The shift in power that will result is hard to overstate. At present, Democratic-appointed judges comprise the majority on only 1 out of 13 federal Circuit Courts of Appeal in the U.S. That court is the 9^th Circuit based in San Francisco, CA. Experts estimate that within the next 4 years, that number could jump to 9 out of 13. The first test for Obama will be the 4^th Circuit based in Richmond, VA. That court has 4 open seats and is currently deadlocked between 5 Republican- and 5 Democrat-appointed judges.

As the article states, judges appointed by Obama can be expected to side more often with "workers, consumers, homeowners, women and people of color who were discriminated against". In contrast, Bush-appointed judges have generally favored business in employee and consumer disputes.

As the balance of power shifts in the Federal judiciary, it is likely that the number of employee-plaintiffs filing lawsuits in federal rather than state court will start to increase. Plaintiff lawyers typically avoid filing suit in federal court because of the anti-employee bias many federal judges have exhibited. Federal district court judges will likely also begin ruling in a more employee-friendly direction as Democrats being taking spots in the Courts of Appeal that oversee them. It should be an interesting eight, errr, four, years.

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1. San Diego State University: $1.45 million settlement to former swim coach Deena Deardurff Schmidt.
2. Fresno State University: Settlements/jury awards to former women’s basketball coach Stacy Johnson-Klein ($9 million), former volleyball coach Lindy Vivas ($4.52 million), former associate athletic director Diane Milutinovich ($3.5 million) and softball coach Margie Wright ($605,000).
3. UC Berkeley: $3.5 million settlement to former swimming coach Karen Moe Humphreys.

It seems it’s only a matter of time before female college coaches in other parts of country follow suit and start filing their own lawsuits.

The two FGCU coaches – former women’s volleyball head coach Jaye Flood, 51, and former women’s golf head coach Holly Vaughn, 46 – had brought their suit in federal court (Flood and Vaughn v. Board of Trustees of the Florida Gulf Coast University et al. , Middle Dist. Fla. Case no. 2:08-cv-30-FtM-34), claiming the school had retaliated against them for raising concerns about mistreatment of female athletes and coaches and alleging defamation. Their lawyer, Linda Correia of DC firm Webster, Fredrickson, Correia & Puth and lead counsel for "Public Justice", a national legal defense group, said: "This case was always about retaliation, and it was always because Coach Flood and Coach Vaughn stood up for their teams and stood up for their programs, and raised valid issues to the university."

Flood received $2,965,000 while Vaughn received $435,000. As part of the settlement, FGCU has agreed to hire an independent company to lead a full Title IX gender equity compliance review and subsequent monitoring for 4 years, a campus attitude survey, and a personnel policy review. FGCU President Wilson Bradshaw further said that the settlement payments would be paid out of the school’s insurance policy, not donor money or tuition revenue.

Congratulations to Ms. Flood and Vaughn and their attorneys!

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But I’ve always wondered this about lawsuits — they are VERY, VERY expensive to bring, so where do all these greedy plaintiffs with frivolous lawsuits get the money to finance them? Do they really have $10,000 lying around to just throw away in a bid to waste everyone’s time, including theirs? Because $10,000 or so is probably the minimum it takes to bring a lawsuit nowadays.

In Los Angeles Superior Court in California, these are some of the costs typically associated with a lawsuit (in case you’re interested, here is the full LASC civil fee schedule ). Note, the costs are going up all the time thanks to inflation:

