I have no academic study to verify this, but I have concluded that many bad employers have a sixth sense for retaining thuggish employment lawyers who serve as their willing executioners of workers who file complaints about working conditions, blow the whistle on ethical and legal lapses, or attempt to organize a union.
More than an obligatory disclaimer
There are many management-side employment lawyers who provide wise counsel to their clients and who practice law in a manner worthy of emulation.
They safeguard their clients’ legal interests while encouraging them to follow the law. They understand that employers who treat their workers poorly probably suffer in terms of the bottom line as well. They believe that if a client faces a meritorious lawsuit, then settling the claim fairly and promptly usually benefits everyone, but they will vigorously contest a weak or groundless claim.
Nevertheless…
Unfortunately, not all management-side employment lawyers practice in this manner. Indeed, the legal universe somehow has a way of matching some of the worst employers with some of the most thuggish employment lawyers.
These attorneys may be fine parents, serve on non-profit boards, and be a load of laughs at the neighborhood barbeque.
However, once they put on their lawyer suits, they are utterly heartless. Because they have superior numbers and resources to defend claims against their clients, they exercise their power with an iron fist.
They distort, intimidate, and delay. They take a worker’s minor faults or mistakes and elevate them into major deficiencies. They help their clients sweep horrible behaviors and actions under the rug. They use legal process to deplete, torture, and humiliate everyday workers.
Some of them appear to harbor an eliminationist mindset, at least in the way they casually destroy another’s livelihood and well-being. They regard a complainant — whether a clerk at a retail store or a mid-level executive — as the disruptive Other, a troublemaker who threatens the client who pays them so handsomely and — by extension — challenges The System in which they’ve succeeded.
And here’s how we get them
There’s an underlying sociology to how some lawyers get this way. They often are recruited right out of law school by law firms that practice in this mode. They are hardworking, ambitious, and intellectually sharp individuals who have benefited mightily from being team players, frequently coming from privileged backgrounds (or they are wannabes), but without a lot of life experience.
Very few have known what it’s like to be in a “minority,” and if they have, they want to distance themselves from that experience. Their natural loyalties are to the Establishment; hence, the clients they are drawn to represent.
Thus primed, they become conditioned by a law firm or corporate culture that regards individual workers as commodities. They become remarkably unreflective about the consequences of what they do, because in their top-down worldview, people on the receiving end of their negative actions simply count for less.
A moral question, if not an ethical one
I realize these are harsh words. And I cannot reiterate too strongly that they do not apply to a significant majority of lawyers who represent employers.
That said, this interpersonally abusive mode of employment law practice has led to a long, sad trail of broken careers and psyches of workers who have been crushed by these handmaidens of employer cruelty. I believe we need to question the morality of practicing in this manner, even if such practice technically stays within the ethical rules that govern the legal profession.
Minding the Workplace 
I really appreciate Prof. David Yamada’s blog and analyses…they ring true instances I am familiar with first-hand. Especially pertinent in public agencies with seemingly unlimited legal resources, and there is much at stake to preserve status quo to the destruction of good workers. It’s an unfair fight and cannot be called justice. It’s market justice with the law being a commodity to those who bid the highest price — that’s not the American promise.
David, it’s funny you mentioned not a lot of life experience. Just a few weeks ago I predicted that at NUSL I’ll find on average those interested in management side will have less work experience after college than those interested in union/worker side. I’m curious to see if there’s a pronounced difference in age/experience and protected class/minority distribution between the two groups.
(I did see that the in-house counsel for labor & employment relations at a certain non-profit I worked for went straight from undergrad to law school. This person apparently thinks all the union employees are idiots, having argued to them that there is no “negative financial consequence” to an employee whose contract expires!)
I have had experience with several of this type. I had to talk the first into settlement. We could have totally humiliated the worker at great cost to the organizaiton or we could settle for a fraction of that amount. I won that argument, even though this guy wanted to spill a little blood.
I stood toe to toe with the next lawyer and demanded to know what he was going to do about a potentially violent employee who had by then psychologically terrorized 3 of my female employees. I finally said “does this person have to hit someone befor you will act” The reply was “yes”.
A third (different) one told me to stop documenting in writing — I assumed that was so they could blame me if my predictions proved correct.
Based on my anacdotal experience that is at least 30% of the organizational lawyers with whom I have had to deal.
