Legal Affairs

by Jeffrey P. Feuquay, Ph.D., Esq.

Nuisance Value

This particular article is NOT founded on careful research; it is NOT founded on careful analyses of societal and legal trends. Instead, it should be considered the intuitive pontification of one who has walked both in the shoes of an assistant administrator of a state agency, having up to fifteen to twenty complaints filed against my organization at any one time, and in the shoes of a attorney filing and defending against employment-based lawsuits.

In my first article for this column, I observed that some attorneys develop reputations for pursuing ludicrous cases, they too often bluff while holding a losing hand. I concluded that the legal system will be the better for it if agencies refuse to settle unless the agency has actually wronged the plaintiff, and aggressively refuse to be held hostage. Some frivolous lawsuits will still come, but will come less and less often if the organization makes them unprofitable. Let's talk about that.

My first mentor attorney was terribly offended when she received a minimal settlement offer for what she perceived to be a righteous case, saying, "I have never signed up a case that had only nuisance value." But, many attorneys do. They do because there really are not that many good cases, certainly not enough to feed and clothe the number of attorneys now practicing, certainly not enough to pay off school loans in excess of home loans. But, this article is not addressed to hungry attorneys. It's addressed to my other peer group, practicing human resource professionals, and offers my opinion by way of anecdotes on why we encourage lawsuits. So...

Anecdote One: Years ago, in a state far away, a person decided he wanted to be a fairly high level Affirmative Action Officer. His past jobs allowed him to meet the minimum qualifications until an experienced recruiter noticed that the applicant claimed two years of experience directing the affirmative action program for a major construction company with the same name as the applicant, this fulltime administrative position being held while the applicant was in high school. The recruiter rejected the applicant and began the due process procedures to bar future applications based on falsification. When the applicant's attorney contacted the administrator of the organization, the applicant was approved for the position because, "Hey, we don't need the hassle or the bad press."

Anecdote Two: More recently, a file clerk in her sixties complained that a twentythree year old male coworker was saying "Yo Baby" each time he came in her area and smearing her glasses when she left them at her desk. A week later, she was fired for being drunk enough after lunch that she vomited into a file drawer. The organization settled for $12,000.00 after she sued alleging retaliatory discharge by her supervisor who she alleged was jealous of the male's sexually harrassing and continually propositioning her. The rationale was that outside counsel would cost at least that much to fight the case.

Anecdote Three: Once upon a time, a Personnel Psychologist discovered a well and thoroughly validated predictor of a person's propensity for abusing children. Consulting the author, the Psychologist determined that several, more likely many, institutionalized children could be spared from abuse or even death if the direct care providers were screened using the abuse predictor. General Counsel was consulted, who asked, "What of false positives? What if we refuse to hire a governmental leader's spouse or some litigious person because they score in the potential abuser range?" The predictor was not adopted after it was noted that the damages cap in a wrongful death action was $100,000, but a Constitutional claim had essentially no limit. Obviously, wounding or killing institutionalized kids is cheaper than offending folks.

Most of us can recite a litany of similar stories. And, those who survive within governmental and larger private organizations know that political issues, public relations and economics are both real and important, crucial to organizational security and survival. But, I would argue that our defense counsels' and our own propensity for settling cases is often shortsighted, and detracts from longterm security. Yes, settling does resolve the immediate issue, but the organizational costs can be tremendous. Unfortunately, those organizational costs are speculative and extremely difficult to quantify, much less tangible than the risks associated with a pending lawsuit.

I see two primary costs, one fairly obvious, the other less obvious and far more insidious. First, I have heard too many potential clients report that they know we won't need to go to trial; their organization always settles to avoid publicity. Employees know what an organization has done in the past, even when prior settlements have been covered by confidentiality agreements. And, frankly, the idea of a quick settlement with minimal costs can make a weak case appear far more attractive to a hungry attorney this, I know. I can only assume that the reason federal law enforcement folks do not make deals with terrorists is that they believe that to do so encourages more terrorism. The analogy is important in our considerations as to which cases to settle.

The second cost is the impact that settling frivolous cases has on the organization. Employees are prone to see settlement of a case in which they know they are in the right as a lack of organizational support for their activities and for them. This, I believe poses an incalculable risk to organizational security. When doing one's job well and effectively results in condemnation, motivation to do so cannot remain high. That's Psychology I stuff. Moreover, while settlements set no legal precedent, they assuredly do set organizational precedents, especially in organizations obsessed with providing equal treatment to all.

We, as personnel professionals, must devise more effective ways to communicate the costs of settlement to those charged with defending us. Lawsuits will come. Instead of running from shadows, we must examine how real and how important are the perceived challenges to our public relations and economics, both in the specific instance and, or more importantly, over the long term.

Now, if I can just get down from this soapbox...

Editor's Note: Jeff has recently opened his own office and changed to an "of counsel" relationship with an employment and government defense firm in Oklahoma City. On the IPMAAC mailing list he referred to it as "returning to the fold" and listed his new title as: "Jeffrey P. Feuquay, Attorney, Psychologist, IPMAACian & Federal Judge Groupie (the post office will likely appreciate a simple "Jeff Feuquay")." Jeff can now be reached at: P.O. Box 646, Perry, OK 730770646. Phone & Fax: (405) 3364145. E-mail: 102370.2715@compuserve.com.