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Better Legal Treatment Mandated for Lawyer Defendants Than for Others?

That's what Sayers v. Prugh, Holliday & Karatinos, an Eleventh Circuit decision from earlier this week, suggests. Sayers sued her employer for alleged failure to pay overtime, but her lawyer didn't even call the defendant to negotiate a payment before filing suit. The defendant ultimately accepted a small settlement:

Sometime after discovery closed, Defendants tendered an offer of judgment under Federal Rule of Civil Procedure 68 for $3,500 plus any attorney's fees and costs to which the district court determined Plaintiff was entitled. Defendants denied all liability in the Rule 68 offer. Plaintiff accepted the Rule 68 offer.... Plaintiff, through her lawyer, timely moved for her litigation expenses [which were potentially available under the federall overtime statute]. She asked the district court to award her $13,800 in attorney's fees and $1,840.70 in costs....

[T]he district court denied attorney's fees and costs. The district court wrote that "there are some cases in which a reasonable fee is no fee" and found that this case was such a case.

Now it may well be reasonable to award little or no money in fees and costs when a plaintiff's lawyer fails to use less expensive dispute resolution techniques — calling or writing — and instead files suit right away. But what troubles me is that the court's rationale didn't focus on protecting defendants generally, or protecting courts from having to deal with needless lawsuits generally. Rather, it focused chiefly on civility between lawyers (albeit with an eye towards eventually reducing litigation overhead as a result of such greater civility):

Defendants are lawyers and their law firm. And the lawyer for Plaintiff made absolutely no effort — no phone call; no email; no letter — to inform them of Plaintiff's impending claim much less to resolve this dispute before filing suit. Plaintiff's lawyer slavishly followed his client's instructions and — without a word to Defendants in advance — just sued his fellow lawyers. [Footnote: This explanation counts for little: a lawyer's duties as a member of the bar — an officer of the court — are generally greater than a lawyer's duties to the client. See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993) ("An attorney's duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly. This concept is as old as common law jurisprudence itself."); Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1327 (11th Cir. 2002) ("Independent judgment is an essential ingredient of good lawyering, since attorneys have duties not only to their clients, but also, as officers of the court, to the system of justice as a whole.") (internal quotation marks omitted).]

Plaintiff's lawyer showed little concern for the district court's time and energy and no courtesy to his fellow lawyers. As the district court saw it, this conscious disregard for lawyer-to-lawyer collegiality and civility caused (among other things) the judiciary to waste significant time and resources on unnecessary litigation and stood in stark contrast to the behavior expected of an officer of the court. [Footnote: The customs of professional courtesy were important to the district court. In its written order, the district court used these words: "This Court is not ruling that a pre-suit letter is always required, but in this case, the Plaintiff's lawyer did not even make a phone call to try to resolve the issue before filing suit. The Defendant is a law firm. Prior to filing suit in this local area, it is still reasonable to pick up the phone and call another lawyer so it won't be necessary to file suit. The defense proffered by Plaintiff's lawyer for not doing so is that his client instructed him to file suit first and ask questions later.... [T]he Court reminds him that the lawyer is the officer of the Court, not the client. This [C]ourt will not permit lawyers to file unnecessary litigation and palm it off on their clients."]

The district court refused to reward — and thereby to encourage — uncivil conduct by awarding Plaintiff attorney's fees or costs. Given the district court's power of oversight for the bar, we cannot say that this decision was outside of the bounds of the district court's discretion. [Footnote: We have said that a court may not sanction a lawyer under its inherent powers absent a showing "that the lawyer's conduct constituted or was tantamount to bad faith." We have assumed that awarding no attorney's fees and costs constitutes some informal sanction. Nevertheless, even if bad faith is required, we conclude that the conscious indifference to lawyer-to-lawyer collegiality and civility exhibited by Plaintiff's lawyer (per his client's request) amounted to harassing Defendants' lawyers by causing them unnecessary trouble and expense and satisfied the bad-faith standard.]

