Why Didn’t I Think Of This?

There are only two posts up so far, it appears.  I’ll be keeping an eye out for new posts (and who am I kidding, I am absolutely going to submit.  What rhymes with judicata?)

Check out the Law Poetry blog here.

 

Tinker, Viewpoint Discrimination and a Flag

“…We must forevermore do honor to our heroic dead. We must forevermore cherish the sacred memories of those four terrible but glorious years of unequal strife. We must forevermore consecrate in our hearts our old battle flag of the Southern Cross – not now as a political symbol, but as the consecrated emblem of an heroic epoch. The people that forgets its heroic dead is already dying at the heart, and we believe we shall be truer and better citizens of the United States if we are true to our past.”

Confederate Veteran Rev. Randolph Harrison McKim

Not all Confederate soldiers fought under the blue St. Andrew’s cross (more accurately, the saltire).  And apart from its use during veterans events, the flag’s visibility was minimal during the decades following the war. [. . .]

However, the flag’s most lasting legacy — and the source of much of the controversy today — can be traced to its use as a symbol of “Massive Resistance” by the Dixiecrats beginning in 1948 and continuing through the Civil Rights movement of the 1950s and 60s. During that period, the flag became the standard for those committed to defending classrooms, bus depots, and other public spaces (now battlefields themselves) from black encroachment.

In fact, the flag’s use throughout the 20th century covered a time span significantly longer than its presence on Civil War battlefields. Its placement atop southern statehouses like South Carolina ultimately reinforced the flag’s connection to segregation and racism.

Kevin M. Levin, America’s Simple-Minded Obsession with the Confederate Flag, The Atlantic, Aug. 16, 2012

Candice Hardwick wore shirts bearing various images of the Confederate flag to her elementary and middle schools in Latta, South Carolina on several occasions and was made to change her clothes or, on one occasion, disciplined.  Latta, South Carolina was formerly a part of the Jim Crow South, and in fact was holding segregated school proms until the 1980’s.  Significant racial tensions remain.  The Latta School District enforces a dress code policy that forbids clothing that would “distract others, interfere with the instructional programs, or otherwise cause disruption.”  Examples would include “clothing that displays profane language, drugs, tobacco, or alcohol advertisements. sexual innuendos or anything else deemed to be offensive.”

I’ll cut to the chase here and tell you that the Fourth Circuit, in Hardwick v. Heywood, 711 F.3d 426 (Mar. 25, 2013), held that the First Amendment did not require the school district to allow Hardwick to wear the shirts, and that the dress code was not unconstitutionally overbroad or vague.  The Court also held that Hardwick’s equal protection rights were not violated based upon evidence that the school district has also prohibited students from wearing Malcolm X and similar apparel.  Relying on Tinker v. Des Moines Independent Community School District, a Supreme Court opinion that law students recall as the “black armband case” because a group of students wore armbands in protest of the Vietnam war, the Fourth Circuit simply concluded that the Confederate Flag could be reasonably expected to cause disruption at the school.  (And there was some evidence that it in fact had caused disruptions, although the school’s evidence involved racial tension generally.)  Therefore, the Court held, the school district was justified in banning its display.  Many other circuits have so held.  See, e.g. Defoe ex. rel. Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Scott v. School Bd. of Alachua Co., 324 F.2d 1246 (11th Cir. 2003); West v. Derby Unified Sch. Dist. No. 260, 206 F.3d 1358 (10th Cir. 2000); Melton v. Young, 465 F.2d 1332 (6th Cir. 1972).

I suppose that what bothers me about the Court’s reasoning in Hardwick, though, is that there was evidence that Hardwick wore shirts with the flag on several occasions at school (i.e., before she “got caught”), and that not only were there no disturbances, but there was apparently some positive reaction. Some of the examples of racial disturbances offered by the school district, on the other hand, were more than thirty years old.

Please understand, this is not an argument for display of the Confederate flag. If you’ve read this blog, you know where I fall on the political spectrum; as to the assertion that the flag represents positive or neutral “heritage,” I am skeptical at best.

But I am also skeptical whenever one form of speech is subjected to a different standard than others. I wonder if that’s going on here, between the lines.

According to the Court in Tinker:

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 508-09, 89 S. Ct. 733, 737-38, 21 L. Ed. 2d 731 (1969).

The students in Tinker wore armbands to protest a war, the politics of which were also extraordinarily divisive. The Supreme Court was satisfied that no disruption resulted in the classrooms, although “hostile remarks” were made outside the classroom. That was enough.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.

Id. at 509, 89 S. Ct. at 738, 21 L. Ed. 2d 731.

