HAPPY NEW YEAR!
HAPPY NEW YEAR!
SEASON'S GREETINGS
WE WISH YOU A JOYOUS HOLIDAY SEASON AND A NEW YEAR FILLED WITH PEACE AND HAPPINESS.
ROGERS & TARTARO, LLP
Employment Discrimination Verdicts Up; Look to Settle Anyway
AbaJournal.com reported recently that the median employment discrimination verdict rose 70 percent in 2007 to $252,000 from $147,000 in 2006. The post also reports that employers won only 38 percent of the cases that went to the jury.
The post was by Jill Schachner Chanen was based on a report by Jury Verdict Research (“Employing the Law.”)
Although these numbers are interesting and somewhat useful, neither employers nor employees should depend too much on them. Many jury verdicts are reduced at some point after trial - - either by settlement to avoid a costly, time-consuming appeal or by the Court for various legal reasons. And, the amount of the verdict gives no indication of what the client actually recovered after costs.
Sometimes clients, hurt and embittered by the controversy, are confused when they are counseled to settle a case. Having hired attorneys to litigate, they wonder why don’t we want to litigate to the end? Lawyers are probably well-aware of the issues but for our non-lawyer readers: there are a number good reasons but one very good one is to exert a degree of control and achieve a degree of certainty as to what will be recovered by the client (when plaintiff) or what the litigation will cost (when defendant).
Some cases will inevitably have to go to trial but for most, despite the apparent uptick in the size of verdicts, it’s still far better to look to settle the case.
Firm News: Rogers & Tartaro, LLP Website Enhanced
We’re happy to report that the website of our firm, Rogers & Tartaro, LLP, has been enhanced with new content. You are invited to browse and learn more about our firm, practice areas and attorneys by clicking here.
"Texas Lawyer" Discusses Employment Law Lessons Drawn From Politics
First, thanks to our readers for your patience during our suspension of posts while we addressed some technical issues (I lost some key data, recovered it but it took days to finish the task).
We normally don’t comment on politics but we came across a very interesting post by Michael P. Masanka, a Texas attorney (“Employment Law Lessons From the Presidential Campaign”). We saw the story on Law.com but the byline is from Texas Lawyer.
The presidential campaign is one of those events or happenings with which we are so much saturated that we begin to see in them whatever it is we are predisposed to see. Luckily, the author was predisposed to see in the recent campaign some interesting and useful insights for his area of practice, employment law.
Mr. Maasanka draws six lessons and each is interestingly presented and illustrated with appropriate anecdotes from the campaign and selected cases. I refer the reader to the post for most of the lessons but one, in particular, caught my attention. The lesson is “Pick a narrative and stick with it -- Don't pile.” The lesson is illustrated with a litigation case as follows:
Employers who go with clarity stand a better chance of coming out on top. I was working on an appeal of a case where the employer, at trial, opened with, "We fired the plaintiff, because he was a poor performer," but the employer ended it with, "Not only was he a poor performer but he may have stolen from the company as well." Too big a shift.
As is often the case in this blog, we would like to take the same lesson, draw it back and apply it well before the employer winds up in litigation. We think the lesson applies in day-to-day management whether of employees or the business in general. A good story and clarity build credibility which comes in handy when delivering a message about performance - - long before performance has become an issue in litigation.
Temporary Interruption of Posts
There will be a temporary interruption of posts on this site while we address some technical problems. We expect to reume on December 17, 2008. We apologize for the intrruption.
Another Reminder Abut Wage-Hour Compliance
Wal-Mart, which is always in the news anyway, appears to be especially so with regard to Wage-Hour controversies. This time, ABAJournal.com reports that it has reached a $54.3 million dollar settlement over alleged violations involving “off-the-clock” work” (“Wal-Mart Agrees to $54.3 M Settlement of Minn. Wage-Hour Suit”). A couple of prior cases are cited in the article.
This brings up some long-last memories. When I was working for $1.00 an hour minimum wage (a long, long time ago and definitely not for Wal-Mart) it irked me that we had to clean up off the clock. I could have made another $1.00 or at least $0.50 each time. Anyway, it was accepted practice at the time that we would clean up “off the clock” and I never really complained.
As we have before, we won’t directly comment on Wal-Mart’s case because, frankly, we don’t know anything about it. However, ABAJournal.com reports, and all managers and business owners should, again, note that each violation (2,000,000 of them) carried a potential fine of $1,000 and that punitive damages were also on the table.
The best practice for any business, especially small ones without the resources to defend against major claims: be very, very careful about wage-hour compliance.
Useful information About Severance Agreements from CELB
A recent post on the Connecticut Employment Law Blog reports some useful information about the number of weeks of severance pay being provided by employers upon the termination of employment (“Separation Agreements: How Much Severance is Appropriate in Exchange for a Release?”). CELB provides references to its sources which are not repeated here to keep things brief.
Incidentally, I prefer the term “severance agreement” to “separation agreement” (even if not entirely correct) because the latter term makes me think of matrimonial actions. I’m sure some employment terminations are like divorces but let’s leave that metaphor alone.
