Showing posts with label litigation. Show all posts
Showing posts with label litigation. Show all posts

Tuesday, August 9, 2022

Do you know what to do and not to do when federal agents arrive with a search warrant?


The front door to your business opens, and in walks a column of federal agents with boxes, computer imaging equipment, and a search warrant.

Do you what to do and what not to do? Does your business have appropriate response procedures in place? Any have you trained the person most likely to receive the agents (a receptionist, for example) on how to appropriately respond?

Here are some suggestions.

Thursday, August 4, 2022

Alex Jones trial offers a teachable moment on the issue of "inadvertent disclosure”


Suppose you're sitting in your office and your associate excitedly runs in, yelling, "We got 'em! The other side just sent us the entire contents of their client's cell phone, and oh boy are there some smoking guns!"

This exact issue just played out in an Austin, Texas, courtroom in the defamation trial between online conspiracy theorist Alex Jones and the parents of a 6-year-old killed in the Sandy Hook school shooting suing him for lying that the attack was a hoax. The parents had requested in discovery that Jones turn over all emails and text messages related to the shooting. Jones claimed that none existed because he doesn't email or text. Then 12 days ago his lawyer accidentally sent the entire contents of Jones's cell phone to the parents' attorneys.

What happened next would seem laughable if it unfolded during a prime-time legal drama. Indeed, in the immediate aftermath of these events unfolding in court, a former writer for Law & Order tweeted that they "wouldn't have let a lawyer do something that dumb." And yet it actually happened yesterday in an actual courtroom.


"Your attorneys messed up and sent me an entire digital copy of your entire cellphone with every text message you've sent for the past two years. And when informed they did not take any steps to identify it as privileged.… And that is how I know you lied to me about not having any text messages about Sandy Hook."

Thursday, February 3, 2022

Brian Flores burns down the house in his lawsuit against the NFL … and makes himself unemployable in the process


If you haven't read the lawsuit Brian Flores filed against the NFL and three of its franchises, you should. It reads like a law school employment law exam question. It has allegations of systemic and endemic racial discrimination, fraud, bribery, and Bill Belichek inadvertently providing the smoking gun text message.

This lawsuit will likely bring much-needed change to the NFL's hiring practices. It will also likely mark the end of Flores' coaching career. I'd be shocked if he ever coaches again.

Tuesday, April 20, 2021

We learn more from our failures than our successes


A couple of months ago I was approached by the That One Case podcast to record an episode. This show asks lawyers to share the story of one case that has stood out over their careers. As they pitched it, that case could be a big win that defined my career, a turning point that took my work down an unexpected path, or simply the case of which I am most proud.

Tuesday, April 13, 2021

The top 11 things you need to know about being sued by an (ex) employee


Because of the impending changes to Ohio's workplace discrimination law that take effect in two days, the filing of employment discrimination lawsuits in my state is seeing record numbers.

Do you know what to do when an employee sues your company? 

Here are the top 4 issues you to think about ASAYS (as soon as you're sued).

Wednesday, October 23, 2019

Is this the worst defense ever to a discrimination claim?


Litigation is painful. It takes a lot of time, costs a lot of money, and has lots of variables that you just can’t control. Especially when the client goes off the rails and says something so ludicrous that you might as well just pack it in and cut a check.

As an example, I offer Evans v. Canal Street Brewing. It’s a race discrimination currently pending in federal court in Detroit. According to the Detroit Metro Times, the plaintiff, who is African-American, alleges “a racist internal corporate culture,” including the repeated used of the “N word”, and  management naming its printer the “white guy printer” and  the printer for lower-tier employees the “black guy printer.”

The employer’s defense? The restaurant’s general manager, Dominic Ryan, claims that he did not know Evans was black.

Thursday, April 25, 2019

Supreme Court signs off on death by a thousand cuts


Lingchi was a form of torture and execution used in China from roughly 900 BC until China banned in 1905. It translates variously as the slow process, the lingering death, or slow slicing. It's more commonly known as "death by a thousand cuts," in which the torturer uses a knife to methodically remove portions of the body over an extended period of time, ultimately resulting in death.

