MRW Blog

MRW Contributes to “Friend-of-the-Court” Brief

MRW attorneys Ellen Messing and James Weliky drafted sections of a “friend-of-the-court” (amicus) brief recently submitted to the federal First Circuit Court of Appeals on behalf of a coalition of workers rights and civil rights organizations. The coalition includes the Massachusetts Employment Lawyers Association, the American Civil Liberties Union, and five other civil rights advocacy groups.

The amicus brief addresses court rulings in two cases, Diaz v. Jiten Hotel Management and Joyce v. Town of Dennis, in which the plaintiffs challenging discrimination had rejected settlement offers and chose instead to proceed to trial. In one case, the plaintiff won before a jury; in the other, the judge ruled in the plaintiff’s favor prior to trial. Although both plaintiffs won their cases, the trial courts later showed disapproval that the plaintiffs had rejected the settlement offers, by slashing the fee awards that the discriminating institutions were required to pay.

Normally in employment discrimination cases, lawyers who successfully represent victims of discrimination are entitled to have their fees paid by the losing employer or other entity that discrminates. Congress views such lawyers as “private attorneys general” who promote the public interest by helping enforce civil rights law. Civil rights statutes hold that these lawyers are entitled to a reasonable fee for the time and effort they spend in cases they win.

But in Diaz and Joyce, despite the plaintiffs’ victories, the trial courts paid the plaintiffs’ lawyers only a small fraction of their time, punishing the lawyers for their clients’ decision not to settle.

The amicus brief that Attorneys Messing and Weliky helped draft pointed out several flaws in the trial courts’ reasoning. These flaws include a misunderstanding of the wrongheadedness of using fee awards as a vehicle to apply settlement pressure. Attorneys Messing and Weliky focused in particular on the ethical dimensions of the issues raised, emphasizing that mandatory ethical rules require that the client, not the lawyer, decide whether to accept a settlement offer, and that lawyers overwhelmingly accept that principle. The amicus brief explains that by cutting attorneys fees to an unreasonable level, the trial courts perversely undercut the intent of the laws prohibiting discrimination, by pitting lawyers’ interests against their clients’, and by making it much harder for lawyers to take on discrimination cases.

Oral Argument in the cases is expected later this year. To read the full amicus brief, click here.

Posted: March 26, 2012 | Author: Messing, Rudavsky & Weliky, P.C. | Categories: Uncategorized

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