Is this a stick-up?

I’m going to give you some free advice:  Don’t try to rob your employer.

You might be thinking, “Hey, that’s not advice.  That’s common sense.”

But it’s not.  

People call me looking for a lawsuit.  They want me to help them create a lottery ticket in the form of an employment discrimination claim.  Unless you’ve actually been discriminated against, that plan is called robbery.

For example, CC called looking for an attorney for her husband.  Her husband may or may not have been disabled, but let’s say he was. Ok? (Because under the ADAAA all Plaintiff’s get the benefit of the doubt now.  And there’s your free advice.)  Unfortunately, the man’s employer was trying to work with the employee.  They had reassigned him to a new position to accommodate his restrictions.  Then we he presented them with new restrictions they attempted to accommodate him again.

But she wasn’t sure they were going to continue to do so.  And sometimes they asked him to do something that may or may not have contravened his restrictions.  (She wasn’t quite sure).  She also wasn’t sure if HR even knew what his restrictions were so that they could be accommodated (if they even needed to be).  Now that you have the backdrop, here’s the rest of the conversation:

RJ:  So, what’s your question?

CC:  Well, we are just looking around for attorneys that take these types of cases in case we need an attorney.

RJ:  Well, I take discrimination cases when the facts demonstrate that there was a possibility of discrimination.

CC:  We’ve been keeping records and logs of everything that has been occurring.

RJ:  Good.  If you have a claim, records will assist you.

CC:  Do you think we should do anything else right now?

RJ:  Have you talked to the HR department?

CC:  No.  We called the ADA line and then have been calling attorneys.

RJ:  Well, I recommend calling your HR department and working with HR on a solution to the problem.

CC:  I don’t even think HR has his restrictions.

RJ:  That’s why you should call.

CC:  Oh, so you think I should ask for his personnel file or medical file to see if they have it.

RJ:  No.  I think you should just call HR, tell them that your husband has restrictions, and have a discussion about what can be done to accommodate those restrictions.

CC:  Oh, well we were just calling attorneys to have one lined up and ready to go.

RJ:  I understand, but you really need to work with your HR Department for the purpose of reaching a solution.  An attorney isn’t going to be able to help you do that at this point.

CC:  Oh.

Don’t run to an attorney when you haven’t exhausted your options at work.  Be a problem solver, not a problem maker.  


And for goodness sake, call the attorney yourself.  Don’t make your spouse do it.


Joining the Ranks of the Elderly

It starts slowly.

You don’t know every new restaurant in town.

You haven’t seen the new movie.

You don’t recognize all the people in People.

You don’t even realize it’s happening.

Then–BAM!–you get slapped in the face with it:  You are old!  Here’s how it happened to me:

Malibu Ken:  Have you heard of this new app called Tinder?

RJ: No.

Malibu Ken:  You can use it to find other people within a small radius, say 20 feet, of where you are.  You pull it up, check out their profile, and then you can message them.  It’s like a dating app.

RJ:  Interesting.  I downloaded a coupon app.  It knew when I was at Target so I uninstalled it.

Good thing I’m married, because I don’t think I would be good at dating in the electronic age.


Cold Call

I take cold calls from people claiming discrimination, wrongful termination, and a variety of other employment related claims.  Occassionally, I schedule a meeting with these cold calls because they either sound like a possibility or they refuse to talk to me over the phone.

This is an email exchange:

Dear RJ:

I want to sue my employer for violating drug testing laws. I looked up some law online.  This is my own interpretation of cases that I’ve read.  My case is as close to a slam dunk case as you’ll ever get .


There are two problems with this email.  First, you never want a client who does their own research and tells you what the law says.  This client will second guess everything you say or do.  They think they are smarter than you.  But they aren’t (at least not in the legal field).  The second problem is the client’s self-evaluation.  You never want a client who believes his case is fail-proof.  The most important job I do is manage expectations.  I can’t manage the expectations of a person who’s already confirmed through his own legal research that his case is a slam dunk.  But, since he may have a case, I’m going to engage him.

Dear CC:

Thank you for contacting me.  Before I can take your case, I will need to review any documents you have regarding drug-testing at your employer.  We would also need a retainer.  Please forward me the documents so that I can review.


I want to see if the documents he has back-up his email.  I also want to know if he’s willing to put some skin in the game for his slam dunk case.  Let’s see what he says:

Dear RJ:

Here are the cases I cited.  I think we would only need to do discovery, a demand letter, and arbitration and we would win.  Since I’ve laid it all out for you and I’m poor a retainer in any amount is out of the question.  I seriously doubt that there has been another case that has come across your desk that is as much of a slam dunk as this one.  I would hope that you would have enough confidence in your legal skills to forgo, what is to you a paltry sum for a much, much larger payday in the near future.  Call my other attorney for my other case.  He will tell you that I’m about as knowledgeable of a client that you could ever hope for.  Let’s go get some justice.


