August 27, 2003
You often hear debates about frivolous or abusive litigation that stay on the level of abstraction or generality, or focus on outrageous verdicts where the plaintiff was the one who did something horrible or complained about something trivial. But an aspect that gets missed is how many truly meritless cases get filed, and how many of those are enabled, aided and abetted along by vague theories of law, liberal pleading and discovery rules, and (in various types of tort cases) hard to disprove allegations of psychological harm or emotional trauma. The collective cost of this stuff, to the economy and the judicial system, is tremendous.
Read this opinion from the United States District Court for the District of Columbia (opens as PDF file) -- in, what else, a case charging disability discrimination, sexual harrassment and retaliation, plus a few other brainstorms of the Democratic Party in the late 80s and early 90s -- to see a particularly lethal cocktail of these elements and how they appear to have been badly abused by a dishonest plaintiff. As you are reading this, reflect on the fact that the federal agency at issue has been stuck defending this case since March of 1998, and on how much lawyering and how many hours of time of not only attorneys but witnesses, doctors, investigators and a federal judge were wasted by this one individual litigant.
Now, you can say that this is an extreme case, and it is, at least in the extent to which the plaintiff's misbehavior was caught out, documented and sanctioned. But talk to any employment lawyer -- whether they represent the government or private business -- and you will hear story after story of people who use litigation like this to cover for the fact that they are just unable to bear the adult responsibilities of the working world, or to squeeze some extra dollars out of a company that had layoffs and had to pick somebody to let go.
great link, and a subject close to my heart. i'm a lawyer in the public sector and you would not believe the magnitude of this problem particularly in the discrimination realm. take what you think to be the scope of this scourge and apply a factor of, like, twenty. whether federally employed law abusers outnumber their private sector counterparts i don't know.
i know a dozen civil AUSAs around the country who have to deal with these kinds of cases and they uniformly tell me that 5 out of a 100 have anything close to a sniff at meritoriousness. the 5 that pass the laugh test are ones where the alleged discrimination is false but the managerial types are crusty and curmudgeonly and will look bad in front of a fact finder so they have a kind of generic free floating merit to them.
all discrimination plaintiffs are hopelessly outraged and cling like grim death to their self image as oppressed victims. they never settle and scorch the earth in ways and for lengths of time that would make a carl icahn litigation team proud.
in my experience the only area of the law that yields anything like the folly of discrimination is the Americans With Disabilities Act. example: an AUSA here in DC had an ADA case in which the plaintiff won a $90,000 award because an agency did not make reasonable accomodation for his disability. "and what was that disability?" you reasonably ask.
his disability: he could not get along with his boss.
my brothers, a federal district court judge permitted that case to be tried. leading me to conclude that if there's anything worse than an abusive discrimination/ADA claimant it is the venerable jurist that enables them. and there are plenty of them too.
ninety large. i weep man, really, my bitter tears of frustration fall freely like rain