Chapter Six

“Well, when she first came in I thought well she had some things going for her. She had a couple of medical reports. And I’m very sympathetic to these people. Not just black, but women and people, you know, employees that I think are not getting treated right. And so I looked at it. And oftentimes you get into what is kind of a legal or law practice trap: to get records, you have to state that you represent the client. So you almost have to have her sign an agreement whether you want the case or not. So this way I was able to get the medical records because they wanted a release and proof of my representation. And so I was stuck with the case whether I wanted or not. And I told her, “I’m going to look at it and I’ll tell you frankly.” . . . I said, “If I don’t like it, I’m going to cut you loose.”

“What they did to me was illegal. I didn’t care about the money. I really didn’t care about the money. I wanted my job.”

“It really got me. I told the Judge, ‘I’m sorry, it makes me angry. It makes me angry because the one person that I trusted to help me to get there thought it was a joke, do you understand?'”

“It was just obvious. It took a couple of months to realize that the males were favored.”

“I had been told by a supervisor that I could ‘become a Chain Stores driver when you learn how to use a men’s urinal.’”

“absolutely critical . . . [to find] plaintiffs who had both the intestinal fortitude and the willingness to take on the fiduciary responsibility of being class rep, and not sell out the class for themselves.”

“Denise remained employed through that whole litigation, as did several other plaintiffs. . . . Now she’s a tough bird, she is.”

“‘What part of 100 million dollars do you not understand?’”

I: “Did you feel that your lawyer did the best job he could?”

TW: “Yes, I did.”

I: “So, you were satisfied with his . . .”

TW: “I was totally satisfied with him. Yes, ma’am.”

“I made the bad mistake of going through the phone book. And we found this attorney, and her name was Lisa and I don’t remember her last name. She just sold us out. She was outrageous. . . . We’d call her office and we could never talk to her. It was always, ‘Who is this?’ ‘This is so and so.’ ‘Oh, she is not in. She is in a meeting. She is on the phone.’ Never ever could we get a hold of her. . . . I don’t think she put any time or effort into the case.”

“I was like, ‘Wait a minute.’ I was unsettled. I think the way it ended so quickly, and I just wasn’t really prepared to settle that day, and yet it was like, ‘Do it now or we’ll never get offered it again.’”

“Well, she was a strange woman. . . . When we first met her, she wasn’t dressed like the typical . . . She had a very short skirt and high heels. She put her legs up on the desk, like kind of flirting with my husband, almost trying to entice him. And she would call me and literally get into arguments with me and yell at me, and I just couldn’t deal with her. She was just outrageous, so we just kind of backed off. And I told my husband, ‘You deal with her, you seem to be able to deal with her. I can’t.’ And then it went from, ‘You have a good case,’ to we get this phone call and it’s over.”

“He wasn’t very aggressive. . . . I think he was lying to me. Things like reading depositions. When he’d send it back to me, he would send back something else. I was not important enough for him to really give any attention and besides the misrepresentations on what he was doing and feeding me the wrong thing. That’s my anger as much as anything else.”

“Maybe she didn’t know better, I don’t know, but I think she should have. But she handled both portions, which was not fair to me . . . I knew it was racial discrimination, and the act that he [my superior] did was a sexual harassment act, so there was two cases. I found out at the end of the trial and everything it was two different cases. So, I don’t think that I got rewarded for punitive damages that I should have, because she [my lawyer] wasn’t equipped to handle the discrimination part of it.”

“I’m thinking maybe something was done under the table. . . . That could not have happened, but that’s my opinion and I would die with that opinion.”

“We just didn’t think the same. . . . What’s that old saying? . . .’The lawyer for himself . . . has a fool for a client,’ or something like that. So, I had to say, ‘You know what, either I’m going to hire him and let him do his job . . . And become the victim . . . or do my own, in which case, you know, I’m lost anyhow.’ So I had to just let him go [forward with the case].”

“I said, ‘If you’re my attorney, and you’re working for me and with me supposedly. The reason I hired you in the first place is because I don’t know legal things. . . . You and I are supposed to be partners. Even though you work for me, we’re still partners.’”

“When he asked me [about a settlement offer], I said, ‘Well, I don’t know.’ Then I’m thinking, ‘You’re the attorney, you tell me what’s fair and what I should get.’ . . . I think he said something like, ‘How can you determine what is fair?’ In other words, fair could be ten dollars. I said, ‘Well, and I’m saying that’s what you guys are for.'”

“I think, you know, getting the attorney, I think all that was good. I mean, because here’s like this David and Goliath case. . . . They have whole offices and teams of lawyers, you know. Here I am . . . pulling my little pennies together for this one attorney.”