We are asked by clients, when helping them to review their severance agreements, whether the severance pay being offered is adequate. That’s a question that is extremely difficult to answer because of the wide variations in size of company, industry practices, financial strength of the company, service with the company and, not least, other benefits and compensation being offered along with the salary continuation. For employees of a certain age, to cite just one example, age and service bridges to retirement can be valuable enhancements of the severance package.
I appreciate that CELB and the survey sponsors have provided some useful insight about general patterns with respect to severance pay.
Two Blog Posts With Good Advice About E-mail
Recently, two blog posts had some very good advice about e-mail in the context of litigation.
Daniel Schwartz in the Connecticut Employment Law Blog entitle his post, “You’ve Been Sued, What Phrases Are ‘Hot’ for Electronic Discovery Searches?” ABAJournal.com, carried a post by Molly McDonough entitled “Things You Should Never Put in an E-mail.”
Here is, for me, the simple version of Mr. Schwartz’ advice:
don't put something in an e-mail that you wouldn't want your mother to see on the front page of the New York Times six months later.
Here is the essence of Ms. McDonough’s advice, quoting a court reporter, Ron Sylvester:
My wife says you should never put anything in a company e-mail that you don’t want to be shown to 12 strangers on a big movie screen.
How could I say it any better? Thus, I merely make a modest effort to distribute the message further.
The message is on the surface merely defensive. In the context of litigation, it says that through discovery, things you put in e-mail will come back to hurt your case. Or, in a more general context, it says e-mail can come back to really embarrass you. More positively, careful attention to what and how you communicate, by e-mail in this case but in any medium generally, can only be beneficial to the business and all connected with it.
Acorns and Oaks: Change Factors for Smaller Firms
We are going to take time out for a little futurism. I was intrigued by a post in ABAJournal.com on “Four Factors that Could Change Law Practice” by Debra Cassens Weiss commenting on an article in American Lawyer.
The ABAJournal.com factors that could change law practice are: less loyalty among associates, investment by nonlawyers, corporate dissatisfaction with high billing rates and technology.
It seemed to me that the four factors selected were from the perspective of “Biglaw.” From the perspective of smaller firms, it seemed to me the principal change factors would be a little different. Along with personal experience, my analysis of small firm experience comes from a number of sources. Two very recent blog posts that provide useful insights are: ABAJournal.com, by Rachel M. Zahorsky, “Boutique Firms Find Recession Resilience in Being a Master of One,” and MyShingle.com, by Carolyn Elefant, entitled “Solo, Leverage Thyself (and Diversify Too): Biglaw, Take Heed!
This may all seem off-topic for this blog but, actually, “changes in law practice” also means changes in business litigation. In fact, one specific change we might predict is that in the future litigation may be a rarity for business disputes, especially for small business clients, while lawyers and their clients deal more broadly with “dispute resolution.” So, with thanks to ABAJournal.com for starting the thought process, I’m going to try to identify change factors from the perspective of smaller firms.
And, although we focus on small firm practice, Myshingle.com may have a point and perhaps Biglaw should take heed: the study of acorns and saplings does yield insights into the lifecycles of the mighty oaks.
I plan to elaborate on each factor in future posts. For now, let’s identify the small firm factors that could change the practice of law:
- Collaboration (both within and among firms): While lawyers do collaborate, currently there is an inherent limitation because many clients can’t afford to pay collaborating lawyers if each is billing strictly on an hourly basis.
- Value Buying: We use this term to address billing issues from the perspective of the buyer. Regardless of the law firm’s billing method, clients are making an implicit comparison of the value of services against the cost.
- Specialization (even more or ever narrower): The value to the smaller firm of specialization and the niche marketing associated with specialization ought to be self-evident.
- Technology: Technology will continue to change the practice of law but not necessarily in esoteric ways. Consider an analogy with the better known example of health care imaging technologies: the benefits come not from the imaging but from the practitioner’s ability to diagnose more accurately and treat more precisely.
We’ll have more to say. Comments will be appreciated at any time.
A Tip for Pro Se Litigants
A post in the Wall Street Journal Law Blog, commenting on an Associated Press report, notes that the number of pro se litigants has increased and they are “clogging” the courts with errors that sometimes have long-range consequences. Pro se litigants, of course, are litigants who represent themselves without lawyers. The post is by Jennifer Forsyth and telegraphs its point in the title: “Pro Se Litigants On the Rise and Mucking Things Up.”
LB ironically notes that the American Bar Association, apparently going with the flow, is urging states to create help desks and standard forms for such thins as uncontested divorces.
In this blog, we try to identify “best practices.” We have plenty of “war stories” to confirm that mistakes made by individuals who don’t want to pay a lawyer can have long-term and, we will add, very expensive consequences. The old saying “penny wise and pound (or dollar) foolish is apt.
However, I would not suggest that an attorney is needed for every aspect of every minor legal matter. It’s just not cost-effective.
The best practice seems clear: Consult an attorney. Then, decide together whether the matter is one you should be able to handle pro se. The fee for a consultation to decide how to proceed is likely to be cost-effective in the long run.