We strongly caution against inferring too much from our decision today. These kinds of decisions are fact-intensive. We put aside cases in which lawyers are not parties. We do not say that pre-suit notice is usually required or even often required under the FLSA to receive an award of attorney's fees or costs. Nor do we now recommend that courts use their inherent powers to deny prevailing parties attorney's fees or costs. We declare no judicial duty. We create no presumptions. We conclude only that the district court did not abuse its discretion in declining to award some attorney's fees and costs based on the facts of this case. [Some paragraph breaks added.]

Much of what the court says is quite reasonable, to a point. A lawyer's duties as officer of the court may well be greater than the lawyer's duties to the client — consider for instance the duty of candor to the court. And uncollegial behavior between lawyers as representatives of the parties can indeed waste the time of the court as well as hurting the clients.

Litigation is often a long process, in which many steps — for instance, discovery — can be done either very expensively, through repeated arguments before the court, or less expensively but often with the same practical result, by agreement between the parties and their lawyers. Human nature being what it is, such agreement is much less likely if the lawyers have been needlessly unpleasant to each other. So rudeness among lawyers may indeed lead to unnecessary consumption of the court's time and of the clients' money, often without even any real tactical advantage to either client. (Sometimes hardball or even unpleasant behavior does benefit the lawyer's client, but often it doesn't.)

But all those things apply regardless of who the clients are. Better treatment of lawyer-defendants than doctor-defendants or businessperson-defendants strikes me as much more troublesome, whether the treatment is justified as a matter of "civility" or otherwise. Lawyers should be civil to nonlawyer adversaries as well as to lawyer adversaries. And nonlawyer defendants should be as entitled as lawyer defendants to the benefit of either rules or (as here) discretionary judicial decisions calling for (for example) prelitigation discussion rather than immediate and expensive filing of lawsuits.

This having been said, I acknowledge that there can be nonlaughable public-regarding justifications for better treatment of lawyer defendants: It's possible, for instance, that the ill will generated by uncivil treatment by lawyer A of lawyer defendant B will cause acrimony between A and B in future cases, and will thus waste future courts' time and future clients' money. That wouldn't play out the same way if B weren't a lawyer. But it seems to me that such speculation shouldn't suffice to justify legal decisions that expressly discriminate in favor of lawyers-as-defendants.

Thanks to How Appealing for the pointer.

Alan Gunn (mail):
No surprise here. Look at the standards courts apply in malpractice cases against lawyers (basically, "Hey, anybody can make a mistake; that doesn't mean they should pay") with what happens to doctors, engineers, and the like.
3.6.2009 9:26am
alkali (mail):
My chief reservation regarding this opinion is that it seems very difficult on this record to ascertain whether the plaintiff and her counsel were acting reasonably or unreasonably. The fact that defendants did not tender an offer of judgment until after the close of discovery suggests to me that it is at least questionable whether making a phone call to defendants prior to filing suit would have been all that effective in getting the matter resolved. (If there is no reason to believe the phone call would have had a substantial chance of resolving the dispute at the outset, depriving plaintiff of all of the attorneys' fees she would be entitled to under the statute seems like a severe penalty.)

Query: Wouldn't defendants have written their offer of judgment to be inclusive of any fee award? What happened there?
3.6.2009 9:32am
PatHMV (mail) (www):
I'm concerned with the court's apparent imposition (despite its disclaimer) of a "try to settle the case before filing suit" requirement. Says who? The client could file suit pro se if they wanted, and the court wouldn't have any authority to say anything about that. If the client has good reason to want to sue rather than simply call up and ask for money, that's their business, not mine. Maybe the employee knew that her old bosses were assholes and would make her life miserable if she tried to ask for what she was owed politely up front.

Moreover, the court is WAY off in awarding zero in attorney's fees. Even assuming the court were right to say the lawyer should have called before actually filing, there's significant investigatory work and research to be done before making that call. Calling tips your hand. It potentially signals the potential defendant to start destroying documents, or to start investigating employee's past behavior. If the response to the initial call is "screw you, pal," then the plaintiff's lawyer is committing malpractice if he's not prepared to file suit the next day. In some types of cases, calling first might set off a rush to the courthouse, with the defendant seeking to get an injunction, or bringing up some claim of its own against the plaintiff. So the plaintiff's attorney should have expended some amount of research and drafting time before even thinking about calling defendants and discussing the issue with them.