Was there really evidence that the flag shirts worn by Hardwick would “materially and substantially interfere with the requirements of appropriate discipline” at her schools? I’m not sure; perhaps something has been lost along the way from trial transcript to reported opinion. I do know, though, that there can be a good deal of flexibility in determining when an “apprehension of disturbance” is reasonable, and that we must be cautious of exercising that flexibility in favor of the viewpoints that we prefer.

 

A Tale of Two Futures

[. . .] I graduated from [elite university] with a B.A. in [social science major] in 1994. I was on scholarship, so I managed to graduate with no debt. Not that these things matter 20 years after the fact, but I had a 3.6 GPA and a 178 LSAT. I worked for [politician] between college and law school. I graduated from [top ten law school] in 2000. My GPA was a 3.5, which was well above the mean but not good enough for law review. I clerked for a federal district court judge from 2000-2002, during which time my law school loans were in forbearance. My point is that, although my resume wasn’t printed with gold ink when I began my legal career, my credentials were good.

[. . .]

I was laid off in late 2010, and I have been out of work ever since. There were no accusations of misconduct, no complaints about my work. The law firm was downsizing, and that was that.

[. . .] Since I was laid off, I have floundered around, applying for jobs, representing a few clients as a solo practitioner (not that that has been lucrative – think very low five figures per year), and trying to figure out “What happens to all of the lawyers?” [. . .]

From www.insidethelawschoolscam.blogspot.com, February 26, 2013

If you’ve been online at all within the past couple of years you are probably familiar with posts like the one above, from Professor Paul Campos’ Inside the Law School Scam blog.  The problem of lawyer and law graduate unemployment have been covered recently in the Wall Street Journal, The Huffington Post, US News and World Report and the New York Times, and the bloggers at Above The Law have been discussing it for years.  It’s a complicated issue having to do with, among other things, the cost of going to law school, the fact that student loans are not generally dischargeable in bankruptcy, and the ongoing effects of the Great Recession.

Now here come the books, although the doom and gloom is not limited to recent graduates’ prospects.  First to hit the shelves was Richard Susskind’s Tomorrow’s Lawyers: An Introduction to Your Future (Oxford Univ. 2013).  In fairness to Susskind, who is a British IT consultant, he wrote about many of these issues in his earlier book, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford Univ. 2008).  The relative newcomer to this genre is Steven J. Harper, a former partner at Kirkland & Ellis and now author of The Lawyer Bubble: A Profession in Crisis (Basic Books 2013).  (Both men share, apparently, a fondness for subtitles.)

Harper’s book is more autopsy than prescription, so we begin with it.  The Lawyer Bubble limits itself to discussion of law schools and the largest law firms (so-called BigLaw), but what it has to say about the state of the profession is pretty scathing.  Harper points to Christopher Columbus Langdell, Harvard Law School dean and founder of the case method of law school instruction, as the “essential foundation” of the problem – and the problem is that there are too many lawyers.  He says that the case method permitted law schools to abandon the time-intensive lecture-and-internship model that held sway before 1890 and turn to “mass production of attorneys.”  In turn, law schools became profit centers for their universities, all the while having little incentive to turn away applicants because student loans became essentially non-dischargeable in bankruptcy in the 1970’s.

Both the American Bar Association and the US News & World Report law school rankings have a share in the blame, according to Harper.  The rankings have become hugely influential and law school deans, although initially reticent, have embraced them.  According to Phillip J. Closius, former dean of the University of Baltimore School of Law, “[m]illions of dollars [are] riding on students’ decisions about where to go to law school, and that creates real institutional pressures.”  Yet Harper argues that the rankings are deeply flawed.  He cites incredible examples, including one in which a dean circulated a law school ranking survey similar to the one used by US News, and respondents rated the law school at Penn State as a mid-level school despite the fact that Penn State at the time did not have a law school.  He describes efforts at the University of Illinois College of Law to bolster its incoming GPA and LSAT numbers, which count for twenty-five percent of a school’s rating, which resulted in the blatant falsification of the numbers.  (The employee responsible for submission of the information was blamed, and although the law school dean was absolved of wrongdoing, the ABA censured the school, imposed a $250,000 fine, and required that the school submit to compliance monitoring for two years.)

And then there is the employment data.  Before 2012, the ABA applied an extremely broad definition of “employed,” so that when law schools provided graduate employment data, they made no distinction between working in a law firm as an associate and working in a coffee shop.  Many schools reported employment figures as high as ninety-three percent even during the recession. Yet in 2012, according to Harper, only sixty-six percent of the class of 2011 worked in jobs requiring bar membership, and many of those were part-time or temporary positions such as clerkships.  Schools made a practice of offering paid temporary positions to graduates that conveniently started before and ended just after the window of time set for employment data gathering.  When, in 2012, the ABA began to require that schools disclose such arrangements, several low-ranked schools revealed that they employed more than fifteen percent of their own graduates.  All of these factors led to a flood of incoming law students and the creation of a “lawyer bubble” not unlike the real estate bubble of the mid-2000’s.

