Monday, July 11, 2011

Yamada: Harsh Words for Some Employer-Side Lawyers

Pinn David Yamada (Suffolk) posts over on Minding the Workplace about When bad employers retain thuggish employment lawyers.  Here's an excerpt:

[T]he legal universe somehow has a way of matching some of the worst employers with some of the most thuggish employment lawyers....

[O]nce they put on their lawyer suits, they are utterly heartless. Because they have superior numbers and resources to defend claims against their clients, they exercise their power with an iron fist.

They distort, intimidate, and delay. They take a worker’s minor faults or mistakes and elevate them into major deficiencies. They help their clients sweep horrible behaviors and actions under the rug. They use legal process to deplete, torture, and humiliate everyday workers.

Some of them appear to harbor an eliminationist mindset, at least in the way they casually destroy another’s livelihood and well-being. They regard a complainant – whether a clerk at a retail store or a mid-level executive — as the disruptive Other, a troublemaker who threatens the client who pays them so handsomely and — by extension — challenges The System in which they’ve succeeded.

I have a trio of responses to this:

  1. Employer-side attorneys have no monopoly on inappropriate litigation tactics, though they generally do have considerably more resources, and they (and their clients) start from a much more privileged position of power, than recently-fired employees.
  2. The view of what seems like egregious misconduct seldom is taken from a neutral perspective.  I've seen (and participated in) several cases in which each side believed -- sincerely -- that the other side was represented by an attorney like the ones David describes.
  3. The best attorneys can see their cases "from both sides now".  They are problem-solvers rather than fighters.  They advocate for their clients, but also can talk civilly to opposing counsel, and can relate to the beliefs/feelings/emotions of the opposing client.  They are the kind of attrorneys who attorneys on the other side of the aisle would happily choose as a mediator or arbitrator in the next case, because they have a strong reputation for empathy and fairness.  In my experience, clients get far more bang for their buck by hiring this kind of attorney rather than the one David describes.

rb

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Comments

Rick's comments are spot on. As an arbitrator I can confirm that employer attorneys have no monopoly over bad behavior. I'd only add that anyone who is in need of a lawyer will want one who will fight with bull-dog intensity, if that's the best tactic for the case and the client, regardless whether the opposing party or some academic regards them as "thuggish" or "heartless." I say that even though I'm often offended in arbitrations by some obnoxious counsel's conduct. In a perfect world, everyone would be nice to everyone else. In the real world, that's not always desirable or even possible. Fortunately, the vast majority of lawyers in my experience have been pleasant and professional, either by nature or because they realize that acting that way is the surest way to prevail.

Posted by: Dennis Nolan | Jul 11, 2011 11:21:50 AM

Ditto. I ave presented mostly employees in employment cases, but am sure some of my plaintiff lawyer colleagues can be just as Rambo-like as many defense lawyers. It may just seem worse when a defense lawyer and their client is harassing the employee in litigation much as he employer did during the employment relationship. It can indeed seem like phase II of the abuse.

Posted by: Tom Crane | Jul 11, 2011 6:44:49 PM

Rick, thanks for highlighting this blog post and for your thoughtful responses.

I hope rather than looking at this from an attorney's, and academic's, or an employer's perspective, we'll start to look at this more from the perspective of an employee who is trying to gain justice in a system that is intimidating, time consuming, demoralizing, and expensive.

Indeed -- and this is more a response to Dennis's comment -- my reasons for writing the post came from learning about the experiences of individual plaintiffs or complainants, hardly an 'academic" perspective. Too often lawyers, judges, and law professors have no idea how unpleasant and stressful it can be to be in this position.

Thanks much,
David

Posted by: David Yamada | Jul 11, 2011 8:12:38 PM

David addresses the false equivalency argument, in the comments section to the piece, in response to commenters making similar points (apparently just before getting on a flight):

"But I also think we have to keep front and center the huge imbalances of power and resources that are inherent in this area of legal practice. The same power that corrupts some managers and employers has the same effect on some management-side employment lawyers. And if you’re on the receiving end of the accompanying tactics and behaviors, one has the palpable feeling of being battered and abused, and I use those two words with precision in this context."

Posted by: Michael Duff | Jul 11, 2011 10:53:20 PM

I think this criticism of Yamada's post misconstrues the point he is making. The point is not that employer lawyers are meaner or more ill-behaved than plaintiff's lawyers. It is not a comment on personalities. The point is that some employers use bull-dog counsel as a strategy to harass and intimidate plaintiffs. The litigation strategy is adopted as a means of retaliation. As Yamada writes: "They use legal process to deplete, torture, and humiliate everyday workers." In these cases, the strategy is to make the process of vindicating one's rights more painful than the discrimination itself. If one destroys today's whistleblower as she litigates her claim, this tells tomorrow's potential whistleblower that he may wish to refrain from doing so or else face the same humiliation.

Posted by: James A.W. Shaw | Jul 12, 2011 5:00:58 AM

Of course some lawyers are obnoxious. That's not a news flash. David's original post, though, blamed only employer lawyers. Contra Mr. Shaw's reply, he DID suggest that employer lawyers are "meaner or more ill-behaved than plaintiff's lawyers." In fact, that's the whole thrust of his post on Minding the Workplace.

David's follow-up post says that he based that assertion on statements from individual complainants. Fair enough, but the problem is much broader because plaintiffs' attorneys can be just as obnoxious. Hearing complaints from just one side doesn't lead to a complete picture. I'll wager a dollar to a doughnut that anyone who inquired would find comparable horror stories from the other side of the table.

