Update (March 16, 2015): Litigation is expensive because fighting about fighting tend to multiply into fights about fighting about fighting. So, for example, Ellen Ewald gets in a fight with the Royal Norwegian Embassy alleged sex discrimination. Then Plaintiff’s lawyers get in a fight with Defendant’s lawyers about how to fight the fight (also known as “discovery disputes”). Then Plaintiff’s lawyers get in a fight with Defendant’s lawyers about the appropriate fees to be awarded to Plaintiff’s lawyers for fighting about fighting about the fight.
The latest letter volley is here, here, and here. I bet the letter-volley itself was about $1,000 of lawyer time (and you’ll note that the last letter requests permission from the court to write another letter.)
I’ll go a step further and show my own colors: is there anything more galling than defense counsel who fights the plaintiff’s claims for years, ringing up mind-boggling legal fees through hourly billing, and then attacks the plaintiff’s lawyer’s fee claim suggesting that that the plaintiff’s lawyers’ expenditures and efforts were misguided and/or excessive? (I imagine reparations disputed after a war in which the vanquished enemy argues, “Did soldiers’ MREs really have to include candy bars? We’re not paying for those…”)
Update (January 6, 2015): In a 191-page document known as Findings of Fact and Conclusions of Law, U.S. District Court Judge Susan R. Nelson (D. Minn.) found in favor of Plaintiff Ellen S. Ewald in her gender discrimination case (unequal pay for equal work) against the Royal Norwegian Embassy on New Year’s Eve, 2014.
Days of trial: 12.
Amount awarded: $270,594.
Approximate amount of attorneys’ fees of plaintiff’s counsel that will be charged to the defendant: $2 million.
Value of irony that one of the most gender-progressive nations on earth has gotten tagged with gender discrimination by a U.S. judge in Minnesota 4,000 miles away from the hjemlandet (home-country): Priceless. There are some things money can’t buy… (The point is that even the most progressive nations on earth fail when it comes to gender inequality.)
Update (August 22, 2014): The two sides’ proposed “Findings of Fact and Conclusions of Law” in Ewald v. Royal Norwegian Embassy alleged sex discrimination case are here (130 pages) and here (95 pages). These documents shed light on why American justice is so extremely expensive. The effort and expertise in creating these records is enormous. The case goes back to 2011. Mining and presenting the evidence took years of work. And the work continues…
We often decry the great cost of our civil justice system. A justice system that cannot function for cases in which $100,000 is at stake (because the cost of the system will exceed the amount at stake) is a failure. We should be able to do better.
But what we rarely appreciate about our justice system is that the system is so expensive because it is so thorough and so focused on fairness.
The issues in the Ewald case seem simultaneously simple and complicated: a man and a woman are hired to do similar jobs, but they are treated differently, and they are paid differently. The question is why the disparity between $70,000 for the woman and $100,000 for the man? Is it because the jobs, while similar, were not identical and the man’s job simply commanded a higher salary? Or was this an instance of sex discrimination? And underneath this surface layer of the lawsuit lay many more layers. Over time, it seems that the relationship between Ewald, the employee claiming gender discrimination, and the Norwegian consulate, the employer, soured badly. Was this because Ewald rightfully confronted her employer’s gender discrimination and the employer, in response, began to antagonize/demonize/dislike her? Or, on the other hand, was there simply a “bad fit,” an employee insisting on benefits outside of the employer’s budget and an employer’s stingy resentment that the employee would not simply take the deal she was offered?
U.S. District Court Juge Susan R. Nelson (D. Minn.) will have the challenge of sorting this all out. She will have the thorough work of excellent advocates to help her, even if they reach diametrically opposite results.
Original post (March 31, 2014): One advantage that physicians have over lawyers in our culture generally is that there is a greater opportunity for physicians to specialize. So, for example, certain surgeons might have knee surgeries lined up day after day. This focus presumably leads to near-constant refinement in technique and deepening of experience.
This is in stark contrast to the vast majority of trial lawyers, who call themselves “trial lawyers,” but who cannot line up trial after trial because the system does not work that way (much less line up trial after trial for highly similar cases, factually and legally).
The upshot: like an athlete who only played a game or two per year, trial lawyers tend to get rusty. Employment lawyers might consider the trial briefs in the Ewald case to sweep off the cobwebs and oil up the joints.
I am not an employment lawyer (or employment litigator) but I note a some things.
Trial briefs, in my experience, are court filings that reflect some of the widest variation between opposing sides of any trial papers. They are generally exchanged simultaneously and so the two (or more) sides will not normally know the other side(s) approach as they meet the deadline. I find it interesting to consider the merits of an expansive vs. a token trial brief (or even foregoing one entirely, which I have seen done).
Second, these trial briefs are excellent road maps that counsel would be fortunate to have before filing of the lawsuit. This is, of course, impossible because the case evolves during its life and rarely can a lawyer know the complexion and disposition of a case right before trial from the get-go. Employment lawyers, however, can benefit from reviewing excellent trial briefs like the ones attached here in advance of bringing (or defending) their own claims.
Third, the Ewald case seems to stretch deep into the irrationality of people. I get the impression that Plaintiff is not so much upset about the actual financial terms of her employment so much as she is upset at the disparity between her package and that of another package offered to a male employee on the same day for a similar (or, she would argue, identical) job. (I swear to god that the risqé metaphor/pun in this paragraph was unconscious (initially)).
If you give an employee a $500 bonus, he might be quite pleased. If you tell him that the person in the adjacent cubicle got a $525 bonus, he might abruptly be quite angry and disappointed by the $500 bonus. And, finally, if a judge finds that the cube neighbor got the extra $25 based on gender, you might find yourself facing liability.