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Sessions DOJ Attacks Gay Rights in Federal Court

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Sessions DOJ Attacks Gay Rights in Federal Court

 

The United States Department of Justice (DOJ) under Jeff Sessions has launched an attack on gay rights under the Civil Rights of Act of 1964 in a friend of the court brief filed with the United States Court of Appeals for the Second Circuit, report the New York Times and the Huffington Post.  The filing is remarkable for coinciding with President Donald Trumps' tweets purporting to ban transgender people from serving in the military in a bid to shore up support to fund his planned border wall between the United States and Mexico.

The DOJ filed the amicus brief in the case of Zarda v. Altitude Express urging the court to rule that the prohibition of sex discrimination in Title VII of the Civil Rights Act of 1964 does not protect people on the basis of their sexual orientation. Mr. Zarda, a skydiving instructor, had revealed to a client that he was gay, and his employer subsequently fired him when she complained.

The DOJ's gratuitous intervention runs counter to the Supreme Court's growing recognition that discrimination on the basis of sexual orientation is unlawful.  In Oncale v. Sundowner Offshore Services, Inc., the Court ruled that Title VII of the Civil Rights Act of 1964 prohibited same sex harassment. The Court's well-known ruling in Obergefell v. Hodges established the Constitutional right to same sex marriage.

Not only the EEOC but also the Seventh Circuit, not notoriously liberal, have come around to the view that sexual orientation is protected against discrimination in employment. In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit en banc concluded that sexual orientation was protected in two ways. The first is that discrimination against gays is the result of sexual stereotyping.. The courts have struck down discrimination based on gender stereotypes, as in Price Waterhouse v Hopkins, in which Hopkins, despite being the highest grossing associate, was not promoted because she was not feminine enough. Second, the courts have struck down discrimination based on association with persons of a different protected class in cases such as Loving v. Virginia, in which the Supreme Court ruled that the state could not prohibit interracial marriage.

Now Jeff Sessions is so concerned that the Second Circuit will follow suit that DOJ has submitted an amicus in a case which it is not litigating, seeking to persuade the court to uphold outdated pre-Obergefell precedents. Hopefully, the Second Circuit will decline to do so.

Of course, with Neil Gorsuch now on the Supreme Court, the GOP eager to pack the courts with far right judges, and the Congress potentially willing to roll back the Civil Rights laws, the future of the issue is uncertain. For now, however, despite the Influence of the DOJ, it is the courts that decide.

 

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The Razor Edge of Truth at Trial

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The Razor Edge of Truth at Trial

In my experience, people often do not think of law as a particularly creative pursuit. As Daniel Webster famously observed, "If he would be a great lawyer, he must first consent to become a great drudge."  It is not hard to conjure up an image of the hapless wretch poring over contracts surrounded by crumbling, dust covered, leather bound tomes, even if nowadays it is more often late nights in the pale blue glow of the flat screen.  The dreary life of the law student leads to the dreary life of the highly paid corporate serf, trapped in a maze of rigid statutes and stale precedents.

Trial lawyers get a little more credit for flash, even if all too often it comes with a certain seedy undertone.  But all of the quick tricks in front of the TV jury, the product of a one-hour police investigation and a few quick conferences, fail to capture the depth of thought, preparation, and practice necessary to conduct a successful jury trial.  Too often the common perception of the trial lawyer is a person who is slick rather than sage.

How refreshing it is, then, to come across a trial lawyer's manual that combines a thoughtful approach with a brisk style that dispels both stereotypes.  Pat Malone's Fearless Cross-Examiner breathes new life into the most critical and dramatic element of courtroom practice, cross examination.  He abandons the hoary flim flam of misdirecting the witness and then hiding the ball until the lawyer can safely address the jury after the hapless witness steps down.  Malone shows how this approach is not only dishonest but also ineffective; the great cross examinations he cites break all the "rules" that have been hammered into generations of law students.

Malone takes a more thoughtful and principled approach, one designed not only for greater effectiveness in the courtroom but also for restoring the reputation of cross as the "greatest legal engine ever invented for the discovery of truth." 

His approach requires the lawyer to align himself with basic, generally accepted principles, well-known to lawyers under the rubric of "rules of the road."  The strategy is to confront the witness with a rule that he must embrace or look foolish and then demonstrate how that rule has been violated.  Malone's nuanced approach requires a choice among strategies, sometimes with a bit of mix and match.

