A Round Tuit (54)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

Though in my professional life I regularly deal with employment issues and closely follow major court cases, I often avoid discussing employment matters in these Round Tuit posts. Actually, come to think, it may be because I deal with employment issues regularly that I tend to skip them here. Discussing these feels too much like doing my homework or taking out the garbage.

Nonetheless, I'd be remiss if I didn't mention this past week's Supreme Court decision in Thompson v. North American Stainless, which established a Title VII retaliation claim for some third parties and adopts a "zone of interests" test for determining standing to bring such claims. Perhaps remarkable as these expansions of Title VII law is the fact that the decision was a unanimous one, issued by what's often described as the most business-friendly Court in recent memory. Michael Fox commented on that seeming incongruity:

If there is one area of Supreme Court jurisprudence that employees can certainly not complain about it is the law of retaliation....

If I had any hope for an employer favorable decision, I had thought it would come from the strict constructionists, who could read the language of Title VII:

because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

to mean that Congress had said it was the individual who actually engaged in the protected activity that was protected, since it did not read because "he, or someone he is close to" had done certain acts. Which is what the en banc 6th Circuit had done.

I thought that they might have also noted that Congress knows how to expand the zone when it wishes, e.g. the Americans with Disabilities Act which contains a specific provision for association type discrimination where of course Title VII does not.

But when I saw today's opinion was authored by Justice Scalia, I knew it was not to be.

Russell Cawyer offered a succinct recap of the case's path to the Supreme Court:

The facts of Thompson v. North American Stainless are straightforward. In February 2003 North American Stainless was advised by the EEOC that Miriam Regalado filed a sex discrimination charge of discrimination against it. Three weeks later, Regalado's fiancee, Eric Thomas [sic], was terminated. Thomas filed a charge of discrimination of his own alleging that he was fired in retaliation because his fiancee filed a charge of discrimination. The EEOC found that Thomas had been retaliated against and issued a right to sue letter when conciliation was unsuccessful.

When the case reached the trial court, the judge dismissed the suit finding that Title VII did not recognize third-party retaliation claims. Because the case was decided on a motion to dismiss (prior to any discovery), the reviewing courts were required to take Thomas' allegation as true (i.e., that he was in-fact, terminated for his fiance's charge of discrimination). The Sixth Circuit Court of Appeals affirmed the dismissal for a different reason. The Sixth Circuit concluded that Thomas never engaged in protected activity because he didn't filed a charge on his or his fiance's behalf prior to his termination and therefore he couldn't bring a retaliation claim.

Ilyse Schuman explained that to this point, Title VII covered retaliation claims by "person[s] claiming to be aggrieved" (i.e., the person who filed the Title VII claim) and that this decision is a notable expansion of employer liability:

[T]he Court said that if the facts as alleged are true, it has “little difficulty” concluding that the plaintiff’s firing was unlawful, as Title VII’s anti-retaliation provision “must be construed to cover a broad range of employer conduct.” Relying on its prior ruling in Burlington N. S .F. R. Co. v. White, 548 U.S. 53 (2006), the Court noted that Title VII’s anti-retaliation provision is broader than its substantive antidiscrimination provision. Specifically, the anti-retaliation provision prohibits an employer’s action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Applying this standard to the facts of the case, it was not disputed that reasonable workers might hesitate to file a charge of discrimination if they believed their fiancées could be retaliated against. The Court acknowledged the concern that such a broad standard could subject employers to retaliation suits any time they fire an employee who happens to have a connection to another employee who filed a discrimination charge. The Court claimed that this concern does not “justif[y] a categorical rule that third-party reprisals do not violate Title VII. . . . we adopted a broad standard in Burlington because Title VII’s anti-retaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text.”