Yesterday, in Lamps Plus v. Varela, the Supreme Court held that parties to an arbitration agreement cannot be required to arbitrate their claims as a class action unless they specifically agreed to do so in the arbitration agreement.

Monday, October 1, 2018

5 steps to take when an employee sues your company


I've written a lot over the years about best practices to prevent lawsuits by employees.

The fact remains, though, that no matter how good a company's HR practices are, and no matter how proactive a company is with its legal compliance, a certain percentage of terminations and other employment decisions will turn into lawsuits. It's the simple the cost of doing business.

Tuesday, July 31, 2018

It's not an oxymoron to be pro-civil rights AND represent management


I read a tweet last night that really angered me.

https://twitter.com/CJMcKinney/status/1023805996223922181

Thursday, May 31, 2018

Everything you need to know about shredding documents when faced with litigation: DON’T DO IT


If you are accused of destroying evidence, and the federal judge ruling on the motion starts his opinion by quoting a John Hiatt song called “Shredding the Document,” you are in for a very, very bad litigation day.

This is exactly what happened to GMRI, Inc., the defendant in an age discrimination lawsuit brought by the EEOC in Miami, Florida. GMRI owns Seasons 52 restaurants, and if that name sounds familiar, it’s because it was my 8th nominee for the “Worst Employer of 2018.”

Tuesday, May 22, 2018

SCOTUS decision on class action waivers is not the epic win for employers it may seem to be


Yesterday, in a narrow, 5-4 partisan decision, the Supreme Court issued its most anticipated employment decision of its current term, Epic Sys. Corp. v. Lewis [pdf]. The Court reconciled six years of debate between split federal circuits into a unified standard that permits the waiver of class actions via the compelled individual arbitration of employment disputes.

Tuesday, May 15, 2018

The easiest way to lose an employment lawsuit


Photo by Devin Avery on Unsplash
Yeterday, I was tagged with the following question on LinkedIn:
Interested in your opinion on this.

The “this” in question was an $7.97 million verdict a jury in Fresno, California, entered in favor of a Chipotle manager fired for allegedly stealing $626 in cash from the restaurant’s safe.

Tuesday, September 19, 2017

What it’s like to be sued by your employee


When you litigate, you’re losing.

This is an odd statement for a litigator to make. But it’s true.

Monday, September 26, 2016

Are you sure you want to take that case to trial?


Consider Locigno v. 425 West Bagley, Inc. [pdf], decided last week by an Ohio appellate court.

This case is remarkable. Because of some odd communications between a juror and the court, the concurring opinion gives a unique look behind the curtain of jury deliberations. And it isn’t pretty.

Wednesday, May 25, 2016

How to behave (and not behave) in a deposition


I spent yesterday in a deposition. That fact is not all that unusual for a litigator. What makes yesterday’s exercise stand out is that I was the deponent, not the attorney. I spent my day under oath, answering questions.


As the mind of a blogger works, I thought to myself, “How can I turn this experience into a blog post?” And then I realized that I already had, six years ago, in a post entitled, 10 tips for preparing for your deposition. So join me on this trip back through the archives.

Thursday, April 28, 2016

Let’s not forget about damages when litigating our cases


When employers are sued, they do not put enough thought into damages. The typical response is, “We didn’t discriminate; we aren't liable.” But, the reality is, unless you win a case on summary judgment (sadly, an unlikely result), you need to think about what a case is potentially worth and how much a plaintiff can potentially cover. For starters, it will drive settlement discussions. Moreover, and more importantly, if a case does not settle, you will want to whittle that number down as low as possible to limit the potential exposure at (gasp) trial.

Wednesday, November 18, 2015

The cost to defend a discrimination lawsuit (and can you do anything about it)


Two and a half years ago I asked, How much does it cost to defend an employment lawsuit? My answer:

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.

Oh, how I love to be right.

Wednesday, July 8, 2015

Be conscious of inequities when gauging litigation


Four years ago, in Wal-Mart v. Dukes, the U.S. Supreme Court held that it was inappropriate to certify a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide "policy" of sex discrimination. SCOTUS’s Dukes decision ended a decade of litigation over the propriety of the attempted nationwide class action.

