Our overly-litigious society: The justice system is out of control 1

Our overly-litigious society: The justice system is out of control

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By Craig Byrnes

I’m a trial lawyer.  When people find out what I do for a living, I usually get an earful. Too many lawsuits, they say. The verdicts are too high, they tell me.

The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here’s what I say to these folks.

Let’s Play “Who Have You Sued?”

I usually start off with a little party game I like to call, “Who Have You Sued?” It goes like this: I ask the person, “Have you ever sued anyone, or been sued?” The next question is, “Do you know anyone who’s been sued, or who’s sued anyone?”

I feel completely safe asking these questions, because no one’s ever answered yes to either question yet.

Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don’t even know anyone who has. Within a full degree of separation — which is a lot of people, when you think about it — you have probably had no contact with the court system.

As for our being an “overly litigious society,” did you know that, from 2009 – 2010, lawsuits in California actually *decreased* 11.6%?  As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed.

In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract.  You can’t blame those cases on greedy plaintiffs sticking it to the poor companies since breach of contract cases usually involve corporations suing each other. Tort cases, involving personal injury and wrongful death — the sorts of things you hear about people suing for — were about 6% of the courts’ dockets in 2009.

So just to make the point here clear — the number of lawsuits is trending down, not up, and per capita, and California is toward the bottom of the list when it comes to lawsuits being filed.

Your own experience tells you that lawsuits are not out of control, because you’ve never sued anyone and you don’t know anyone who has. The data says that lawsuits are not out of control — they’re actually trending down.

We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?

But What About the Big “Hot Coffee” Verdict?

But how about all those out-of-control verdicts? How about the lady who spilled hot coffee in her lap and got 150 million dollars?

Litigants who win big verdicts are sort of like people who win the lottery. You’ve heard it happens, but you’ve never met anyone it’s happened to.
There are a lot of reasons for that.

Part of it is that what really happens would never make the news. It’s too boring. Did you know that the median verdict in California personal injury cases is about $115,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what’s really happening out there.

The other thing the news doesn’t tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone has heard of the McDonald’s coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don’t have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald’s showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.

And while you never heard any of those facts on the news, here’s what you also didn’t hear: the judge took away the jury’s verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury’s verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.

Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.

Sometimes, the facts just don’t make good stories. But they are still the facts. Despite what our own experiences and the facts tell us, the constant drumbeat of “frivolous lawsuits” and “overly litigious society” keeps legislators dancing to the insurance companies’ rhythm.

I know that this blog post’s title was “Our Overly-Litigious Society: The Justice System is Out of Control,” and that’s not at all what the evidence shows. Sometimes, you just can’t believe the headlines.

An earlier version of this blog post was published on the author’s Workplace Law blog.

 

CELA VOICE Guest Blogger

About Our Guest Bloggers

Our guest bloggers include members of CELA and other employee advocates. Email us if you are interested in guest blogging.

The Educational-Entertainment Complex exposed, under fire

The Educational-Entertainment Complex exposed, under fire

By Guest Blogger:  Matthew A. Kaufman

The National Labor Relations Board recently publicized the NCAA’s playbook.  For sports fans, the NLRB revealed all the things that we kind of knew (or should have known) were true, but now we know: it is all true.

Here’s what happened: on March 26, the NLRB ruled that Northwestern University football players were employees under the National Labor Relations Act and ordered that an election take place on collective bargaining.   The Board found that the Northwestern football team made overwhelming demands on the football players’ time.   During the season, players devoted 40 to 50 hours per week to the team, sometimes as much as 60 hours per week.  During the spring, the team required 12 to 20 hours per week of player time.  That does not leave a lot of time for a first-class education.   In that regard, scholarship football players received $61,000 a year in tuition, room, board and books.  Walk-on players – zero.  The NLRB found that playing football at Northwestern was pretty much a full-time job, hence collective bargaining.

In the big picture, college football seems ripe for unionization.  Last year, the Northwestern football team made a $7 million profit.  Northwestern isn’t even close to being in the league of the NCAA’s top earners.  In 2012, the University of Texas cleared $75 million in profit from football, and in 2014, UT will pay its coach $9.4 million.  Meanwhile, on the opposite end of the spectrum are the rank and file college players.  NCAA rules prohibit compensating them for their services.  The reality is that the chances of making the NFL are tiny.  The NFL Players Association advises hopeful professional football players to “come up with alternative plans for the future.”  Imagine if a trade school put that on its website.