Harper heaps his wrath upon BigLaw firms as well, arguing that they have increasingly abandoned the traditional “true partnership” model for a pure business model that values profit over anything else.  When income determines all, he argues, individual lawyers adopt a “what’s in it for me?” attitude and move freely between law firms, taking their lucrative books of business with them.  In order to hold on to their most valuable business-getters, firms offer higher salaries (or, as in the case of Dewey & LeBoeuf, salary guarantees); to make the numbers work, they cut support staff and attorneys considered less valuable to the firm.  The result, Harper says, is that BigLaw firms have become oligarchies where a small number of attorneys achieve exceptionally high earnings and the lawyers who find themselves shut out become demoralized. Harper devotes more than a few paragraphs to lawyer suicides, such as the suicide of Mark Levy in 2009.  He also details several case studies, including Dewey & LeBoeuf as well as Finley Kumble, whose failure in the late 1980’s mirrored Dewey’s.

Harper advocates for several changes: abandonment of the billable hour and “eat what you kill” systems; implementation of true “partnership” schemes within law firms to encourage loyalty and real mentorship; and implementation of mandatory retirement policies so that younger attorneys have an opportunity to move up the ladder.  He also suggests that businesses such as Axiom and other out-sourcing vendors should encourage firms to streamline their processes and learn to better utilize technology.

Technology, and the way it will change the practice of law, is squarely within Richard Susskind’s bailiwick.  Tomorrow’s Lawyers is less an indictment of the way things have been done than a prediction of how they will be, and if Susskind is correct the future looks very different.  (However, it’s worth pointing out that Susskind is most familiar with the British legal system, and that system differs from the United States’ system in significant ways, including in permitting non-lawyer investment in law firms.)

Like Harper, Susskind argues that the billable hour has had its day and should be retired.  But this would only represent the first of a number of transformations he proposes.  More traditional “legal” work should be performed by non-lawyers, in much the same way that certified nurse practitioners have taken on many traditional physician functions.  Susskind would include within this category document review in litigation, due diligence work, basic contract drafting and basic legal research.  This is work that involves more “process than judgement” and should, in time, be further commoditized so that it is performed entirely by computers.  Another proposal would permit clients with similar interests to “collaborate,” and set up a shared fully-owned “law firm” to serve their mutual needs.  He uses banks as an example, and claims that they could own a shared “service centre” to undertake compliance activities at reduced costs.  (He does not address here, I note, any conflicts issues that might come up, although presumably those could be dealt with in the firm’s operating documents.)

Much attention is devoted to the idea of commoditizing legal services.  Susskind breaks down (or “decomposes”) litigation into specific tasks, such as document review; research; strategy; tactics; negotiation; and advocacy.  He claims that although strategy, tactics and advocacy, at the least, have traditionally been the province of lawyers, he is “increasingly hearing from General Counsel that alternative providers can now take on the remaining tasks at lower cost and to a higher quality than traditional law firms.”  In some cases this involves outsourcing work to a third-party.  In others, work may be subcontracted from one law firm to another.  Susskind raises the possibility that, in the future, many legal problems will be crowd-sourced before they are ever presented to a lawyer for consideration.

Most of Susskind’s predictions involve the elimination rather than the creation of legal jobs.  He closes the book, however, with several positions he believes will be created in the future: the “legal knowledge engineer,” who will program the software necessary to perform commoditized legal work; the “legal technologist,” who will “build the foundations upon which legal service is built and the channels through which non-lawyers can access the law,” and as for what that means, your guess is as good as mine; the “legal hybrid,” who will be both family lawyer and marriage counselor or commercial lawyer and strategy consultant; and the “legal project manager,” who will oversee a project once it has been “decomposed” and outsourced to ensure that its various components are completed on time and within certain quality parameters.  (There are more, but I am finding this exhausting.)  Susskind rather grudgingly concedes that there will be “Expert Trusted Advisers” and “Enhanced Practitioners” in the future, but there will not be many of them.  He closes with advice to young lawyers, or those considering law school, to follow the example of Wayne Gretzky and “[s]kate where the puck’s going, not where it’s been.”

 

Employers Decide Who’s Best Qualified in Maryland “Failure to Hire” Cases

You’ve probably heard the old (clichéd) saying, “those who cannot do, teach.”

A recent case in the Maryland Court of Appeals disposes of that sentiment rather neatly in favor of those who (allegedly) cannot do, and therefore teach.  Essentially when it comes to youthful academic achievement versus hard-earned experience, an employer can decide which job candidate is the better “fit” without significant concern about age discrimination liability.