Perhaps none of these factors were present in this case. But if so, the court should have emphasized that the holding was based on the facts of this particular case, and are not at all generalizable to any other case.
3.6.2009 9:47am
David M. Nieporent (www):
My chief reservation regarding this opinion is that it seems very difficult on this record to ascertain whether the plaintiff and her counsel were acting reasonably or unreasonably. The fact that defendants did not tender an offer of judgment until after the close of discovery suggests to me that it is at least questionable whether making a phone call to defendants prior to filing suit would have been all that effective in getting the matter resolved.
The behavior of the plaintiff, via her lawyer, (from the opinion) was a little more unreasonable than that, although certainly not outside the realm of ordinary litigation behavior. The plaintiff made no monetary demand to start, and refused in discovery to provide a calculation of how much she was owed. In settlement discussions, the lowest she was willing to accept was either $25K or $35K (that's disputed). Right after discovery, though, the case was determined to be worth only $3,500. (That is, the amount of the Offer of Judgment that was accepted.) In short, the plaintiff was exploiting a fee shifting statute, making an unreasonable demand in the hopes that defendants would cave to save on legal fees.

If the plaintiff's demands had been more reasonable -- if, for example, she had asked for $5,000 -- or if defendants had been more unreasonable (e.g., by only offering $3,500 on a case worth $35,000), my guess is that this would have come out differently. (Although in my experience, courts always reduce fee demands in these types of cases.)

Still, that's not exactly unusual in employment litigation, and the notion that lawyer-defendants are entitled to special treatment is (as EV says) troubling.
3.6.2009 9:51am
alkali (mail):
The consideration of the settlement discussions is also troubling to me. I suppose that evidence relating to such discussions is not inadmissible under Rule 408 for purposes of supervising attorney conduct, but its use in this context definitely runs afoul of the purposes of that Rule.

Another troubling thing: if it is attorney conduct that's at issue here, why is the client taking the hit? Has the client been relieved of her obligation to pay fees and costs to her attorney?
3.6.2009 9:58am
Houston Lawyer:
So the plaintiff was legitimately owed money and the lawyer and the plaintiff ran up legal fees equal to approximately 5 times that amount since they were entitled to legal fees by statute. You can see where the judge is coming from.
3.6.2009 9:59am
David M. Nieporent (www):
I'm concerned with the court's apparent imposition (despite its disclaimer) of a "try to settle the case before filing suit" requirement. Says who? The client could file suit pro se if they wanted, and the court wouldn't have any authority to say anything about that.
No, but the court wouldn't award legal fees in that case, either.
If the client has good reason to want to sue rather than simply call up and ask for money, that's their business, not mine. Maybe the employee knew that her old bosses were assholes and would make her life miserable if she tried to ask for what she was owed politely up front.
Well,

(1) I believe the court was -- and here's the double standard -- assuming that the lawyer-defendants would not do that.

(2) The plaintiff's lawyer never made that argument. The court was apparently troubled by the fact that the only explanation the plaintiff's lawyer gave for his actions was "my client told me to." If the plaintiff's lawyer had said, "My client warned me that the defendants were likely to destroy documents" (*), that might have been different.

As to your other arguments, if the defendants were inclined to "start investigating employee's past behavior," I fail to see how filing first would preclude that. I agree that there are some types of cases where a warning phone call can disadvantage you, by, e.g., allowing the defendant to take the initiative or forum shop, but this isn't one of those sorts of cases.

So the plaintiff's attorney should have expended some amount of research and drafting time before even thinking about calling defendants and discussing the issue with them.
Well, yes, but the court never said otherwise. The plaintiff's attorney is supposed to do those things before filing suit, too.


