In civil lawsuits, we do these things known as “depositions.” We depose a witness with no judge present. The depositions usually occur in lawyer’s offices, but they can take place anywhere. The two warring sides meet up and the only brake on poor behavior are social norms. In a deposition in Las Vegas, a lawyer was deposing the person who had accused him of defamation. The lawyer, James Pengilly, was sued for defamation. Mr. Pengilly represented himself in the lawsuit. He was deposing the person who had filed the lawsuit. He used various vulgar terms, interrupted the witness and his attorney, made inappropriate statements and was generally aggressive.

Then, apparently not liking an answer by the witness, he move this hand near a pistol he wore on his belt and asked the witness if he was “ready for it.” The witness left the room. When he returned, Mr. Pengilly displayed his weapon to the witness and the opposing attorney. The two were frightened by this odd conduct and called the police.

The Nevada Supreme Court has suspended Mr. Pengilly. It said there was serious risk of harm to all who were present. Interviewed by the local newspaper, Mr. Pengilly said he always carried a weapon, because his father had worked at a law firm in San Fransisco where a gunman killed eight people. He has the pistol with him everyday, he explained. “I always carry a gun because I’m attorney and people don’t like me.” See ABA Bar Journal news report. I suppose they don’t…….

The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

I wrote about a pushy judge in the Paul Manafort trial here. The judge was fussing at the prosecutor and the prosecutor fussed back a bit. Now, the judge has apologized and explained to the jury that he was “probably wrong” for criticizing the prosecutor regarding one of the witnesses. IRS agent Michael Welch had been allowed earlier to sit in the court room and observe testimony. Perhaps forgetting his previous order, Judge Ellis fussed at the prosecutors for allowing a witness to sit in the court room prior to his testimony. So, later the prosecutorial team asked the judge to explain his oversight to the jury. See The Hill news report here.

It is probably symptomatic of the poor working relationship between the judge and the prosecutors that this inadvertent mistake occurred. The judge had fussed at them so much that he assumed they had erred. He spoke too soon, apparently.

Trials are not what we see on television. The judges and juries are not always somber, listening closely and making no mistakes. This is real life. The prosecutors saw the error and asked the judge to fix it. The judge is acting strangely. When relating a ruling that the prosecutor, Greg Andres did not like. Judge Ellis said Mr. Andres should not cry. The prosecutor said he was not crying. Judge Ellis remarked that well, his eyes were watery. There was no need for that retort.

The National Labor Relations Act has always protected a worker’s right to discuss “terms and conditions” of employment. Sec. 7 of the NLRA protects the right of workers to discuss conditions at their job. Sec. 7 of the NLRA is found at 29 U.S.C. § 158(a)(1). 

But, because labor unions are so rare in the country now, very few people are aware of this right. The right applies even before a union is formed. When the NLRA was passed into law, Congress recognized that to form a union, workers would have to discuss problems at work. I last discussed those Sec. 7 rights here. The Fifth Circuit has recently re-affirmed the right to discuss conditions at work. In the case of In-N-Out Burger v. NLRB, No. 17-60241 (5th Cir. 7/6/2018), some fast food workers demonstrated solidarity with a national movement to raise the minimum wage to $15. The workers wore buttons with the slogan “Fight for $15” to work.

Management then cited a company rule that forbade workers from wearing any pins or stickers on their work uniform. The workers complied. Someone filed a complaint with the NLRB. The NLRB found the burger chain to have violated Sec. 7. The Fifth Circuit agreed. Despite the rule against buttons, the burger chain requires its workers to wear holiday themed buttons at Christmas time and a donation button in April seeking donations to the In-N-Out Foundation. The burger chain argued that “special circumstances” under the NLRA would allow them to implement rules regarding food safety and to project a certain “public image.”

The appellate court was not impressed. It reviewed the history of Sec. 7, noting its critical role in forming labor unions. It noted that “special circumstances” under the NLRA pertain to work place safety. The no pins or buttons rule had no direct connection to the company’s desire to presenting consistent menu and ownership structure at each restaurant. Prior cases law does not support a “special circumstances” privilege in regard to buttons and interacting with the public. And, the use of a Christmas button and a donation button undercut the company’s claim that “special circumstances” required that uniforms be button free. The appellate court found in favor of the NLRB. See the decision here.

Overcoming Sec. 7 is very difficult. In-N-Out Burger wasted a lot of effort.