The plaintiff in Dobkin v. University of  Baltimore School of Law is a lawyer who practiced immigration law for many years before he decided to seek an academic position.  The School of Law at UB advertised a search for tenure-track professors for the 2009-2010 school year in several fields, one of which was immigration law.  The plaintiff, Dobkin, applied.

But Dobkin was not interviewed or hired.  Instead, a significantly younger woman with much less practical immigration law work experience was hired.  When Dobkin was informed of the decision, he emailed the school to complain:

It’s simply amazing how law schools choose newbies like [the successful applicant] and don’t even bother to interview candidates with a world of experience.  Something is seriously wrong here.

An EEOC complaint and then a private lawsuit followed.  The trial court entered summary judgment in favor of the university.

The Court of Appeals found both that Dobkin presented a prima facie case of age-based employment discrimination and that the university presented evidence of valid, non-discriminatory reasons for its refusal to hire him: that he had no clinical teaching experience, had not graduated from a top-tier law school, and had never worked as a judicial clerk.

At that point, under the McDonnell Douglas classic burden shifting analysis, the burden shifted to Dobkin to prove that the reasons offered by the university for its decision not to hire him were merely pretextual.  No previous Maryland cases concerned similar “failure to hire” scenarios, so the Court reviewed federal and other states’ cases.

The difficulty, the Court noted, is that otherwise qualified candidates may not be hired for a position based on purely subjective determinations about what characteristics make for the “best” candidate.  In one case discussed by the Court, for example, an applicant for a staff attorney job had more experience (and was older) than the candidate who was hired, but came across as arrogant and hadn’t previously worked at a private law firm.  The court in that case refused to substitute its own judgment about which person would be the better hire for the employer’s.  The Maryland Court of Appeals agreed:

We cannot thereby demand or require U.B. to hire applicants with practical experience as opposed to academic training, as it has a right to choose what qualifications address their needs.  [Dobkin] must understand that his and the successful applicant’s qualifications were not equivalent like the applicants in

[another case].   Instead, they were different types of skills and

training.  Accordingly, because qualifications are relative, as it depends on the preference of the employer, we cannot deem appellant’s qualifications as superior than the successful

applicant’s in this case.

The Court’s analysis of pretext in Dobkin will probably weigh heavily in cases alleging other kinds of employment discrimination going forward.  Where an employer’s hiring criteria are facially reasonable, the plaintiff who fails to meet the criteria will face a significant obstacle to proving discrimination.  On the other hand, though, the Court did not consider whether criteria not reasonably related to a position to be filled would justify an adverse employment decision and did not determine what a “reasonably related” analysis – assuming that there should be such an analysis – would entail.  These are important questions, but they will have to await a future decision.

 

Reasonable Accomodation in Maryland: A Shifting Burden

While the local media is focusing on legislative efforts to overturn the Maryland death penalty and reconcile competing pit bull liability statutes, an important decision on housing discrimination has recently been issued by the Court of Appeals.

Under Maryland law (and, in many circumstances, under federal law), it is unlawful “[t]o refuse to make reasonable accommodations in rules, policies, practices, or services when the accommodations may be necessary to afford a handicapped individual equal opportunity to use and enjoy a dwelling[.]”  Md. Code Ann., Art. 49B § 22(a)(9).  The language in the state statute correlates closely with language in the federal Fair Housing Act.  See 42 U.S.C. § 3604(f)(3)(B) (stating that “a refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” is housing discrimination).

Under either statute, housing discrimination will only be found if the particular accommodation requested is “reasonable.”  Reasonableness in this context means that a support can be provided at reasonable cost without excessively burdening other people.  Among many questions that typically arise in proving housing discrimination is which party – the plaintiff or the defendant – bears the burden of proving reasonableness. 

In Board of Directors of Cameron Grove Condominium, II, et al. v. State Comm’n on Human Relations, issued on March 28, 2013, the Court of Appeals decided the question in favor of plaintiffs.  The Court held that in order to prove a housing discrimination case under the state statute, a plaintiff must make a prima facie showing of reasonableness;  once that showing has been made, the burden of proof then shifts to the defendant to prove that the requested accommodation is not reasonable.

This is a win for the disabled, since a prima facie showing is a pretty low bar to meet.  Cameron Grove is interesting for another reason, also.  The Fourth Circuit Court of Appeals, which is the federal appeals court responsible for Maryland among other states, has taken the opposite position in adjudicating housing discrimination cases under the federal statute.  See Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997) (stating that “[b]ecause the [Fair Housing Act]’s text evidences no intent to alter normal burdens the plaintiff bears the burden of proving each of these three elements by a preponderance of the evidence”).