Simply looking at it from the employee's perspective doesn't help, either. Of course employees who are unfamiliar with the adversarial legal system will feel intimidated and may interpret regard sharp cross-examination and argumentation as offensive, threatening, or even bullying. No one likes to have his or her credibility attacked or flaws elevated into major deficiencies, as David puts it. But that's inherent in the adversarial system. There's no way to cut it off for the benefit of plaintiffs without doing so as well for defendants. Do we really want a legal system where the plaintiff's attorney can't vigorously attack the credibility of management witnesses or the performance of other witnesses?

The real issue is in distinguishing between vigorous advocacy and true bullying in the courtroom or hearing room. As much as employees might dislike the former, we should not impair the adversarial system to protect their sensibilities. As to the latter, I have to wonder how much there really is. While judges and arbitrators allow and even welcome vigorous argumentation and cross-examination, I don't know any arbitrators who tolerate conduct that goes beyond those norms. In 35 years as an arbitrator, I've never seen an advocate bully witnesses (beyond vigorous cross-examination and argumentation, that is) let alone "torture" or "humiliate" them. Are there many judges who do so? A good arbitrator or judge would shut it down as soon as it starts. I've always found that calling a break when tempers rise or counseling advocates in the hall suffice to maintain order and decorum.

Posted by: Dennis Nolan | Jul 12, 2011 9:41:14 AM

Dennis, your points assume a more or less level playing field. But when we start with at-will employment and then add in the considerable legal, economic, and knowledge advantages inherently granted to employers, the picture looks very different.

And let's at least try to put ourselves in the place of an employee. If we can assume that at least some of them are bringing legitimate concerns of mistreatment or illegality to the table, they nevertheless face a legal process in which they are constantly retraumatized by having to tell their story over and again, while being challenged by defense attorneys who question their credibility.

I'm going to suggest that we (i.e., anyone working in the system as a lawyer, arbitrator, or judge) usually have no idea how incredibly stressful and intimidating that experience is for the typical plaintiff, especially when a job, career, or livelihood is at stake and there are bills to pay and mouths to feed.

Furthermore, much of the psychologically abusive nature of the legal system -- and I acknowledge this is hardly the sole fault of defense attorneys -- is done out of sight of judges or arbitrators. The endless delays, the mounting expenses, the inherent uncertainties in the result, the appeals, etc., make employment litigation a miserable experience for all, but often a downright nightmare for the plaintiff.

When I teach Employment Law, I always make it a point to ask my students to look at some of the reported cases we're reading and examine the relevant dates. In some cases it means that someone lived this nightmare for years in an attempt to get relief. No wonder why I've talked to litigants who have won their claims but felt like they lost.

I realize I'm going off on seeming tangents, but actually there's a core to this: The experience of the plaintiff. It is why so many crappy employers are fortunate that they are not sued more often, the result of workers deciding it's not worth the stress and anguish to bring suit.

Dennis, you claim that we "should not impair the adversarial system to protect their sensibilities." Well, I do think the legal system has to be a search for truth and the accompanying just result. But to dismiss the emotional experience of the employee/plaintiff is to ignore why so many of them are absolutely beaten up by this process and stripped of their dignity. And that note is one that I hope both defense and plaintiffs' counsel will start to take more seriously.

David

Posted by: David Yamada | Jul 12, 2011 12:43:57 PM

Your points are well taken, David, but we're focusing on two different things. I addressed the allegation of torture and intimidation at hearings; I've still seen no evidence that judges or arbitrators tolerate anything beyond vigorous advocacy, and accordingly I see no need to restrict them in that setting. I'm glad that you're now recognizing that the problem is not merely on one side of the table.

You're focusing, at least in the latest post, on delay and the resulting expenses and uncertainties rather than on what you seemed earlier to suggest -- that lawyers were personally abusive, cruel, and torturing. So if your real concern is delay, we can all agree that these cases, like all others, should be handled expeditiously. We can also probably agree that in most cases delay weighs more heavily on plaintiffs than on defendants.

I doubt, however, that you could get any two lawyers or law professors to agree on just how we could eliminate or minimize that burden. Courts already have deadlines for various steps of the procedure. To ensure a full hearing, each side has the right to use those time limits, to seek evidence and conduct depositions, to make motions, to file appeals, and so on. A lawyer who abuses the process is subject to judicial or disciplinary sanctions, although opposing parties seldom seek those remedies, perhaps because next seek the shoe could be on the other foot.

But let's bring it to the bottom line. Are you just grumbling about the bad lawyers, or do you have proposals for speeding things? If so, how? Shorter statutes of limitations? Shorter reply times? Limitations on discovery or on the number of witnesses? Bench rulings? Prohibit lawyers from attacking witnesses' credibility or emphasizing plaintiffs' "minor mistakes and flaws?" If there is a real problem, and not merely a concern that employees are particularly troubled at the slow pace of the law, then there have to solutions, right?

Posted by: Dennis Nolan | Jul 12, 2011 6:10:50 PM

I'm perfectly willing to accept the notion that certainly employer-side lawyers are "thuggish" when it comes to protecting the institutional interests of their clients. However, anyone who suggests that union-side lawyers are any LESS "thuggish" than anyone else when protecting the institutional interests of their clients is either a fool, or a liar.

Posted by: James Young | Jul 17, 2011 12:42:06 PM

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