(*) Note: not a good strategy for a defendant in an FLSA case. Burden of proof is on the defendant, and the defendant is legally required to retain those records. But it's a reasonable concern.
3.6.2009 10:02am
DiverDan (mail):
I can completely understand if the Court significantly cut back on fees, but even under the Court's theory that the Plaintiff's counsel owed the Defendants a "phone call" before filing suit, it STILL should have allowed reasonable attorneys' fees for the initial client consult and any research (legal and factual) necessary to even prepare to make that phone call. Moreover, in an unpaid overtime case, it would not be at all unusual for the client to have incomplete or even inaccurate records of the overtime hours she claimed for purposes of calculating liability. In that case, just what was an initial phone call going to accomplish? Delaying the suit might have cost the client money by virtue of limitations running on older pay periods (I don't know what it is, but if it's 2 years, each week or two delay cuts another pay period off the claim). I would treat the case very differently if the Defendant made an overture to settle, and agreed to provide all time records for the claim period, promptly after being served. If that were the case, I'd still give Plaintiff's counsel the fees for everything through filing the Complaint. If not, if Defendants decided to be aggressive, filing an Answer, serving Plaintiff with lots of Discovery, being coy or evasive with responses to Plaintiff's Discovery, then to hell with the Defendants; give Plaintiff's cousel ALL his fees, the Defendants brought it upon themselves.
3.6.2009 10:06am
alkali (mail):
The court was apparently troubled by the fact that the only explanation the plaintiff's lawyer gave for his actions was "my client told me to." If the plaintiff's lawyer had said, "My client warned me that the defendants were likely to destroy documents", that might have been different.

To the extent that this opinion suggests that the client and her attorney should have disclosed their internal discussions, I once again find it -- wait for it -- troubling.

I just seem to be troubled all around today.
3.6.2009 10:11am
David M. Nieporent (www):
I can completely understand if the Court significantly cut back on fees, but even under the Court's theory that the Plaintiff's counsel owed the Defendants a "phone call" before filing suit, it STILL should have allowed reasonable attorneys' fees for the initial client consult and any research (legal and factual) necessary to even prepare to make that phone call.
I agree with this; indeed, I think it an abuse of discretion. The court didn't even make a finding that the pre-suit call would have likely been effective!
Moreover, in an unpaid overtime case, it would not be at all unusual for the client to have incomplete or even inaccurate records of the overtime hours she claimed for purposes of calculating liability. In that case, just what was an initial phone call going to accomplish? Delaying the suit might have cost the client money by virtue of limitations running on older pay periods (I don't know what it is, but if it's 2 years, each week or two delay cuts another pay period off the claim).
On the other hand, here you're doing the same thing as PatHMV: inventing facts which would have made the conduct reasonable in a hypothetical situation. But the court didn't hold that a pre-suit call was always required; it held that it was required in this case. Certainly if the plaintiff's lawyer had said, "The Statute of Limitations was running, so I had to file," the opinion would have come out differently. (Note, though, that even in such a situation, he could have filed the suit to toll the statute, and then made his phone call; he didn't need to fully litigate just because he had filed.)

I would treat the case very differently if the Defendant made an overture to settle, and agreed to provide all time records for the claim period, promptly after being served. If that were the case, I'd still give Plaintiff's counsel the fees for everything through filing the Complaint. If not, if Defendants decided to be aggressive, filing an Answer, serving Plaintiff with lots of Discovery, being coy or evasive with responses to Plaintiff's Discovery, then to hell with the Defendants; give Plaintiff's cousel ALL his fees, the Defendants brought it upon themselves.
Look, the unstated premise here is that the court felt that the plaintiff's lawyer was unjustifiably running up fees. I litigate FLSA cases all the time, and I find it very unlikely that a single-plaintiff case (nominally filed as a collective action), with only $3,500 of overtime, actually justified $13,800 in attorney's fees, particularly in Tampa, Florida. If the case were really worth $3,500, I find it hard to believe that there's a good faith basis for a demand of $35,000. (There are some circumstances, yes, but not likely present here.) So the court presumably felt that the plaintiff was being stubborn solely for the purpose of running up fees. So it punished the plaintiff.