Frank Steinberg characterized the Court's decision as "a sensible and straightforward case of statutory construction", but other legal bloggers suggested that Thompson has muddied the waters where retaliation claims are concerned. Amy Joseph Pedersen noted that the Thompson decision leaves employers in an uncertain position:

The employer argued that to permit a third party retaliation claim in this case would lead to a dangerous slippery slope – would firing an employee’s boyfriend count? How about just a friend? Anytime the employer fired a person who happened to have a connection to someone else who had filed an EEOC charge, the employer would have potential liability. The Court responded: “Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. . . . Given the broad statutory test and the variety of workplace contexts in which retaliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules.” In other words, there is no bright line test for who is protected from retaliation.

Daniel Schwartz wrote that in finding for a Title VII claimant's fiancé, the Court expanded existing law, but by how much remains something of a mystery:

[T]he court left it to the lower courts to define the parameters as to who else might be included in the victim's "zone of interest". It did give some clues:

We expect that firing a close family member will almost always meet the [] standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

The court went on to say that the the text of Title VII's anti-retaliation provisions are "simply not reducible to a comprehensive set of clear rules." In other words, its a case-by-case determination.

Oh, and good luck.

Eric Meyer and Patrick Smith also discussed the uncertain situation in which employers presently find themselves. Meyer wrote:

This case has an immediate impact on employers. Although, unfortunately, it is unclear where to draw the line to establish when an employer retaliates against an alleged harassment victim's co-worker. The Supreme Court expected that firing a "close family member will almost always" constitute retaliation and "inflicting a milder reprisal on a mere acquaintance will almost never do so." In the end, it all boils down to: what would constitute retaliation to a reasonable person?

Good question. That will be for the lower courts to flesh out.

One BIG point to underscore here. Employees who complain about harassment in the workplace and those who are in the alleged victim's "zone of interest" are NOT bulletproof. In Thompson, the Supreme Court assumed that NAS fired Thompson because his fiancé complained to the EEOC. If, however, NAS had made the decision to fire Eric Thompson before it learned of his fiancé's EEOC charge -- for example, Mr. Thompson may have been a poor performer -- NAS can still follow through and fire him. An employer is free to fire an employee for a legitimate business reason.

Smith added:

The practical challenge this case presents for employers is identifying the zone of persons who might be affiliated with a complainant. While acknowledging this difficulty, the Court nonetheless declined to establish a bright line to determine which relationships are protected and which are not.

....

Two immediate takeaways from this case:

First, when going down the road of termination, employers need to inquire whether there is anyone affiliated with the employee to be terminated who has filed a charge of discrimination. Who is affiliated? Certainly a spouse or other close family member; definitely a fiancée. After that, who knows?

Second, just because there is some affiliation does not mean the termination should not occur. The terminated employee is still required to prove a connection between his termination and the protected activity of the other employee with whom he is affiliated.

"Good luck." "Good Question." "Who knows?" These are not the sorts of things an employer (or an employer's in-house counsel) wants to hear.

The substantive legal blogosphere periodically hashes and rehashes who's part of the group, who's outside it, who demonstrates the right motivations for writing, and whose motivations are misguided. I've been one of those guilty of engaging in this navel-gazing, most recently (I think) just last September. It's no secret that I and others view SEO-focused, marketing-driven legal blogs as destructive to the legal blogosphere. Whether I mention them in these Round Tuits or not, each week there are thoughtful legal bloggers who eloquently express our antipathy toward the marketing-centric blogs which dilute the legal blogosphere.

This week, thoughtful legal blogger George Wallace discussed how the "blawgosphere" has changed both in tone and personnel since 2003, when he first launched his Declarations and Exclusions blog:

There is some irreducible quantity of "junk" to be found in every field of human endeavor, blawging very much included. It seems, though, that the proportion of junk among blawgs has only grown as blogging has been touted, year after year, as a valuable tool for selling legal services, rather than as a good in itself. That particular mania has spread from blogging to the wider world of social media, resulting in such oddities as the insidious but seemingly serious belief that Twitter, of all things, is useful for anything other than as rollicking a good time as one is able to squeeze out of 140 characters.

But we must return to the subject at hand: blawging.

