More Americans are applying to law school this year (see “Law School Is Hot Again as Politics Piques Interest” from the WSJ, for example).
I wonder if all of the publicity around litigation following work-related sex is playing a role. After all, every plaintiff needs a lawyer and every defendant also needs a lawyer.
One new wrinkle that could make a career in law more lucrative is that folks have established a fund to pay plaintiffs’ legal expenses (described by the New York Times as a “legal defense fund, backed by $13 million in donations, to help less privileged women”; the word “defense” is curious since the cash will be used to paid to lawyers who are on the offense by representing plaintiffs).
This has the potential to transform workplace sex litigation into the same kind of opportunity as divorce litigation. From “Divorce Ligation”:
From a more practical standpoint, divorce litigation is more intense than other kinds of civil litigation because, depending on the state, one person can be designated by the judge to pay the legal fees for both sides. “Once my plaintiff gets a hint from the judge that she’ll be getting a fee award,” said one attorney, “she no longer has any motivation to settle. The lawsuit and trial are going to be free for her and anything she gets in the final judgment is gravy.” Another lawyer said “Most civil lawsuits end when each party has spent about as much on legal fees as the amount in dispute. By that point they’ve both learned their lesson that litigation generally makes sense for lawyers, not for litigants. In divorces, however, since all of the fees are being paid by the defendant there is no reason for the case to end until he runs through his savings, what he can borrow from friends and family, and what he can borrow from the bank.”
A competent family law practitioner in the Boston area, where this kind of system prevails, can easily earn $1 million per year.
[Note that this is very different from a contingent fee system in which a plaintiff’s lawyer gets paid if he or she wins. The risk of losing and not getting paid anything (and, in fact, typically being on the hook for some expenses) limits the number of cases that are filed. With a “legal defense fund” paying the lawyer who sues an employer on behalf of, e.g., someone who had sex with the boss but didn’t get a hoped-for promotion, neither the lawyer nor the victim/survivor has anything to lose.]
Readers: What do you think? No society in the history of humanity has ever devoted as much of its resources to litigation as the U.S. does, but we cranked out so many lawyers that, after the collapse of 2008, there was a surplus. Will the #metoo movement help turn this around to the point where going to law school becomes rational?
How could $13 million be enough money to do much of anything, much less transform an industry?
I’ve sometimes wondered how easy it would be for two opposite-gender coworkers to conspire to create a phony sexual harassment allegation with the goal of splitting a large settlement from their employer.
@Smartest Woman …
Most of the money from the settlement will probably end up in the lawyers pocket.
Smartest Woman: This is a great question. I don’t think that we need to limit this to opposite-gender, though (see Kevin Spacey, for example). Worker A is nearing retirement and has basically nothing to lose. Sends some open-to-interpretation emails to Worker B, e.g., “can we get together for dinner tomorrow night?” Worker B says that the emails have to be understood in the context of unrecorded oral conversations that they’ve had where Worker A professed love and sexual interest. Worker A (predictably) righteously denies that these conversations occurred. Employer pays voluntarily or after being ordered to by a judge.
The cost shifting in matrimonial litigation can be counterproductive but it is probably a factor in very few divorces since most people getting divorced don’t have a lot of money to fight over. You hear about some high profile cases where the lawyers make out well but probably very few lawyers make much money handling divorces. The 13m “legal defense fund” could fund say a dozen substantial lawsuits so it is dubious that this fund will revolutionize anything.
Smartest Woman: It might work if the designated harasser is the designated victim’s supervisor, has not received sexual harassment training, the two are smart enough to come up with a solid story, and the two are good enough actors to convince everyone involved that the harassment actually occurred. In order to win they must prove (1) that harassment occurred, and (2) that the harassment was pervasive or (in the case of a supervisor) that the employer did not exercise due diligence in the prevention of sexual harassment. Even in the case of a supervisor this is going to be difficult to prove if the problem was never reported to HR. If it is reported to HR, then the designated harasser risks being fired and collecting nothing.
http://www.perkins-lawoffice.com/blog/2016/08/high-burden-of-proof-makes-sexual-harassment-cases-difficult.shtml
Neal: I don’t think that you’ve demonstrated a weakness in the Smartest Woman’s idea. In the first scenario that sprang to mind, the emails are ambiguous (as are most things in this world). If the company doesn’t fire Worker A they have to pay Worker B for sex liability. If the company does fire Worker A (who was, remember, about to retire), they have to pay Worker A for wrongful termination (there was no clear evidence of sexual misconduct, only ambiguous emails and the self-serving testimony of Worker B), age discrimination, etc.
Fox News is calling it a “defense fund” as well:
http://www.foxnews.com/entertainment/2018/01/08/blanca-blanco-responds-to-criticism-after-ignoring-all-black-dress-code-at-golden-globes-shaming-is-part-problem.html
To Neal’s question at the top about whether $13 million can move the needle on a sizable industry (roughly $44 billion per year spent on divorce, alimony, custody, and child support litigation, for example; see http://www.realworlddivorce.com/InOurEconomy ), the obvious answer is “no”. However, the $13 million was raised quickly and these may be considered early days in the evolution of American sex-at-work litigation. With every working American who has ever had sex or ever heard someone talk about sex now a potential plaintiff, it seems like the legal industry could expand.
>If the company doesn’t fire Worker A they have to pay Worker B for sex liability.
To avoid liability for Worker B they only need to stop the harassment of Worker B. Firing Worker A is one easy way of doing this, but it is certainly not the only option the company has.
>they have to pay Worker A for wrongful termination
Most states have at will employment and I don’t think being accused of sexual harassment is a protected class in any of them. The employer doesn’t need to prove that the firing was justified, the plaintiff needs to prove they were fired for an impermissible reason. The harassment documentation would make a wrongful termination/age discrimination lawsuit more difficult, not easier, since it provides a plausible and permissible reason for the termination.
Are some of the displaced lawyers hanging out here?
The media is calling it a legal defense fund because the organization itself calls it such: https://www.timesupnow.com/#donate-anchor
Z: So if I start a “Temperance Fund” and tell people that all of the money will be used to purchase and drink alcohol it would make sense for journalists to report this as a “temperance fund”?
@philg: Worker A is nearing retirement and has basically nothing to lose.
The perfect diabolical scheme!
This would make a great movie plot starring a (young) Brad Pitt and a (young) Angelina Jolie; and they jet off together with their ill-gotten loot to the Caribbean!
philg: I do in fact think that if you name your pro-drinking charity the Temperance Fund that you will probably get the same treatment, yes. You may find that you get more editorials willing to add sarcastic quotes (the “Temperance Fund”) or explicit call-out (the so-called Temperance Fund) than our original case does, floating in the dangerous ideological waters around victimhood as it is. Proper journalism, as taught in pop cultural fiction, seems like it should in principal treat both names without such judgments. We might ask that such ideal journalists would at least always use Legal Defense Fund as a proper noun and not descriptively to avoid proliferation of misuse.
I wonder if I shouldn’t have dropped out after one year in the night program at New England School of Law back in 1987.