Sunday, September 29, 2013

You Know You're A Bad Employer If . . .

You know you're a bad employer if ....

1.  You think that only young men can be in management positions,

2.  You pay women and minorities less than white men,

3.  You think all older people are resistant to change and cannot work on computers,

4.  You think you are better than your employees,

5.  You want to pay your employees as little as possible,

6.  You think discrimination laws make it harder for you to make a profit,

7.  You make references to female employees in sexual terms,

8.  You think sex with employees makes you powerful,

9.  You don't respect your employees,

10.  You don't like your employees.

Thursday, September 26, 2013

Goodbye, Jury Trials In Federal Court

I guess federal judges in this country have decided that the founding fathers were joking when they enacted the Seventh Amendment of the United States Constitution.   The biggest right to jury trial joke is in discrimination cases.

The Wall Street Journal published a study in 2009 and determined discrimination plaintiffs win only 15% of the time in federal court, while other plaintiffs win 51% of the time. What accounts for the difference?

Two reasons - convoluted unnatural determinations of the law, coupled with summary judgments, cases thrown out by judges with no jury trials. Most discrimination plaintiffs never have a chance to present their cases to a jury of their peers. The judge usurps that role, by throwing out cases on their own.

 And, in the rare case that is decided by the jury, almost all of the time, a judge lowers the jury's award. No one ever tells jurors that the judges think their reasoned, debated awards are stupid. In all my years trying cases in federal court, oftentimes after going to the court of appeals to get the judge-thrown-out case reinstated, the judge or the court of appeals slashes the verdict.

We hear significant debate about the 2nd amendment, while most other amendments in the Bill of Rights are considered sacrosanct, yet the 7th Amendment is considered the repugnant stepchild of the Bill of Rights family of amendments.

Why is this so?  Are federal judges out of touch with real people?  Do they think most Americans are stupid?  Or are they influenced by big business?  I don't know, but it's hardly a level playing field in discrimination cases. Perhaps we need a judiciary that is more representative ethnically and socially of the American people as a whole. Perhaps judges should not be appointed for life with fat cat pensions.

Thank goodness for state courts, particularly Missouri state courts. The playing field is less uneven. Judges let the jury system work the way it is supposed to work. Win or lose, at least you have a fair court with fair minded decision makers.

Sunday, September 22, 2013

Religious Discrimination In Today's World

In the past decade, religious discrimination cases have markedly increased. For years, it seemed like religious discrimination was a thing of the past, until September 11.  There are extremist in all three major religions.  The conflicts between England and Ireland of the last decade stemmed from fights between Catholics and Protestants, although this is an obvious simplification of the issues. Itzhaak Rabin was killed by an extremist Jew who was opposed yo peace between Jews and Palestinians.  In fact, Gandhi was a Hindu, and was killed by a Hindu nationalist because the killer did not want accord with Muslims.  And now in the world there are militant Muslims in Al Qaeda, the Taliban, and Al Shabaab who represent a tiny minority of Muslims.

These terrorists don't like us, and we don't like them. It bears repeating that radicals are not representative of any mainstream religion and Islam is most certainly a mainstream religion. Yet, there is a considerable amount of fear and misunderstanding of Islam in this country, reflected at times by discrimination in the workplace.

My brother, who is not Muslim, but who did have black curly hair in college, was taunted during the Iran hostage crisis with, "Go home, you camel jockey!"  Now discriminatory epithets oftentimes more hateful are sometimes hurled at women in hijab or Muslim males.  Sometimes, Muslims are ridiculed for dressing conservatively or for praying during the day. This violates federal and state laws.

Someday, I hope, we in this country and the world will see all of the world's citizens as part of one group, humans. While we can maintain our own beliefs, I dream of a time that other points of view are respected.  The first amendment freedom of religion comes from the reaction to religious persecution in Europe and our forefathers' recognition that we are each entitled to believe in whatever we want. The first amendment comes before the second and is at least as important as the right to bear arms. When we forget the foundations upon which this country was built, we do a disservice not only to our citizens, but to the people of the world.

I hear politicians say this is a Christian nation. It is not. While there are people of the Christian faith who are the majority of religious people, this nation was built as a haven for religious freedom. That is one of the precepts that truly makes America great. Let's not cause the forefathers to roll over in their graves (especially if you believe that can happen. Treat all those of all or no religions with respect.   Peace be with you and yours.