"No man but a blockhead ever wrote, except for money," said Samuel Johnson, LL.D., or so Boswell claims, but my view is that the best blogs and blawgs have been and will always be the ones that are created not principally as a conduit to healthy receipts but for, dare I say it, the love of the game. Written because the blogger wants, needs to write. Written to be read, the fact of having been read being its own reward whether or not the phone rings because of it. Written for the sake of conveying something of interest or value to the reader, as a gift, for free. Nothing taints the practice of law quite like the Business of Law, and the inherent value of a blawg to both its author and its audience suffers, says I, to the degree that it is driven by—or, heaven forfend, is actually about—the Business of Law.

A blawg post should be the voice of a single lawyer, recognizably his or her own, speaking what that lawyer really knows or really believes, with vigor, with energy, and with heart and/or mind fully engaged. The mercenary motive, the pre-packaged or ghostwritten post, blawgs whose entries are vetted by committee: that way lies the shortest path to the junk heap.

While some of us might rail against the social media law marketers and those lawyers who subscribe to their gibberish, Antonin Pribetic has realized that that way lies madness. This week he told those marketeers, "I cannot help but admire your chutzpah" and offered them a gift instead — a legal blogosphere reserved especially for them:

Just as Mark [Bennett] and Scott [Greenfield] both identify the difference between practical and academic blawgs, there is also a third kind of blawg which social medial law marketers should immediately adopt and identify with: The “Flawg”.

....

Here’s my definition:

Flawg”: noun. A legal blog without any substantive legal content that is created, monetized and promoted exclusively for profit. A Flawg will often contain posts about the latest legal tech gadgets, or the how to gain new clients through the awesome power of the internet, in the absence of anything remotely legal to discuss;

“Flawger”: noun: someone who flawgs. Usually, a non-lawyer/social media law marketer, (but also a disbarred/suspended/unemployed/underemployed/retired/or failed lawyer who quit) who writes blawg posts about how to write blawg posts, SEO, ROI, iPads, cloud computing, top ten lists, and enjoys attending law marketing conferences and twittering about using #hashtags.

I won’t bother telling you about “Splawgs”. I’m sure you can figure what that means.

This is my gift to the social media law marketers. You’ll never be part of the blawgosphere, but now you can create your own flawgosphere.

While Twitter has replaced blogging for many attorneys, in general Twitter seems a sideshow to the legal blogosphere rather than a replacement for it. While there is increasing attention in Britain paid to lawyers and firms on Twitter, Mark Gould, whose day job is in knowledge management at a law firm in the UK, suggested that it's not for everyone:

As usual, the legal world is getting all excited about Twitter well after everyone else. I understand Richard Susskind is advising law firms to sign up, the Times has had a list of top 10 legal tweeters (no link because of the paywall). Legal Week has spotted some writing talent from Twitter and is publishing their contributions on its website and on paper. And now the Law Society Gazette has leapt on the bandwagon (helped up by a report from a web consultancy on law firms' use of Twitter).

Enough.

....

[T]he advice is that lawyers should be on Twitter. Why?

If the answer to that question is that a web consultant or social media guru said so, then ignore them. If the answer is that there are people you already know there, then go ahead. But don't expect to get anything out of it if you just follow Stephen Fry and your favourite newspaper columnist. Don't even expect anything if you follow other lawyers (even in-house lawyers). Certainly don't expect any return if you just listen. Twitter is a two-way medium. It is a place for conversations. The lawyer who joins the golf club just to sit at the 19th hole and listen to other people talking is wasting their time. You need to get stuck in. Play the game, walk the course with people who have similar interests, and talk.

Don't talk about the law -- nobody is interested in legal questions apart from eager students and people with an immediate problem. The first lot want you to give them jobs, and the second should be paying for their advice. Be natural, and commit to it. If you don't feel comfortable, the chances are that the clients you would like (and who would like you) are not on Twitter either.

A recent listing of the "top ten" law firm twitter accounts in the UK (ranked using the "TwitterGrader" tool) placed Norton Rose Group's account at number ten, despite the fact that it contained — then and still — exactly zero tweets. Though the report's authors acknowledged that fact, the rankings provoked a fair bit of criticism; by "a fair bit", I mean enough criticism that it's become known as "Law Firm Twitteratigate". Steven Mather dismissed the report's rankings and explained why none of the firms listed could be considered a success on Twitter:

All of the firms listed in the report simply us Twitter as an RSS feed, posting content (most likely automatically) from their website as and when it’s updated. Sure, it’s useful information at times, as are emails that th same firms send out occasionally.

