.  You see some pertinent documents and take them home to make copies, since you realize you may have to file suit.  Is that theft?  Those facts are close to the situation in State of New Jersey v. Saavedra, No. A-1449-12T4 (N.J. Ct App. 12/24/13).  Ms. Saavedra used the documents in her discrimination lawsuit.  So, the state of New Jersey prosecuted her for taking those documents.  See appellate court decision. 

There are ample cases finding that it is not "theft" to take documents home if other co-workers or managers also take documents home.  Even if an employer has a policy against taking documents, what matters is what the employer actually does.  If the employer allows workers to take documents, then it is not theft for one worker to take them for use in a subsequent discrimination lawsuit. 

Ms. Saavedra took hundreds of documents home.  Ms. Saavedra’s employer was a school district.  Some of the documents contained sensitive information about parents and students.  They included information regarding at least one bank account and one list of students who would see a school psychologist.  The school said it was liable for disclosure of those documents.  But, as Workplace Prof points out in his blog, the disclosure was limited to the lawsuit.  And, in perhaps every discrimination lawsuit, sensitive documents are used.  Typically, the parties enter into a written agreement to keep such documents confidential.  That is, the parties essentially agree that the documents will be used only for purposes of the lawsuit.  See Workplace Prof blog post.  So, surely, any sensitive documents would have been protected. 

Ms. Saavedra was prosecuted for "official misconduct."  Can a clerk be guilty of "official misconduct"?  That is a good issue for appeal.  Too, Ms. Saavdera’s case may differ from the typical employee taking documents home.  The school district had a policy against taking documents home and they conducted training on that policy.  

The dissent would have vacated the conviction simply because the law is not clear that taking documents for use in protected activity.  New Jersey has a state statute that explicitly protects an employee who uses documents from work for a civil rights lawsuit. 

The water is muddied with this decision.  It is not theft to take papers home, if the employer allows that practice in general.  But, if the papers contain sensitive information and if the employer does indeed train its employees not to take papers home, the worker incurs risk of being prosecuted.  What if the employer allows some documents for home use, but not too many documents for home use?  What if the employer has some training, but not recently?  How recent is "recent"?  The water is indeed muddied on this issue. 

I write a blog.  For me, a blog is commentary, not a news source.  I cannot imagine trying to cover news from a blog.  But, Roger Shuler has been doing just that with his blog, Legal Schnauzer.  And, now he has been arrested for defamation.  

Mr. Shuler writes a blog from Brimingham, Alabama.  He has accused various state officials of corruption.  The son of a former governor filed suit against Legal Schanuzer accusing the blogger of defamation.  Unwisely, Mr. Shuler chose to represent himself.  Mr. Shuler had accused Robert Riley, Jr. of impregnating a lobbyist named Liberty Duke.  Both persons denied the accusation.  But, Mr. Shuler persisted.  In July, Mr. Riley and Ms. Duke sought an injunction against Mr. Shuler.  Instead of responding, Mr. Shuler argued that the court lacked jurisdiction over him.  ….  Yes, that would be a weak defense.  The court issued a broad preliminary order prohibiting Mr. Shuler form making "defamatory statements" about Mr. Riley and Ms. Duke.  

Mr. Shuler failed to appear at a subsequent hearing.  The judge found him in contempt and issued a warrant for his arrest.  He was arrested in October, 2013.  An arrest for civil contempt is exceedingly rare.  I have to think that a judge went crazy, or a certain blogger did not have a lawyer, or both.  

At some hearing, Mr. Shuler represented himself.  The judge said that hearing would serve as the trial on the merits.  The judge issued a ruling that Mr. Shuler must not publish anything more about Mr. Riley and Ms. Duke involving an affair, an abortion, or payoffs and that Mr. Shuler must remove the previous posts or remain in jail.  See San Antonio Express News report. 

Without a lawyer, I very much doubt anything was shown or proven at the supposed trial on the merits.  But, I have to say, Mr. Shuler in not hiring a lawyer, what did he expect?  One lone blogger cannot hope to emulate a newspaper.  I cannot imagine how Mr. Shuler thinks he can compete with an actual news outlet.  And, if you cannot back up your allegations in your post, then you really should not publish them.  Some folks see this as a free speech case.  It seems to me to be more about failing to appreciate the need for legal representation……

Wendy Davis has been awarded $260,000 in a re-districting lawsuit from 2011.  She had requested $478,000.  I previously wrote about her lawsuit, along with lawsuits by various civil rights organizations here.  A few politicians and a few civil rights groups won their lawsuit alleging that the Texas legislature discriminated against minorities when they revised various maps.  The League of United Latin American Citizens was awarded $93,000 in attorney fees. See San Antonio Express News report.   LULAC had requested $100,000.  As I mentioned before, in federal court, the victor in a civil rights lawsuit is almost always awarded attorney fees.  It is a way to help civil rights lawsuits.  