The Maryland Court of Appeals is, in almost every case, the final arbiter of the meaning of state statutes, while the federal court system is responsible for interpreting federal statutes.  While it’s not unheard of for courts to reach different conclusions on similar statutory language, it’s quite striking when the language in the state statute so closely mirrors the federal statute.  It’s worth pointing this out, too, because concepts like “the burden of proof” are rarely dealt with on television or in movies, yet the allocation of the burden can be determinative of the outcome of a case.  The plaintiff in Bryant Woods Inn, for example, lost its case, while the plaintiffs in Cameron Grove won theirs.  I’m not accounting for differences in facts here, so the comparison isn’t necessarily fair, but it is interesting.

What was at issue in Cameron Grove?  Two individuals in a condominium complex who suffered from unnamed medical conditions filed suit to require that the condominium association provide them with keys to back and side doors to their respective buildings.  Apparently these doors were closer to a retail area within the complex and the plaintiffs wanted to be able to use those doors when they brought in their groceries.  The condominium argued that it shouldn’t have to give copies of the keys for security reasons and that installing a security code pad at each door would be prohibitively expensive at $19,000.  The association was ordered to pay both plaintiffs a combined total of $35,000, in addition to a civil penalty of $5,000.

Most hardware stores sell keys for something like $4.00. 

 

Freelance? Or UPL? You Decide

The Great Recession forced a lot of previously employed journalists, graphic designers and word processors to start freelancing, and websites such as Freelancer.com and Elance.com have cropped up to help match service providers with service needers.

The past couple of years have been pretty tough for lawyers, too, and not just for recent graduates. The local legal paper always has one or two classifieds advertising the availability of an unnamed lawyer to perform legal research or brief drafting for other lawyers on an hourly basis.

You might not have realized, though, that legal services may also be bought and paid for via freelancing websites, and it doesn’t look like all of the advertisers are actually lawyers.

Purely by way of example, I decided to search at http://www.Freelancer.com. I selected “Business, Accounting, Human Resources & Legal” from the menu on the left of the page, then narrowed my choice to “Legal.” First up on the list of results was “acrossthenight,” who describes himself as “an attorney with a top-tier international law firm” in Sydney, Australia.

His hourly rate is on the high end for the results I received at $65.00 an hour. “Acrossthenight” provides services including e-commerce, software licenses and agreements, business sales, investment transactions and patent applications. I suppose this is fine so long as “acrossthenight”‘s firm knows he is providing these services, but I tend to suspect that either they don’t, or that “acrossthenight” is no longer employed with the firm and is trying to make ends meet in the interim. Either way, there may be ethical concerns; generally speaking, an attorney isn’t supposed to represent clients outside and separate from his firm without the firm’s knowledge and consent, and if he is not actually employed with a major firm his profile is materially misleading. Since “abovethenight” is in Australia that country’s ethical rules would apply, and I don’t pretend to know what they provide. But if they are similar to our ethical rules in the United States, I have some concerns.

More troubling, however, are the profiles that fall lower on the list of results. Profiles seem to be ranked based upon an algorithm determined from a freelancer’s skills, number of projects completed, and positive feedback. Towards the end of my results was this profile by “pcwriter:”

“Pcwriter” is a “former prison-trained law clerk subsequently employed as criminal law paralegal with track record of preparing & ghostwriting successful post-judgment and appellate documents.” However, the title of “pcwriter”‘s profile is “Legal Lawyer, Visa/Immigration Consultant; Property Law Lawyer.” In case you were wondering if “pcwriter” had obtained his law degree after prison, it doesn’t look like it: the only degree appearing in the Resume/Education section is an Associate’s Degree obtained in 2001.

I guess my point in writing this is not to call out anyone providing freelance legal services, but to question whether, in our rush to provide quick, unbundled, “virtual” legal services we’ve gone too far. “Pcwriter” only charges $35.00 an hour, compared to other freelancers charging closer to $100.00 an hour, and lawyers in private practice who charge between $100.00 and $ 1,000.00 an hour. Someone who needs a deed drafted, for example, or assistance with an immigration proceeding will be sorely tempted to choose the cheaper service. And maybe everything will work out fine. But I do wonder, if things don’t go well, what will happen, and not only to the unhappy client, but to the reputation of the bar in general. Is there a way to provide the responsiveness and economy typified by a freelancing arrangement without discarding the attorney-client relationship altogether?

We should work on that.

 

Toys ‘R’ Us Doesn’t Wanna Grow Up or Comply With the ADA

It seems that (my local) Toys ‘R’ Us store has been sued by the Equal Employment Opportunity Commission.

