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 myth of the disgruntled employee 5

The myth of the disgruntled employee

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By Marvin Krakow

Removed from the distant wars currently in the news, it is easy to see how neighbors alike in so many ways must dehumanize one another in the midst of conflict. It’s a form of blindness that is common not just to war, but to all conflict – and one that I see all too often in my practice.

Let me introduce you to the people who come to our law office for help.   Many have worked for the same employer for long years, often for decades.  Most feel strong and warm connections to their employers and co-workers.  They struggle, as we all do, with the challenges of life, with their health, with family responsibilities, with financial reversals, and with their careers.  They come to see us, because their bosses have disrupted their work, their source of income, their identity. They are not irrational.  They are not trying to game the system.  They work with a seriousness of purpose.

Who are they?  They do every kind of work: executives, janitors, public servants, truck drivers, waiters, teachers, and artists. They come from every imaginable background.  They have advanced degrees; they did not learn to read.  Their families are established; they are recent immigrants, accompanied by their children who translate. Some are old, some young, some rich, some poor.  They are straight. They are gay.   They have strong religious beliefs.  They have no religious beliefs. They are breadwinners with obligations to pay college tuition or to support an elderly parent.  They are men and women near the ends of long careers who need another few years of work, because they cannot afford to retire.   They are from every racial and ethnic background.

If they share anything in common, it is that they are not happy to find themselves in a lawyer’s office.  When I ask potential clients about their previous dealings with lawyers, the most common response is that they have never hired a lawyer, and have never been involved in a lawsuit.  Most of them come to us reluctantly, and they apologize for doing so.  They will explain that they would prefer to consider all other options instead of filing suit.  They come, despite that reticence, because they feel they have been seriously hurt and profoundly disrespected by their employers.

Who brings a lawsuit?  Here are a few examples from my own recent experience: a store manager falsely accuses a 60-year old retail assistant of failing a drug test, and fires him.  New owners replace a worker who successfully led a computer software development department for over thirty years and replace her with a less qualified, younger man.  An executive needs time off to care for his dying wife; the owner fires him a week after she dies.

In each of these cases, the prevailing myth of the “disgruntled employee” hides the reality of our common humanity. It is impossible to hear the adjective “disgruntled” without filling in the noun “worker,” and conjuring an image of a madman spraying bullets from an automatic rifle.

The myth serves intertwining legal and psychological purposes for employers and their counsel.   A long term, productive employee is viewed as damaged.  He or she suddenly becomes a “complainer,” “a trouble maker,” “not a team player,” “unable to communicate,” “uncooperative,” “unresponsive to constructive criticism,” “an alarmist,” someone who “games the system,” “insubordinate.”  Managers targeting these employees sometimes send lengthy and detailed emails documenting “deficiencies” which were neither observed nor noted before the employee raised questions of discrimination or harassment on the job.  As part of this management mythology, employers assume that an employee who complains does so out of a failure of character: the employee must be permanently and irrationally dissatisfied by his or her lot in life, and with his or her workplace in particular.  They believe, or claim to believe, that the employee is dangerous.

Management’s goal is to cast the person as fundamentally unlikeable, less worthy of respect, “less human.”  Ultimately, management lawyers who demonize the worker who reports a problem by treating them as quasi-criminals, put the entire workforce at risk.  When the starting point is that complaints come mainly or exclusively from defective personalities, employers fail to take reports seriously.  They fail to remedy problems before they grow more serious.  They ignore warning signs of sexual predators.  They fail to correct safety hazards.  They allow mistreatment of older workers.  They make it harder for a parent to care for his or her children.

There is a better way.  When a manager puts aside defensiveness and character assassination, and  sees the care and loyalty driving an employee complaint,  he or she is likely to recognize issues that are critical to the well-being of the employer’s enterprise. Unfortunately,  conflict feels less troubling when the enemy isn’t quite so human.  I sometimes think these employers missed a chance to get to know my clients in all their humanity.  But perhaps it is simply easier for them to forget the people they once knew.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

Gaming the system: If you can’t beat ‘em, change the rules 2

Gaming the system: If you can’t beat ‘em, change the rules

By Wendy Musell

A basic premise in our American justice system is that everyone should have to play by the same rule book, and the rules should not be rigged so that one side wins. These basic rules of fairness are being put to the test by the proposed changes to the federal rules of civil procedure.

The federal rules of civil procedure — just the name sounds boring and designed to put you to sleep. But while you’re dozing, there is a plan afoot — driven by attorneys representing employer interests — to change the rules in every federal courtroom across the country to limit access to evidence necessary to prove up violations of your civil rights. How? By drastically limiting discovery — the process by which civil litigants can get access to the other sides’ evidence, documents and witnesses.

Employment, civil rights and consumer cases, unlike contests between large business interests, are fights—where one side has more money, more time to kill, and often controls the evidence, documents and witnesses. Witnesses in employment civil rights cases are most often the supervisors who perpetrated the unlawful conduct, human resources who may not have addressed the complaints adequately and current employees who may fear that telling the truth will result in standing on the unemployment line.

To win an employment civil rights case, the employee-side lawyer

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needs to ask a lot of questions of multiple witnesses to find out who did what, who will admit to seeing the unlawful actions, and where the documents are located. It is also necessary to find out if different and changing reasons are given for the employment actions to show the jury that the employer’s actions were based on an unlawful reason, and not a legitimate non-discriminatory reason that the employer professes.

Take for example, a woman fired after she refuses the sexual overtures of her boss on the basis that her work was not competent. If there are only five depositions allowed, the victim of sexual harassment may not be able to get to the bottom of why she was fired, demonstrate her work was competent, or be able to demonstrate that she was fired because she would not give in to her boss and not based upon the quality of her work.

The employer can hide the ball until all five depositions are used up in a game of “gotcha.”After all, employees are often prohibited from taking emails and documents, no matter how important the document is to proving the employer violated the law. And they are shut out from their former employer’s computer system after they no longer work for the company, One of the only ways for a person whose civil rights were violated by their former employer to prove their case is by asking for the evidence about what happened, a process that is governed by the rules of civil procedure.

The proposed new rules slash in half the number of permissible depositions, limit the number of document requests, and limit how many written questions can be asked. These changes are akin to telling David, go ahead and fight Goliath, but we will tie one hand behind your back and only give you only half a slingshot.

The only way to ensure there is any place for employees to seek redress for violations of their civil rights , is to allow adequate access to evidence. Otherwise, we might as well be honest to American workers and tell them the rules have changed. And the number one rule is — you lose.

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

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