This is an excellent picture of the tragedy that occurs in the lives of the many real people (and their families, friends and supporters) who watch the legal process deteriorate into a competition of NOT right vs wrong but of Winning for the sake of winning and the way that win translates into the corruption represented by bottom-line dollars.
Of course, the same can be said about some plaintiff’s-side employment lawyers too — using “Rambo”-like tactics to turn simple disagreements into a crusade. Unfortunately, the majority of attorneys on both sides who recognize that being lawyer means we are officers of the court as well, don’t get the credit we are due.
I think it’s reasonable to suppose that the odds are stacked againt “simple disagreements” making it to litigation versus serious claims not even reaching settlement for lack of attorneys willing to represent would-be plaintiffs on contingency, especially up against the greater resources available to the employer’s greater resources and those of their in-house or retained counsel.
I had a coworker who was rapidly promoted, had excellent evaluations, then was laid off within 24 hours of disclosing her pregnancy. She didn’t find any help. She was also not only a union employee, but a union steward. I wish I could say I didn’t know of similarly egregious cases that never got recourse, but I’ve seen plenty since graduating from college.
This is so true. I had four depositions. The judge intervened in the last one and shut it down. They would schedule meetings with expert witnesses at unusual times. Their expert witness would be rude when you attempt to make a more convient schedule. They wrote up reports that did not match the interview. During deposition my attorney questioned the Attorney’s from the Attorney Generals office and asked if the plaintiff wrote the questions? The response was yes. One of the questions was, Do you eat cheese? During the trial the bullying from the Attorney General’s office and the plaintiff was so bad that the Judge had them wait on the 9th floor until they were called into the court room. The trial was held on the 4th floor of the Los Angeles Court house. It got to the point were the Attorney General objected to questions my attorney would ask me. They could not even give the judge a valid reason for the objections. Yet, the look on their faces when the jury came back with their verdict, Priceless
There’s no question about it… this does happen as it has happened to me. The real dilema is, what do we do to ensure that EVERYONE has EQUAL RIGHTS to work in a work environment free of bullying and abuses? Perhaps corporations that allow these types of behaviors should be fined and a third party non-biased review committee should oversee complaints.
Thank you, everyone, for your comments. I spent a couple of months drafting this article, and I appreciate the thoughtful responses in return.
Because I’m waiting for a flight, I can’t give all of them the personal response they deserve, but a couple of points:
I do agree that some plaintiffs’ employment lawyers try to make mountains out of anthills, and they have the effect of draining employers’ resources and fueling cynicism toward employee lawsuits.
But I also think we have to keep front and center the huge imbalances of power and resources that are inherent in this area of legal practice. The same power that corrupts some managers and employers has the same effect on some management-side employment lawyers. And if you’re on the receiving end of the accompanying tactics and behaviors, one has the palpable feeling of being battered and abused, and I use those two words with precision in this context.
David,
Have a great flight.
Also, this gives me an opportunity to thank you for the personal responses you so generously give us. This has not gone unnoticed.
I appreciate the respectful tone of the forum — but I strongly disagree with the underlying assumptions as to what “motivates” employer-side defense attorneys — particularly that these motivations reflect underlying social struggle.
Employment law — much more so than other areas of practice — is increasingly an insurance event. EPLI policies strongly discourage many of the practices complained of here — marshalling superior resources with the goal of overwhelming those with more modest resources rarely makes sense when you’re dealing with being reimbursed by an insurance company.
Setting aside the practical issue that employment disputes are driven largely by cost containment concerns, casting employment litigation as another form of dehumanizing class struggle seems off to me. Defense attorneys are not guardians of the capital class. Class struggle is almost always besides the point. Employment claims are rarely about the material nature of one’s work and its value in the marketplace (Yes, work is a commodity with a marketplace. Unions don’t negotiate over “esteem”, they bargain over the value of work in dollars and cents.)
Employment litigation isn’t about the value of work — claims most frequently center on (x) technical violations (which draw employer ire because expansive regulation of the work relationship is hard to keep up with when you’re running a business) or (y) allegations of ugly human behavior like racism, sexism, or disregard for safety. In one instance, the employee is playing “gotcha” — irksome behavior when liquidated damages are in play — and in the other, the employee is throwing some real heat. Why are we surprised that employers get angry for being accused of being bad people? Lay on top of this dynamic the issue that plaintiff’s counsel and plaintiff have a profit motive and you will get bad behavior now and again.