1. Complaint filing fee : $320. You pay this to the Court at the initiation of your lawsuit. When the person you’re suing first appears in Court, he too has to pay the same fee as their "first appearance fee".
2. Motion filing fee : $40. Unless you or your lawyer are near the courthouse, you may have to pay a third-party attorney service company to file your motion with the courthouse, or fax-file it for you. That’s another $50 to $100 per motion depending on your rush. There is no way to predict how many motions you will need to file in your lawsuit.
3. Depositions : $1,000 to $2,000 per day. If you want to interview witnesses, you might be able to meet them informally and get their written declarations/affidavits for the price of a cup of coffee. But in many cases, you will probably have to formally "depose" them. That means serving a deposition notice/ subpoena on the witness, scheduling a time that’s convenient for the witness, the defendant and their attorney, and reserving a court report who can officially transcribe the proceedings. Reporters can charge $1,000 or more per day. You might also need to videotape the witness. If you’re not able to do it yourself, you will need to hire a certified videographer. That’s another $1,000 or more per day. If you need an interpreter for the witness, that’s an additional cost.
4. Copies : If you need to obtain documents from the defendant to prove your case, in many cases you will need to hire a bonded copy shop to bring their scanners/copiers to the place where the documents are located, and make copies for you. They can charge a setup fee ($200 or so) plus a per page charge (10 to 40 cents per page).
5. Experts : Many lawsuits require you to hire an expert who can testify in court about topics that are outside the knowledge of the everyday person. Experts can include engineers, psychiatrists/ psychologists, economists, physicians, human resource experts, accident reconstructionists, etc. Experts don’t come cheap, they can charge anywhere from $200 to $400 per hour or even more.
6. Appeals (if necessary) : The filing fee for an appeal is roughly $700. You may also need to ask the court clerk to prepare a record for appeal that can cost hundreds more. If you need a written transcript of a court hearing to support your appeal, the costs varies widely but can be as much as $1,000.
7. If you lose : If you lose your lawsuit, you will likely be on the hook for the costs of your opponent, which includes all of the above and more. If you’re particularly unlucky or your lawsuit is frivolous, the court could force you to also pay your opponent’s attorney fees. That bill can be astronomical given attorneys charge in the range of $200 to $1,000 per hour.

If you’re lucky, you won’t be paying any of the above costs yourself. Many lawsuits are funded by the lawyer, not the plaintiff. These are so-called contingency fee arrangements where the lawyer pays some, most or all of the costs and fees associated with the lawsuit and invests their time without charging the plaintiff. In return, the lawyer takes a percentage of the recovery from the lawsuit if you win (but they get nothing if you lose). So the lawyer ends up assuming most or all of the financial risk of the lawsuit.

In most cases, contingency fee lawyers aren’t going to want to invest their time and money into a case that’s frivolous. If they did, they wouldn’t be in business for very long.

So who’s funding all these frivolous lawsuits that are weighing down the US economy, clogging up our courts, burning up (lots of) cash, and wasting everyone’s time? Because I sure am not nor is anyone else I know.

If you’ve got a viewpoint on this, I’d be interested in hearing from you in the comment section below. I imagine defense lawyers would have a lot to say on this topic.

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If you’re like most people, you probably answered yes. But as usual, the truth is not so simple.

For those of you who are interested in getting past the tort reform hype and learning the cold, hard facts about the infamous McDonalds coffee cup case, read "The MCDONALDS Coffee Cup Case— Separating The McFACTS From The McFICTION" . Did you know the following "McFacts"?:

1. The infamous McDonalds coffee which the coffee cup lady (Stella Liebeck) bought was 180-190 degrees Fahrenheit (82-88 degrees Celsius). Water boils at 212 degrees Fahrenheit (100 degrees Celsius) at standard atmospheric pressure. 185 degree liquid can cause third degree full-thickness burns in 2 to 7 seconds.
2. Before the coffee cup lady got burned, 700 other McDonalds customer who were burned by McDonalds coffee had brought claims against the restaurant during the preceding 10 years.
3. When the coffee cup lady spilled her McDonalds coffee into her lap, the car was parked and she was in the passenger, not driver, seat. She was NOT trying to drive and drink coffee at the same time.
4. The coffee cup lady suffered third degree burns from her McDonalds spilled coffee to her groin, thighs, genitalia and buttocks. She had to spend 7 days in the hospital, 3 weeks at home, skin grafts and at one point, her life was thought to be in jeopardy.
5. After judgment, the judge reduced the jury’s punitive award from $2.7 mil. to $640k.
6. The coffee cup lady had initially asked McDonalds to pay $2k for medical bills plus her daughter’s lost wages. McDonalds played hardball and refused to offer more than $800.

As S. Reed Morgan, the lawyer who represented the coffee cup lady, says: "Is this an individual who didn’t take responsibility, or a corporation that didn’t take responsibility? The jury found 20 percent against Mrs. Liebeck and 80 percent against McDonald’s."

The McDonalds coffee cup case was no runaway verdict but, somehow, it was turned by the media into the poster child for greedy plaintiffs who refuse to take personal responsibility and frivolous litigation. Meanwhile, plaintiffs’ lawyers to this day are finding they have to defuse the hype and lies that have grown around this infamous coffee cup case during the initial jury panel interview phase of trial (otherwise known as "voir dire"). It’s an unfortunate legacy that threatens to continue poisoning jurors’ minds indefinitely.