Alkali:
To the extent that this opinion suggests that the client and her attorney should have disclosed their internal discussions, I once again find it -- wait for it -- troubling.
Why? The plaintiff's lawyer could have said, "I had a good faith basis for believing they would destroy evidence"; that doesn't require him to divulge client confidences. There may be some set of facts where it would be a close call, but it's hard to see that here.
3.6.2009 10:43am
Steve H (mail):
From David Nieporent at 10:51:


The behavior of the plaintiff, via her lawyer, (from the opinion) was a little more unreasonable than that, although certainly not outside the realm of ordinary litigation behavior. The plaintiff made no monetary demand to start, and refused in discovery to provide a calculation of how much she was owed. In settlement discussions, the lowest she was willing to accept was either $25K or $35K (that's disputed).


To me, these are the key facts; that she filed her complaint before sending a demand letter is a red herring.

Filing a complaint does not automatically waste the court's time or waste too much money, because the parties can resolve their disputes after a complaint as filed. But if the plaintiff still refuses to make a demand, and won't disclose damages from the start, then the plaintiff has a harder time claiming that all the fees were reasonable.

Still, I suppose she was entitled to the fees that she would have incurred for negotiation and investigation. (Though I'm guessing that the fee ruling probably wouldn't have had much of an effect on the plaintiff if this were a contingency case.)


Right after discovery, though, the case was determined to be worth only $3,500. (That is, the amount of the Offer of Judgment that was accepted.) In short, the plaintiff was exploiting a fee shifting statute, making an unreasonable demand in the hopes that defendants would cave to save on legal fees.


We don't really have a basis to conclude this, however. There are a lot of times when parties with legitimate damages run into problems of proof.
3.6.2009 10:51am
Michael Masinter (mail):
A court that truly sought to police the behavior of lawyers might begin by asking why lawyers should be forgiven for thinking they do not have to comply with the Fair Labor Standards Act. The Department of Labor has long classified most paralegals as nonexempt employees entitled to overtime. If the firm had paid its employee the wages to which by law she was entitled, neither a lawsuit nor a presuit demand would have been necessary.

Congress made the award of attorney's fees to a prevailing plaintiff mandatory, not discretionary in FLSA litigation and declined to impose any presuit notice obligation; if there's a flaw in either the fee shifting provision or the failure to require presuit notice, the Constitution assigns the task of repairing the flaw belongs to Congress, not Judge Edmondson. Rule 68 permits the offering party to control the terms of its offer of judgment, and as noted upstream, the offeror made an offer that left to the court the determination of fees rather than a lump sum offer as permitted by Marek v. Chesney. By denying fees to a prevailing plaintiff the Eleventh Circuit rewrote the FLSA to impose a presuit notice requirement, ignored its mandatory fee shifting provisions, and ignored Rule 68. Raw judicial activism takes many forms; this is one of them.

The consequence of fee shifting law is to give plaintiff's counsel every incentive to seek rehearing en banc and / or certiorari; should counsel prevail, fees will be due not only for the trial work, but for all the appellate work as well. I doubt we have heard the last of this litigation.
3.6.2009 11:20am
Allan (mail):
Legally mandated professional courtesy.

Emily Post meets the 11th Circuit.
3.6.2009 11:23am
epeeist:
IAAL, and find this (at least the quoted portions!) very disturbing.

If the court wanted to find that as a general rule that one should at least send a demand letter in non-urgent situations to foster the possibility of a non-litigated settlement and avoid wasting court time, okay. If the court wanted to find that when one knows the other party has lawyers as part of its structure (because it is a law firm as in this case, or is a large corporation with a legal department, or other situations), that still concerns me somewhat (whether the defendant has a lawyer or not shouldn't make a difference, and I've known a few lawyers whose clients would have been better-served acting for themselves!), but at least makes some sense in avoiding wasteful litigation.