“The lead defendants . . . hired a firm that everyone affectionately referred to as “Gestapo,” “Nazi,” and “Hitler,” and then the subsequent employer hired “Mussolini and Associates,” and they buried my attorney. . . . And I must say that the perspective that I got from my attorney was this, kind of like a good old boys network, like [the judge] really liked these lifelong attorneys that came in from [a large city] to put on this big defense.”

“You want the client’s expectations to be very low, so that when you get the result, the client thinks that there should be parades in your honor. I mean, from a business standpoint, to do it any other way would be crazy. If you told the client they had a great case that was worth millions and then . . . Suddenly you are asking them to accept a $100,000 settlement, there’s a huge credibility problem, and oftentimes it’s not pleasant for the lawyer.”

“We’ve had people I guess where we’ve started representing them, and we felt, if, for instance, they wouldn’t agree to a settlement that we thought was fair . . . that we’ve said to them, ‘Maybe I think you need to find a different attorney.’ And it’ll go either one of two ways. They’ll ultimately agree with you and do what you want, or else they’ll go and find someone else. I’ve had that happen, but we would never leave someone without some kind of resolution.”

“The bottom line is that I’ve never lost my sense that there are employees out there who do get screwed [by their employers]…I pick a case with the attitude that if I have to go to trial, I’m going to trial…It’s the client’s call, not my call.”

“Well, basically he was calling the shots. Even though he would constantly say, ‘We’re going to do whatever you want.’ . . . You’re sitting there with two attorneys. . . . It’s like, ‘Oh no, they can’t do this to her.’ He’s going on the backbone, he got all this information from quote “these people who are judges who said I’m going to win this case.” And he said, ‘Oh no, you don’t need that. What they’ve done to you,’ and just on and on and on. So, I’m like, okay! [But then] I lost it.”

“It’s not the first or last time this [sexual harassment] has happened [to her], so she had a list of demands: one, two, three, four, five. Well, now [it’s] ‘I want six, seven, eight, nine, and ten.’ She was working on anger and a need for some kind of retribution. . . . That’s one of the things you deal with as a lawyer. . . . And I went back [to the defense] and asked for six, seven, eight, nine, and ten, and I think we got six and seven. And Kristin and I sat down and talked about it.”

“The man was . . . a true visionary. A human being with frailties and faults, but a remarkable visionary with respect to his place in the world. . . . When it came to his place in history and legal history, [he] had a very clear vision.”

“I usually don’t suggest discrimination. I want to know if they’ll come up with that on their own, and many times they do. If they think it’s strictly a personality conflict or ‘They said I didn’t do a good job, but I really did do a good job’— it’s simply a difference of opinion. . . . I’d say far and away the majority of cases I cannot do anything about. I use the term: ‘It may be unfair, but unfair is not illegal.’”

“You know what we are going to do now? We’re going to settle your case, and you’re going to take whatever I can get, or you’re going find another lawyer.”

“fighting with the damn employer and the employer’s lawyers. . . you want your client to love you, and instead they start thinking you are trying to sell them out like everyone else. And then they start to play you.”

“[Defense counsel] would ask . . .’Do you believe X discriminated against you because of your race?’ and she would say, ‘No.’ . . .’Do you believe X retaliated against you?’ ‘No.’ Well, what the hell am I here for? This is the precise thing that we told her not to say. . . . Once you give those answers . . . you take the bat out of your lawyer’s hands.”

“One moment [the client] would listen to the whole spiel and agree, and then one moment she wouldn’t. Then she did agree, and then, after she agreed, while we were working on the paperwork, she claimed she didn’t understand it. I didn’t really think that was accurate, because I knew we’d been very careful, and I also knew . . . she’s a smart, sophisticated person. . . . Another old saying around here is, ‘By the time you get to the end of a case, you understand why the client was fired.'”

“They put $300,000 on the table to settle the case…I told the client, ‘You want to roll the dice, it’s your call.’ The client would have wound up with $180,000…’If you want to take it, it’s over, done with. And remember, the trial judge threw it out of court…’ He wanted to roll the dice, and the appeals court affirmed. He wound up with nothing.”

“I would say the general strategy would be to figure, to early on sort out the problem and understand that these are real people. . . . As a result, the problem is not only legal. You know? You just can’t solve the legal problem. It’s not really litigation. You’re trying to solve the whole problem. The personalities, the job structure, you know, whatever is going on that is causing these issues. We’re trying to resolve all of that, because, essentially, what we’re looking for is productivity, and productivity comes from people understanding what they are being asked to do and doing it together and not undermining each other. . . . Now, we still get sued. We still have a number of EEO charges, for example, and eventually a certain number of them become lawsuits. . . . Most of the time, [these cases arise] when [inside counsel is not] involved at the early stage. Either somebody didn’t recognize it, or the employee didn’t give us a warning that there was a problem, and all of a sudden, there you go: now we’re sued.”

