Lies, Damned Lies and Court Statistics…

Hartford, CT likes to count Mark Twain as one of its native sons; for those planning your next vacation to Hartford, his old house is designed to evoke a steamship. Among the quotes attributed to him (but actually cribbed from Disraeli) is: “There are three kinds of lies: lies, damned lies and statistics.”

I wonder what he’d think of the latest statistics about case filings and dispositions in our federal courts. [Update: The statistics were just released on August 20th.]  We just got our printed version in the office on Friday (and the stats are now available here online). Could the days of “Overlawyered” be numbered with an actual decline in certain types of lawsuits? Nah, but some of the numbers sure are curious.

In Connecticut, for example, new lawsuits are down over 20 percent in the last ten years or so. Employment discrimination lawsuits are down almost 25 percent nationwide since 2000.

But as Twain hinted, stats aren’t always what they seem. While certain areas have seen decreases, others have seen increases. Wage & hour claims are up 25 percent since 2000 and claims filed in parts of Florida have skyrocketed over the last year or so.

So, is litigation up or down in federal courts? Yes and no. It just depends how you crunch the numbers.

After Setting Fires, Firefighter Wants Job Back

In 1997, Erie, Pa. hired its first female firefighter. Nearly a decade later, she was quietly fired after setting fire to her father’s house as part of a suicide attempt.  In fact, the Erie Civil Service Commission wrote at the time that: “Her setting a fire … is the single most significant act a fire fighter may not commit.  The act of establishing a fire in a residence is wholly incompatible with the role of the fire fighter, despite the mitigating circumstances of [her] psychological state.”  Now, she has brought her appeal public in a filing in local courts earlier this year. (GoErie.com, 3/24)

Patent Troll Tracker case: second blogger subpoenaed

Attorney Eric Albritton has been suing Rick Frenkel and his former employer, Cisco, over allegedly defamatory content on Frenkel’s much-missed Patent Troll Tracker blog. Now Albritton has also aimed broad legal demands at a second IP-law blogger, Dennis Crouch of the well-known Patently-O, demanding not only the unveiling of anonymous commenters at that blog but even the handing over of private notes that readers have written to Crouch. (Patently-O, Aug. 24 via Elefant).

Paycheck Fairness Act Takes Center Stage

Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.

No doubt we’ll hear about the Paycheck Fairness Act bill because she’s not endorsing anyone for President.  “Equal Pay for Equal Work” has been one of the talking points of the week.   

There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well.  Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month  (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6). 

What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about.   It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used).   And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.

But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation.  Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole.  Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.    

It’s hard to see how some changes will have any real impact on employers.  For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”.   While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers.  After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”?  And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.

On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective). 

Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here).  For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior. 

The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill.  We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year.  Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.

(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)

Trainspotting? Man Jumps from Train, then Sues

A U.S. District Court judge threw out the lawsuit of an Amtrak railroad passenger who claimed he injured himself when he jumped from a train that he had boarded in error.  If you guessed that alcohol would somehow be involved, you are correct.  You can download the whole decision here.

The facts are even more interesting with confusion from the plaintiff as to who sold him his ticket and how he boarded the wrong train, proving once again that you can’t make this stuff up. The Court’s decision has the details:

On the evening of May 19, 2005, the plaintiff consumed approximately five large tequila-based margarita cocktails [note to court: don’t all margaritas have tequilla?] at a New Haven restaurant before walking to the New Haven Railroad Station. …

The plaintiff testified that the ticket agent told him that the train was on track number eight, that it was already there, and that it was the last train  so he “better hurry.” Without looking at the announcement board in the train station, the plaintiff walked to platform eight and boarded out-of-service Metro-North train number 1570. The train’s doors then closed and the train traveled for between seven and fifteen minutes before stopping at the New Haven Train Yard.

When the train doors opened, the plaintiff noticed that the train was not stopped at a platform, and he walked throughout the train and yelled for assistance but was unable to find anyone. Unable to see the ground below the train, the plaintiff jumped from the train car and injured his ankle. He then called 911 with his cell phone. Metro-North police responded, and the plaintiff was transported to Yale New Haven Hospital.

And then, of course, he sued….

“The Inverted Federalism of Grider v. Compaq”

As good an argument for the Class Action Fairness Act as any: Trial lawyers sued Compaq in Texas over an allegedly defective disk controller, though none of the plaintiffs had ever suffered a malfunction or a loss of data, alleging a violation of Texas consumer fraud law on behalf of a nationwide class.  No dice: the Texas Supreme Court threw out the case, noting that Texas law did not permit the sort of nationwide class action contemplated by the plaintiffs.  End of story?  Nope: the same trial lawyers filed the same complaint again, this time in Oklahoma state court, and asked the Oklahoma state court to apply Texas law to a nationwide class.  “Sure thing!” the court rubber-stamped–applying an ersatz version of Texas law rejected by Texas courts.  The forum-shopping was able to extract $40 million in attorneys’ fees from a questionable coupon settlement, as an Overlawyered post noted August 6.  The Summer 2008 issue of State Court Docket Watch includes my essay discussing why this is a constitutionally problematic set of decisions by Oklahoma courts–written before, though published after, the Anthony Caso analysis for WLF.

Edwards scandal updates

  • Those who saw only the earliest version of our Friday post on Lee Rohn, the Virgin Islands attorney whose name came up in National Enquirer coverage, will want to check out the updated version, which notes Rohn’s categorical denial of the Enquirer story’s veracity and other important additions. Commenters have been adding to the picture as well;
  • Ted must be feeling prescient regarding his speculations about an Edwards-contributor refund class action now that Warren Buffett has weighed in on the idea [Kaus]. And in fact the Edwards campaign does seem to be refunding some contributions in interesting ways, if one account pans out (bundlers! Thomas Girardi! John O’Quinn!) [DBKP, more, yet more]
  • Edwards moneyman and perennial Overlawyered mentionee Fred Baron will be at the Democratic convention in Denver, and there’s little chance his name will fade from the news right away since he’s been a key backer of Sen. Biden as well [Matthew Mosk, WaPo]