According to the Complaint filed by the EEOC in the United States District Court for Maryland, Toys ‘R’ Us- Delaware, Inc. discriminated against a job applicant because she is deaf.

In October 2011, Shakirra Thomas (“Thomas”) applied for a job with Toys ‘R’ Us at their Columbia, Maryland location. Thomas communicates through sign language and writing and reads lips. She was asked to attend a “group interview” at the store but when she requested an interpreter she was told that she would have to provide one at her own expense. Accordingly she attended the interview with her mother, who interpreted for her. She was not hired.

The EEOC investigates, on an administrative basis, claims of discrimination such as Thomas’. In most cases at the conclusion of the investigation it issues a “right to sue” letter, which means that the EEOC itself will not prosecute the claim and permits the complainant to file a lawsuit. The failure of the EEOC to prosecute a case does not mean the case is not meritorious; many more complaints are filed than can be dealt with administratively.

When the EEOC does determine to prosecute an action, it usually means that it has found an employer’s conduct to be particularly egregious or widespread. The agency often seeks an injunction to forbid the employer from engaging in certain conduct in the future.

In Thomas’ case, the EEOC claims that Toys ‘R’ Us violated the Americans with Disabilities Act because it refused her a reasonable accommodation – an interpreter – during the hiring process, and because it did not hire her. The EEOC will have to establish that Thomas’ disability was the basis for the company’s failure to employ her, but again, the fact that the EEOC is prosecuting the claim suggests that strong evidence exists.

Toys ‘R’ Us has not yet responded to the complaint. I assume, though, that they will not argue that it would have been difficult to provide an interpreter, since the Columbia campus of the Maryland School for the Deaf is about ten minutes from the Toys ‘R’ Us store involved.

The case is Equal Opportunity Employment Commission v. Toys ‘R’ Us – Delaware, Inc., Case No. 1:13-cv-00756-CCB, filed on March 12, 2013.

 

Monday Morning Hearsay: Research, Deep and Wide

Lawyers do a lot of research.

It might surprise you to learn that poets also do a lot of research.

We tend to assume that poetry springs from the mind of the writer like Athena from the mind of Zeus: fully formed.  But not so much. 

From Jeffrey Skinner’s “The 6.5 Practices of Moderately Successful Poets: A Self-Help Memoir” (Sarabande Books 2012), two quotes from writers who are more than moderately successful:

I need to ground my work in particulars.  In my case this usually means a material object such as a book, or a manuscript, most recently lace.  Often a historical moment, or a specific person.  Not a made-up character – I could never be a novelist – but I try to understand all aspects of the person I am writing about the way a playwright or an actor might.

– Susan Howe

I’m usually more comfortable dealing with atmospheres and sensations than irritably reaching after facts.  “American Myth” began, really, when I was a kid, dipping into books I didn’t understand on my parents’ bookshelves.

– Kathleen Ossip

Lawyers tend to be pretty good at the first sort of research because it is the sort of research that develops answers to specific questions.  A client wants to know whether he has a cause of action based on a discrete set of facts.  We plug the facts into the Westlaw search bar and come up with an answer.  This is deep research: time spent accumulating information responsive to a specific problem.  Like Susan Howe, we “ground” ourselves in the facts presented in a client’s matter.  What we learn might be helpful to us again at some point in the future, or it might not.

Kathleen Ossip, on the other hand, relies on what we might call wide research.  She doesn’t start out with a topic to write about necessarily; instead, having read widely she draws upon what she has accumulated and comes up with something interesting, a connecting line between two points that no one else has spotted before.  And she writes about that.

Now I am going to suggest something that the lawyer marketing gurus would probably consider heresy.  Which kind of research is more important to a lawyer’s success?  I say the second, and here’s why.

The fact is that anyone of moderate intelligence with access to Westlaw or Lexis or Google can answer a distinct legal question.  It may not be the most polished answer, and you won’t want to bet the company on it, but realistically as information has become readily available online it has become less and less necessary to pay a lawyer for access to the information.   We are no longer gatekeepers because the fences are down.

The value a lawyer brings to a particular transaction is no longer information but knowledge.  Knowledge is to information as a shopping cart is to the items on the shelves at the grocery store.  A person with knowledge understands which items are relevant and necessary, which are too costly or of too poor quality, and which should be purchased and stored for future use.

This is why I pointed out in an earlier post that Justice Scalia is wrong to critique the “Law and . . .” seminars offered by law schools.  Yes, it is important to understand legal subjects in depth.  It is equally important to bring the contexts of history, culture, psychology, politics, and economics to bear on legal issues.  No legal problem exists in a vacuum.  It is nonsensical to expect that its solution should.