As often happens with serious injuries, the recovery period is hard to predict. In Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), Raymond Severson took his full 12 weeks of leave under the Family Medical Leave Act. He was addressing his serious back pain. On the last day of his leave, he went through back surgery. He asked for an additional 2-3 months of leave. The company said no and fired him when he did not return to work. The employee then sued for a violation of the Americans with Disabilities Act. Mr. Severson said the company failed to accommodate his need for time off.  Three months later, the plaintiff was cleared to return to work.

The employer was granted summary judgment. On appeal, the Seventh Circuit affirmed. Without any explanation, the court decided that Mr. Severson’s request was for “extended” leave. The court did not explain how it came to decide that 2-3 months was extended leave, as opposed to 6-7 months, or 9-10 months.

The court rightly noted that the ADA does not allow for extended leave. But, it did not explain why 3 months would constitute extended leave. The court found that leave involving “multiple” months would be too long. That period of time allows a person not to work, not help him work, said the court.

The Equal Employment Opportunity Commission filed an amicus brief. It argued that effective accommodation means reasonable accommodation. The Seventh Circuit disagreed, saying that the Supreme Court said in U.S. Airways v. Barnett, 535 US 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), that reasonable accommodation does not require that accommodations be effective. In a confusing sentence, the court concluded that “effectiveness is a necessary but not sufficient condition for a reasonable accommodation under the ADA.” But, to be fair to the Seventh Circuit, the decision in Barnett is confusing. Justice Breyer seems to conflate accommodation with undue hardship. The Justice strains to explain that accommodation needs to be effective, which would render the use of the word “reasonable” superfluous.

In the end, the Seventh Circuit concluded that if the court read the ADA as the EEOC argued, then the ADA would become a medical leave statute. If employees are entitled to extended leave under the ADA, then the ADA becomes a medical leave statute, or an “open-ended” version of the FMLA. At this point, the court has abandoned legal scholarship and now relies on cliches. The court presents no evidence that Congress intended the ADA not to include medical leave. And, indeed, the language of the ADA indicates otherwise. See the decision here.

Pres. Trump says he has no no idea why a lawyer representing him paid $130,000 to Stormy Daniels. See CBS news report. He was asked if he knew about Michael Cohen’s payment of $130,000 to Stormy. The President answered, “no.” He added the reporter should ask his lawyer, Michael Cohen, about the payment. “Michael Cohen is my attorney,” the President added.

Those are extraordinary things to say. His lawyer, Michael Cohen, used the Trump campaign email address when he communicated with he Daniels attorney. In disclaiming any knowledge of the payment, Pres. Trump has suggested Michael Cohen took some action without his client’s consent. That exposes Mr. Cohen to ethical issues with the bar association. It also means Michael Cohen becomes a witness.

Mr. Cohen is now a witness who can be deposed about his discussions with then Candidate Trump and questioned about why he would make payments for the benefit of Trump without his consent. In fact, the President said to ask his lawyer about the payment. That makes Mr. Cohen a witness, not a lawyer any longer, in regard to that $130,000 payment. And, this answer makes Pres. Trump a key witness, as well. He will surely be deposed about what he knew or did not know about the payment to Stormy.

It was a difficult question for the President to answer. Answering yes would have caused him as many problems as no. The only safe answer would have  been to ignore the question. But, Pres. Trump cannot ignore questions. His instinct is to always push back in some way. This “push back,” however, will likely haunt him for weeks and months as Stormy’s lawsuit progresses.

Hiring a lawyer poses perils for any client. Not only must the lawyer have sufficient expertise and competence, the client needs to get along with the lawyer. They are locked in a major endeavor that will last months, if not years. Yes, a lawyer can quit or be fired. The client can quit or be fired. But, termination is not simple. A lawyer cannot ethically leave a case too close to trial or to a major event in the lawsuit. In federal court, some judges will not let a lawyer quit.

So, once hired, lawyers do not often leave a case before it concludes. That helps explain why so many lawyers avoid what otherwise appears to be a prime client, Donald Trump. Most lawyers would jump at the chance to represent a President and the recognition it can bring. Like all types of business, lawyers rely on good reputations to attract new clients. A high profile lawsuit or criminal defense builds name recognition. Yet, many lawyers are avoiding the President’s case. As one Washington attorney, Mark Zaid explained, “I don’t have the time, energy or patience to babysit a client who ignores my expertise and opinions.” See The Hill report.

That is the problem. It does not build name recognition to accept a case and then the case goes south, badly. If a client consistently disregards my advice, absolutely, I would resign from that case. And, absolutely, if I knew ahead of time that a client frequently disregarded sound legal advice, I would never accept that client. No one needs headaches like that. Those are the sorts of clients who lead to bar grievances. Taking on a client like Donald Trump amounts to career suicide. No matter how competently a lawyer performs, the case is very likely to fail.