The NCAA’s president, Mark Emmert, who himself earns over $1.7 million per year, denounced the NLRB’s decision as “grossly inappropriate.”  According to Emmert,

“To convert to a unionized employee model is essentially to throw away the entire collegiate model for athletics.  You can’t split that in two.  You’re either a student playing sports or you’re an employee of a university.  It would blow up everything about the collegiate model of athletics.”

Emmert almost got it right.  The collegiate model cannot coexist with a business model of college athletics.  But it was the NCAA and its member schools who long ago blew up the notion of bona fide amateur college athletics and turned their students into unpaid football players. The current model of collegiate football makes big money for colleges on the backs of an undercompensated workforce that, by rule, has no negotiating power.  Let’s let the players negotiate so that change can come to this fundamentally unfair system.

Robert Reich: The Real Job Killers 1

Robert Reich: The Real Job Killers

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By Robert Reich

House Speaker John Boehner says raising the minimum wage is “bad policy” because it will cause job losses.

The U.S. Chamber of Commerce says a minimum wage increase would be a job killer. Republicans and the Chamber also say unions are job killers, workplace safety regulations are job killers, environmental regulations are job killers, and the Affordable Care Act is a job killer. The California Chamber of Commerce even publishes an annual list of “job killers,” including almost any measures that lift wages or protect workers and the environment.

Most of this is bunk.

When in 1996 I recommended the minimum wage be raised, Republicans and the Chamber screamed it would “kill jobs.” In fact, in the four years after it was raised, the U.S. economy created more jobs than were ever created in any four-year period.

For one thing, a higher minimum wage doesn’t necessarily increase business costs. It draws more job applicants into the labor market, giving employers more choice of whom to hire. As a result, employers often get more reliable workers who remain longer – thereby saving employers at least as much money as they spend on higher wages.

A higher wage can also help build employee morale, resulting in better performance. Gap, America’s largest clothing retailer, recently announced it would boost its hourly wage to $10. Wall Street approved. “You treat people well, they’ll treat your customers well,” said Dorothy Lakner, a Wall Street analyst. “Gap had a strong year last year compared to a lot of their peers. That sends a pretty strong message to employees that, ‘we had a good year, but you’re going to be rewarded too.’”

Even when raising the minimum wage — or bargaining for higher wages and better working conditions, or requiring businesses to provide safer workplaces or a cleaner environment — increases  the cost of business, this doesn’t necessarily kill jobs.

Most companies today can easily absorb such costs without reducing payrolls. Corporate profits now account for the largest percentage of the economy on record.  Large companies are sitting on more than $1.5 trillion in cash they don’t even know what to do with. Many are using their cash to buy back their own shares of stock – artificially increasing share value by reducing the number of shares traded on the market.

Walmart spent $7.6 billion last year buying back shares of its own stock — a move that papered over its falling profits. Had it used that money on wages instead, it could have given its workers a raise from around $9 an hour to almost $15. Arguably, that would have been a better use of the money over the long-term – not only improving worker loyalty and morale but also giving workers enough to buy more goods from Walmart (reminiscent of Henry Ford’s pay strategy a century ago).

There’s also a deeper issue here.  Even assuming some of these measures might cause some job losses, does that mean we shouldn’t proceed with them?

Americans need jobs, but we also need minimally decent jobs. The nation could create millions of jobs tomorrow if we eliminated the minimum wage altogether and allowed employers to pay workers $1 an hour or less. But do we really want to do that?

Likewise, America could create lots of jobs if all health and safety regulations were repealed, but that would subject millions of workers to severe illness and injury.

Lots of jobs could be added if all environmental rules were eliminated, but that would result in the kind of air and water pollution that many people in poor nations have to contend with daily.

If the Affordable Care Act were repealed, hundreds of thousands of Americans would have to go back to working at jobs they don’t want but feel compelled to do in order to get health insurance.

We’d create jobs, but not progress. Progress requires creating more jobs that pay well, are safe, sustain the environment, and provide a modicum of security. If seeking to achieve a minimum level of decency ends up “killing” some jobs, then maybe those aren’t the kind of jobs we ought to try to preserve in the first place.

Finally, it’s important to remember the real source of job creation. Businesses hire more workers only when they have more customers. When they have fewer customers, they lay off workers. So the real job creators are consumers with enough money to buy.

Even Walmart may be starting to understand this. The company is “looking at” whether to support a minimum wage increase. David Tovar, a Walmart spokesman, noted that such a move would increase the company’s payroll costs but would also put more money in the pockets of some of Walmart’s customers.

In other words, forget what you’re hearing from the Republicans and the Chamber of Commerce. The real job killers in America are lousy jobs at lousy wages.