But to hold (as appears to be the case, I have not looked at the case only this post) that there is an enhanced duty to negotiate first because the defendant is a lawyer/law firm disgusts me. That's the sort of logic (different in degree, not so much kind) that "justifies" e.g. police giving other police special treatment (not giving breathalyzers when probably impaired, not arresting for domestic violence, not issuing traffic citations, not reporting their crimes but keeping it in-house...).
3.6.2009 11:44am
money:
Pretty ridiculous. So, filing an action without calling first is bad faith?
3.6.2009 11:55am
David M. Nieporent (www):
Congress made the award of attorney's fees to a prevailing plaintiff mandatory, not discretionary in FLSA litigation and declined to impose any presuit notice obligation;
Not exactly. Congress made the award of reasonable attorney's fees mandatory. The court decided that, on the facts of this case, zero was reasonable.

I think that mistaken, for the reasons I said above: at least the pre-suit costs should have been allowed. The court sort of combined a sanction with a determination of reasonableness, and that should have been two separate issues.
3.6.2009 12:16pm
Visitor Again:
This opinion makes it clear that lawyers are a privileged class, until they seek court-awarded attorney fees from lawyer defendants. Then they're the hoi polloi and entitled to get a screwing.

Recently, in another thread on this blog, I posted that my first mentor in the law advised me, 41 years ago, to consider--and "consider" is the operative word--picking up the telephone before writing a long letter or filing a lawsuit because it could save me a lot of work and my clients a lot of money.

But I didn't know that it was an ethical imperative to call first if the defendants are lawyers--until today. It seems to me the court was grasping for a reason to deny attorney fees in this case. It's objectionable in the extreme that lawyers should have to disclose why their client directed them to file suit first rather than call.
3.6.2009 12:19pm
hattio1:
Houston Lawyer says;

So the plaintiff was legitimately owed money and the lawyer and the plaintiff ran up legal fees equal to approximately 5 times that amount since they were entitled to legal fees by statute. You can see where the judge is coming from.


I don't think it's fair to say she was legitimately owed only $3,500. That's what she accepted. But, she may very well have accepted that amount in part because of the fee shifting statute. IOW, she was owed more, but made a calculation not to risk attorney's fees on herself if she couldn't prove it in court, in exchange for the $3,500 AND having all her fees paid. Or, her contract with her lawyer could entitle him to a percentage of all money recovered (unless this is forbidden by the particular statute).
3.6.2009 12:47pm
Michael Masinter (mail):
>>Not exactly. Congress made the award of reasonable attorney's fees mandatory. The court decided that, on the facts of this case, zero was reasonable.>>

I think the court's assertion that it was reviewing the determination of a reasonable fee and that the reasonable fee was zero is sheer sophistry. Farrar v. Hobby authorized the denial of fees to a plaintiff who sued for in excess of a million dollars but who recovered only one dollar in nominal damages on the ground that in those circumstances, the reasonable fee was no fee. But here the plaintiff recovered more than nominal damages for a claim in which she never sought millions of dollars or any comparably large sum. To characterize the reasonable fee as no fee in the face of a substantial rather than nominal recovery is to erect a rule requiring presuit notice to attorneys, not to assess the reasonableness of counsel's hours.

Note that the court also denied costs; 29 U.S.C. 216(a) makes the award of costs mandatory and does not modify the word costs with reasonable.
3.6.2009 12:59pm
cbyler (mail):
This opinion makes it clear that lawyers are a privileged class, until they seek court-awarded attorney fees from lawyer defendants. Then they're the hoi polloi and entitled to get a screwing.

Close. This opinion makes it clear that tort defense lawyers are a privileged class, and tort plaintiff's lawyers get screwed.

Eleventh Circuit. Alabama, Florida, Georgia. Right in the middle of the ongoing character assassination of "trial lawyers" (which everyone knows is code for tort plaintiffs' lawyers). Does this opinion make more sense now? (Not in the sense of being justified - Michael Masinter is quite right on that score - but in the sense of having its motivation revealed.)

This is the fruit of a deliberate and organized assault on the legal system as a functioning method of redressing wrongs.

