Work Matters

Oh, how times have changed: The 2012 Texas Supreme Court nixes workers' comp cause of action created by 1988 Texas Supreme Court

It's 1988. The Texas Supreme Court, in full populist tilt, creates a new cause of action that workers can assert against workers' compensation carriers: breach of a duty of good faith and fair dealing.

Re-reading the opinion Aranda v. Insurance Co. of North America is like being transported back to a different era. The Aranda court explained that it needed to create a new cause of action because of 1. the disparity of bargaining power between insurers and employees, 2. the exclusive control insurers exercised over the processing of claims, and 3. arbitrary decisions by carriers to refused to pay or delay valid claims, leaving injured workers in a lurch.

Well, this past Friday, populism got KO'd when the 2012 court, by a 5-4 vote, nuked Aranda in Texas Mutual Insurance Co. v. Ruttiger. The Ruttiger court reasoned that Aranda was no longer needed because the Legislature made changes in the workers compensation scheme to expedite claims, get benefits paid more quickly to injured workers, and provide an Office of Injured Employee Counsel to provide counsel and assistance to injured employees.

The legislation thus remedied the above evils, according to the court, and thus Aranda no longer was necessary. As 1988 meets 2012, populism is on the wane, and conservatism is on the upswing.

Sign here: a proposal to keep lawyers honest

I was filing a brief at the 5th U.S. Circuit Court of Appeals last week and mentioned to a young colleague that, once upon a time, we personally signed all of our briefs. She looked at me as if I was wearing orthopedic shoes. "Really?" she remarked, incredulous.

I liked signing my name. It made a statement that this brief was mine and I stood by its contents. So, over the weekend I was struck by a chapter in Dan Ariely’s excellent new book, “The (Honest) Truth About Dishonesty: How We Lie to Everyone — Especially Ourselves."

Ariely writes that having people sign their names, especially at the start of a document, makes them more honest. An insurance company gave him 20,000 forms that asked an applicant to state the mileage on the car odometer. The fewer miles reported, the less the premium.

The form read, "I promise that the information I am providing is true." Half of the forms required the applicants to sign the promise at the top of the form, and half required the applicants to sign the promise at the bottom.

The results? The applicants who signed at the top reported an average of 26,100 miles, while those who signed at the bottom reported an average of 23,700 miles.

Here's Ariely: "Now, we don't know how much those who signed at the top really drove, so we don't know if they were perfectly honest — but we do know that they cheated to a much lesser degree."

So here is a modest proposal: At the start of the brief, have lawyers affirm the following with their actual signature: "I swear that the arguments made in this brief are made in good faith, that the record references are accurate, and that the citations stand for the propositions asserted." I'd go for that. I swear.

After partial victory, plaintiff seeks cert in 5th Circuit same-sex harassment case

What does it take to establish a claim of same-sex harassment in the 5th U.S. Circuit Court of Appeals? Here’s the answer from the court's Jan. 19 opinion in Cherry v. Shaw Coastal Inc.: "[I]f a plaintiff presents evidence that he was harassed by a member of the same sex, and that the harassment was sexual rather than merely humiliating in nature, that evidence is sufficient to support a verdict in the plaintiff’s favor.” And the way you discern that it is sexual, rather than merely harassing, is by the content.

The 5th Circuit reversed the trial court's judgment as a matter of law in favor of the employer and directed the trial court to enter judgment for the plaintiff to the tune of the jury award, $500,000.

But the court affirmed the trial court’s decision to set aside the award of punitive damages. Why? Listen to the court's one paragraph reasoning: “While we conclude below that Shaw Coastal did not promptly and effectively respond to the harassment, the . . . behavior did not rise to the level of malice or reckless indifference [required by law]. Shaw Coastal had a policy in place that provided a clear procedure for addressing sexual harassment issues, and although its response here was far from prompt, it did ultimately respond to Cherry’s complaints by ensuring that he and [the manager] would no longer be on the same survey team.”

The failure to respond promptly included, as the opinion recites, the employer's refusal to look at the text messages at issue and skepticism, asking the plaintiff if this was a serious issue or just "horsing around."

Here is the upshot: a better-late-than-never defense won't immunize an employer from liability, but it will from punitive damages. However, the case may not be over yet. Shaw filed a petition for writ of certiorari with the U.S. Supreme Court on May 23.