A special thank you to Robert Reich for letting us repost this compelling piece, which originally appeared on his blog, www.robertreich.org

ROBERT B. REICH, Chancellor’s Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, was Secretary of Labor in the Clinton administration. Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century. He has written thirteen books, including the best sellers “Aftershock” and “The Work of Nations.” His latest, “Beyond Outrage,” is now out in paperback. He is also a founding editor of the American Prospect magazine and chairman of Common Cause. His new film, “Inequality for All,” is now available on Netflix, iTunes, DVD, and On Demand.

Marriage cases move nation towards equality

Marriage cases move nation towards equality

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By Guest Blogger:  David Duchrow

The United States Supreme Court issued two landmark civil rights cases which, together, provide the strongest support to date for same-sex marriage.

These cases remind us that the civil rights movement does not travel a linear path.  Historically there have been notable steps forward and back, as well as many missteps.  The United States Supreme Court has issued decisions which, at times, have reflected popular opinion, and at other times it has held contrary to the will of “the people.”

Proponents of civil rights have pressed their cases based on compelling facts and moral imperatives, while those defending against progressive reform seem to utilize every procedural tool available to them (issues of standing, venue, and timeliness to name just a few) to defeat lawsuits against their clients.

This morning’s two marriage equality cases both follow and defy those historic trends.   In United States v. Windsor, the case involving the federal Defense of Marriage Act (“DOMA”), the Court issued a ruling aligned with what polls suggest is an overwhelming “will of the people,” which itself had dramatically changed over the course of the litigation.  Yet, in the case involving California’s Proposition 8, the high court avoided addressing the compelling trial court record that was carefully developed by those challenging Proposition 8.  Instead, the opinion in Hollingsworth v. Perry relies on a procedural maneuver to reinstate the trial court’s opinion invalidating Proposition 8.

In the DOMA case, Justice Kennedy wrote: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” Justice Kennedy’s writing tracks language used in an amicus brief signed by 56 pro-civil rights organizations (including the California Employment Lawyers Association, on whose behalf I was honored to sign).  That brief emphasized the stigma for same-sex unmarried couples and their children.  DOMA “undermines” same-sex marriages in visible ways and “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.”  With the new decision, the federal government must now honor “dignity” states confer on same-sex couples if they choose to legalize gay marriage.

After the Court announced its DOMA decision, it issued its decision on Proposition 8.  California voters passed Proposition 8 to ban same-sex marriage in 2008, after 18,000 same-sex couples had already married under a state Supreme Court decision legalizing gay marriage.  A married lesbian couple with children, Kris Perry and Sandy Stier, sued the state of California when their six-month-old marriage was invalidated by the ballot initiative.  They argued that Proposition 8 discriminated against them and their union based only on their sexual orientation, and that the state had no rational reason for denying them the right to marry.  Two lower courts ruled in their favor, and then-Governor Schwarzenegger announced he would no longer defend Proposition 8 in court, leaving a coalition of Proposition 8 supporters led by a former state legislator to take up its defense.

Chief Justice Roberts joined with Justices Scalia, Ginsburg, Breyer and Kagan to rule that the initiative supporters did not have the standing to defend the ban in court.  The unusual coalition of traditionally liberal and conservative justices held that the Proposition 8 supporters could not prove they were directly injured by the lower court’s decision to overturn the ban and allow gay people to marry.

With the Proposition 8 decision, the Supreme Court refused to wade directly into the constitutional issues surrounding the California gay marriage case, side-stepping the pro-Proposition 8 argument on procedural grounds, meaning that a lower court’s ruling making same-sex marriage legal in California will stand and opening the door to marriage for gays and lesbians, without directly ruling on whether there is a constitutional right to same-sex marriage.

Thus, in DOMA the Supreme Court kept pace as public opinion shifted during the litigation, to the point where same-sex marriage is overwhelmingly supported now, even by those who opposed it initially when the litigation began.  And in the Proposition 8 case, procedure, not substance (alone) decided the outcome.  In any event, it is a proud, historic day for those who believe in equality and those who work to ensure civil rights for all.

 

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Senate Bill 292 would restore protection for hostile work environment sexual harassment

For victims of sexual harassment,  whether the harasser is motivated by lust or hostility, or a combination of both, makes no difference.  However, one California Appellate Court departed from that traditional wisdom and ruled that in order for conduct to be sexually harassing, it must be motivated by sexual desire.

In his recent article for the Los Angeles Daily Journal, CELA VOICE contributor James DeSimone explains how Senate Bill 292 would restore protection to California employees who experience hostile work environment sexual harassment.