My background is in literature and I continue to read a great deal.  I probably average two or three novels a month, sometimes more, sometimes less.  I am certain that my reading informs my work and my thinking.  Personally I believe literature is the best source for understanding all of those contexts I mentioned in the preceding paragraph.  You might not, and would prefer to read pure history.  Or maybe you are a film buff.  Do whatever just so long as you are acquiring breadth as well as depth.

The better able we are to think and reason and exercise discretion, the better prepared we are to practice law.  These are skills not taught in law school or any CLE and not available for purchase online.  They are acquired over a lifetime of learning and they are exquisitely valuable.

 

Suiting Up

I am currently preparing to take the Virginia bar exam. Although many states allow lawyers admitted elsewhere to “waive in” without taking the bar exam or to take a shorter “attorney’s exam,” Virginia requires the exam unless you plan to move to the state to practice full time.

So almost sixteen years after I graduated from law school I’m studying criminal procedure again. It’s all very different this time around, now that I have a busy practice, three children, two dogs, and an old-ish house we bought six years ago because it was a deal and we could do the renovations ourselves.

One of the quirks associated with the Virginia process is that folks taking the exam must do so in full “business attire,” which according to the dress code helpfully posted to the examiners’ website means “suit or jacket and tie for males, and a suitable dress or suit (pantsuits are acceptable) for females.”

Let me first remark that in the year 2013, it is no longer necessary to specify that pantsuits are acceptable for women. Seriously, if you are living someplace where pantsuits are not acceptable for women, you are probably living someplace where elbows are also not acceptable for women.

But that isn’t really my point. What irritates me about this requirement is that it takes no account of the fact that this is an exam, not a court appearance; no judge, jury or representatives of the press will be there. The bar examination is essentially two nine-hour days spent sitting at a wobbly hotel table in a poorly-lit ballroom with three hundred people, some of whom are really nervous and prone to excessive wriggling and vomiting. No one should care what any of these poor souls look like, and no one needs to remind them how momentous the occasion is. They already know it’s a big deal because they’ve invested three years of their lives and $120,000+ of their money (in non-dischargeable student loan debt) getting to that ballroom. Did I mention the vomiting?

I don’t want to blow this all out of proportion. I won’t dwell on the fact that the dress code smells a little Southern good ol’ boy to me, although it does; I have additional thoughts on that possibility but I won’t elaborate further.

I do want to point out that, to my mind, what’s missing in this scenario is discretion.

There’s a lot of buzz on the web right now about making law schools more practical and economical. Some states are considering, and at least one has already decided, to allow students to take the exam during their third year so they can hit the ground running once they graduate. Some are calling for schools to eliminate the third year altogether. Many argue that law schools need to provide more real world legal and business skills. Thousands of law grads from the past few years are either unemployed or underemployed right now; certainly something needs to change, and these are good suggestions.

None of the suggestions, however, account for the way the practice of law itself seems to be changing. So-called lower end services such as will drafting are becoming more and more commoditized. Why pay a lawyer even $100 for a will if you can fill in the blanks on a site like LegalZoom for $50 (or whatever it costs; I haven’t checked and don’t really want to). “Virtual practice” and “unbundled services” are just other names for comoditization. They are ways to provide widgets at low cost to people who need widgets.

And when you hear business people complaining about lawyers or the corporate legal department, what are they complaining about? They complain that the lawyers are unnecessarily risk-averse, that they shut creativity down, that they don’t listen.

I have had the opportunity to work with some really fine lawyers. What impressed me about these lawyers was not that they could consistently bill twelve hours a day but that they knew what to say, how, when, and to whom. They exercised discretion and judgment in advising their clients, and the clients always appreciated it. They understood the global picture for the client, including the way that a particular problem fit into the client’s world, and they understood that the best means for solving the client’s problems weren’t always litigation even if litigation would be terribly lucrative for the firm.

A discrete person is capable of considering all of the relevant facts and, having considered them, making the best choice among various courses of action. A discrete person is trustworthy. Law schools cannot teach discretion. Experience teaches discretion. This is why I’m concerned that so many recent grads are being shuttled into solo practice. Practicing by oneself requires the highest kind of discretion because there are no built-in checks and balances. I’m just not convinced that a guy who was a frat boy just a couple of years ago is ready to assume that kind of responsibility.

Rigid rules, guidelines and dress codes only bolster the notion that law is a sort of computer code: enter the right characters in the right order and you’ll get yourself a verdict, or a contract, or a divorce. The Virginia bar dress code suggests to the people taking the exam that if they put on the suit, they’re lawyers. Because lawyers wear suits.

But the law is not a jacket; you don’t don it one day and take it off the next. Sometimes being a lawyer means wearing jeans and a t shirt while you dig through moldy documents in a warehouse somewhere, just as it means sometimes advising your client against a course of action because you know that ultimately it won’t be good for the client. Discretion.