The Bible as literature: Strong stories and making connections

The Bible as literature — beliefs aside — gives lawyers what they crave: a good story with a strong establishing shot (can't get much better than the Hebrew Bible, "Let there be light; and there was light" or the Book of John, "In the beginning was the Word "); a story arc (say, the temptation of Christ); and a resolution (Moses leading his people to the promised land, although there was a sequel). Trial lawyers take note.

A next-to-final note: The Bible reminds lawyers that there is a difference between what is legal and what is right. Lawyers sometimes think that the two are in conflict — an often fatal mistake in advising clients or arguing to a jury.

Be wise. Leverage literature to your ends. And, as with real estate, here's the bonus room: Literature connects lawyers to life as well as others, even those with whom they fundamentally disagree. "For to him that is joined to all the living there is hope." (Ecclesiastes 9:4).

The Bible as literature: Listening to whistle-blowers

Literature, at its best, touches upon what lawyers intuitively know in their hearts to be true and teases it out to the surface. We read, reflect and think, "Oh, yes, I know that." It speaks to pre-existing beliefs but in fresh and practical ways.

Here's an example: Practicing employment law, I often help companies deal with whistle-blowers who usually are off base but occasionally on target. In doing so, I sometimes think of Matthew 5:25: "Agree with thine adversary quickly, whilst thou art in the way with him; lest, at any time the adversary delivers thee to the judge."

Now, that's good advice, and Matthew didn't bill $425 an hour for it. It is a literary foundation for 1-800 reporting lines, anti-harassment policies, and the satellite industry of investigation firms and consultants. It tells us to listen to the one registering the concern while still employed and — regardless of the apparent merits of the claim — refuse to marginalize and denude them. Indeed, a value of literature is to reduce situations, as with the whistle-blower, to archetypes, condensing millennia of wisdom to a pithy core, a tripwire for our protection. Reading "he that maketh haste to be rich shall not be innocent" (Proverbs 28:20) is a powerful reminder not just of what not to become, but also of whom to beware.

The Bible as literature: Knowing the good differs from doing the good

The Bible works as literature, not only because it cuts to the nerve root, making us jump with often unwanted recognition — "Yeah, that could very well be me that Luke is talking about" — but also because its messages are unadorned. Listen to St. Paul trying to knock some heads together among bickering converts: "The good that I would, I do not; but the evil I would not, that I do." (Romans 7:19) Or as I prefer, "Though I know the good, I do not do the good."

St. Paul forces us to examine this discrepancy between intention and choice, and implicitly asks: The discrepancy is a function of something, but of what? It is a question lawyers should ask themselves and their clients. Cognitive theory tells us we cannot hold two conflicting ideas in our brains — "I am a good person" with "I did something wrong." So to avoid the second, lawyers rationalize it into oblivion by perversely doing yet another bad act to prove that the first was not so bad after all. Ecclesiastes is right: "For God made man upright, but he has found many devices." The trick is to acknowledge the bad at once. In employment law, the area in which I specialize, this is especially important.

If action is not taken, imagine a good plaintiffs lawyer playing out this string with a jury in a sexual harassment case: "Yes, the employer knew it should have stopped the harassment. It had so many opportunities to do so, and so many ways to do it, but the managers didn't. For whatever reason, as St. Paul wrote, they knew the right, but they did not do the right. Fill in the blank for punitives."

The Bible as literature: Combating negative perceptions of the legal profession

This week, I’d like to look at the Bible as literature and how it helps illuminate our legal lives, especially some of its dicier parts. St. Luke cuts to the quick on this point:

Woe also unto you lawyers!
For you lade men with burdens grievous to be borne
And you yourself
Touch not one of their burdens
With one of your fingers. (Luke 11:46)

True, he was talking about very distant forbearers, yet the passage stings with a modern resonance. Lawyers do not increase the size of the economic pie but rather argue over carving up an ever-shrinking pie. The public perceives attorneys as writing the laws, making them vague, arguing over what the vagueness means, all the while billing, billing, billing.

The passage reminds lawyers of the responsibility to combat the perception -- do pro bono, sit on a school board, volunteer for a charity -- and weave it through the day. It's often something as simple as spending a few extra minutes explaining to a potential client why you can't take her case; as easy as telling a guilt-ridden client that hindsight is truly 20-20; or as basic as taking the time to refer someone to a lawyer better suited to help them. Try it, you'll like it. After all, to paraphrase Christ's admonition in Luke 12:48, "To whom much is given, much is expected.