I don’t think I’ve seen any of those firms be bloody social. I can just imagine going to a function with their nominated tweeter.

Me: “hi, how are you today?”
Law Firm: “JoeBloggs LLP acts on big deal link”
Me: “Well done you! So how was your Christmas?”
LF: “Bribary Act implications for corporate days act link”
Me: “yes I saw that on twitter, but in reality most businesses will ignore it anyway don’t you think?”
LF: [3 days later] “Why wills are important link”

The fact is you’d have walked off after round one. On twitter we lawyers all follow the big firms but that doesn’t mean they are good at twitter.

Brian Inkster composed an admirable round-up of the "Twitteratigate" kerfuffle and offered his thoughts on The Times' coincidental coverage of lawyers and Twitter:

The Times (@TimesLaw) steered clear of Twitteratigate and instead published an article on Why it’s time to open a corporate Twitter account. As I am quoted in this article I know that it was being prepared just before Christmas and it was simply a coincidence that it was published in the midst of Twitteratigate.

I have no idea whether the fact that The Times published a list of the ten best legal tweeters on Twitter to accompany that article was also a coincidence. Their list is @Inner_Temple, @CharonQC, @RichardSusskind, @DavidAllenGreen, @RichardMoorhead, @in_house_lawyer, @copyrightgirl, @legalfutures, @LegalBizzle and @TheNakedLawyer.

On the whole these are excellent Twegals and the Top 5o UK law firms could learn a lot from following and more importantly engaging with them. I must, however, say that whilst I admire Richard Susskind he should not have been on this particular list. Richard is slightly better at Tweeting than the Norton Rose Group in that he has posted (as of today) 76 tweets. However, all of these are broadcast tweets. Richard has not engaged once with anyone on Twitter. Furthermore, he protects his tweets (goodness only knows why). He has, however, allowed me to follow him. I trust he will not now block me!

Bruce MacEwen posted the first two parts of his series on law firm strategy in "the new normal" (second part here). In introducing the series, MacEwen wrote:

"With all respect, I think that's the wrong question. There's always new stuff out there, and most of it's not very good. Rather than looking for the next musing, it's probably better to be thorough about what we know is true and make sure we do that well."

The question was "What's the next new thing in business strategy?" and the answer was given by a professor at the International Institute for Management Development in Switzerland. It's much like Mark Twain's, or Will Rogers' observation (various attributions) that it's not what we don't know that gets us in trouble, it's what we know that just ain't so.

In this era of unprecedented-and no-end-in-sight-change to the law land landscape, it's not a bad time to recur to first principles.

Though his focus is on litigation, Mark Herrmann's advice in a recent post is recommended reading for anyone who works with in-house counsel; speaking as an in-house guy, Herrmann expresses as well as anyone has what we're looking for from the firms with which we work (and why we're so often disappointed):

“No surprises.”

When you interview for an in-house job as head of litigation, that’s what everyone — CEO, CFO, General Counsel — is likely to say: “All we want is to know in advance what’s happening. Don’t hit us with last minute litigation surprises.”

That characterization is only half true. Half the job is what you would actually expect, and why someone would actually pay money for a person to do this gig: Half the job is to minimize liability. That task, at least, requires a law degree and a little bit of skill.

But, remarkably, the other half of the job — avoiding surprises — is the aspect that seemingly draws the ire of the folks who run the joint. And that task is one that the kid down the block ought to be able to do with about fifteen minutes of training: How hard can it be to avoid surprises?

....

Avoid surprises.

That’s much, much harder than it seems. Help us out, and you’ll have our gratitude — and, over time, an increasing share of our business.

