Just a poem today, one I really love from the April 2013 issue of Poetry.

Order
 
 
For once, her was just my father.
We drove to the Computing Center
in a Monte Carlo Landau
not technically ours.  Lexington,
 
 
1977.  That fall.  The color
had settled, too, undone
orange-brown and dull yellow,
crimson.  And it was something,
 
 
yet not, the pile of leaves
just a pile of leaves.  Sorry to think
what thinking has done to landscape:
He loved punched cards,
 
 
program decks and subroutines,
assembly languages
and key punch machines.
Even my father looked small
 
 
next to a mainframe.
The sound of order;
the space between us.
We almost laughed, but not for years –
 
 
we almost laughed.  But not.  For years,
the space between us,
the sound of order
next to a mainframe.
 
 
 
Even my father looked small.
And keypunch machines,
assembly languages,
program decks and subroutines.
 
 
He loved punched cards,
what thinking has done to landscape –
just a pile of leaves.  Sorry to think,
yet not, the pile of leaves
 
 
crimson.  And it was.  Something
orange-brown and dull yellow
had settled, too, undone
1977, that fall, the color
 
 
not technically ours, Lexington
in a Monte Carlo Landau. 
We drove to the Computing Center,
For once he was just, my father.
 
 
Randall Mann, from Poetry (April, 2013)

Something about April always makes me think of sestinas, don’t ask me why.  I love that this poem, which is neither a formal sestina nor a pantoum, but a cross between them perhaps, moves from the large (the relationship between fathers and sons) to the small (father standing next to the mainframe, punch cards) and then back again.  Both sestinas and pantoums rely on words or phrases repeated in strict, orderly fashion; they process words, you might say, the way a computer processes the data fed in.  Our relationships might work much the same way.

I also love the way that the phrase “the sound of order” echoes Wallace Stevens’ “The Idea of Order at Key West.”

I’m about 10,000 words behind where I should be to reach my Camp NaNoWriMo goal for this month.  Wish me luck, fellow campers.

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.

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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.

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.  Reasonable_Accommodation_206X155

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.  images

I’m doing Camp NaNoWriMo this month. I’m shooting for 2,000 words per day and 60,000 words total. The (working) title of my baby novel is The Gray Sisters. I’m at 5,125 words on day two.

Just an FYI. I’ll still try and get some posts up, in particular one about a couple of interesting cases just out of the Maryland Court of Appeals.

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According to a recent report in Hollywood Weekly, a new lawyer-focused reality show is coming to television this fall. Like the cancelled shows “Legal Ease” and “The Law Firm,” “Dog and Pony” will be a legal reality show, but with an exciting twist.

“Dog and Pony,” the first season of which was filmed in Philadelphia, will feature eight mid-sized law firms in competition for valuable legal work from two large potential clients. The identities of the clients, which have been described in promotional materials only as “Fortune 500 companies” and “titans of industry,” will be revealed to much fanfare during the show’s finale. The law firms will compete in various scenarios to earn the trust and confidence of these unnamed companies, whose mask-wearing general counsel will determine the winners and losers of each competition. The winners of each round, along with the firms who are not eliminated from competition, will be awarded a much-coveted “check” in payment of the firm’s invoices for work performed. The firms who are not selected to continue in the next round will receive a humiliating “write-off.”

It is not clear what sort of legal advice or work will be performed by the competing firms, but a preview distributed to a few critics in advance of the premiere includes footage of suited men and women struggling to complete a gigantic, inflated and water-soaked obstacle course while dictating memos into their Blackberries. In another segment, elderly partners emeriti sit in overstuffed leather chairs in the library of a private club, competing to see who can drink the most single malts while coherently reciting war stories from fifty-year old cases. (Rumors indicate that one competitor was disqualified late in the season when his liver failed). Yet another segment featured young associates locked inside a prison cell, chained to walls and forced to decide whether to remain chained (which results in the accrual of a “bonus”) or to saw off their own arms in order to escape. (A copyright lawsuit by the producers of the Saw movie franchise was reportedly settled several months ago).

Considering how ridiculously unrealistic most law-based reality shows have been to date, “Dog and Pony” sounds like a breath of fresh air. I encourage young attorneys and law students, especially, to look out for it, as it may prove more useful to you in your tender youth than any of your law school training. I myself have submitted an application to compete on Season 2.

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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.

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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.