The Laconic Law Blog

The New York Time reports that a soon-to-be-released study suggests that plaintiffs who settle cases before trial are better off than those that choose to go to trial.  The story is here.  The Ohio Employment Lawyer’s Blog has a post on the story here. 

Overlawyered has an interesting but unrelated post here on the issue of cognitive bias among lawyers and judges in estimating the value of a case.  No surprise, but apparently there can be a difference of opinion among lawyers as to the value of a case and the likely outcome.  Perhaps that accounts for some of the poor outcomes in the study?

A story in the ABA Journal news section recently briefly discusses employers attempting to limit the time to file claims in their job applications.  There is also a story on Law.com on the same topic.  Why is there a renewed interest in this practice?

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Law.com reports today that a New York law firm has filed a pre-emptive lawsuit against a woman who is making rape allegations against her former boss, a firm partner.  The story is here.  This story follows several recent posts on this blog (here (Rob Lowe nanny) and here (fraud lawsuit against former employee equals retaliation)) about similar lawsuits.

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Forbes.com has an article on the worst places to be sued.  Overlawyered.com has a post with links to commentary on the article.

The American Tort Reform Association released its annual report on “Judicial Hellholes,” the worst places to be sued in the U.S.  Madison County, Illinois, was pleased to be removed from the list after it implemented judicial reforms.

(Hat tip to the WSJ Law Blog, which reports it received a “rebuttal” from the American Association for Justice.)

We questioned earlier whether arbitration of employment disputes would be coming to an end soon.  (What is the future of arbitration?)  Perhaps we announced the death-knell of employment arbitrations too soon.  Overlawyered reports here on the win rates in arbitration vs. litigation in employment cases.  Employee advocates may want to reconsider their opposition to arbitration if the reported statistics are accurate.

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In KP v. Vienna Wolftrap Hotel, 1:07-cv-00625 (E.D.Va. 11/30/2007), the U.S. District Court for the Eastern District of Virginia (Cacheris, J.) granted defendant’s motion to dismiss plaintiff’s age discrimination claim based on the statute of limitations. 

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(h/t Workplace Prof Blog)

An initial report by the Federal Judicial Center on summary judgment practice across the federal district courts suggests that between 9% - 14% of all employment discrimination cases are actually terminated on summary judgment (Table 12).  The report shows that between 34% and 38% of all defendants file a motion for summary judgment in employment discrimination cases.  (Table 7).  In employment discrimination cases, the defendant was the moving party on summary judgment 90% of the time.  (Table 1).

The statistics show, however, that defendants in employment discrimination cases are more successful than the general population when it comes to summary judgment motions.  Only 3% - 4% of all cases are terminated on summary judgment.  (Table 12).  As noted above, 9% - 14% of all employment discrimination cases are terminated on summary judgment.

The report took the 276,120 civil cases filed in 2006 (and the 60,013 summary judgment motions) and narrowed them to 118,796 cases (and 20,697 motions) due to various reporting issues.  In all, they looked at 39,120 motions for summary judgment.

Will arbitration soon be banned for employment disputes? 

There appears to be a perfect storm converging in the area of arbitration.  The Wall Street Journal’s Law Blog asks today, “Is arbitration the new litigation?“  Referring to a positive article on arbitration written by the FT’s Patti Waldmeir, the post questions whether the pending Hall Street v. Mattel case before the U.S. Supreme Court will change things.  (The question is that case is whether the parties can agree to a more expansive appellate review of an arbitration decision by agreement.)  If the Court finds that the parties to an arbitration agreement can alter the provisions of the FAA, the decision might encourage creative employers to further refine their arbitration policies.

Perhaps the most significant change in the law of arbitration will come if Congress amends the Federal Arbitration Act to prohibit mandatory pre-dispute arbitration agreements.  Legislation was introduced in the 110th Congress in both the House (H.R. 3010) and Senate (S. 1782) in July 2007 to accomplish this.  The bills provide that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment . . . dispute.” 

Until such legislation passes, however, mandatory arbitration policies are still popular and generating collateral litigation.  The U.S. Court of Appeals for the Sixth Circuit held yesterday that continued employment was consideration for the implementation of an employer’s mandatory arbitration policy.  Lisa Seawright v. American General Financial Servs., Inc., No. 07-5091 (6th Cir. Nov. 13, 2007).