Confronted with an adverse witness, one can attempt to coopt him by bringing him around to one's own point of view. This idea of using the adverse witness to build one's own case runs directly contrary to the conventional wisdom that the sole purpose of cross examination is to discredit a witness.

Of course, when a witness will not be persuaded to come around to one's own point of view by gentle persuasion, sometimes he must be shown the error of his ways.  Malone, however, refuses to be boxed into a strategy of petty contradiction based on peppering the witness with leading questions until the lawyer can pounce on some minor error or lapse of memory.

Fundamentally, Malone has too much respect for the jury to engage in such petty gamesmanship.  He is after bigger quarry.  if the jury is going to see through the expert for hire or the recalcitrant opponent, he needs to expose fundamental bias or self-interested contradictions.  Malone understands that people, juries, are interested in truth.  They will forgive error, but can be terribly intolerant of dishonesty.  Peeling away layer after layer of lies can be accomplished by any number of methods: demonstrating that a witness is not qualified or even that his experience does not bear on the subject at hand, that his self-interest has biased him, that he is contradicted by generally accepted authority, or even that he has tailored his more recent statements to suit his objectives at trial.

Whichever method Malone selects, he is focused on telling the jury a clear and coherent story with a cogent point at the end.  Not for him leaving the point of the cross until the closing argument, when the story is a distant memory.  Malone is playing the high stakes game of giving the witness room to talk and an opportunity to be heard, a game that can only be won by careful planning and creative insight directed at substantial goals.  The jury needs to get the big idea, not the petty point.

Very much a how-to book for lawyers, this tightly written manual could nevertheless be profitably read by aspiring law students or even people who are simply interested in the mechanics of how the drama at trial unfolds. Highly recommended.

 

 

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What was Donald Trump's lawyer thinking?

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What was Donald Trump's lawyer thinking?

Quite apart from raising a question about the flexibility of Donald Trump's relationship to the truth, an article in the Washington Post also raises questions about the ethics of his legal team.  According to the Washington Post, Trump justified his lawsuit against New York Times reporter and Trump biographer Timothy O'Brien because it would cost the reporter money to defend:

In a brief statement this week, Trump said he felt the lawsuit was a success, despite his loss.
“O’Brien knows nothing about me,” Trump said. “His book was a total failure and ultimately I had great success doing what I wanted to do — costing this third rate reporter a lot of legal fees.”

Trump: A True Story, Washington Post, Aug. 10, 2016 (last accessed Aug. 10, 2016)

I don't have any idea who Trump's attorney is, but it would be a shame if he is still in practice. Attorneys who bring frivolous lawsuits mainly for the purpose of driving up the other side's attorney fees and expenses are violating both the law and professional ethics. Moreover, the court has the power to make the attorney pay for the other side's excess fees and costs:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

18 U.S.C. § 1927.

Moreover, the Bar also prohibits the filing of frivolous lawsuits:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.

ABA Model Rule of Professional Conduct 3.1.

Maybe Donald Trump knew no better, but his lawyer should have.

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Dragged Away by Wild Horses

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Dragged Away by Wild Horses

It is a commonplace in the legal world that your firm, and presumably your clients, measure your worth by the number of billable hours you generate.  According to the American Bar Association (ABA), partners in law firms are expected to log 2,500 billable hours a year, which amounts to working 50-60 billable hours per week. 

Common practice, however, sometimes flies in the face of common sense.  If your lawyer is billing for 60 hours a week, particularly at the absurdly high rates charged by large firms, then you should be seriously questioning the value you are getting for your money.  According to Chris Bailey, the author of the book the Productivity Project, optimal productivity peaks at 35 hours of work a week. In fact, according to Bailey, studies have shown that after 55 hours a week, particularly over several weeks, productivity per hour approaches zero. Bailey, Productivity Project, at 97-98.  Moreover, people chronically overestimate the time they spend working, so if your attorney is billing 60 hours week, you have to wonder first whether your attorney is padding the bills and second, even if not, what you are getting if you are billed for those 5 hours on the tail end.

The goal of every client should be to get the best result possible at the least possible cost.  The question is not only how hard your attorney is working for you but also how well your attorney is working for you.  Focus on the results your attorney is getting rather than the hours your attorney is expending, unless it appears that your attorney is billing you for excessive time to get those results.  Remember, however, that legal work requires not only skill but diligence, and diligence should be compensated in the legal profession just as in any other occupation. But if your attorney is not working reasonable hours, taking breaks, and using his or her vacation, he or she should be. Otherwise, you can expect your attorney's performance to tank.