Officers of the court have a responsibility to govern the process– and courts have a responsibility to govern the lawyers. But litigation is not a joint investigation for the truth– it is offense and defense– and the employer is the accused — in public documents.
Very few employers seem themselves as wearing black hats and fewer twirl their mustanches. They see themselves as in need of a defender. So if I swing my brief case, its because my client feels affronted. We’re not attacking plaintiffs. We’re defending employers.
“Marshalling superior resources with the goal of overwhelming those with more modest resources rarely makes sense when you’re dealing with being reimbursed by an insurance company.”
I disagree: Wal-Mart v. Dukes.
“Setting aside the practical issue that employment disputes are driven largely by cost containment concerns,”
Businesses and organizations often fail miserably to act along rational, cost-benefit reasoning when they engage in what you refer to as “ugly human behavior.” There is plenty of evidence that employers will keep managers they consider superstars on board even when they are a considerable liability in terms of lawsuits, not to mention less tangible drags on their bottom line such as high turnover and rock-bottom morale. (See for example Robert Sutton’s The No Asshole Rule.) You may see more rational behavior when you’re angling for settlements with the plaintiff, but that’s only because the costs are more tangible to the employer in the litigation stage, and there are attorneys imploring the employer to finally do the cost-effective thing for once.
“Lay on top of this dynamic the issue that plaintiff’s counsel and plaintiff have a profit motive and you will get bad behavior now and again.”
Generally the profit motive is the entire reason for the employer’s existence and often the rationale behind their behavior that brought the matter to litigation when it comes to what you refer to as “technical violations” (Wal-Mart comes to mind again, as well as the local chain Upper Crust — another notorious repeat violator of wage and hour laws). For most of us, our most lucrative asset by far is our ability to earn money through work. When employers illegally and/or immorally take that away, I’m not so sure “profit motive” is the best way to describe the response.
“We’re not attacking plaintiffs. We’re defending employers.”
OK, but I would argue that many employers attack their employees, and many employer-side attorneys therefore defend the aggressor.
Kim, whoa, methinks you’re going to be one fine lawyer!
I’m not hugely enthusiastic about defending Wal-Mart (both literally — as they have a reputation as a very tough client — or figuratively) and I’m not sure Wal-Mart is emblematic of employers, generally, but Wal-Mart wasn’t the one trying to out-leverage the other side in the Dukes case. Wal-Mart didn’t create the massive class in the Dukes case. Dukes, et al. did. Wal-Mart’s position — vindicated by a unanimous Supreme Court — was that Dukes, et al. should pursue smaller, individual claims, rather the blunt force class action.
Your point very well may be that Wal-Mart prefers fighting the smaller case– which is no doubt true — but the Dukes class raises an issue of basic fairness to other way — regardless of Wal-Mart’s relative size. We can’t just skip steps on process to even the playing field.
I’m also hugely skeptical about this idea that employers don’t focus on cost until suits are filed– look around at the number of HR consulting companies that have sprung up in the last decade. Employers are increasingly giving up basic day-to-day legal counseling precisely because the costs of HR is seen as a drain.
Kim – I was speechless. Thanks for helping me with your reply.
I would add that the scenarios we are discussing end up in court precisely BECAUSE the employer has been attacking the employee for quite awhile.
“vindicated by a unanimous Supreme Court — ”
Please get your facts straight: Wal-Mart v. Dukes was 5-4. And if you look at their pay and promotion statistics, no reasonable person or statistician can conclude there’s no substantial discrimination going on. Furthermore, the reason Wal-Mart won was not because they were cleared of wrongdoing in terms of this type of abuse, it was because one more person than not found reasons to argue why the class action did not follow federal rules of civil procedure.
To argue that Dukes created the class action, not Wal-Mart, is like saying the bloodshed of the civil war was all the slaves’ fault. Obviously neither would’ve come around without the egregious repeated violation of the rights of the workers in question have to the full fruits of their labor.
“I’m also hugely skeptical about this idea that employers don’t focus on cost until suits are filed– look around at the number of HR consulting companies that have sprung up in the last decade.”
I don’t see at all how that evidence supports your contention that organizations act according to sound economical reason when it comes to dealing with bad managers and other employees. In fact, the mentality that someone outside the company, largely ignorant of its culture, can fulfill all of its HR functions well seems to support my point more than yours: the focus is all on the tangibles that feed into the bottom line, at the expense of factors harder to quantify, such as the reduced morale that abusive managers create.
