A new study by the American Bar Foundation shows that plaintiff’s chances of winning in federal court are actually quite slim.    The article, “Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States,” published in the June 2010 issue of the  Journal of Empirical Legal Studies, studies employment discrimination cases filed in federal courts between 1987 and 2003. The study found that the overwhelming majority of employment cases are brought by a single plaintiff; while cases involving multiple plaintiffs, class actions and representation by the EEOC or a public interest law firm are rare. More than 40 percent of plaintiffs either have their cases dismissed or lose at summary judgment. The other half are likely to settle very early in the process. Only six ercent of those filing employment discrimination lawsuits in federal court go to trial, where their chances of winning are one in three.  What is not clear is how many of the plaintiffs in the cases were represented by lawyers.

Madeleine Baran at Minnesota Public Radio has an interesting story about the use of non-competes in the health care profession.  (Disclosure: I was interviewed for the piece).  A mother has two children with severe mental health problems.  For the past year, her 8-year-old and 10-year-old daughters had been receiving services from a mental health worker who helped the girls learn how to adjust to school and reduce behaviors like bedwetting and self-injury. After years of chaos and struggle, the mother believed that her children had finally found an adult they could trust.

But two months ago, the family’s mental health worker changed employers.  Because she had signed a non-compete agreement with the agency she was leaving, she was not allowed to continue seeing any of her clients for one year.  The agency that she left would not allow an exception for the two children.

Non-compete agreements are commonly used – and enforced - in the health care profession in Minnesota.  In some states, courts have refused to enforce them on public policy grounds; i.e. patients should be able to chose their health care provider.  That issue has not been resolved yet here in Minnesota, though. 

Perhaps medicine is really just a business like any other?

Debrahlee Lorenzana is suing Citibank, alleging that she was fired not because her work was inadequate, as the bank claims, but because she is “too hot”.  Really.  She says that her bosses told her they couldn’t concentrate on their work because her appearance was too distracting. They ordered her to stop wearing turtlenecks. She was also forbidden to wear pencil skirts, three-inch heels, or fitted business suits. When Lorenzana pointed out female colleagues whose clothing was far more revealing than hers, “They said their body shapes were different from mine, and I drew too much attention.”

 

There is more attention being paid to discrimination on the basis of appearance, like this article by a Stanford Law professor, but being “too hot”.  C’mon!

 

If you’d like to judge for yourself, Ms. Lorenzana’s photo gallery is at the Village Voice.

When asked to predict the outcome of their cases, lawyers are often too optimistic, according to a survey published this month in the American Psychological Association’s Psychology, Public Policy & Law.

Shockingly, male attorneys were generally more overconfident than their female peers, and the more confident the lawyer, the more likely he would fall short of his predicted outcome.

Specifically, the study asked two questions of 481 American lawyers representing plaintiffs and defendants in cases expected to go to trial within a year. First, they were asked, “What would be a win situation in terms of your minimum goal for the outcome of this case?” Second, they were asked how confident they were of achieving the goal set in their first answer, on a scale of 0 to 100.  When the researchers conducted follow-up interviews, they found that 32 percent of the lawyers met their goals, 24 percent exceeded their goals and 44 percent were less successful than predicted.

The research also found that the accuracy of lawyers’ predictions about case outcomes was not improved by years of experience.  In fact,  many of the most overconfident lawyers were senior partners who do not typically seek out feedback.

One good idea:  ”Practitioners should also consider regularly obtaining customer feedback by sending their clients anonymous survey questionnaires at the close of every case; these should include questions that target the issues surrounding the management of client expectations about the achievement of goals in a particular case.”

It seems British lawyers are jumping on the “virtual law firm” bandwagon.  They seek to develop “a fresh way of working,” using technology ”to give a streamlined service without the traditional law firm infrastructure” and offering ” greater value for money and certainty on fees.”

Sounds familiar!

In Texas, plaintiff Balkrishna Shagrithaya claimed his partner/fellow entrepreneur, who was also the majority shareholder of the company, squeezed him out of the multi-million-dollar software company they both founded. Shagrithaya brought the action as an oppressed minority shareholder, a claim similar to those available under Minnesota law.  In particular, Shagrithaya alleged that his partner slashed his salary and attempted to push him out of the company. Shagrithaya sued to force a dividend payout, arguing he was an oppressed minority shareholder.

As in Minnesota, the Texas statute provides for “equitable” relief, meaning that the judge has a large amount of discretion to craft a remedy.   The judge took this to heart, adding $20 million to the advisory jury’s $65 million award to the plaintiff.

Under Minnesota law, shareholders in a closely held corporation owe each a duty of fair dealing.   Accordingly, these “oppressed shareholder” cases most commonly arise in two contexts:  when the majority owner tries to take unfair advantage of the minority owner, and when minority owners who are also employees claim that they are more than “at-will” employees.   Because the standards are hard to define, a majority owner dealing with a minority owner/employee must take extra care when terminating or taking other adverse action.

