Category Archives: Stupid Lawyer Tricks

ADA Defense Counsel Bingo

A hilarious Graduation Bingo card has been making the rounds of Facebook, with squares like “ethnic name is awkwardly pronounced” and “someone in your line of sight is wearing Canucks gear.”  Evidently, the graduation was in Vancouver.

This inspired me to compose ADA Defense Counsel Bingo.  (MS Word version here.)MS Word Version at https://thoughtsnax.files.wordpress.com/2015/06/opposing-counsel-bingo.docx  Some of these are more common than others; all of these are real.

 

Finally – Supreme Court oral arguments are televised!

This is brilliant!

 

 

(h/t The Mahablog and my mom.)

However, I do have to point out that we were there first!

Image: photo of irresistably cute golden retriever puppy with the words "Title III of the ADA governs businesses like stores, restaurants, and theaters.

(Cross-posted at CREECblog.)

Hobby Lobby meet Jah Frederick Nathaniel Mason, III

I’ve been trying, through hypotheticals, to explain some of my frustration with the Hobby Lobby decision.  Luckily today’s WestClip brought a real-life example from D. Colo.

Hobby Lobby meet Jah Frederick Nathaniel Mason, III.

 The Hobby Lobby decision is frustrating primarily for magically turning legally-fictitious corporations into people of faith.  But it was truly specious for another reason, as well:  it was based on religious beliefs that were based, in turn, entirely on scientific fallacy.

Hobby Lobby’s objection to contraception is that some contraception is really abortion which contravened the religious beliefs of their executives.

[T]he company’s mission, as they see it, is to “operate in a professional environment founded upon the highest ethical, moral, and Christian principles.” The company’s “Vision and Values Statements” affirms that [the company] endeavors to “ensur[e] a reasonable profit in [a] manner that reflects [the executives’] Christian heritage.” It is therefore “against [their] moral conviction to be involved in the termination of human life” after conception, which they believe is a “sin against God to which they are held accountable.” The [executives] have accordingly excluded from the group-health-insurance plan they offer to their employees certain contraceptive methods that they consider to be abortifacients.
[They object to the ACA because] it requires them to provide health-insurance coverage for four FDA-approved contraceptives that may operate after the fertilization of an egg.These include two forms of emergency contraception commonly called “morning after” pills and two types of intrauterine devices.

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2764-65 (2014) (internal citations omitted).  The problem with this is — whatever their faith* — they got the science wrong.  The measures that the ACA covers — and that the executives fear — are not, in fact, abortifacients.  As an L.A. Times article summarizes — quoting the American College of Obstetricians and Gynecologists — neither IUDs nor “morning after pills” cause abortions.

So the “beliefs” of a legal fiction (the corporate entity) based on a scientific fallacy entitled the company to opt out of a law of general application.

OK, then.  Let’s see how this works in practice for a real live human being with religious beliefs he is seeking to enforce in court.  Take it away, Jah Frederick Nathaniel Mason, III:

Mr. Mason asserts nine claims based on his belief that the use of satanic imagery on the seals of government justifies his driving without a license because the seal on Colorado drivers’ licenses displays satanic images. He also apparently believes that, by following his religious beliefs in not carrying a driver’s license, he should not be charged with traffic offenses as a result.
[In addition], [h]e is suing the meter agent for issuing a ticket for a missing front license plate and calling the police, who had his car towed, despite his explanation that he considered himself to be a “religious sovereign and had conscientious objections to the image of mountains on the Colorado plates as they violate God’s commands.”

Mason v. Clear Creek Cnty. Sheriff, 2014 WL 4099326, at *2, *5 (D. Colo. Aug. 20, 2014).  Sounds reasonable.  Just about as scientific as the Hobby Lobby execs’ beliefs, and what’s the big deal of one guy driving without a license or license plate.  Not even close to the burden on society of permitting a corporation to exclude coverage of an entire set of benefits for its entire female workforce.

