For years, there has been a fiction in the law of the workplace that almost always works to the disadvantage of employees. It’s called the at-will employment doctrine. According to this doctrine, an employee or an employer can terminate the work relationship at any time for any reason, as long as it’s not an illegal reason. This at-will employment doctrine applies in almost every private work relationship, with the exception of those covered by written contracts or collective bargaining agreements.

It works to the employee’s disadvantage because the employer generally has all of the power. It’s okay to say that a worker can quit his or her job at anytime. But rights and theories don’t earn paychecks and don’t pay the bills.

Under the at-will employment doctrine, each day is a new day. If I’m the employer, I can change your rate of pay tomorrow, and you accept that change if you continue to work. So I could declare tomorrow that from this day forward you will no longer make $15 per hour; instead, I’m going to pay you only $12. Under the at-will doctrine, you can–to quote the old country song–tell me to, “Take this job and shove it.”

That’s the law.

So what happened this week at the U.S. Supreme Court? In order to protect employers, a 5-4 majority ruled that discrimination claims for unequal pay must be filed within 180 days of the date on which pay is first set, which is weird because under the at-will doctrine, every day is a new one.

The majority got there through a convoluted process.

First the majority opinion ignored the facts. As Justice Ginsburg pointed out in her dissent, Ms. Ledbetter’s pay was in fact comparable to her male co-workers when she was hired. Her pay declined over time relative to her male co-workers.

But the other thing is that the majority completely ignored the at-will employment rule. According to Justice Alito and the majority, pay setting starts at the beginning of relationship, so that’s what triggers the claim. But the employer can raise or lower pay at-will. So how could that be consistent with the at-will rule where every day is a new day?

The answer is that it’s not consistent at all.

I think what Justice Alito meant to say was that the case was decided on the modern version of the Golden Rule. You remember that one: the person with the gold makes the rule.

Very sad outcome, as it would be nice to see the Court act consistently. But that would score one for the employees, and that’s not likely to happen with this court.

David F. Sugerman

Comes the news today that one Mark Hemstreet and his friend Gregg Clapper filed a federal civil rights complaint for damages including economic damages, non-economic damages, punitive damages and attorney fees. The case reportedly arises from a prosecution for hunting license violations out in Eastern Oregon’s beautiful Malheur County.

It’s good that the courthouse is open so that these two aggrieved citizens may seek redress for the wrongs that they claim to have suffered. Federal civil rights laws provide important ways for ordinary citizens to seek relief when government officials act inappropriately, but anyone who has been in the trenches will tell you that they’re hard cases.

There is a bit of irony here. Some years ago, Mr. Hemstreet was one of the leading foes of access to the civil justice system for ordinary Oregonians. In the 1995 legislative session, Mr. Hemstreet strongly supported legislation that would have limited damages and would have barred the courthouse doors for ordinary Oregonians.

Maybe it’s just a simple question of whose ox is getting gored.

It would be interesting to hear today whether Mr. Hemstreet and Mr. Clapper now believe–as do most principled conservatives–that the jury system provides one of the best means of checking abuse of power. That is true whether the abuser is the government, an insurance company, an institution, or a large corporation.

So it will be interesting to see how this case progresses. And it’s good to know that Mr. Hemstreet and Mr. Clapper trust Oregon juries to sit in judgment. As well, it’s good that they feel confident that the court system provides them with a means of getting full and complete justice, based on the evidence that they will present at trial.

David F. Sugerman

The Washington DC lawyer suing the drycleaner for $65 million faces an ethics complaint filed by the American Association of Justice. AAJ, the national association of trial lawyers committed to civil justice, filed the complaint this week, asking the Washington DC bar to look at this outrageous behavior.

And while there’s no telling about the specifics, it appears that the Magic Pants guy is something of a frequent flier. News reports indicate that this isn’t his first time. In divorce proceedings, a court apparently awarded legal fees against him for taking unreasonable positions in litigation.

All of this is provides a nice window into the civil justice system. It works because there are systems in place that come down hard on the few who abuse it.

That’s a nice thing.

David F. Sugerman
Paul & Sugerman, PC
www.pspc.com

Readers get the gist of this blog. Too often, corporate interests engage in half-truths (or worse) in a calculated effort to poison jurors. That’s bad because our civil justice system is essential to a healthy democracy and safe republic.

But it would be wrong to claim that there aren’t legitimate concerns with abuse of the civil justice system.

And that takes us to the curious case of the magic pants. In Washington DC, an administrative law judge, one Roy Pearson, Jr., sought $65 million in a lawsuit against a drycleaner. Why? The drycleaner lost his pants.

They must have been magic pants. That’s the only way anyone could ever claim to have suffered such a profound injury. According to various news reports, the drycleaner offered to settle the matter for many times the value of the lost pants, and the gentleman declined. After all, magic pants aren’t worth ten thousand dollars, they’re worth $65 million.

The guy is a nut, and that’s apparent on the face of things. But the bigger problem is that the Chamber of Commerce and other groups hellbent on shutting the courthouse will use this nut’s magic pants as fodder for their cries of lawsuit abuse.

Well, I have to agree with the Chamber in this case. This is in fact lawsuit abuse. One can only hope that the Washington DC bar takes disciplinary action against the magic pants guy. While we’re at it, let’s hope that the Washington DC courts quickly dismisss Judge Magic Pants’ lawsuit. It would seem that the courts have more important business that needs attention.

David F. Sugerman

Reported in The Washington Post Tues., May 8, 2007:

“Juries in medical malpractice cases tend to sympathize with the doctors being sued rather than the patients who are suing them, a law professor at the University of Missouri at Columbia has concluded after analyzing three decades of research on the subject.”

And the bigger part of the study is that doctors and hospitals almost always win these cases, regardless of whether that’s the right outcome. Philip Peters is publishing his study in the Michigan Law Review. He finds that injured consumers win only about 27 percent of all cases that go to trial against doctors and hospitals. Patients lose cases that independent medical reviewers say they should win.

This isn’t news to anyone who represents injured consumers in the courtroom. The study makes the point that doctors often win cases that they should lose. Jurors aren’t told about what goes on behind the scenes. The doctor’s insurance carrier pours money in for jury consultants and focus groups. The defense witnesses generally practice their testimony with the help of consultants, videotape sessions, and all the bells and whistles that money can buy.

Even with the statistics showing that doctors win the great majority of cases that go to trial, the insurance industry’s spokespeople decry the profits from frivolous lawsuits. That is one odd idea. Juries don’t award large sums of money in frivolous lawsuits. In fact, they don’t award any money in frivolous lawsuits. And that’s the way it should be. But here is what is absurd: How can anyone make money on a frivolous lawsuit? Next time you hear someone spouting off, just ask how that works. I’m still waiting for someone to explain it to me.

David F. Sugerman