This problem in finding a lawyer compounds itself as time goes on. Much has happened in Pres. Trump’s criminal case. Even if a new law firm was hired today, it would require weeks for the lawyers to catch up on where John Dowd was before he left. Those are weeks in which the Muller investigation will proceed without any real opposition from the President. Tweets do not count as legal opposition.

The best advice I can give to folks looking at hiring a lawyer, is to interview 2 or 3 lawyers. Once you pick one, follow his or her advice. You can and should disagree from time to time. But, if you consistently disagree regarding major strategic issues, then it is time to part ways. And, never, ever undermine your own lawyer publicly.

Andrew McCabe, former Deputy FBI Director was fired late Friday, the last work day before his retirement would have vested. After he was fired, Politico released an interview in which the embattled Deputy explained that Pres. Trump had been after him, tweeting about him since late December, 2017. It was in December when it became public knowledge that Mr. McCabe could corroborate James Comey’s concerns about Pres. Trump.

Mr. McCabe is referring to something often seen in sexual harassment cases. If the alleged victim discusses the unwanted harassment with a co-worker or friend, that helps corroborate her complaints. Harassment generally happens behind closed doors. There are usually no direct witnesses. But, if the victim discusses her experiences at or about the time of the harassment, that testimony from a friend or co-worker is probably admissible. That appears to be the value Mr. McCabe provides for Mr. Comey. And, that corroboration apparently attracted the attention of the President.

The lawyer for Mr. McCabe, Michael Bromwich, is a former IG for the Department of Justice. He indicates in the Politico news report that rarely have IG investigations progressed so quickly. The investigation started in late December, and now, three months later, the Deputy Director has been fired. As we know from discrimination cases, any major deviation from normal procedure will support an inference of illicit motive.

Mr. Mccabe explained that he was effectively removed from his post in January. He apparently means he was asked to leave his position as Deputy Director and serve in a different capacity, He was not willing to do that. So, on short notice, he was told he had to leave his post and use his terminal leave. That means since January, he has been at home on leave.

And, as these events were unfolding, Pres. Trump was tweeting about McCabe’s “race” to obtain his benefits before he might be fired. And once Mr. McCabe was fired, the President again tweeted his pleasure that he had been fired. He expressed no regret for McCabe’s loss of his pension. Those sorts of tweets do help show that the President was involved somehow in the alleged discipline of the Deputy Director. Evidence takes many forms. These tweets by themselves do not mean much. But, in conjunction with other types of evidence, these tweets provide the crucial look to the President’s intent. Obstruction of justice is a crime of intent.

If this were a discrimination case, I would be thrilled to have a supervisor tweeting about his hopes and desires in regard to my client. And, then at the end, the supervisor claps and celebrates the firing. Any decent lawyer could make wonderful use of those sorts of comments. The President may well come to regret this tweeting before this is all done. Deputy Director McCabe was employed by the FBI for 21 years. The DOJ just now discovered he was not a good employee? If this were a discrimination lawsuit, I would love to have this sort of evidence.

See Politico report.

Judge Edith Jones is at it, again. In a recent opinion, in which she was the  loser, she traded angry barbs with her judicial colleagues who comprised the majority opinion. In the case of Doe v. Office of Refugee Resettlement, No. 18-40146 (5th Cir. 3/1/2018), the court addressed the situation of a pregnant immigrant who sought an abortion. A non-profit group referred the young immigrant to lawyers who would assist her in seeking an abortion. The lawyers met with the young immigrant who confirmed she wanted an abortion. They set the matter for hearing in a state court. In the U.S., a person can seek an abortion without parental approval if she proceeds to court.

But, the Office of Refugee Resettlement (ORR) would not let the two lawyers meet again with the young woman. The ORR passed a note to the lawyers apparently from Ms. Doe indicating she no longer wanted an abortion. ORR refused to produce the young woman at the hearing. The lawyers tried to meet with their client, but ORR refused to allow such a meeting.

About that same time, the state court appointed the two lawyers, Myles Garza and Rochelle Garza to represent the young immigrant. The Garza’s then removed the lawsuit to federal court and the federal court refused to allow the move to federal court. The Garza’s appealed that order.

Judge Jones characterized the meeting between the two lawyers and the young immigrant in dark terms, describing the meeting as “Doe came into contact with lawyers who had learned about her pregnancy” – a description to which the majority opinion objected. As the majority explained, the only issue that matters is that Ms. Doe once wanted an abortion and now may not want one. How the lawyers happened to come to represent their client should not matter.