Predictably, Mr. Mason did not fare as well as Hobby Lobby:
Plaintiff cannot argue there is no legitimate governmental interest in requiring license plates on cars. Mr. Mason’s religious beliefs—whatever they may be—do not excuse him from complying with the State’s requirement that he display license plates attached to his car. See Colo.Rev.Stat. § 42–3–202(1)(a) (license plates to be attached to the front and rear of a vehicle); see also Colo.Rev.Stat. § 42–1–101 (licenses for drivers required). The requirement for attached license plates is valid and neutral—all Colorado drivers are required to have license plates on their cars. . . .  Mr. Mason’s claims asserted against the unnamed Denver parking management meter agent will be dismissed as legally frivolous.

Mason, 2014 WL 4099326, at *5.  He not only loses a case at least as well-grounded in religion and reality as Hobby Lobby, his case is deemed frivolous.

Given that the Supreme Court had already decided that individuals did not have the right to smoke peyote** or opt out of the social security system*** based on sincerely held religious beliefs, the sad take-away from Hobby Lobby is that legally-fictitious corporations in fact have greater rights of religious freedom that individual believers.

Welcome to the Roberts Court!
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 * Many have pointed out that, at the same time that Hobby Lobby was touting its Christian business principles in refusing to participate in a broad health insurance program that, based on the private decisions of insureds and their doctors, may result in use of contraception that Hobby Lobby believes to be — but in point of scientific fact is not — abortion, it is engaging in a wide variety of un-Christian business activities, including investing in companies that produce the type of contraceptive devices that it refuses to cover and purchasing massive quantities of cheap crap from China, which not only supports fairly un-Christian labor practices, but actively encourages actual — rather than imagined — abortion.  This would be like an inmate insisting on a kosher diet while ordering sliced ham from the commissary.

** Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990).

*** United States v. Lee, 455 U.S. 252  (1982).

New Rule: Remedial Scotch

New rule: when we arrive at a hotel at 2:00 in the morning — a hotel that has confirmed by phone and fax that it has reserved for us a room with a roll-in shower — to find, after unloading our voluminous luggage (shower chair; giant duffel; garment bag; suitcase; suitcase; computer wheelie; backpack), checking in, and tipping the helpful bellman who has transported this unGodly collection of luggage to the room, that the room has only a tub and that, in fact, no room with a roll-in shower is available that night (“night”), there will be a member of the ADA defense bar available on-call to secure alternative accommodations and to provide a nightcap of very very expensive Scotch.

These are the facts:

1.    The hotel had at least one room with a roll-in shower.

2.    The hotel confirmed — several times* —  that it had reserved a room with a roll-in shower for us.

3.    This was incorrect. When we arrived, there were no roll-in-shower rooms available.

4.    The hotel had at least one non-roll-in-shower room available — the one with the tub that they sent us to with our mule-train of luggage in tow.

5.    At least one of the rooms with a roll-in shower was occupied by someone who did not need it (this fact related to us by the night manager).

This is the law:

1.    Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, including hotels. 42 U.S.C. § 12182(a).

2.    Hotels are required to provide rooms with roll-in showers in proportion to the total number of rooms.  DOJ 2010 Standards for Accessible Design, Table 224.2.  I’m guessing that this hotel was required to provide at least nine such rooms; every hotel is required to provide at least one.

Image: Roll-in shower.

3.    Hotels are required to

[e]nsure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

    and

[r]eserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems.

28 C.F.R. § 36.302(e)(1)(iii) and (iv).

So there’s pretty much no question that the hotel violated the law.  And there’s no question that the violation had consequences: after flying across the country and arriving at 2:00 in the morning, Tim would not be able to shower when he woke up later that day.

The problem is, while there were consequences for Tim, there will be no consequences for the hotel.  Title III of the ADA has no damages remedy.  Truth is, we would be fairly unlikely to bring a lawsuit for damages.  We didn’t want damages; we wanted a useable hotel room.  We wanted to be able to do what every weary traveler wants at 2:00 a.m. — to check in and go to sleep; NOT to travel up and down the elevator with our piles of luggage, have a long — pleasant but unfruitful — conversation with the night manager, wait through long sessions between the night manager and his computer terminal, finally settle for the (inaccessible) room at 3:00, and (Tim) be unable to shower the next morning.

In other words, we just wanted the system to work.

But wait!, you say, Title III has an injunctive remedy!  The court can order the system to work, right?

