Failure To Thoroughly Research Can Cost. Lots.

Ask a simple question. Get a simple answer. If you actually research it, that is. Nutrition Management Services learned this lesson the hard way when its in-house counsel failed to research whether the pregnant plaintiff former employee was covered by the Family and Medical Leave Act of 1993 prior to terminating her employment in response to her “good news.” The employer was not only found liable for violating the applicable federal and state civil rights laws, but also was hit with a hefty liquidated damage award for not acting in “good faith” under the Act. The offending misconduct was failing to take steps (read: research) to ascertain whether the law even applied to the plaintiff.

The Act entitles a prevailing party to an award of compensatory damage for its violation. Liquidated damages equal to the compensatory award and interest are tacked on when an employer’s violation is not in “good faith” and the employer does not have reasonable grounds to believe that it was acting in good faith.

The employer’s director of human resources, an attorney with general knowledge about employment law, made the decision to terminate. Apparently, the director had just enough knowledge to get himself in trouble. He testified to his belief his decision was supported because she was a brand new employee. However, the director failed to recognize that time spent working for the employer’s “successor-in-interest” counted towards the period mandated by the Act.

The phrase “good faith” is not defined in the Act; nonetheless, the court found this failure fit squarely within the meaning of the phrase:

Reasonable good faith requires a defendant to take affirmative steps to ascertain the requirements of the law. Martin, 940 F.2d at 908-909 (reversing district court’s denial of liquidated damages under the FLSA). “A defendant employer’s burden of proof is a difficult one to meet. Double damages are the norm, single damages the exception.” Id. at 908 (internal citations omitted). Nutrition Management has not met its burden of proving Brown’s termination was a good faith violation of the FMLA.

The liquidated damages award of approximately $80,000 brought the total damage award up to just over $160,000. The court also awarded attorneys’ fees to plaintiff’s counsel in the amount of $145,000. You can read the order here.

The lesson to be learned?

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

Too bad counsel didn’t “nail” the issue with a little bit of hunting and gathering for the right information.

Hat tip to the ABA Journal.

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Metaphorical Databases – A Net Cast Upon The Waters of Rhetoric

There really is a search engine or database for just about anything. Metaphors are no exception. The Mind Is A Metaphor is one of the stops you should make on your quest for rich written product. The site is maintained by Brad Pasanek, an Assistant Professor at the University of Virginia. The site is chock-full of information about metaphors, while the actual search page is located here.

A more stripped-down resource can be found at the ATT – Metaproject Databank. Taken from the site, “[t]he databank mainly contains real-discourse examples of metaphorical descriptions of mental states and processes. It also contains some examples of the use of metonymy in mental state descriptions.”

Just think, if you mine these great resources for phrases and elements, your briefs can conjure up Piozzi and Locke and give voice to thought with fiery tongue in the courtroom.

Hat tip, once again, to the Legal Writing Prof Blog.

Metaphorical Databases – A Net Cast Upon The Waters of Rhetoric

There really is a search engine or database for just about anything. Metaphors are no exception. The Mind Is A Metaphor is one of the stops you should make on your quest for rich written product. The site is maintained by Brad Pasanek, an Assistant Professor at the University of Virginia. The site is chock-full of information about metaphors, while the actual search page is located here.

A more stripped-down resource can be found at the ATT – Metaproject Databank. Taken from the site, “[t]he databank mainly contains real-discourse examples of metaphorical descriptions of mental states and processes. It also contains some examples of the use of metonymy in mental state descriptions.”

Just think, if you mine these great resources for phrases and elements, your briefs can conjure up Piozzi and Locke and give voice to thought with fiery tongue in the courtroom.

Hat tip, once again, to the Legal Writing Prof Blog.

Is “Legal Thriller” an Oxymoron?

Not according to Scott Turow who has been making a living since the late 1980’s penning some of the finest legal novels around. The Aspen Times has this well-wrought piece on Mr. Turow and his background, in honor of his appearance before the Aspen Writer’s Guild last night.

Mr. Turow graduated from Harvard Law in the late 1970’s and worked as an assistant U.S. attorney and then as defense counsel specializing in defending death row convicts. He believes that crime and the criminal justice system are full of interest and drama. The subject certainly has provided him with plenty of material for his bestselling novels.

But it appears that Mr. Turow has been moving away from the sensational and more toward the personal with his latest endeavor, the sequel to Limitations. Seems hardly a surprise that the subject that the 60-year-old Turow would choose to explore is a man of similar years looking back on his life:

“I’m writing about a substantially different person,” he said. “Rusty is 60, about to ascend to the state Supreme Court, the crowning achievement of his career. He can feel the wings of time, and he isn’t quite satisfied with his life, or even if he has had good fortune.”

Could this be autobiographical? I cannot imagine how Mr. Turow could look back on his life with other than a sense of satisfaction. But then, perhaps life may once again be imitating art, as evidenced by the closing quote in the article:

“It’s what E.M. Forster said: Life goes on, novels don’t. So there’s something artificial about every novel. Any novel is going to be a bit unsatisfying in its conclusion.”