Who benefits from the sabotage of tort law? Tortfeasors.
3.6.2009 1:44pm
David M. Nieporent (www):
Hattio: I don't think so. I doubt there's any FLSA lawyers out there who handle these cases on anything other than contingency. If she lost her gamble, she wouldn't owe anything.
3.6.2009 3:32pm
David Drake:
cbyler--

Tortfeasors---and doctors and patients, and everyone who has to buy insurance the premiums of which are inflated by the costs imposed upon almost every activity by the tort system.


The best barrier would be a rigourous imposition of the "loser pays attorneys fees and costs for frivolous complaints and defenses and from needlessly expanding or prolonging litigation" to BOTH sides. Here, the plaintiff (or rather, the plaintiff's lawyer) didn't collect attorneys fees.

That said, I am troubled by the opinion's stress on the fact that the defendants were lawyers; any defendant in this situation should be treated the same.
3.6.2009 4:21pm
Linus (mail):
Wow, $13,800 for one phone call? I wish I could get away with charging my clients that much per phone call. "Ma'am, I know it seems extreme, but according to the 11th circuit, it's the magic elixir that makes previously unreasonable fees reasonable. Don't worry, it'll all be worth it later."

That's the reason I think the court bent over backwards to say the holding wasn't precedent, it was based on specific facts, "please, for God's sake, DON'T CITE TO ME!!!" These jokers knew what they were doing, and it rhymes with screwdicial cracktivism. I'm just used to seeing this kind of "philosopher king" lawmaking in my neck of the woods from lowly magistrate judges, not a federal circuit.
3.6.2009 10:00pm
Speedwell (mail):
I'm a layman, and not even a law student, but I've been a reader of this blog for a few years now. I have a naive question.

Given that the court decided that the plaintiff was owed money, the defendant must have been determined to be at fault (otherwise they wouldn't have been required to pay her anything). To be at fault, they must have knowingly neglected to pay her the overtime they owed her, correct? If this is true (i.e. the terms of the settlement weren't of the "we aren't at fault but we'll pay you to go away" kind), then should they reasonably have expected that failure to pay her was likely to get them into a lawsuit?

This sounds like a situation in which I hire a maid service. They say the job should take four hours, for which they charge 100 dollars, but there is a charge of 30 dollars for each extra hour, and I agree. After the work is done, they bill me for 130 dollars for five hours, and I write them a check for 100 dollars. Now obviously they're contractors in this case, but still, should I expect the service to want to deal with me as though a simple mistake was made?
3.7.2009 8:39am
ReaderY:
A "notify defendant and give defenedant time to respond before suing" rule would not be unreasonable (except in certain emergency situations), and courts have some leeway regarding their own rules for procedure.
3.7.2009 11:38pm
ReaderY:
This isn't a case of a contract calling for overtime, rather, the lawyer is claiming federal law (The Fair Labor Standards Act) entitles them to overtime despite what the contract said. Because the FSLA has big exceptions for both highly paid and managerial/professional employees, and lawyers are typically both, I would expect it would be unusual for lawyers to be subject to the overtime requirements of the FSLA, and its applicability would likely by no means have been obvious to the employer.

The employer quite likely didn't owe a dime but was willing to pay $3500 to avoid the costs of a trial.
3.7.2009 11:44pm
David M. Nieporent (www):
This isn't a case of a contract calling for overtime, rather, the lawyer is claiming federal law (The Fair Labor Standards Act) entitles them to overtime despite what the contract said. Because the FSLA has big exceptions for both highly paid and managerial/professional employees, and lawyers are typically both, I would expect it would be unusual for lawyers to be subject to the overtime requirements of the FSLA, and its applicability would likely by no means have been obvious to the employer.
The plaintiff in the case was a paralegal, not a lawyer.


Given that the court decided that the plaintiff was owed money, the defendant must have been determined to be at fault (otherwise they wouldn't have been required to pay her anything).
The court didn't decide anything. It was a settlement.
3.9.2009 5:03am

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