Well first of all, of course, only after a lawsuit, which can take anywhere from two to 12 years.  By then, we’d be home and Tim would have showered, repeatedly, in our very own roll-in shower.

But more importantly, the hotel, in a case like this, would almost certainly argue** that Tim has no standing to sue unless he can specify the date on which he will return to this precise hotel. And while many people travel repeatedly to the same hotel, many don’t.  That’s the point, right?  When you’re planning travel to a new city, you want to be able to pick up the phone or go online, make a reservation, show up, and have a room you can use.   The problem is, under the current system, there is very little incentive for this system to work for people with disabilities:  no damages remedy; and no injunction unless you plan to come back to the very same hotel AND have the time and energy for a lawsuit.  Given this, the hotel knows that it doesn’t really need to comply.

So — new rule: every ADA defense lawyer who makes these bone-headed standing arguments must register on an ADA Compliance Resolution List and provide a number where they can be reached 24 hours a day.  When one of these damagesless, standingless events occurs, they must be ready to solve the problem, provide the room, and send a nightcap of very very expensive Scotch.

Anyone want to help me draft the bill?

[Cross-posted at CREECblog.]

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*  When we make hotel reservations, we can’t just go online and request the room we want.  We call, we have a long conversation about roll-in showers (“Are you sure?  You’ve seen the bathroom in that room?  Can you ask housekeeping to check?  I heard you roll your eyes — just go check please.”), we often call back at least once, and we send a confirming fax, which we then have on hand when we arrive at the hotel.  None of that matters if it’s 2:00 a.m. and there simply isn’t an accessible room available.

** Indeed, this hotel has made this precise argument with respect to violations known to exist in many of its hotels.  The court held that the plaintiff “must assert an intent to return to the particular place (or places) where the violations are alleged to be occurring.”  Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013).  So there is no standing to make them fix the problem in other hotels unless this plaintiff is planning to go to each of them?  Which means, of course, that none of the other hotels in the chain will be fixed until other wheelchair-using hotel guests — in this case, 56 other guests at 56 different hotels — encounter the barriers and sue.  Or unless one guest has the foresight to bring a class action, adding to the length and complexity of the suit and the elapsed time until a discrimination-free stay can be ensured.

Image from the webpage of Fine Design Contractors of Somewhere, MN.

Dog Bites Man*

Justice Scalia Makes Epic Blunder In Supreme Court Opinion.

“This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting [National Ambient Air Quality Standards],” Scalia wrote in his dissent, which was joined by Justice Clarence Thomas.

The problem: the EPA’s position in the 2001 case was exactly the opposite.

More or less epic than basing an entire judicial career on the fallacy that he can accurately interpret the intent of the drafters 100% of the time and that, coincidentally, it favors the desired conservative legal outcome 100% of the time?

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* No dogs were harmed in the drafting of this post, though a number of them may have been insulted by the unfortunate comparison to Justice Scalia.

Prior litigation: admissible; evidence of life with a disability: inadmissible.

[Cross posted at FoxRobBlog, which is involved in some sort of DNS attack.  Whatever that is.]

In Yates v. Sweet Potato Enterprises, Inc., 2013 WL 3662645 (N.D. Cal. July 12, 2013), the plaintiff — a guy who uses a wheelchair — alleges that he encountered barriers at a Popeyes restaurant.  In the order, the judge addresses questions from both the plaintiff and the defendant about what evidence can be used at trial.  In so doing, she does two things that are stunning individually, but that — taken together — turn the plaintiff into the defendant, defending his right to equal access to the businesses that non-disabled people patronize everyday without a second thought.

First, the court grants the defendant’s motion to exclude “sympathy-inducing evidence regarding Plaintiff’s disability” that is not directly relevant to his experience at Popeyes, including “testimony regarding his day-to-day hardships.” The court just doesn’t see how that’s relevant.

Second, the court denies the plaintiff’s motion to exclude evidence that he has filed a large number of other access lawsuits.

Pause.

If people who use wheelchairs filed a lawsuit challenging every illegal barrier they encountered each day, most would file — I’m guessing — five to ten lawsuits each day.  Instead, most people go about their days, swearing at the illegal and thoughtless barriers, but without the time or resources to file those tens and eventually hundreds of lawsuits.  A brave and energetic few take the time to bring the lawsuits that remain necessary — twenty years after the effective date of the ADA’s architectural provisions and thirty years after California’s — to achieve a modicum of compliance.  For their trouble, these people are dubbed — in the press and in court — “serial litigators.”