A few more red flags:  First, he doesn’t want to pay a dime.  He tries to appeal to my ego while telling me to forgo my retainer in hopes of a future payday.  Unfortunately, his slam dunk case doesn’t provide much in the way of damages so I can’t take this on a contingency.  I would barely be able to cover drafting the petition.  Then, he  tells me again how smart he is.  He doesn’t provide me with the documents I requested. Last, he is suing someone else.  Way too many red flags.  Case closed.

Dear CC:

Unfortunately, I  cannot take this case without a retainer.


Before you get upset about poor people not being able to obtain justice.  If he would have even offered to pay a portion of the retainer I requested, I would have asked him again to provide the documents from his employer he kept telling me he had, but hadn’t provided.  If there was any hope of a claim, I would have seriously considered taking it.  You can’t expect me to take a risk, without taking one yourself.

Have a happy Friday!


(Or maybe just unfortunate because irony is one of those words that I struggle with… just like Alanis Morisette)

Remember last week when I was telling you about the indexing that was happening at our office.

Well, turned out our entire system got a virus.

Or a worm.

Whatever it was it caused many files to be corrupted.  Corrupted is a nice word for no longer in existence.

Two such files included my initial brief and reply brief that needed to be filed with the Supreme Court [state] this Thursday.

In my jurisdiction we file what’s called a “proof brief” and then a final brief.  The proof brief is identical to the final brief except that it contains citations to the appendix.  Absolutely no substantive changes can be made from the proof brief to the final brief.

{It’s so silly.}

The proof briefs were typed pre-September {this becomes important later} and needed to filed in final form this week.

Between Monday and Wednesday, the documents were retyped, proofed, and finalized.  On Wednesday at 4:55 p.m., I get an email:

 Tonight after hours, the files will be restored back to 8/31/13. Documents typed during September may still be corrupted and will need to be deleted.  You will need to recreate these documents.

Poof!  My briefs are back. Just like that.

But it didn’t matter because we had already re-created them.

So, is that irony or just unfortunate?

Drug Addiction

My client is fighting a disability discrimination lawsuit right now.

The claimed disability:  drug use.

Yes, drug addiction can be a disability under federal law.  But it doesn’t give employees a free ride to use drugs and fail drug tests.  (You might get fired.  Shocking, I know.)

Anyway, since I’m a good attorney I sent the Plaintiff an Interrogatory (fancy word for “question you must answer”) about his past drug use.  His response:

Objection, irrelevant and overly broad.  Additionally, I’m asserting my fifth amendment right and refusing to answer the question because it might incriminate me.

I’m sorry, didn’t you just file a lawsuit claiming you were disabled because of your drug use.  Yah, I think your drug use is relevant.  And sorry, but your 5th Amendment right to not self-incriminate probably won’t apply in this situation.

Good try, but if you want a half million dollars you better be willing to prove to me that you were a drug addict.


We are having server problem at our office today.

Documents that were saved are not able to be located.

Documents that can be located are unable to be opened.

And our “IT” employee is on vacation…go figure.  When “IT” employee is gone, troubleshooting the system falls to “IT” attorney. “IT” attorney thought that re-indexing the system would fix the problem so he sent this email out:

I am going to have {the system} manually re-index itself shortly.  During this time, the search function {in the system} will not work.  Please leave documents you are working on open, and do not save them until I have the index back up and running so we can prevent further indexing errors.

Seems like a simple request.  But, alas, nothing is simple for attorneys.

The first email was sent at 10:21 am.  A second email was sent at 1:06 pm:

I’ve tried to re-index twice now.  Someone keeps attempting to save to {the system} as this is going on.

I’m going to try it again.  PLEASE DO NOT ATTEMPT TO SAVE ANYTHING TO {THE SYSTEM} UNTIL I GIVE YOU THE OK.  If you need to save a document, save it to your own hard drive for right now or just leave the document open.

If you have questions on how to do this, let me know.

So glad I’m just the boring employment attorney that knows nothing about computers… except to not save when I’m told not to save!

“Unless the context otherwise requires”

I’m writing a brief this week.

About solar energy.

(Since our firm represents utility companies, I sometimes stray from employment law and argue about energy).

It’s weeks like this that I’m thankful for my high school English teacher.  He was old and cranky.  He had a 12-point system.  Every missed comma, semicolon, dash was a point.  Each point was a third of a step.  (You see where this is going, right?)  Three missed punctuation marks and you have a B.  A word or two out of a place, C.  An “F” was just 12 missed grammar and spelling errors away.  (And let’s be honest, some grammar rules are more guidance than actual rule so you could never achieve an “A”.  Ever.).

He also made us diagram sentences.  Seriously.  I remember sentences that took a whole page to diagram.  While I couldn’t diagram a sentence today, the importance of placement of words and phrases was stamped into my brain.

(I also had a crazy English college professor, who looked like Ms. Lippy from Happy Gilmore.  She gave me a “D” on my first college paper, but that’s for another day).

What does this have to do with my brief?  Well, I am in the midst of telling the court why the phrase “unless the context otherwise requires” modifies both terms in the statute rather than just one as my esteemed colleagues arguing the other side would suggest.  I’m basically diagramming a statute for the purpose of convincing the court that I’m right.

Thrilling.  Isn’t it?