Also….in the U.S. we have to start with the foundation of at-will employment and the overwhelming power advantage it gives to employers anytime that good jobs are scarce. Add to that the tie-in of health benefits to employment status and you have a playing field instantly tilted toward the employer, and that’s even before the lawyers step in.
Let’s straighten out the facts. Dukes was 9-0 on the issue of certification under 23(b)(2) and 5-4 on the commonality requirement. I’m sure you are not surprised that I agree with both holdings — but, more importantly, the question before the court really wasn’t whether “substantial discrimination was going on.” The question actually before the court was germane to the original post — which is abuse of process to vindicate a particular side’s position. Absent proof of a top-down decision to pay women less (not offered), Dukes, et al. is thousands of different cases, with different facts — and the defense (whether its Wal-Mart or somebody more sympathetic) is entitled to due process as to each allegation. We can’t skip steps to achieve policy goals. That’s not due process.
As to the emergence of outsourced HR (which we have some common ground on — I think outsourced HR rarely works, for reasons of lack of expertise and for reasons of lost culture), the point was and is that your assertion that employers only become reasonable once they start seeing legal bills just doesn’t comport with the reality of the marketplace. Employers don’t want to spend on HR/Legal, whether its day-to-day matters or litigation or ever. The enthusiastic employer-litigant willing to throw tremendous resources at defending employment claims is very, very rare. And even when the enthusiasm is there — the right to direct litigation frequently is not. An insurance adjuster in New York City is making the decisions — and not for unnecessarily aggressive legal tactics. In the average insurance adjuster’s view, MSJ is a luxury and MTD is a flight of fancy.
Finally, as to power disparities in an at-will world (appropriate in my view, given that the job creator is the one that invests and risks to create the job, not the employee) — I would submit that there is legal process — adopted as the official position of the U.S. Federal government– available to create a just-cause employment relationship. Organize, certify, and bargain.
If you want to talk about how we need a stronger set of penalties for retaliation against union organizing, I’m game. You want an activist NLRB, swell — I’d much prefer to practice labor law. If you want to talk about de-tethering health care from employment, my clients would be thrilled. But this is all far afield.
The original post was that “bad employers” and their “thug attorneys” are out there beating up on plaintiffs through abuse of process and worse (it happens, but rarely), and that “thug attorneys” do so out of a “wannabe” desire to part of the capital class (that part is just speculation and worse). Thug behavior is de minimus in my experience — and sorted out at least equally between the plaintiff and defendant bars.
I do think I made it clear in my original piece that I am not assigning these behaviors to a majority of the defense bar. But as some of the comments attest, this is not rare behavior. And while plaintiffs’ counsel certainly can make life difficult for employers and their attorneys, it is rare that anyone’s livelihood on that side of the equation is so directly at stake.
I think we’ll have to agree to disagree on some of these issues about the balance of power between workers and their employers. But I thank you for adding thoughtful perspectives that contribute to our understanding of this topic.
The good folks at Workplace Prof, a blog originally for law professors but now read by many lawyers and law students, graciously posted a note about this article, with some interesting comments to follow. Here’s the link:
http://lawprofessors.typepad.com/laborprof_blog/2011/07/yamada-harsh-words-for-some-employer-side-lawyers.html#tp
“Dukes, et al. is thousands of different cases, with different facts — and the defense is entitled to due process as to each allegation”
I agree the facts are variable, but they follow a pattern, and more importantly the allegations are the same, so there is no need to defend against “each alligation.”
You write that employees should organize into unions to equalize power disparities, and yet that is exactly what employee class actions do.
I also feel you overestimate the ability of unions to level the playing field. Unions are not well-equipped for our postmodern economic landscape. (I believe David wrote on this subject in part of one of his journal articles, mentioning steep increases in outsourcing and temp work while workers move between “regular” jobs and employers more and more quickly.)
As for your HR cost containment points, you keep mentioning the litigation stage. Employers (and HR when present, because this is their domain) squander the opportunity to avoid the expenses of bad behavior in their organization when it first arises. It is their responsibility and in their interest to nip these situations in the bud, but they often do not.
There is more I’d like to say but typing this out with my thumb on light rail is no fun, and I think David’s agree to disagree resolution is apt at this point.
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