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Recently, Michael got nostalgic and posted this entry: "6 Years, 1800 Posts and How the World Has Changed" . Why do I bring this up? Well…ahem… he lists my blog as being one of those that "have made their way to my RSS reader"!

Well, thank you, Michael, and Happy 6^th Birthday to your blog. May there be many, many more.

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Congress is taking up legislation this week that will wipe out arbitration provisions in hundreds of millions of consumer contracts — for everything from credit-card agreements to cell phones to health-insurance policies, even a contract for the purchase of a kitchen sink. The bill is so sweeping that it wouldn’t apply just to contracts consumers may sign in the future. It will cancel arbitration agreements agreed to in the past.

Fact : The bill only bans mandatory arbitration clauses. If you the consumer or you the employee still think arbitration is a good idea, then the bill doesn’t stop you from doing so. It just prohibits contracts that force you to arbitrate whether you like it or not. In other words, the bill wants to give you a right to choose.

This legislation is a top priority of plaintiffs’ lawyers, since arbitration keeps big-dollar disputes out of the courtroom. But it’s a bad deal for consumers. The law will not make arbitration "fairer"; it will make it go away, because it is very difficult to get two sides of a dispute to agree to much of anything once a dispute has started. That inconvenient reality is one that some of our lawmakers are simply ignoring.

Fact : Why would making arbitration optional, not mandatory, for employees and consumers be less fair? If arbitration were as good for consumers and employees as the article makes it out to be, then why is there a need to force them to do it? All disputes boil down to one thing: money. Plaintiff’s lawyers typically charge their clients a percentage of that money. If arbitration led to "fairer" results, that can only mean one thing: larger money awards for the consumer/employee and for their lawyer. Sounds good. So then, why would plaintiff’s lawyers oppose arbitration? Because arbitration does NOT lead to a fair money award for the consumer/employee. The awards are typically 50% or less of what the consumer/employee would get from a jury in a courtroom. If you want to know why, read "Is Arbitration Good or Bad for Employees?" .

[Arbitration] can help consumers resolve disputes with companies without the high costs and legal fees of a full-blown lawsuit.

Fact : Arbitrators are like private judges, with one big difference. The judge doesn’t charge the parties for his services, he or she is paid by the taxpayers. Arbitrators, who can charge $5,000, $10,000 or even more per day, are paid by the disputants. If you lose your dispute before the arbitrator – an most likely you will – you could be on the hook for his fees. If that happens, get ready for a whopper of a bill.

Without arbitration, he wrote in the 1995 decision, Allied-Bruce Terminix Cos. v. Dobson , "the typical consumer who has only a small damages claim (who seeks, say, the value of only a defective refrigerator or television set)" would be left "without any remedy but a court remedy, the costs and delays of which could eat up the value of an eventual small recovery."

Fact : With all due respect to Justice Stephen Breyer, consumers/employees who have dispute over small damages can take their case to small claims court where they can have their case heard by a judge who won’t charge them by the hour like an arbitrator might. If they feel like it, they can even have their case decided by Judge Judy or the People’s Court. Small disputes got resolved before arbitration ever appeared on the scene, and they will continue to get resolved even if arbitration is no longer an option.

The average consumer with a small claim is unlikely to sue at all. Studies confirm what common sense suggests: Few, if any, lawyers will even take cases involving small potential recoveries. And without a lawyer, navigating the court system is nearly impossible.

Fact : The average consumer/employee with a small claim who is unlikely to sue is just as unlikely to read the fine print on their contract and initiate an arbitration. In fact, small claims are decided all the time without the aid of a lawyer – in small claims court. Navigating small claims court without a lawyer is far from "nearly impossible". Anybody can file a small claims court. All it takes is a trip to your local courthouse, filling out a 1 or 2 page form, and paying a small filing fee, perhaps $50 or so. Lawyers are not permitted in small claims court because the whole idea is to keep costs down and make the court accessible to the average consumer/employee. You could even choose to have your small claims arbitrated for free by lawyers who volunteer their time at small claims court.

By contrast, arbitration is much less expensive for consumers than courts; many businesses have agreed to pay virtually all of the costs of arbitration.