“This particular case, we had lived and breathed it before it went out [to outside counsel]. Not always do we do that. It is more typical that a whole case will go out, rather than we have it and then, on the eve of trial or when the trial date’s been set, we hand it out. On those cases where they really work on it start to finish, it’s more typical that outside counsel will be more directly involved, although we almost always review and edit briefs before they go out.”

“We don’t discriminate anywhere, let me hasten to add. None of my municipalities, and I hope I can get some [credit] for that. Because the Civil Rights Act came after I was employed in all these municipalities, and we take it very seriously. Those three towns I think are the best three towns in the United States and we try to promote diversity, tolerance, to reach out.”

“Yes, they do. . . . Some take frivolous cases to the mat, like you say, and I think [this large retail chain] is one of those. The case we are discussing . . . after litigating that matter for a year, that particular case settled for three figures. . . . So we were like, ‘Congratulations.’ . . . But other clients . . . look at it more from a “cost of business” standpoint. . . . In a retail setting, word gets out. Because everybody knows everybody and . . . each little store is like a little town. . . . If you start settling cases for the cost of defense . . . then you are . . . more likely to be sued more often. Whereas someone who is not in that business, where people aren’t turning over all the time, the cost of defense makes more sense.”

“One of the things that’s different . . . in employment cases as opposed to other types of cases is they’re very emotional. Someone is accusing someone of discriminating or sexually harassing someone. That becomes very, very personal. . . . How that plays into the politics of the organization will, in some measure, determine how or what you’re willing to settle a case for.”

“You really always have to start with asking them about what their business concerns are associated with a case, what their business objectives are. Because if you start trying to tell them what their philosophy ought to be, that usually doesn’t work. And it seems presumptuous, because the lawyers always have to ultimately serve the business.”

“It’s not like I barge in and say, ‘Here’s how we’re going to do this case, and it’s my way or the highway.’ . . . It’s a very collaborative process. I listen to what the client wants early on in the case.”

“We deal either with in-house attorneys— in large companies sometimes it will be an in-house attorney who handles only employment cases— and then we have smaller clients, where we’re dealing directly with an HR person and maybe a company president making the call. I think they rely on us to tell them . . . an objective assessment of the credibility of their witnesses. We can tell them what our experience has been in similar cases, we can give them information about typical verdicts, we can scare them, or we can give them great confidence about the case. I think we have quite a bit of [influence] in terms of whether it settles.”

“I don’t actually depend on my client to tell me the plaintiff’s side of the story, because I assume that my client actually does not know the plaintiff’s side of the story. That’s kind of my job, so I try to construct the plaintiff’s side of the story from whatever data is available before the deposition . . . and try to take the plaintiff’s deposition . . . very early in the case.”

“The particular client took a very hard line on a lot of these things. If [the company] . . . went through the process and reached the conclusion that it had done no wrong, it really was a client who said, ‘Hey, we’d rather spend a lot more money to vindicate ourselves than spend less money . . . to get rid of it.’ . . . I don’t know from a business point of view whether it’s prudent or not prudent, but their view was, ‘Once we decide we did it right and our people were right, we will back it to the hilt. . . . We won’t give them a dime.'”

“I have, on occasion, where a client has a plaintiffs’ lawyer who seems to specialize in the client or you are getting the fourth, fifth, sixth case or the same plaintiffs’ lawyer . . . I’ve gone to the company and said, ‘Look, this guy is making a living on you. . . . You’ve got to destroy his business plan, and there is only one way to destroy his business plan. You have to take him to trial, and you have to beat him. And then you have to let everybody know about it.'”

“Sometimes we have people who are totally innocent, and they’re just awful witnesses, awful, awful, awful. And, I mean, you sit at depositions, and you go, ‘Why did I spend three hours with them? They just are terrible witnesses.’ I’ve had supervisors who sit there, and in front of the plaintiff, will completely change their story and be like really friendly to the plaintiff.”

“I like to say there are three types of clients. Client A is ‘I’ll spend a million dollars to defend this suit and not a penny for tribute. I will not pay on a case that I don’t have to. I am taking this to the mat. ‘We like Client As, by the way. . . . Client B, everything is a business decision. ‘What will it cost to litigate this case? What will it cost to settle it? How cheap is it to settle it?’ Everything is a business decision. We have very few, very, very few who are Client As. [We have a] fairly significant group of Client Bs. But the vast majority are Client Cs. Client Cs think they are Client As, but they are really Client Bs. . . . The less sophisticated the client is, the more likely they are to fall into level A or C.”

“They feel horrible no matter what happens. . . . Never vindicated. The only time maybe is when some large company is splitting the bill with an individual manager. [Then, the leadership] feels that they’ve been vindicated.” Even then, she remarked, the worry is that “somehow the company is going to hold it against me. I cost them this money. . . . We’ve had some great wins for clients, and they still are kind of like, ‘Thanks, big huge bill.’”