The Ninth Circuit — the court with appellate authority over the Yates court — has recognized the role of these brave and energetic people in enforcing the law:

Courts must tread carefully before construing a Disability Act plaintiff’s history of litigation against him. As we have noted more than once, “[f]or the [Disabilities Act] to yield its promise of equal access for the disabled, it may indeed be necessary and desirable for committed individuals to bring serial litigation advancing the time when public accommodations will be compliant with the [Disabilities Act].” We must therefore be “particularly cautious” regarding “credibility determinations that rely on a plaintiff’s past [Disabilities Act] litigation.”

Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010) (internal cites omitted; emphasis — though not nearly enough — added).   One of the cites I pulled out to make that quote more readable was Sam Bagenstos’s excellent article The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L.Rev. 1 (2006).

So despite the fact that the Ninth Circuit has instructed courts to be particularly cautious about credibility determinations relying on past litigation, the Yates judge — without citing Antoninetti — holds that

Plaintiff’s  filing  of  well  over  a  hundred  disability  lawsuits  in  which  he  alleges  identical injuries bears directly upon his credibility.  . . . Plaintiff’s  alleged  scheme  to  generate  income  through  the  serial  filing  of  lawsuits  in  an  effort  to  extract  settlements  from businesses, may, in fact, be probative of his credibility.

More than simply disregarding controlling precedent, this decision has the very immediate and apparently intended effect of converting Mr. Yates from a real, live person who navigates his day to day world  in a wheelchair to a greedy serial litigant, judged on the fact that he has filed other complaints, the legitimacy of which he will likely not be able to prove before the jury.  (This question is not addressed in the decision, but my strong guess is that the defendant will be allowed to show the fact of hundreds of lawsuits, while the plaintiff will not be permitted to show that, in each one, the facility in question was indeed out of compliance.  That would, in essence, require hundreds of mini-trials within this single trial.)

On another level — about which I’ll write more later, as I have to get back to the other outrages on my desk — this is part of the broader scheme on the part of the business world to spin the fact that — 20-30 years after the federal and state standards took effect — there is still massive noncompliance.  When you’re really really wrong, accuse the other guy of “serial litigation” to correct your many many failures.

Sit! Stay! Code!

Saguaro is all set to receive legal software training.

We recently needed to purchase a fourth license for our favorite legal software to install on our remote server.  Unfortunately, there are only three of us (me, Tim, paralegal extraordinaire Caitlin) and the company would not issue two licenses to one person.  I emailed our rep, “Hmmm.  No.  Just the 3 of us.  And the dog:  Saguaro.”

Demonstrating why we love this software and this rep,* she responded:

Ok, so……all kidding aside…I am going to have to assign the license to Saguaro.  LOL!  …  He is going to be contacted for training!

He got his license in the next email:

Dear Saguaro:

Thank you for being a registered licensee for [Software].

Here’s the link to download our … Suite of Software Tools:

. . .

Here is your [Software] Registration Information:

Registration Name: Saguaro Fox

Registration ID:

And, as promised, he was contacted for training.

Hi Saguaro,

My name is [Name], I work in the [Software] training & support department and will be your go to resource for [Software] questions.

I thought I’d check in to introduce myself and see how you’re doing with [Software] tools so far.

And so on.

If Chinook can learn legal research

Chinook on desk

Chinook on bookcase

Saguaro can master this software!

AR184253

And for your entertainment, my other attempts to pose Saguaro and a laptop.

AR184254

AR184256

Aaaaaand “Why do you keep making me put my paws there?  I’m done now.”

AR184259

**********

*Both the software and the rep will remain nameless, so as not to get anyone in trouble.  Suffice it to say, it’s not Summation:  in my experience, their reps have no sense of humor whatsoever.

Another report from the frontlines of Stupid Lawyer Tricks.