Fact : Unless you lose. Then you might be on the hook for the arbitrator’s fees and costs. I have heard of cases where employees lost at arbitration and got stuck with an arbitrator bill as high as $60,000. The arbitrator’s bill was larger than the amount in dispute.

Decisions can be rendered after hearings by telephone or on documents alone, rather than requiring a consumer to spend time on an in-person hearing. And arbitration is far quicker. Claims are frequently resolved in a matter of months, compared with an average two-year wait in, say, federal court. Our courts are not designed to afford individual consumers realistic access to redress for commercial disputes with large companies.

Fact : Many arbitrations severely limit the consumer/employee’s right to call witnesses or obtain evidence. That is a big part of the reason why arbitrations might in some cases be quicker than a full-blown lawsuit (just as often, they take the same amount of time or longer). But without witnesses and evidence, you lose. A lot of the time in litigation is spent forcing the employer or big company to cough up important witnesses and evidence which they, understandably, don’t want to surrender to the consumer/employee.

Opponents of arbitration also assert that it stacks the deck against consumers. Research shows otherwise. Generally, consumers do at least as well in arbitration as they would in court. One recent study by the American Arbitration Association showed that consumers prevailed in about 80% of arbitrations they initiated, either through an outright win or voluntary settlement. Similarly, a 2004 report by the National Workrights Institute demonstrated that employees prevailed in 63% of cases brought in arbitration, as opposed to only 43% of cases filed in court.

Fact : Research from neutral experts overwhelmingly shows that arbitration is bad for consumers/employees. See "Is Arbitration Good or Bad for Employees?" .

And in big disputes, consumers can and do win big awards. Recently, an arbitrator ordered a health-insurance company to pay a Los Angeles woman more than $9 million for improperly cutting off her coverage. A few years ago, another arbitrator ordered an extermination company to pay a Florida homeowner more than $4 million after the man’s home was severely damaged by termites.

Fact : Arbitration nearly always leads to a smaller money recovery for consumers/employees than a trial by jury would’ve produced. If the opposite were true, plaintiff’s lawyers and consumers/employees would vote with their wallets and flock to arbitration, not run away from it. But just the opposite is occurring.

To be sure, arbitration is not perfect. Congress has heard anecdotes about the unfairness of a particular arbitration process, either in its design or execution. But the solution is not to eliminate all arbitration.

Fact : The Arbitration Fairness Act of 2007 does not seek to "eliminate all arbitration", only mandatory arbitrations. The choice is left to consumers/employees whether or not they wish to arbitrate.

Courts can — and do — refuse to enforce arbitration agreements if they are unfair, and they overturn arbitration awards resulting from a biased or corrupt arbitrator.

Fact : Courts are more than ever pinched between rising caseloads and tightening federal and state budgets. Too many courts are housed in decrepit buildings that barely function and are just barely getting by on small rosters of overworked judges. It should come as no surprise, then, that judges are typically very eager to shunt cases off into arbitration and clear them off their desks. Likewise, judges are typically reluctant to overturn arbitration awards unless there is an exceptional level of corruption or bias.

Congress should think long and hard before discarding it in favor of more lawsuits — which may benefit lawyers but will leave most consumers out in the cold.

Fact : Arbitration is more often than not a tool for employers and big companies to keep a lid on the costs of litigation. The Arbitration Fairness Act of 2007 bans the imposition of mandatory arbitration clauses on consumers/employees. That is far from leaving "most consumers out in the cold".

The fact is, mandatory arbitration is good for Fortune 500 companies and employers – the very clients whom the author and her firm represent. It would be interesting to know how many consumers/employees the author represents in her daily practice at Hogan & Hartson. I’m willing to bet - Zero. She sure does seem to be very concerned about their welfare though.

Hmmm, makes you wonder.

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If you thought ‘road rage’ was a problem, make way for ‘desk rage’. According to this Reuters report, "Desk rage spoils workplace for many Americans" , anger in the workplace is on the rise. And it isn’t just about ‘going postal’. The article contains some startling statistics – of the workers who responded to research surveys:

1. 2%-3% admitted to pushing, slapping or hitting someone at work – amounting to as many as 3 million people out of a total U.S. workforce of 100 million.
2. Nearly 50% reported yelling and verbal abuse at work
3. One in four admitted to being driven to tears by abusive behavior at work.
4. One in six reported anger-induced property damage occurring at work.
5. One in ten reported physical violence and fear their workplace might not be safe.

