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Hollow victories: some lawyers should have seen it coming

August 25th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

Good lawyers identify sound arguments and counterarguments. Great lawyers avoid hollow victories too—they know how to choose their battles. Even the best attorneys may miss something, though—some indication that they might win a battle but lose the war. It may simply be that a statute is being tested for the first time and an attorney went too far afield in guessing how it will be interpreted. In other cases, at least to a mere observer, it seems the lawyer should have seen it coming. In both types of cases, as shown by recent decisions, even seasoned attorneys should go back to basic considerations, repeatedly, as the case unfolds.

New laws not always open to interpretation. Consider a Fifth Circuit decision on Mississippi’s parking lot gun law, which states: “[a] private employer may not establish, maintain, or enforce any policy or rule that has the effect of prohibiting a person from transporting or storing a firearm in a locked vehicle in any parking lot . . .” The plaintiff, who was fired over a firearm stored in his vehicle and sued under the law, might have won—had he not pursued damages as his only remedy. The law also states: “[a] private employer shall not be liable in a civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession or use of a firearm.” His attorney made some good points on the legislative purpose of the limit on liability (to avoid civil damages from workplace shootings), but these failed because the statute’s text was clear.

The Fifth Circuit made a point of explaining that a court’s “function is not to decide what a statute should provide, but to determine what it does provide.” When it comes to choosing your battles, shouldn’t that be the attorney’s function as well? Granted, this Mississippi law was relatively new, but it’s long been established that courts will not resort to other rules of statutory interpretation when the language of the statute is unambiguous. So perhaps the Mississippi lawyer should have seen this one coming.

Watch existing laws too. Don’t get too comfortable in thinking that your library of research and legal memos is complete, even as to the most common employment law issues. For example, most practitioners should know that, after Mach Mining, the remedy for the EEOC’s failure to conciliate is likely being sent back to conciliation (so think twice before bothering to make this challenge). But attorneys in the Northeast should also know that, in three recent cases, the Second Circuit rejected the DOL test for whether interns are employees; held that a demotion is not a “compensation decision” under Ledbetter; and broadened the scope of the FLSA retaliation provision to cover oral complaints to an employer. And when it comes to identifying all possible defendants (the hunt for deep pockets), the Fourth Circuit adopted the “hybrid” test for joint employers; and the Seventh Circuit clarified the right-to-control test. Court decisions like these can affect strategy and attorneys miss them at their own (and their clients’) peril.

Know the rules, especially where the bottom line’s concerned. There are so many procedural and evidentiary rules it is arguably impossible to retain them all. But when choosing battles, some rules stand out. For example, a few discovery disputes can be expected in any suit, but too many and a court will lose patience. A federal court in Colorado awarded $241,000 in attorneys’ fees to a plaintiff who only recovered $19,000 for compensatory damages and emotional distress. The court pointed to Rule 1, the spirit of which obligates attorneys to seek the just, speedy and inexpensive determination of the proceedings. In the court’s view, the attorneys lost their objectivity in assessing their positions and disregarded their Rule 1 duties when they “flooded the court with motions.”

The receipt of a Rule 68 offer is another moment to pause and reassess strategy. In one FLSA case, a complete offer of judgment that fully satisfied a plaintiff’s individual claims rendered the FLSA claims moot and deprived the court of jurisdiction. What happened after the offer expired (without being accepted) was of “no consequence.” Certain states have similar rules. Some provide that if an offer of judgment is rejected (by either side), and the party making the offer obtains a more favorable result, that party may recover attorneys’ fees and costs accrued after the offer was rejected. In these states, continued litigation may not be worth it.

When it comes to bottom lines, one attorney missed the boat when he sought injunctive relief only after judgment was entered and he realized he risked losing out on attorneys’ fees. The jury had found that age was a motivating factor in his client’s termination but that he would have been fired anyway. Even though the complaint’s prayer for relief requested “[a]ny further legal and equitable relief,” the Fifth Circuit was having none of it. Noting that for the entirety of the litigation the employer defended only against money damages, the appeals court reversed the grant of injunctive relief and, because that was the only relief on which the plaintiff “prevailed,” he lost the $340,000 in attorneys’ fees that were awarded below.

When you mess up, don’t compound your error. Speaking of bottom lines, attorneys need to recognize when a course of action is going to be wasted effort, even if the hope is to rectify the attorney’s earlier mistake. In another case where an attorney missed an opportunity but did not realize it until too late, a court found that an employer improperly used a Rule 45 subpoena, five months after discovery closed, to obtain documents from the plaintiff’s other employer. But the documents were on the list of trial exhibits, so this was not “trial by ambush,” and plaintiff’s counsel failed to object until weeks after the jury found for the defense. Despite the Rule 45 violation, the motion for a new trial or other sanctions was denied.

Another (all too frequent) wasted effort is raising an argument on appeal that was not raised below. Appellate courts simply won’t consider improperly raised arguments and attorneys should know that—begging the question, who pays for the time spent researching and asserting an argument doomed from the start?

The list could go on, but suffice it to say that attorneys who do not heed procedural rules are more likely to have a winning argument but no true victory.

Know your judge. You know those pesky rules mentioned above? Don’t forget standing orders, which often appear on a court’s or individual judge’s website. It’s also a good idea to review similar cases decided by the judge, and those where sanctions were imposed. For example, a federal magistrate judge in California resolving a discovery dispute pointed to his Chambers Rules, which prohibited boilerplate objections and conditional responses. Because the employer’s responses to discovery requests were the nonspecific, boilerplate, and conditional responses the court expressly warned against, the judge found that the employer waived its objections and ordered it to respond in full.

Courts also don’t like “kitchen sink” pleadings, which throw every possible claim or defense that an attorney can think of, regardless of whether it fits the case. Judges will sanction attorneys and their clients for asserting claims the attorney has not found have a basis in law or fact. The EEOC was recently ordered to pay $90,541 in fees for asserting a discrimination claim when it should have known by the pretrial conference that it lacked evidence of a prima facie case. In other cases, the fact that many claims were asserted but most failed led courts to significantly reduce a prevailing plaintiff’s recovery of attorneys’ fees.

Know the parties. How often is an attorney sandbagged by his or her own client? Hard to tell, obviously, but I’m guessing it happens more than you think because clients do not know what’s relevant and do not like to cast themselves in a bad light. So, you know that first real conversation you have where you explain the attorney-client privilege and tell them you need to know everything? Repeat it. It is better than being surprised. In one case, after-acquired evidence that an employee’s falsified job application precluded her from recovering front pay or being reinstated. Damages will also be reduced where a client failed to mitigate them, or in the case of emotional distress damages, where the client didn’t seek medical or psychological treatment.

Obviously, you should know your opponent as well. For example, Plaintiffs’ counsel can help avoid hollow victories by investigating whether the company can pay any judgment, whether there are other companies that could be considered a joint or integrated employer, and so on.

Return to the basics for each case. If there is one thing these cases show, it is that attorneys can better avoid hollow victories by returning to basic considerations. A lawyer who has a full load and has become extremely familiar with the typical arguments and precedent might easily fail to see new developments in the law. And it is too easy to take a “canned” pleading and fill in the blanks, without really considering whether the claims or defenses really apply to the case at hand. This is the path not only to missing a chance for a win, but perhaps to sanctions and a reputation among peers for sloppiness.

Best practice to maximize outcome? For each case, freshen up on the law and procedural rules, and know the key players.

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