Thursday, September 19, 2013

When Is It Right to Go to Trial - Lawyers' Edition

I have been pondering this issue. Clients ask me what the value of a case is, and, after 30 years, I don't have a good answer. I think I am not framing the issue well. While no one knows what will happen in trial, I think decisions are impacted by time and fortitude. I sometimes talk about the fortitude, but give short shrift to the time issue.

Would most clients rather settle for $50,000 after three months, or would they rather try for $500,000 to much more, realizing the time for a trial and appeals have to be factored in? When we tried some cases in federal court, this process took as much as 7 years, (1) summary judgment: (2) appeal to 8th circuit where s.j. Is overturned, (3) trial with verdict, (4) appeal resulting in remittitur = 7 years. Now there is less chance in state court of summary judgment or remittitur and defendants offer more because of their greater risk.  But, settling a case may be a disservice to the client experiencing PTSD or depression and struggling to feed his or her family.  

 These are rhetorical questions, since I much prefer to go to trial in good cases with low offers - less risk (but frankly more embarrassment if you lose). But, I don't know that in other cases I always present them in terms of time and risk. With better judges and laws in state court, maybe we should be going to trial more instead of less, tempted by higher offers. I know it's up to the client, but I may not be giving my clients the right criteria with which to make a decision. I haven't been to trial since June, 2011, and the case settled after a week of trial. 2012 was the first year since 1984 that I never even started a trial.  There are some pretty heinous acts still occurring in the workforce. Surprisingly, the sexual harassment cases I have are as bad as the ones in the 1990's, as if some companies think sexual harassment policies need not be enforced. 

Sometimes, lawyers tell me that, if a case goes to trial, there are no winners.  I disagree.  Sometimes a client deserves to be heard by a jury of his or her peers.  If no one tested discrimination laws in trial, bosses would still be chasing their secretaries around their desks for a smooch and to cop a feel or worse. Settling a case may be right for one client, but not for all.  Many parties deserve their day(s) in court. 

Sunday, September 15, 2013

Code Words For Age Discrimination

Age discrimination is rampant in America.   And many Americans think age discrimination is hunky dory (an expression used in this country by older people).  Late night talk show hosts joke about older politicians being perceived as infirm or senile (another old person expression).  There is no other protected group in discrimination law about which it is more accepted to ridicule.  People jokingly call older workers over-the-hill, or other put downs. In truth, older workers can be more experienced, more confident, more dependable and more loyal.

I think it's sad to see older, experienced, vibrant employees dyeing their hair, injecting botox, or changing their wardrobe to look or make others think they look younger.  What is this country coming to?  We don't want 30 year old Supreme Court justices for a reason.  It takes years to gather the wisdom, knowledge and experience to be a great appellate court judge.  Two federal judges in Kansas City who are still on the bench are in their 80's.  Do you want a brand new brain surgeon to cut on your brain?  I would prefer one with a little experience.

In trying age discrimination cases, I have noticed certain code words that indicated employers are not valuing employees because the employers consider them to be too old.  Here are a few:

1.  She is too set in her ways.

2.  He has trouble keeping up with technology.

3.  We need energetic employees.

4.  This company needs employees with vibrant, new ideas.

5.  Isn't he going to be retiring soon?

Perhaps a workforce of only young people may not be what it's cranked up to be.  I am glad Benjamin Franklin had a few years under his belt when he helped create this country.  The next time you want to fire someone because he or she is old, remember, that if you are lucky, that person being fired could be you in a few years.

Words of Wisdom Sent to Me from My Cousin Sonny Jaben

My cousin Sonny Jaben, the first cousin of my dear departed father, oftentimes sends me and others emails with sage reflections and interesting advice. Here is his latest missive. Enjoy. 

Idle Thoughts Of A Retiree's Wandering Mind:

I planted some bird seed.
A bird came up.
Now I don't know what to feed it 

I had amnesia once---or twice 

I went to San Francisco .
I found someone's heart. Now what?

Protons have mass?
I didn't even know they were Catholic. 

All I ask is a chance to prove that money can't make me happy.             
If the world were a logical place,
men would be the ones who ride horses sidesaddle. 

What is a "free" gift?
Aren't all gifts free? 

They told me I was gullible
and I believed them. 

Teach a child to be polite and courteous in the home
and, when he grows up,
he'll never be able to merge his car onto the freeway. 