The Bureau of Labor Statistics Census of Fatal Occupational Injuries (CFOI) also cites this interesting statistic regarding number of fatal work injuries : In 2006, there were a total of 5,840 fatal workplace injuries. Out of those, 9% were homicides.

Increasing frustration with rising fuel prices and a slowing economy might be one of the reasons for the rise in desk rage. "People are coming to work after a long commute, sitting in traffic watching their discretionary income burn up. They’re ready for a fight or just really upset," said John Challenger of the placement firm Challenger, Gray & Christmas.

Desk rage alone won’t necessarily create legal liability or justify a lawsuit. You can read about one reason why here, in my post "My Boss, the Equal Opportunity Jerk" . If you are physically or mentally injured by behavior in the workplace, you might have a workers’ compensation claim but that’s about it.

However, you DO have a right to a safe environment. If your physical safety is threatened and management does nothing about it, you may have a case. If you make a complaint to management regarding threats to your physical safety and management actually fires or punishes you for complaining, that could be the basis for a wrongful termination or retaliation claim. When in doubt, talk to a lawyer . The initial consultation is usually free.

For more information, also check out the U.S. Department of Labor’s webpage on Safety and Health Topics: Workplace Violence .

Stay safe out there.

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It gets worse. The federal government has actually become acutely hostile to whistleblowers in the last decade. Just take a look at how the federal government has gutted the 1989 Whistleblower Protection Act .

But wait a minute, aren’t more whistleblowers exactly what this country needs to root out all the corruption, the lies, the cover-ups that have come to define the U.S. of late? Why on earth would we want whistleblowers to be silenced?

The Washington Post has this news article, "Ex-Agent Says CIA Ignored Iran Facts" , discussing the plight of a 22-year CIA undercover operative who tried to warn the agency that there were no WMDs in Iran. During the runup to war, that was apparently an inconvenient truth that no one wanted to hear about it. So, according to court allegations, the CIA suppressed the operative’s reports, began falsely investigating the operative, and finally terminated him.

According to the article, CIA spokesman Paul Gimigliano’s response to the operative’s wrongful termination lawsuit was: "It would be wrong to suggest that agency managers direct their officers to falsify the intelligence they collect or to suppress it for political reasons," he said. "That’s not our policy. That’s not what we’re about." Hmmm.

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Tomeika Broussard didn’t either, but when her supervisor called her a "reggin", she suspected it was something bad. Later, she figured out what it was: the n-word spelled backward. Broussard filed a complaint with the Equal Employment Opportunity Commission and was awarded $44,000 in 2007 for racial harassment after she was fired from her file clerk position.

According to an article in the Chicago Tribune, "Coded Prejudice Is Cloaked Dagger" , Bigots have gotten smarter – they know the obvious slurs will get them in trouble. So instead of the usual suspects, they’re turning to code words – slurs in disguise. "People are smart and know they cannot use blatant terms, so they get the message across in other ways," said Sanya Hill Maxion, an EEOC lawyer in San Francisco.

According to the article , federal officials say they have seen an increase in code word harassment complaints ever since the first racial code word complaint was filed with the EEOC in 1996.

Some examples:

in May 2006, the EEOC settled a case in Florida where a manager referred to African-Americans as "you people" and interracial couples as "Oreos" and "Zebras".

In November 2004, the EEOC settled a case where American Indians were referred to as being "on the warpath" and subjected to war whoops and talk of scalping, alcohol abuse and living in teepees.

On April 1, 2008, a federal Circuit Court of Appeals ruled in favor of a white basketball coach who was criticized for marrying an African-American woman. The college vice president referred to her as "Aunt Jemima".

Other EEOC complaints include: a black employee who was repeatedly called "Cornelius" in reference to the ape character from "Planet of the Apes"; a man of Chinese and Italian ancestry who was daily called "Bruce Lee" by his foreman; a credit manager who said black employees were referred to as "you people" and "that one in there"; a black woman who was called "Nappy Headed Mo" and "Queen Sheba".

There appears to be no end to the creativity with which people create new code worded slurs. New ones seem to appear on the Internet every day.

If you have been subjected to code word discrimination, you should contact an attorney right away to see what your rights are.

(Pictured: Tomeika Broussard - Handout Photo Dec. 2007)

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• • And the Winner for Most Popular Discrimination Complaint in the US Is . . .