My awesome co-counsel and all-around cool person Carrie Lucas was taking the deposition of our opponent’s expert.  Opposing counsel was objecting to pretty much every question, which was getting tiresome not to mention sort of coachy.  Carrie decided to call him on it.  Take it away, Carrie!

(BY MS. LUCAS)  [Reads verbatim from expert’s opinion about a document in the case.] Do you know which document that is?

[OPPOSING COUNSEL]:  Objection, beyond the scope and compound.

MS. LUCAS:  I’m trying to understand how this is beyond your scope, Mr. [Opposing Counsel], given that I just quoted from her report.  So can you please explain that objection so that I have an opportunity to try to fix it, given that I quoted from her report?

[OPPOSING COUNSEL]:  I’ll withdraw the objection.

MS. LUCAS:  Thank you.

[OPPOSING COUNSEL]:  Actually, I’ll withdraw the beyond the scope.  It’s still vague and compound.

MS. LUCAS:  While she’s looking, if you could help me out on the vague objection, because I’m also not understanding how asking her to identify the document that supports her position is vague.

[OPPOSING COUNSEL]:  It’s vague in that it’s compound.  You’re asking her to look for the document to support her position for at least two or three different compositions.

MS. LUCAS:  That would be a compound objection, not a vague objection, but I am happy to have all of the parts, if she can find any document that will support any of that.

Unfortunately, TextMap does not have an annotation option for “snorted my seltzer into the keyboard while reviewing.”

Groundhog Day in the Taco Bell case

Remember the movie Groundhog Day, when Bill Murray wakes up every morning and has to relive the same day?  That’s what it’s like to litigate our case against Taco Bell.  For example, Taco Bell has argued in three different motions — in 2007, 2009, and 2011 — that our case is moot.  The court rejected the argument each time, but I’m guessing that won’t prevent them from making the same argument again.

groundhogdayclock

The latest example is Taco Bell’s argument that, because our complaint listed only a handful of the barriers at issue, they have no idea — ten years into the litigation — what the case is about.

When they made this precise argument two years ago, we pointed out the many opportunities they had had to learn about the barriers at issue, including:

  • The plaintiffs’ 2003 depositions;
  • The plaintiffs’ 2003 declarations, filed with the Court;
  • The 2005-2006 comprehensive, collaborative, court-sanctioned, survey in which a jointly-selected expert visited all of the stores and reported to both parties the barriers he found.  (Spoiler alert:  there were a lot of barriers!); and
  • The 2010 list of barriers we prepared and filed with the Court.
    • Despite this wealth of information, Taco Bell’s 2011 brief claimed dramatically that

Taco Bell was forced to literally guess as to the precise nature of the alleged barriers that plaintiffs intended to challenge.

Literally guess?  Literally* guess?

In response, the Court held:

For [Taco Bell] to argue . . . that it was not placed on notice of the claimed violations because not all the barriers were listed in the [complaint], is to elevate form over substance.

Moeller v. Taco Bell Corp., 816 F. Supp. 2d 831, 852 (N.D. Cal. 2011).

But when we woke up on March 5, 2013, and found Taco Bell’s latest motion in our inboxes — claiming it was not “on notice” concerning the barriers in the case — well:

groundhogdayclock

So we have once again explained all of the opportunities that an observant attorney has had to perceive the barriers at issue, that is, all of the bullet points above along with a second round of plaintiffs’ depositions.

Any guesses when we’ll all stop waking up at 6:00 on February 2 and find redemption in the arms of Andie MacDowell or perhaps behind the wheel with Punxsutawney Phil?

6a00d83451d9f869e200e5502658278834-800wi

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* I’m thinking this calls for a quick rendition of “I do not think that word means what you think it means.”  On the other hand, it is possible that Taco Bell’s attorneys had simply never read these documents and were, in fact, literally guessing.

Mamas, don’t let your babies grow up to be lawyers.

From a recent deposition.  “OC” is “opposing counsel.”

McSwain subpoena

To experience this enlightening bit of human interaction, I flew to San Francisco, stayed overnight, met with my expert, sat through an hour and a half deposition of which this exchange was actually one of the more productive, and flew home.

It was well worth the trip, though, because I got to hang with Silas and Lorenzo and their awesome parents.   Drawing!  Giggling!  Home-made pizza!  Law gossip!