Jean Hyams

About Jean Hyams

Jean K. Hyams is a founding partner of Levy Vinick Burrell Hyams LLP, a Bay Area boutique law firm focused on representing employees in employment disputes. She left a career as a manager in high-tech companies to pursue her dream of becoming a civil rights lawyer. She has been named by Northern California Super Lawyers as one of the Top 50 Women Lawyers in Northern California for the past five years and her firm has been rated one of the Best Law Firms (Tier 1 – Employment Law) by U.S. News and World Report. After almost a quarter-century in practice, she now also serves as a court-appointed and private mediator of employment disputes. Jean is Co-Chair of the CELA VOICE.

Recent Supreme Court ruling on class action waivers in arbitration agreements draws fire

Last Thursday, the Supreme Court issued an opinion with a far-reaching impact on employees and consumers who sign mandatory arbitration agreements.  When those agreements include class action waiver provisions, victims of unfair business practices can no longer band together to seek redress.  In his post — Why Regular People Need to Pay Attention to the Supreme Court’s Arbitration Obsession: American Express Co. v. Italian Colors Restaurant Cries for Amending the Federal Arbitration Act – lawyer and blogger Bryan Schwartz covers the history of this issue at our nation’s highest court and sums up the holding like this –

Today, the Supreme Court (as Justice Elena Kagan’s dissent explains) held as follows, with respect to the fact that arbitration agreements with class action waivers effectively deprive victims of all legal recourse: “Too darn bad.”

The Atlantic Wire article — The Problem with the Supreme Court’s AmEx Decision, Class Action, and You —  summarizes the case and offers reaction from the author of an amicus brief arguing against class action waivers on behalf of an association of professional arbitrators.

Jean Hyams

About Jean Hyams

Jean K. Hyams is a founding partner of Levy Vinick Burrell Hyams LLP, a Bay Area boutique law firm focused on representing employees in employment disputes. She left a career as a manager in high-tech companies to pursue her dream of becoming a civil rights lawyer. She has been named by Northern California Super Lawyers as one of the Top 50 Women Lawyers in Northern California for the past five years and her firm has been rated one of the Best Law Firms (Tier 1 – Employment Law) by U.S. News and World Report. After almost a quarter-century in practice, she now also serves as a court-appointed and private mediator of employment disputes. Jean is Co-Chair of the CELA VOICE.

Welcome to the CELA VOICE!

Welcome to the CELA VOICE!

CELA VOICE is a project of the California Employment Lawyers Association.  Our goal is nothing short of changing the discussion about issues of importance to California employees.  Our method is simple.  We will amplify the voice of worker advocates on issues that are vital to our economy, our way of life, even our health.

The contributors to the CELA VOICE bring a unique perspective to understanding what is working and, too often, what isn’t working in California workplaces.  Because we are attorneys who represent employees in lawsuits, we spend our professional time probing how employment practices and management decisions can go so far awry that loyal employees feel they have no recourse short of the courtroom.  Working up our cases often takes us to the top levels of management and always requires us to learn about industry practices.  Over time (and many of us have been practicing for decades), we cannot help but recognize the trends.

Why is this perspective needed when plenty of bloggers are already out there ready to offer their opinion on controversies in the workplace?  After all, almost anyone who blogs or writes opinion pieces is a worker.  The answer is this — very few journalists or bloggers have the depth of access to information and the insider view that we gain every time we take a case on behalf of an employee.  (And, let’s face it, journalists can’t put their sources under oath.)  That being said, we share the journalists’ fealty to facts.  In trial, lawyers are forced to focus on the evidence and drop the speculation.  We have tasked our contributors to do the same, so that our readers can count on solid information and evidence-based opinions that should stand the test of cross-examination.  Indeed, not all of our contributors share the same perspective on all issues, so what you are reading is not any sort of “party line.”

Which are the industries where sexual harassment is commonplace?  How are employers using the “exempt” designation to force their employees regularly to work 80 hours a week without overtime?  What is being done to protect farmworkers from exposure to pesticides?  When whistleblowers step forward to report illegal practices, what really happens to them?  If you want to know the answer to these questions, just ask the lawyers who represented the workers.  Or, better yet, subscribe to the CELA VOICE!

Jean Hyams

About Jean Hyams

Jean K. Hyams is a founding partner of Levy Vinick Burrell Hyams LLP, a Bay Area boutique law firm focused on representing employees in employment disputes. She left a career as a manager in high-tech companies to pursue her dream of becoming a civil rights lawyer. She has been named by Northern California Super Lawyers as one of the Top 50 Women Lawyers in Northern California for the past five years and her firm has been rated one of the Best Law Firms (Tier 1 – Employment Law) by U.S. News and World Report. After almost a quarter-century in practice, she now also serves as a court-appointed and private mediator of employment disputes. Jean is Co-Chair of the CELA VOICE.

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