Experience is the thing you have left
when everything else is gone. 

One nice thing about egotists:
they don't talk about other people. 

My weight is perfect for my height--
which varies. 

I used to be indecisive.
Now I'm not so sure. 

How can there be self-help "groups?" 
If swimming is so good for your figure,
how do you explain whales? 

Show me a man with both feet firmly on the ground,
and I'll show you a man who can't get his pants off. 

Is it me --or
do buffalo wings taste like chicken?



Monday, September 9, 2013

To All My 18 Mentors Who Helped Me Become a Trial Lawyer

I do not profess to be the smartest trial lawyer, nor the richest or hardest working.  But I could not have become the trial lawyer I am without the help of some wonderful lawyers who took  their time to take me under their wings.  Most of these people are pretty much unsung heroes.  They may not be the ones who are in the news, or make the most,  because their goals are not just for accolades or money.  There are some very caring, talented, brilliant, people out their who made a real difference to me.

1.  Martha Sperry Hickman - I have written about Martha before.  I met her in law school.  After law school, she invited me to first chair my first jury trial.  Martha is wonderful and she still practices law.  She is brilliant and let me try most of the case, but dealt with the judge and had my back.  I forgot to mention that Martha became a lawyer when being a female lawyer was a rarity and women could not join the Kansas City bar.  Martha and I tried several personal injury cases together.  She was so funny and so much fun, but also a thorough and brilliant attorney.  She was my first role model, either male and female.  I can't thank her enough.

2.  The partners at the now-defunct firm Miller Dougherty & Modin.  My first job as an employees was with these guys.  They mainly practiced civil defense law.  I told them that I wanted to try cases, and they gave me cases.  All kinds, small, and maybe a little bigger. I was a hero if I won and they were fine if I lost the dog case they gave me.  And the three of them were great trial lawyers in their own right.  I learned so much from them.  Thanks, Spencer, Ed and Dick.

3.  John Kurtz - I have never worked with John, but a friend of mine told me about how great he was as a public defender.  I since got to know John.  John Kurtz is a man of compassion, kindness and truth.  I would be happy if I was half as noble as he.  He is my shining example of a really greeat lawyer.

4.  The Trial Lawyers College - I was fortunate to be a member of the first class in 1994 at Gerry Spence's ranch in Wyoming.  It was a life changer.  I learned psychodrama from the best psychodramatist.  I have since had a falling out with some of the management of TLC, but I must credit some very important people with whom I worked for 15 years.  These include:

Psychodramatists -
   a.  John Nolte - my teacher, mentor and friend.
   b.  Don Clarkson - my mentor.
   c.  Kathy St. Clair - my mentor.
   d.  Katlin Larimer - my mentor.

Lawyers _
   a.  Jim Jeans - my trial ad teacher in law school and teacher at TLC.
   b.   Fredi Sison - my friend and one of the most creative lawyers I know.
   c.  Carl Bettinger - another brilliant lawyer who is so creative.
   d.  Rafe Foreman - a great lawyer I met in Wyoming who we are lucky that now teaches at UMKC.
   e.  Joane Garcia-Colson - another brilliant teacher who taught me so many things.
   f.  Gerry Spence - who started the college and shared of himself.

5.  Denise Henning - a great lawyer who is teaching me the value of courage.

6,  Mary Ann Sedey and Donna Harper - my heroes in St. Louis.  They are so great.

I am sure that I have left out some people.  I want the people I have named to know how appreciative I am of their help.  Most are wonderful people. Thanks.

Thursday, September 5, 2013

Why Are People Bullies?

It seems that there are a lot of bullies these days.  I am sure there have always been bullies.  But, it seems that I am encountering a lot of bullies lately.  Every harassment case involves grown-up bullies.  Bullies are people who put others down to build themselves up.  Bullies are probably people who have been bullied. That does not make the bullying any easier for the victims.

I am working on a case where there was a pack of bullies.  These men are mean and homophobic.  Looking at them, it's hard to see redeeming characteristics.  They use the vilest language to harass my client.  Two of them are supervisors.  I suspect they had bad childhoods and they have issues concerning their manhood.   They seem to be homophobic.  The conduct is sordid and sad.  I feel dirty at the end of the day, having to regale their statements and describe their conduct.