Judge Jones accused these “agenda-driven” lawyers of preying upon a young immigrant, said the majority opinion. As the majority noted, judicial spin did not address the salient fact, whether the young unaccompanied immigrant has the right to an abortion or whether she wants one. Too, Judge Jones’ characterization ignored the contrary facts as presented by the Garza’s, two officers of the court. That is judge-speak for Judge Jones jumped to conclusions based upon little or no evidence.

Having dispensed with the accusations made by the dissent, the majority opinion found it an easy question that when a minor requests an abortion, a state court holds a hearing and the federal agency lacks a valid defense to the state court, then removal is proper. The proper course is to ask the minor female what does she want. The court found that if the minor female wanted an abortion, it is not the role of the federal agency to obstruct that wish.

The majority opinion addressed the constitutional argument posed by Judge Jones in her dissent. It noted that that argument was neither raised or briefed by either party. The court then found there was no “war” here, just simple fact issues – apparently referring to what does the minor female want.

In her dissent,. Judge Jones described Jane Doe as a “pawn” in a fight for control by the federal government over its relationship with unaccompanied minors who are in its custody because they have not been allowed legally into the country. Judge Jones argued that Ms. Doe was in the custody of ORR and they were legally responsible for her. Judge Jones accused the two lawyers of having an “avowed advocacy agenda” apparently based on Rochelle Garza’s status as a named plaintiff in a lawsuit for a class action for unaccompanied minors seeking abortion. The judge accused Ms. Garza of seeking to “usurp” decisions that ORR should make. The judge accused the Garza’s of not seeking to work with ORR in regard to Ms. Doe.

The two Garza’s, asserts Judge Jones, “have demonstrated by word and deed that their goal is to foster abortions.” The judge then asserted that what was “unsaid” in the majority opinion was that there was some constitutional right to abortion via this bypass court procedure in state court. Judge Jones argued that a bypass court is not needed when Ms. Doe already has a custodian, ORR.

Judge Jones apparently objected to the majority opinion describing the judge’s dissent as seeing this lawsuit as part of a “war.” Judge Jones insisted in a footnote that she is not Joan of Act. She explained that anyone who is “well-educated” should know that the phrase “win the battle, lose the war” referred to a Pyrrhic victory. Judge Jones was clearly annoyed, as were the majority opinion authors. Her focus on this tenuous request for an abortion as part of the “war” on abortion does seem over the top. I have written about Judge Jones before in regard to her difficulties with her colleagues on the Fifth Circuit. See my prior post here. Judge Jones can be very caustic for a judge. She seems very certain of her positions.

Back in 2011, Judge Jones grew impatient with Judge Dennis, a more liberal member of the court, when Judge Dennis asked one too many questions, at least in her opinion. Judge Jones told Judge Dennis to “shut up” and asked him to leave the court room. As Above the Law blog explained, it is exceedingly rare to hear one judge tell another to shut up. See Above the Law explanation about what happened in 2011 here. Judges Jones seems very certain of her positions. She did later apologize to Judge Dennis.

See the decision in Doe v. Office of Refugee Resettlement here.

Pres. Trump has nominated some crazy folks for lifetime federal judgeships. Four have been rated unqualified by the ABA’s volunteer committee of some 160 lawyers on federal judicial nominations. One such nominee, Matthew Spencer Petersen was questioned by Sen. Kennedy (R-La). Mr. Petersen could not answer the most basic litigation questions. Mr. Petersen is just not qualified for a federal judgeship, or any judicial post. He admitted he has never tried a case, meaning never appeared in court as attorney for a client for a trial, has never conducted a bench trial (i.e. no jury), or a jury trial. He attended some 5 depositions, but did not conduct those depositions himself. He is just not qualified to deal with litigation. As a judge, he deals with litigation every day. He has never argued a motion in federal or state court. He has not reviewed the federal rules of evidence since law school.

He is not familiar with basic litigation devices, such as a motion in limine, a Daubert challenge, abstention doctrine, all basic litigation concepts.

He is currently working as a commissioner at the Federal Election Commission. Matthew Spencer Petersen. He admits up front his back ground is not in litigation. He was rated “not qualified” by the ABA, a rare enough event. See CBS news report.

I previously wrote about Pres. Trump’s questionable nominees here. We expect some degree of political advocacy when judges are nominated. But, this administration could not even find someone who could find his/her way to the court room?