Is “Legal Thriller” an Oxymoron?

Not according to Scott Turow who has been making a living since the late 1980’s penning some of the finest legal novels around. The Aspen Times has this well-wrought piece on Mr. Turow and his background, in honor of his appearance before the Aspen Writer’s Guild last night.

Mr. Turow graduated from Harvard Law in the late 1970’s and worked as an assistant U.S. attorney and then as defense counsel specializing in defending death row convicts. He believes that crime and the criminal justice system are full of interest and drama. The subject certainly has provided him with plenty of material for his bestselling novels.

But it appears that Mr. Turow has been moving away from the sensational and more toward the personal with his latest endeavor, the sequel to Limitations. Seems hardly a surprise that the subject that the 60-year-old Turow would choose to explore is a man of similar years looking back on his life:

“I’m writing about a substantially different person,” he said. “Rusty is 60, about to ascend to the state Supreme Court, the crowning achievement of his career. He can feel the wings of time, and he isn’t quite satisfied with his life, or even if he has had good fortune.”

Could this be autobiographical? I cannot imagine how Mr. Turow could look back on his life with other than a sense of satisfaction. But then, perhaps life may once again be imitating art, as evidenced by the closing quote in the article:

“It’s what E.M. Forster said: Life goes on, novels don’t. So there’s something artificial about every novel. Any novel is going to be a bit unsatisfying in its conclusion.”

Filttr – Filters Twitter Noise To Get You The Song

I have been trying to stay away from Twitter posts, really I have, in a sincere effort to cut down on the volumes that are being written and read about it. But I couldn’t resist reporting on this app “Filttr”, which filters content from your follows to provide you with items of greatest interest.

Applying a proprietary algorithm, Filttr analyzes account settings, your own timeline, and other information to determine what you really want to see. It then feeds that information back to you through either the Web or a desktop Adobe Air client, omitting material that Filttr determines you don’t need or want. These tweets are not “gone”, but merely hidden and easily recoverable with a click. It is designed to learn preferences through use, so the experience is improved over time.

How does this work in reality? I don’t know as I haven’t tried it. I tend to favor the web interface, jumping in and scanning what I can when I have the time. I don’t really like the idea of something else deciding what I want to read. But, the concept of organizing the torrential downpour is compelling. Furthermore, there are other features to the application, such as the ability to update and post, search timeline, create groups and view the threads, that make it worthwhile.

I would love to hear comments from any users of this application as to Filttr’s effectiveness. Hat tip to TechCrunch for the news.

Filttr – Filters Twitter Noise To Get You The Song

I have been trying to stay away from Twitter posts, really I have, in a sincere effort to cut down on the volumes that are being written and read about it. But I couldn’t resist reporting on this app “Filttr”, which filters content from your follows to provide you with items of greatest interest.

Applying a proprietary algorithm, Filttr analyzes account settings, your own timeline, and other information to determine what you really want to see. It then feeds that information back to you through either the Web or a desktop Adobe Air client, omitting material that Filttr determines you don’t need or want. These tweets are not “gone”, but merely hidden and easily recoverable with a click. It is designed to learn preferences through use, so the experience is improved over time.

How does this work in reality? I don’t know as I haven’t tried it. I tend to favor the web interface, jumping in and scanning what I can when I have the time. I don’t really like the idea of something else deciding what I want to read. But, the concept of organizing the torrential downpour is compelling. Furthermore, there are other features to the application, such as the ability to update and post, search timeline, create groups and view the threads, that make it worthwhile.

I would love to hear comments from any users of this application as to Filttr’s effectiveness. Hat tip to TechCrunch for the news.

LinkedIn? For Friends?

Much like dogs start to look like their owners and vice versa, the big social networking sites seem to be resembling each other more and more. Last week, I reported on a number of Facebook applications that promote or facilitate business. Today, I direct your attention to Bob Ambrogi’s article on his Lawsites blog about LinkedIn’s new feature “Connections.”

Connections will allow LinkedIn members to form groups within their contacts lists and offer the ability to direct communications to the group. You can designate a group of friends and family, or class mates or co-workers from a certain employer or friends from the various LinkedIn groups you belong to or contacts whose names begin with “W” or whatever you fancy. Facebook offers a similar feature, allowing you to group your friends, communicate with group members and adjust privacy settings by individual or group.

Methinks that LinkedIn definitely needs to juice up their site a bit so that it can compete with the juggernaut Facebook. Offering this type of organization might help. The features is in private beta only at this point, and I am not sure when it will be trotted out for public consumption. Whenever Connections is released, It won’t be too soon.

Another BigLaw Hazard – Fashion Police???