I’ve never been a fan of conformity for conformity’s sake, and no doubt that sentiment is at the bottom of my thinking on this. Some will read this and think I’m being ridiculous. That’s okay.

I do think, though, that dress codes and the like are emblematic of a kind of legal culture that needs to fade away for the sake of the profession. We are entering an era in which the ability to discern will distinguish us from outsourcers and software. Merely dressing the part will not save us.

 

What You Need to Know Before You Diss (and Why You Should Anyway)

Allow me to confess: I post snarky reviews on Yelp.  All the time.  Well, maybe not all the time.  A couple of times.  I try to keep things reasonable.  But if I have a really bad experience at your place of business, expect me to say something about it and to make it funny.  In a not-good-for-your-online-reputation way.  (People who follow me on Twitter seem to think I’m funny, so people are paying attention, I guess.)

I am not the only person doing this, you may have noticed.  There are whole online ecosystems these days.  Gawker, Above the Law, the new Dish.  Right-wing pages I avoid like the plague but nevertheless must grudgingly admit exist.  I’m not much for Reddit but if there’s anything you wish to discuss you’ll find it there.

Violentacrez and similar trolls aside, though, most people post or comment about something because they have an opinion and they want to share it.  The First Amendment is supposed to protect that sort of speech and generally it does.

What folks don’t always understand, though, is that the First Amendment can’t stop someone from suing you.

This seems counter-intuitive.  People assume that if a lawsuit ultimately will not have merit – meaning it’s a loser – that it won’t get filed.  Unfortunately that’s not true.

Businesses targeted for negative reviews on sites like Yelp are more and more frequently filing SLAPP suits against posters.  They do this because they know that the costs of defending a lawsuit are prohibitive.  Retaining a lawyer to defend you against a defamation suit is expensive.  In the United States, parties to litigation pay their own attorneys; so even if you ultimately win, you could end up bankrupting yourself.  The businesses filing these suits want you to be afraid of this so that you’ll end up not commenting at all.

Witness the Casey Movers saga.  Basically, a woman complained about a moving company on Yelp.  In what has to be one of the most spectacularly tone-deaf, idiotic responses to a customer complaint of all time, Matthew Overstreet, sales manager extraordinaire, sent her a letter peppered with poorly-used legalese, the gist of which was a threat to sue her if she didn’t remove the comment.  And not just to sue her, but to make her travel to a distant court to defend the case.

Turns out, of course, that the original poster had a husband who was 1) intelligent; 2) a blogger; and 3) not easily intimidated.  He took to the web with the story, and the big guns at Popehat not only took notice, but offered to locate an attorney to defend the poster, pro bono, if any suit was filed.

The law on these issues – SLAPP suits, defamation, First Amendment defenses in commercial contexts – is evolving on an almost daily basis.  Many of the published decisions, however, deal with complex First Amendment issues like prior restraint, not the nuts-and-bolts of liability and damages.  Which in practical terms means we as lawyers don’t always know how particular courts will deal with these cases.  So there certainly is risk in posting negative reviews online.

It’s easy enough for me to say I’ll continue posting, because I’m probably not going to get sued.  It’s not like “Joe’s Auto Shop” is hiring the best, most experienced counsel to prosecute its lawsuits, so the ambulance chaser it likely does hire is probably going to decide that suing me would be more trouble than it would be worth.  That calculus isn’t necessarily true of you, though.

One response is to blog, like the Casey Movers guy.  Sunlight is the most effective disinfectant, meaning that bringing these kinds of threats, and the suits themselves, before the public can make them go away.  It’s the Streisand effect at its best.

Another, and I hope this will come to pass, is for lawyers to step up to defend these cases pro bono.  Businesses file these cases because they’re counting on them being expensive to defend, not because they really expect to win.  If they’re not going to be expensive to the defendant (but potentially will be for the businesses, who do have to pay their lawyers), they won’t get filed.

But probably my best piece of advice to you is to keep your reviews as factual and true as possible.  Provide concrete examples of what you’re trying to communicate.  Don’t say “the food was crappy;” say, “the omelet was overcooked.”  The line between justifiable statement and slander gets murkier when you’re dealing with statements of opinion.  That doesn’t mean you’re not entitled to your opinion, but it does mean that it’s a lot harder to argue about simple factual statements.  Just my two cents, for whatever it’s worth.

There are statutes in some states designed to curb SLAPP suit abuses.  Maryland has an anti-SLAPP statute, but like many others it’s weak.  A bill that would have reformed the statute to make it more effective at shutting down meritless cases failed to pass the Maryland Senate last year but will likely be reintroduced during this session.