Fight for jury trials

Moderated by Tom Sabulis

Two weeks ago, we published a column by an Atlanta attorney whose firm’s nonprofit wing found that an alarming number of employment discrimination cases never reach a jury here. Today, we continue the conversation. An Atlanta lawyer explains that federal judges are only doing their jobs by tossing cases that don’t meet minimum standards, while another echoes the words of Founding Fathers, who saw the jury trial as a pillar of justice for all Americans.

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Judges are only following the law

By Randy C. Gepp

A recent Opinion article published in the AJC entitled “Preserve Right to Jury Trial” represents that the process used by Atlanta federal judges in employment cases is denying the right to a jury trial. This representation is untrue. An employee whose claims meet the minimum statutory requirements will receive a jury trial.

Our laws do not require that every claim, no matter how frivolous, will proceed to a trial before a jury. Congress and the courts have established minimum standards for employment claims to go to a jury. Contrary to the article’s inference, the federal judges in the Northern District of Georgia are performing their duties by eliminating those claims that do not reach the minimum legal threshold.

In a typical discrimination case, an employee claims that he or she suffered an adverse action; that is, termination or reprimand based on a protected characteristic such as race or sex. The employer is required by law to respond with the reason for the adverse action. Usually, the reason is that the employee violated a work rule unrelated to the protected characteristic.

If the employee can present evidence that the reason stated by the employer for discipline is not true, or is pretextual, the employee will be allowed a jury trial. On the other hand, if the employer’s reason is not subject to legitimate dispute, the case will be dismissed. This is the legal process designed by Congress and approved by the U.S. Supreme Court.

In most discrimination claims, the employee cannot show that a protected characteristic was the reason for the discipline. While an employee may believe she was treated unfairly, the evidence often does not support that the discipline was unlawful.

Even the Equal Employment Opportunity Commission, the federal agency responsible for reviewing claims, does not find merit in the vast majority of charges it receives.

The earlier column failed to describe how expensive these cases are for employers. An employer will generally spend $100,000 to $200,000 in lawyers’ fees to try a discrimination case that goes to trial. In order to avoid these costs, employers file motions with judges to have claims that do not meet the legal threshold dismissed. Even this process is expensive, often costing an employer $50,000 or more.

On the other hand, employees do not pay attorney’s fees. Their attorneys take cases on a contingency fee, knowing that they will be paid fees if they can obtain a settlement or win at trial. If they win at trial, the law provides that employers must pay employees’ attorney’s fees. The employer must pay its own lawyer’s fees, win or lose.

Losing an employment case often results in the employer paying more than $200,000 in attorneys’ fees (for both the employer’s lawyer and the employee’s lawyer) as well as an amount of damages to the employee. This tremendous potential expense is one reason many cases are settled by employers regardless of merit.

If a case cannot be settled early, the best the employer can hope for is winning a motion. The cost of an employer motion “victory” usually exceeds $50,000 in fees and costs.

Cases that are not dismissed through motion have a larger settlement value due, in part, to the costs an employer must bear in defense. Lawyers representing employees want to see more cases qualify for trial, as that increases their settlement value and the amount employees’ attorneys receive in fees. Employers often must choose between paying $50,000 to $100,000 for defense with an uncertain result, or settling claims they believe have little merit. Many employers opt for the certainty of settlement versus the uncertainty of litigation.

The federal judges in the Northern District of Georgia are following the law. Judges are the gatekeepers to prevent frivolous claims from clogging the courts and increasing the costs of these lawsuits. By dismissing claims that do not meet statutory requirements, our judges are properly performing their functions.

Randy C. Gepp is a partner in the Atlanta law firm Taylor English Duma, which represents employers in employment disputes.

Deck stacked against jury trials

By A. Lee Parks

The Seventh Amendment, derived from our Founding Fathers’ vision of freedom, contains an unmistakable mandate that the “right of a trial by jury shall be preserved.” Thomas Jefferson saw the jury trial as “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

It is the jury that helps ensure our government will always be one “of the people, by the people and for the people,” as envisioned by Abraham Lincoln in the Gettysburg Address.

In 1991, Congress, dissatisfied with the lack of progress in eliminating workplace discrimination, recruited the American jury to aid in the fight by requiring discrimination cases be decided by juries on an expedited basis. But jury trials rarely occur when such cases are filed in the federal court responsible for the Northern District of Georgia, which includes Atlanta.

A recent study showed that 81 percent of discrimination cases were dismissed, and a whopping 94 percent were partially dismissed.

How could it be that, in the seedbed district where the civil rights movement began, the home of Martin Luther King Jr., discrimination claims are so uniformly non-meritorious?

Nancy Gertner, a retired federal judge and current Harvard Law professor, has described the training new federal judges receive in “how to get rid of civil rights cases.” A real consequence of such schooling is the creation of a strong implicit bias against such cases that has caused a jury of one’s peers to be replaced by a summary judgment “paper process” that almost always ends in dismissal of discrimination cases.

The federal district court judge who once played a starring role in integrating our society is now relegated to a bit part in our district because discrimination cases are referred to a magistrate for initial disposition. The magistrates act as gate keepers, ensuring that only the most egregious discrimination cases make it to the jury trial docket of a busy district court judge.

Given the steady stream of dismissals the magistrates produce, one would conclude our society is free of discrimination. But the lawyers who represent discrimination victims know that is not true. We see workplace discrimination ruin people’s lives every day. We also negotiate the many discrimination cases that are settled behind closed doors, the employer demanding confidentiality in exchange for a premium price.

To enforce our anti-discrimination laws, Congress incentivized private lawyers to act as private “attorneys general” by making the employer pay their attorney fees if they won. Now, many skilled lawyers who once accepted these cases turn them down because the judges, by eliminating the jury trial, have shifted the balance of power too far in the employer’s favor. The road to vindication for discrimination victims is now almost closed. In fact, many employers require their employees to forfeit their constitutional right to a jury trial and arbitrate all claims of discrimination as a condition of employment.

One would think you could not be forced to relinquish a constitutional right just to go to work, but today’s Supreme Court sees nothing wrong with it.

Congress intended that discrimination cases be decided in multi-dimensional, live-action jury trials. But these important cases are now routinely dismissed. This trend is national in scope, and should concern us all. The Founding Fathers never envisioned a judicial system in which the protections of a jury trial would be so totally stripped away from the kind of case where we need the great insight of juries the most.

A. Lee Parks is a senior partner at Parks, Chesin & Walbert, an Atlanta-based law firm that specializes in employment discrimination litigation.

2 comments Add your comment

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December 20th, 2013
8:39 am

Let’s do a little math. How many District Court Judges are there in the Northern District? How much in-and-out-of-the courtroom Judge time does it take to hold a Federal jury trial? How many weeks are available for these trials in a year? This provides a number.

Now, how many criminal trials do you want? How many bench trials? How many civil cases not involving employment discrimination claims?

Then, what are the chances of greatly increasing the number of courtrooms, Judges and staff to make plaintiffs’ lawyers happy? As a matter of practical, 21st century politics? Good luck.