Cops lie. Not all the time, certainly, but often enough that the de facto presumption amongst judges and jurors that they don't lie is unsupportable. Coupled with the deference appellate courts show to determinations of credibility made at trial, decisions like that in Ruiz v. State can result. Orin Kerr described it:

Ruiz is a drug case involving an alleged consent search at the suspect’s home. The officers testified one way; the defendant testified very differently. The officers testified that they approach Ruiz on the street and politely asked him for ID. Ruiz invited the officers to his home, where his ID was located, and asked the officers to come with him. When the officers entered the home with Ruiz, they saw drugs in plain view. RUiz then agreed to tell the police about all the drugs he had stored there. Ruiz testified that the officers approached him on teh street with guns drawn, ordered him to provide ID, and then told him that if he didn’t produce ID they would arrest him. The officers then brought him to his home where they searched his entire apartment without his consent. The trial court found the officers’ testimony credible and the suspect’s testimony not credible.

The appellate court decision in Ruiz makes very clear that the appellate judges found the officers’ testimony hard to believe. Their testimony was not so inconceivable that the trial judge’s factual findings were clearly erroneous and could be overturned. But it was unlikely enough that the court used the opinion as a platform to talk about perjured police testimony and the need for trial judges to scrutinize police testimony to ensure the vitality of Fourth Amendment rights.

Scott Greenfield explained that facts like those in Ruiz are not uncommon and aren't always as sinister as these might appear to observers unfamiliar with life in the criminal justice trenches:

Constrained by deference, the court had to accept the hearing court's credibility determination, despite it's belief, strong enough to compel the court to write this benchslap, and affirm the denial. For every criminal defense lawyer who has presented a facial challenge at a suppression hearing of a defendant's testimony against a cops, we know the frustration. Absent extrinsic evidence, courts always back cops in a swearing contest.

....

What do the judges know? Some know that it all smells, but they don't have the good to hang a lie on a cop. When we give them that hook, and we happen to be before a judge with some gumption, we can get the right ruling. But when the best we can offer is he said/she said, almost no judge will ever side with the defense.

....

Truth isn't always clean, neat or normal. Truth can be the one in a million shot, the ridiculous oddity that we would never expect. They say "you can't make this stuff up," and we find that to be the case over and over. It never bears the "ring of truth." It bears the ring of absurd. Yet it's true.

Life in the trenches bears no resemblance to life in the choirloft. We conduct suppression hearings because we must, even knowing that offering two competing versions of the truth will do little to win over the judge. It's not enough that they know that cops lie, or that a defendant's testimony has more "ring of truth" than the cop's.

Before a judge will find that a police officer lied on the witness stand, committed the crime of perjury by knowingly and materially testifying falsely, we need to give the judge something hard to hang his decision on. Offering truthier testimony than the other side isn't a good enough reason to condemn the cop. Those of us charged with defending the accused know this. We realize what we're facing.

Finally this week, I want to highlight a post from Brian Tannebaum. Following the killings of two Miami police officers, he reminded us that the divisions between those in criminal defense and others in the criminal justice system are professional, not personal:

Events like this rock not only the police community, but the criminal justice system as a whole, and that includes defense lawyers.

....

It was sad yesterday to see a defense lawyer comment on a local blog about the murders that "I know we criticize the cops, but....." It was as if to say "I know some of you can't understand that everyone does their jobs....."

It's like saying "I'm a Republican, but I'm still upset over the attempted murder of Democrat Gabrielle Giffords."

It's at the heart of the problem with society today - we are unable to understand, accept, and behave in a manner that teaches our children that while people may argue, and disagree, and fight, and battle in an arena, whether that is a courtroom or political chamber - there is another side of life. There are relationships that transcend our profession(s).

....

I mourn the loss of Officers Castillo and Haworth, regardless of the prosecutors and cops that may say I have no right to do so because I represent criminals and therefore somehow I'm part of the problem. I do not support crime, I don't support violence, and I don't feel better knowing two officers are dead. There are people out there though that can't understand that a criminal defense lawyer would feel this way. It's too bad no one can help them.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., supplierlist.com, boston.com, and Paris Odds n Ends Thrift Store.