To be fair, the number of attorneys who practice in a way that maximizes their productivity, myself included, is probably vanishingly small.  However, this week I am taking my four-day summer vacation amidst the clean beaches and wild horses of Assateague Island, where I will be slurping fresh, cheap Chincoteague Oysters when I am not lying in the sun.  In four days, however, I expect to come back recharged and able to represent my clients more vigorously than ever.

 

 

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Principles Professional and Personal

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Principles Professional and Personal

Any civil rights law practice requires lawyers to embrace what we have in common and to reconcile our differences.  No civil rights practice can operate without a recognition of certain fundamental principles of freedom and equality, and every lawyer must be willing to put aside, to the extent possible, his or her own prejudices, biases, and predilections, and yet remain true to his or her convictions.

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The Just and the Unjust

Aljazeera hsa an interesting article on attorney George Bizos, one of Nelson Mandela's lawyers, and how even in the unjust system of apartheid he was able to use the courtroom to advance justice in South Africa. (He comes across as kind of a South African Thurgood Marshall or Clarence Darrow.) He makes the interesting point that it is possible to make gains in a system with even a vestige of due process. Lawyers can do little in a country where they are simply disappeared or dropped out of airplanes, but apparently in South Africa the judicial system gave Bizos a little room to maneuver.

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Taking down Goliath

David took down Goliath with five smooth stones, but he had given careful thought to his strategy before he entered the battle. See 1 Samuel 17:40. Careful planning, perspective, and realistic expectations are essential to successfully resolving your dispute with a more powerful government or corporate adversary. 

  1. Know your goals.  Understanding your goals is the first step  toward successful resolution of your problem. The goal is important; the means are incidental. Sometimes a lawsuit is the answer, but sometimes the same goals can be achieved through negotiation or even a change of jobs.  You should not shrink from asserting your rights, but you should not let a lawsuit become an end rather than a means.  David had a clear goal in mind, but he was able to do more with a sling than a full suit of armor.
  2. Understand the process.  By and large, the civil justice system is about getting compensation for your injuries.  The criminal justice system is designed to punish wrongdoers; the civil justice system mostly is not.  (Unlike David, you do not get to present your adversary's head to the king.) You should focus on what you need to make you whole, and then assess how much of what you need you can get through the system.  Be prepared for the fact that your employer may fight back vigorously, and that victory does not come without daring and persistence.
  3. Pick your lawyer carefully.  A lawsuit, like an expensive car, is a big investment.  You need to have someone you trust guide you through it.  Make the effort to look around and find someone in whom you have confidence, and then work closely and cooperatively with your lawyer to achieve your goals.  You retain decision-making authority over the objectives of your case, but if you cannot rely on your lawyer's advice, you chose the wrong lawyer.  David was an unlikely candidate to slay the Philistine's chief warrior, but he proved to be the right man for the job.
  4. Plan your budget.  Lawsuits can be very expensive.  When you set out on a long trip, you make sure you have a full tank of gas.  Likewise, give some thought beforehand to how you are going to pay for your lawsuit, so that you don't run out of money halfway through.  At the same time, pay attention to what is needed to get the job done.  Sometimes you just need a shepherd boy, not an army. But sometimes you need the army.
  5. Take an active role in your case.  The best attorney-client relationships are partnerships; you should take advantage of your attorney's expertise and provide him with as much support as possible without sacrificing your independent judgment.  Your lawyer is one person with many demands on his time.  Moreover, his time does not come cheap. You can do yourself and your lawyer a favor by making sure that you provide your lawyer with the evidence in your possession or within your knowledge in a clear and organized fashion.  (Be careful not to take confidential, proprietary, or trade secret information from your employer; your attorney can obtain this information through discovery in the legal process in ways that do not jeopardize you or your case )   Above all, make sure you communicate with your attorney: he needs to hear what is on your mind. He is in a better position than you to determine what information is significant and what is not, so try not to leave anything out.  Your attorney can only represent you effectively if he knows the whole story.  In the end, David triumphed by taking the initiative; you can, too.

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© Charles Williamson Day, Jr., 2016. All rights reserved.

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