This isn’t an employment law issue per se, but I have represented enough family business over the years that I have seen first-hand the critical importance of succession planning.  Here is an excellent summary from today’s New York Times on what to consider to avoid a “succession disaster”, including some obvious and some not-so-obvious tips.

What is the secret to having happy employees?  According to this business owner, it’s two-fold: treat them well, and fire the unhappy ones.   “As a manager you cannot make everyone happy. You can try, you can listen, you can solve some problems, you can try some more.  But there comes a point when you are robbing the business of precious time and energy.”  Sometimes people who would be great employees somewhere else just don’t fit your company, whether it is the type of business or the company culture.

This is good advice; all too often I see employers who keep disgruntled employees around for far too long.  In my view, it is better to move them out sooner rather than later (before they have spread their toxicity too much!)

I just stumbled across an interesting article called “Building a Virtual Law Firm” by Joseph Kashi, an attorney in Alaska.  His article was written six years ago, but it highlights some trends that have only gained speed since then.

Kashi first points out that there is nothing new about “virtual” law relationships; most attorneys regularly associate with, and work closely with, local counsel in other states as the need arises. They collaborate with other attorneys who have expertise in specialized areas.  We use the services of professional and paraprofessional staff who either telecommute or otherwise work off-premises. Attorneys are generally comfortable working with investigators, court reporters, and expert witnesses whom we may not physically meet very often, if at all.

Once we have recognized that these “virtual” arrangements are not a radical departure from our previous ways of practice, we can begin to understand how internet technologies will accelerate this process and create new opportunities.  As Kashi puts it:

Mainstream use of Internet-based legal practice systems will force law firms to change into radically different, flexible practice associations that respond more quickly to market and technological changes. Future law firms will likely adopt a more flexible and democratic horizontal structure that facilitates the quick and efficient flow of critical information, something that’s critical to the quick parry and thrust of almost any law practice. Further, almost every other industry has found that flexible business structures also lend themselves to better profit margins.

Technology has leveled the playing field.  Before computers, law firms depended on large numbers of associates and paralegals to manually collect and process the vast amount of information required by any significant litigation or transaction. This required the addition of intermediate layers to supervise employees and to control the quality of the paperwork as it gradually flowed to the ultimate users.  These additional layers, however, only slows the flow of information to the lawyers who ultimately use it. Too many intermediate lawyers not only reduce the firm’s productivity and responsiveness but also increase overhead and costs, which are usually passed on to the client in one form or another.

By contrast, a virtual law firm will not need to carry the salaries of regular employees, or the costs of fancy downtown offices in which to house them.  Instead, it will rely upon trusted contract professionals and paraprofessionals specially chosen for particular projects.  Clients will no longer be expected to bear the cost of training associates or bring paralegals up to speed on industry specifics.  This flatter structure will lead to greater speed and flexibility in meeting client needs.  Nor will clients be paying for office space filled with filing cabinets and “war rooms”; today, data can be stored digitally for almost nothing, and layers can collaborate virtually via the internet.  These new technologies greatly reduce overhead costs, and therefore, fees billed to the client.

Professionals as diverse as radiologists and university educators are developing new “virtual” models; law firms need to move in that direction as well.

Here is a very interesting article by Drake Bennett at the Boston Globe, that has lots of ramifications for lawyers, marketers and others, on “cognitive fluency”: a measure of how easy it is to think about something.  New research confirms that people prefer things that are easy to think about to those that are hard.   For example:

When presenting people with a factual statement, manipulations that make the statement easier to mentally process – even totally nonsubstantive changes like writing it in a cleaner font or making it rhyme or simply repeating it – can alter people’s judgment of the truth of the statement.  Those same manipulations can influence the evaluation of the intelligence of the statement’s author and their confidence in their own judgments and abilities.

People assign specific characteristics to things that feel familiar. Like beauty. Psychologists have identified what they call the “beauty-in-averageness” effect – when asked to identify the most attractive example of something, people tend to choose the most prototypical option. For example, when asked to identify the most appealing of a group of human faces, people choose the one that is a composite of all the others.

When people read something in a difficult-to-read font, they unwittingly transfer that sense of difficulty onto the topic they’re reading about. Psychologists have found that when people read about an exercise regimen or a recipe in a less legible font, they tend to rate the exercise regimen more difficult and the recipe more complicated than if they read about them in a clearer font.  And when a personal questionnaire is presented in a less legible font, people tend to answer it less honestly than if it is written in a more legible one.

Auditory cues can also shape people’s perception of truth. In a study in which a psychologist presented subjects with a series of unfamiliar aphorisms either in rhyming or nonrhyming form: “Woes unite foes,” for example, versus “Woes unite enemies”, people tended to see the rhyming ones as more accurate than the nonrhyming ones, despite the fact that, substantively, the two were identical. Phrases that are easier on the ear aren’t just catchy and easy to remember, they also feel inherently truer.

Keep that in mind next time you are planning a closing argument!