Although this post is not completely on topic for this blog, I feel compelled to point out this article from the ABA Journal, taken from the New York Lawyer fashion policemagazine. Tracey Batt, a former Big Law associate, discusses her sentencing and  rehabilitation for “fashion failures” while at Weil, Gotschal & Manges in New York. Apparently, the firm was displeased with her clothing choices – black leather ankle boots and trench and pant suits – and hired a fashion consultant / personal shopper to take her for a full makeover.

The trouble lay in the switch to business casual, a move that apparently frightened the powers-that-be at the firm enough to publish a multi-page, full color brochure with myriad, arcane rules. Such as, during warmer month, women could wear shoes with either open toes or open heels, but not both.

Tracey, who readily admits that she has always danced to the beat of a different drummer (read: her own), attempted to adapt the rules to her personal style. It did not work. Confronted by her favorite partner and an administrative manager, Tracey was summarily put through pre-trial, trial and sentencing without being read her Miranda rights or exercising her right to counsel. She was then treated to the mortifying experience of being paired with the fashion consultant for a clothing and make-up intervention.

All’s well that ends well, though. Tracey is now the executive director of New Jersey Volunteer Lawyers for the Arts Inc. and an adjunct professor at Rutgers School of Law-Camden – positions that are much better suited to expressions of her personal taste.

Her story makes me think back on my own experience in a large law firm. I remember being on the cutting edge of the switch in women’s attire from skirts and dresses to pant suits. I am NOT a dress or skirt wearer and I hastened the change as quickly as I could, relying on my faithful mental earplugs to filter the comments swirling around me. My firm did not call the fashion police on me, but that does not mean that they approved of my choices. Progress, however, is as inevitable as seasonal change and by the time I left, the tiny group of two who started the pant suit craze had grown to include more than half of the women in our department.

Firms, especially large ones, institutionalize conformity much the same way that McDonald’s packages predictable food. Rightly or wrongly, firms believe that clients expect a certain presentation. Whether you, the individual associate, agree is of no moment. If you want to hoof it with the big boys and girls, you must don the proper dancing attire.

There is much in the media these days about external forces bringing pressure to bear on larger firms to abandon closely-held principles of hourly billing, practice, and firm management. Maybe some of these archaic attitudes about presentation are on their way out as well.

But not fast enough for me. Now, I wear my pajamas to work, one of the benefits of working in a flexible, at-home environment. There is no one here to tell me that I am putting off my clients. And maybe, just maybe, the client on the other end of the line has his bunny-slipper clad feet crossed on his desk.

bunny slippers

Another BigLaw Hazard – Fashion Police???

Although this post is not completely on topic for this blog, I feel compelled to point out this article from the ABA Journal, taken from the New York Lawyer fashion policemagazine. Tracey Batt, a former Big Law associate, discusses her sentencing and  rehabilitation for “fashion failures” while at Weil, Gotschal & Manges in New York. Apparently, the firm was displeased with her clothing choices – black leather ankle boots and trench and pant suits – and hired a fashion consultant / personal shopper to take her for a full makeover.

The trouble lay in the switch to business casual, a move that apparently frightened the powers-that-be at the firm enough to publish a multi-page, full color brochure with myriad, arcane rules. Such as, during warmer month, women could wear shoes with either open toes or open heels, but not both.

Tracey, who readily admits that she has always danced to the beat of a different drummer (read: her own), attempted to adapt the rules to her personal style. It did not work. Confronted by her favorite partner and an administrative manager, Tracey was summarily put through pre-trial, trial and sentencing without being read her Miranda rights or exercising her right to counsel. She was then treated to the mortifying experience of being paired with the fashion consultant for a clothing and make-up intervention.

All’s well that ends well, though. Tracey is now the executive director of New Jersey Volunteer Lawyers for the Arts Inc. and an adjunct professor at Rutgers School of Law-Camden – positions that are much better suited to expressions of her personal taste.

Her story makes me think back on my own experience in a large law firm. I remember being on the cutting edge of the switch in women’s attire from skirts and dresses to pant suits. I am NOT a dress or skirt wearer and I hastened the change as quickly as I could, relying on my faithful mental earplugs to filter the comments swirling around me. My firm did not call the fashion police on me, but that does not mean that they approved of my choices. Progress, however, is as inevitable as seasonal change and by the time I left, the tiny group of two who started the pant suit craze had grown to include more than half of the women in our department.

Firms, especially large ones, institutionalize conformity much the same way that McDonald’s packages predictable food. Rightly or wrongly, firms believe that clients expect a certain presentation. Whether you, the individual associate, agree is of no moment. If you want to hoof it with the big boys and girls, you must don the proper dancing attire.

There is much in the media these days about external forces bringing pressure to bear on larger firms to abandon closely-held principles of hourly billing, practice, and firm management. Maybe some of these archaic attitudes about presentation are on their way out as well.

But not fast enough for me. Now, I wear my pajamas to work, one of the benefits of working in a flexible, at-home environment. There is no one here to tell me that I am putting off my clients. And maybe, just maybe, the client on the other end of the line has his bunny-slipper clad feet crossed on his desk.

bunny slippers