Of course, bullying occurs in a lot more places than the workplace.  Bashar el Assad is a bully.  So are a lot of leaders of countries, in the Mideast and elsewhere.  In fact, bullies are everywhere.  I think some people become lawyers because they have the chance to bully opposing parties and sometimes even opposing counsel.

How do we stop bullies?  We can sometimes derail an individual bully, but how do we obliterate the desire to bully?  How do we deal with insecure and scared people who derive pleasure from putting others down? I wish someone would come up with an anti-bully solution.  I don't have any answers.

How Do Government Employers Pick Their Law Firms?

Right now, it seems, I am suing several separate governmental entities for discrimination,  In fact, I am suing six government departments, federal, state, county and city in both Kansas and Missouri in eight separate lawsuits with with more than twenty separate defendants.  Yikes.

It is interesting to examine who defends these cases.  In some, I am pitted against in-house governmental discrimination lawyers.  However, the trend has always been for these governmental entities to contract with outside law firms, who are usually paid by the hour.  Sometimes, these firms assign multiple partners and associates to cases in which I represent the plaintiff alone.  I wonder how much these lawyers bill the governments of which we are taxpayers and how much the lawyers get paid.  Sometimes, the cases seem overworked, other times not.  Sometimes the best lawyers defend the cases, sometimes newer, recent graduates are at the helm, especially when there are no outside attorneys.

How do lawyers bid on this prime business?   I work on a contingent fee and my work is not affected in the same way defense lawyers' work can be.  I am not looking at immediate pay gratification.  I do not get paid until the end, and sometimes I get paid nothing.

Not so for defense lawyers.  I don't know if bidding wars go on for government business.  I suspect not. Part of my skepticism is because I know in several of my cases that the lawyers for the government held campaign fundraisers at their offices for the largely unopposed candidates that run the governmental division. That sounds somewhat like political patronage to me.  I do not know if these lawyers have to bid for their jobs.  And when some of these firms get hold of the cases, they have a tendency to work them to death.  I have had government cases take seven years or more.  The defense lawyers may bring in quite a chunk in attorneys fees.

I have known long before this blog entry that I will not be getting any of this defense business.  I don't want it.  I have never wanted to wine, dine, hold fundraisers, or make political contributions to get business.  That feels somewhat slimy.  The people who hire me are the ones who we think have good cases.  They don't need to have money.  That is why we have contingent fees.  Representing plaintiffs with good cases feels really good.  Defense work, with its steady paycheck and strings is not for me.

Monday, September 2, 2013

Let's Put the LABOR Back In Labor Day

My grandmother, after she orchestrated saving her family from the Nazis and moved to Kansas City, was a proud member of the International Ladies' Garment Workers" Union.  She sewed sleeves on coats for many years at a local coat maker, Nellie Don.  Because of her union affiliation, she was able to bring her family and her out of poverty and lead a good life in America.  There are few garment manufacturers left with facilities in the United States.  Somewhere, maybe in Bangladesh, there are workers sewing sleeves for less than a dollar a day so Americans can be cheap clothes.  The cost in human livelihoods and what is done to foreign workers is not worth the few dollars that we as consumers save.

We have another crisis here in the U.S.  Servers in the fast food industry work long, hard days, but do not earn enough to be free of government assistance.  So, while we get cheap, unhealthy food, we as tax payers have to supplement the abysmal pay of these workers with food stamps and Medicaid.  While McDonald's and Wendy's make a profit off the backs of these underpaid workers, we as taxpayers have to help the workers feed their families.  What is wrong with this picture?  

We need more protection for our workers.  Workers in this country need to make a living wage.  We have witnessed the demise of labor unions.  Around now, it sure would be nice to have someone organize these workers and let them support their families in dignity.  Sure, a happy meal might cost a dollar more, but the workers are worth it.

I avoid shopping at Wal-Mart because I have seen what they have done to some of their workers.  The same goes for Family Dollar.  The livelihood of our nation's workers and the well-being of their families is more important than a meager savings on cheap products.  These mega businesses are about the bottom line, profit.  Unfortunately, it looks like profit is more important than people.  

We need a resurgence in union membership during these tough economic times.  The corporations are getting richer and their workers are getting poorer.  We need to pass a minimum wage that is livable.  It is not all right for people who work hard to still have to grapple with crippling poverty.  

Paying workers a living wage is just the right thing to do, pure and simple.