Greg Abbot’s Attorney General office has already filed a notice of appeal, a frivolous appeal indeed.  It is standard to award attorney fees.  No doubt, the Attorney General filed this appeal for political, not legal reasons.  

Our Attorney General has indeed wasted a lot of taxpayer money on weak lawsuits and frivolous defenses to meritorious lawsuits.   

There are reams of social science on what "discrimination" is.  How is it formed?  What level of bias rises to the level of "discrimination"?  These questions and more abound.  We see these questions regarding the hiring of Charley Strong, the first black head football coach at the University of Texas.  UT is famous or infamous for having had the last all-white football team win the national championship in 1969.  UT was not last member of the old Southwest Conference to recruit black players, but it was far from the first.  

There has been some criticism about Red McCombs because he suggested that Charley Strong would do better as a coordinator or a position coach.  In essence, Mr. McCombs was suggesting Coach Strong was not ready to be a CEO and head coach.  The criticism acknowledges that racism does not consist merely of use of racial epithets.  Racism also includes imposing a higher standard on minority candidates.  Buck Harvey, with the San Antonio Express News, supports Mr. McCombs.  He reminds readers that red McCombs hired a black head coach for the NBA back in the 1980’s when black head coaches were rare.  See Buck harvey’s post. 

Sure, but, you know, that is the thing about racism.  Racism is rarely obvious and it is always situation dependent.  As I have mentioned before, I believe we all suffer from some form of latent racism.  Racism, or stereotypes, really, is nothing more than filling in a lack of information with whatever limited experience a person might have.  For example, when I was a National Guard and Army Reserve officer, active duty officers reacted to me and my cohorts with stereotypes all the time. To some degree, stereotypes are just human nature.  But, those reactions always changed as we worked together on some training event.  I wish I had a dollar for every time an active duty counter-part would look at me incredulously when I assured them that yes, my soldiers could accomplish a particular task. 

And, as Coach Strong says, any criticism will change as he finds success as the new head coach at UT football. 

Back before we had courts of law, we had trials by combat to decide the truth of a civil dispute.  If your cow tromped through Sir Reginald’s hedges, then Sir Reginald could challenge you to a sword fight to decide who was at fault.  Now, we engage in a slightly more fact based approach.  But, one Englishman hoped to bring back the trial by combat.  Leon Humphreys was ordered to pay a £25 fine for a driving offense.  He failed to pay the original fine and he did not remove his motorcycle from use on the roads, as ordered.

Ordered back to court, Mr. Humphreys claimed his ancient right to trial by combat.  He said that under the European human rights legislation, trial by combat was still available.  He insisted the Driver and Vehicle Licesning Agency nominate a champion to fight him with "samurai sword, Ghurka knives or heavy hammers."  He said later he would have beenwilling to fight to the death. 

That does seem like an intense challenge for a £25 fine, about $60.  The magistrate denied his request and fined him £200 with £100 costs.  As with U.S. Magistrates, if one makes a joke in court, it better be very good joke……    See The Telegraph report. 

Susan Graziosi had been employed by the Greenville, Mississippi Police Department for some 26 years when a fellow officer was killed in the line of duty in Pearl, Mississippi.  The Greenville P.D. chose not to send an officer to the funeral in Pearl, some two or three hours away.  Sgt. Graziosi objected to that failure and posted comments on her Facebook page criticizing the Greenville P.D. leadership.  She said, among other things, that the leaders should lead or get out of the way.  She mentioned no one by name, but her comments appeared to be addressed to the new Chief of Police. 

The Chief fired her soon after.  Cited in her termination letter were several police department policies, one of which stated:  "chronic complaining about operations to the extent that supervisors must spend excessive time dealing with problems or issues caused by complaints" can lead to termination.  

Yes, that is right.  The Police Department had a policy against complaining.  (Thanks to Molly DiBianca at Delaware Employers Blog for pointing this out).  Truly a Human Resources representative dream policy.  

Sgt. Graziosi filed suit alleging First Amendment issues.  Grasiosi v. City of Greenville, No. 4:12-CV-68-MPM-DAS, 2013 US LEXIS 172581 (N.D. Miss. 12/3/2013).  A government worker does have some First Amendment right to comment on issues of public concern.  But, that right is balanced against an employer’s right to maintain an efficient workplace.  The employer’s right to maintain good order and discipline is especially important in a paramilitary organization like a police force.  In this case, as many other police cases, the district court found that Ms. Grasiosi’s comments were not protected by the First Amendment.  Her comments were more about her personal concerns about the department than about some larger public policy, said the court.  So, the court granted the employer’s motion for summary judgment. 

But, if I worked at the Greenville Human Resources department, I would still seriously re-think that policy against complaining……