More than a year after the Dukes decision, Cheryl Phipps, Bobbi Millner, and Shawn Gibbon launched a similar lawsuit in federal court in Tennessee, but instead seeking a region-wide sex-discrimination class. Wal-Mart alleged that the claims, more than a decade old, were time barred. Yesterday, in Phipps v. Wal-Mart Stores [pdf], the 6th Circuit formally disagreed.

For civil procedure geeks (like myself), the case is a fascinating read on the theory of statutes of limitations and equitable tolling. That analysis, however, is well beyond the scope of what I hope to accomplish with my little slice of the Internet.

Here’s the practical take-away. Employers favor certainty, knowing that if an employee fails to file a lawsuit 90 days after the EEOC issues its right-to-sue letter, for example, the employee waived the right to assert federal discrimination claims. Courts, however, favor equities, and try to avoid inequitable results. Sometimes, these ideals clash. When this happens, employers cannot assume victory, and should brace themselves accordingly.

Monday, June 23, 2014

Is it ethical to check jurors’ social media accounts?


Every jury trial starts with what is called voir dire—a question-and-answer session between the lawyers and the pool of potential jurors. As lawyers, we are trying to deselect those jurors whom we feel would be unfairly biased against our case or our client. It is much more an art than a science, and the more information we can gather about potential jurors, the more educated of a decision we can make that a juror is not the right fit for our case. 

Recently, the American Bar Association made this information gathering a little bit easier. In an ethics opinion (h/t: ABC News), the ABA gave lawyers the green light to view jurors’ and potential jurors’ publicly available Internet information, which, for example, could include their Facebook or Twitter musing. 

The Internet is a treasure trove of information about jurors. You could learn their political leanings, religious background, and all about their jobs and families. In short, you could learn the entire backstory of a “connected” juror.

But, do you want to? Just because this information gathering is ethical does not mean it’s strategically wise. By using the Internet as a basis for questions about a potential juror, you will clue the entire pool of jurors in on the fact that you’ve been trolling online for information about them. They might view your ethical conduct as a creepy invasion of their privacy. Voir dire is as much about you learning about the jury as it is about the jury learning about you. In other words, you don’t want to piss off the jury during voir dire. If you lose credibility before the trial even starts, what chance do you have to win the case?

So, lawyers, my take is that Facebook-ing potential jurors presents more of a risk to damaging your credibility with the jury than any benefit you will receive from learning information to help with the inexact science of voir dire. And, if you choose to research jurors online, keep that choice private, and don’t let the jury know you’ve been trolling them. It’s not worth the risk of the jury punishing you for it from the privacy of their deliberations.

Wednesday, March 12, 2014

Don't Bieber your deposition


Three years ago, I wrote a post entitled, 10 tips for preparing for your deposition, in which I offered some ideas for how to best prepare to give a deposition in case in which you are a witness. The tips includes the common sense (tell the truth), to the more esoteric (beware leading questions).

Today, I’m updating that top-10 list with an 11th tip: Don’t be a Bieber. Earlier this week, TMZ leaked the video of the highlights (or lowlights, depending on your perspective) of the deposition Justin Bieber gave in a case in which a photographer claims Bieber ordered his bodyguard to attack him. This deposition might go down as the worst performance ever given under oath.


It is rare that you will win a case during your deposition. The person asking the questions is not your friend. The inquisitor is looking for opportunities to trip you up, put words in your mouth, and make you look bad. Yet, while you can’t win a case during your deposition, you certainly can lose it. You can make admissions that you don’t need to make, or you can come off looking like Bieber did in his video—like an a-hole.

The video is entertaining, but it’s also instructive. If you are being deposed, don’t play games. Don’t feign fake ignorance. Don’t get smart or act smarmy. Yes, it’s an unpleasant experience to be under oath. Don’t make it worse by giving a Bieber-like performance.

So, thank Biebs. You provided me the perfect instructional tool for me to show my witnesses before they are deposed, so they don’t act like you.

[Hat tip: Eric Meyer and Phil Miles]