Out-of-the-Box Lawyering

How to save your case or your defense by "exception finding" — Here's how two plaintiffs saved their case by using an exception and how you could have found the same exception even if you didn't know it existed

One of the ways that both plaintiffs and defendants can save their cases is by finding exceptions to whatever rule is against them. (And when I say a “rule” that's against you, I include a statute, a code, an ordinance, and a state or federal regulation.)

For example, take Mercado v. The Ritz-Carlton, No. 04-1630, 2005 WL 1273940 (1st Cir. May 31, 2005). There, the plaintiffs filed Title VII charges against a hotel less than 33 days after the 300-day time limit for filing had run. (“Because Puerto Rico is a so-called 'deferral jurisdiction,' the 300-day period, rather than a shorter 180-day filing period, is applicable." Id. at n. 2. Isn't it interesting that there is a “deferral jurisdiction” exception that increases the 180-day time limit to 300 days in certain jurisdictions? Would you as the plaintiff's attorney have even known about that exception?)

As to the case, what was part of the hotel's defense to the charge? Obviously that the filing was too late. What was part of the plaintiffs' defense to the late filing? That the hotel could not assert that defense because the hotel had not complied with EEOC regulations that require employers to post notices advising employees of their rights relating to employment discrimination.

The court of appeals, after collecting a variety of cases, held that, depending on the facts, equitable tolling of the time period might apply and the plaintiffs were entitled to factually develop their equitable tolling claim.

The moral of the story is to find all the exceptions you can to any rule that's against you — I call that “exception finding.” In my book Solving Statute of Limitations Problems I include in Chapter 1 a number of ways to search for those exceptions, including simply looking at the annotations to the problem statute and just listing all the defenses that courts have maintained to the statute. (The same techniques apply whether or not you are dealing with a statute of limitations issue. See below for how to find my book in a library.)

Once you have listed the potential exceptions, then you can determine whether there is any factual support for any or all of those defenses — I call that “fact finding.”

Potentially you could even have an associate or a law clerk make the list of those exceptions.

Assume you represent the plaintiffs in Mercado. As I detail below, if you did not already know about the potential defense that the employer failed to post the required notice, you probably would have found that requirement if you had searched for all of the exceptions to the 300-day requirement. Once you found the notice-posting requirement by your “exception finding,” you could then go into “fact finding” to determine from your client or from other investigation whether the employer had posted the required notice. Then, if there was none, you might be on your way to saving the case.

HOW DO YOU FIND EXCEPTIONS?

Here's one technique for finding the posting requirement and the exception to the time requirement even if you had no idea that there was a posting requirement: The technique is related to what I not-so-modestly call

Levy's First Law

That law is “Every rule has at least one exception — including perhaps this one.” One of our jobs as attorneys is to take advantage of that law and (1) find pertinent exceptions to any rule that's against us, and (2) then determine whether there are facts which will allow us to fit within any of the exceptions.

One way to try to find all of the exceptions you can is to use the various sets that annotate statutes. Let's say you are trying to find exceptions to the 300-day rule. Since it's a federal statutory provision, you might go to West's U.S.C.A. in either the print or the online version. I will be describing the print version below, but you might also go to Lexis' U.S.C.S. in either its print or online version.)

If you go to 42 U.S.C.A. §2000e-5(e)(1), that provision states the time limitation for filing a charge, and it's probably the provision that the other side has cited or will be citing against you. (The U.S.C.A. printed volume has a copyright date of 2003.) In order to defeat that time provision by finding helpful exceptions to the provision, you can go to the topical index that begins with a listing of the 23 major subdivisions that begins on page 90 or the alphabetical list of annotation topics that begins on page 91. You will see Subdivision III entitled “Time for Filing Commission Charges.” That subdivision starts its list of annotation topics on page 177. You can then read the list of annotation topics to see if there are any topics that might lead you to any exceptions to the time requirement. For instance, you might read the annotations under the following topic headings and related topic numbers:

Commencement and running of filing period 169 Discovery rule 170 Effect of failure to timely file 176 Excuse for failure to timely file 175

However, you would also want to check the topics in Subdivision VII “Tolling of Period” on page 243 of the U.S.C.A. volume.

If you skim that “Tolling of Period” list of topics, you might decide — and it's just a “might decide” and not a “will decide” — that some of the following headings might include helpful exceptions:

Class action pending 361 Commission advice or misrepresentation 348-352 Duress 359 Miscellaneous tollings 363 Statutory notice of rights, failure to post 355 Tolling of period generally 341 (Emphasis added).

All of those might lead to case-saving exceptions. If you don't know anything about “Statutory notices of rights, failure to post,” you should make a note to check that one out. For instance, hen you go to the annotations under “Statutory notice of rights, failure to post” topic, you will find the following case annotation:

“Title VII's period for filing complaint was not equitably tolled by employer's failure to post notice of employees' rights under Title VII, where employee sat on his rights for at least three years after employer's allegedly illegal conduct prior to filing complaint. Bravo Perazza v. Puerto Rico, D.Puerto Rico 2002, 218 F. Supp. 2d at 176. Limitation Of Actions 104.5”

It looks like that case might be worth looking into, especially since the plaintiffs who you are hypothetically representing filed their charges less than 33 days over the limit. If you go to the full opinion in Bravo Perazza, you will discover — if you didn't already know it — that employers have a “statutory obligation to post notice of employee's rights under Title VII.” Bravo Perazza at 218 F.Supp.2d 180. (Although the court does not cite a posting statute, see, e.g. 42 U.S.C. §2000e-10.) The court continues:

“Where, as here, an employer fails to post the proper notice, the limitations period may be tolled only until such time as plaintiff acquires knowledge of his/her rights. [Citations omitted.] When a Court finds that an employer's failure to post the required notice tolls the filing period, the period ‘begin[s] to run from the time that the employee acquires actual knowledge of his rights or retains an attorney.' Vance v. Whirlpool Corp., 716 F.2d 1010, 1013 (4th Cir. 1983) (citations omitted).”

Id. The court ultimately held that, under the facts, the plaintiff was not entitled to rely on his equitable tolling defense: “Bravo sat on his rights for at least three years . . . Bravo's prolonged inaction persuades the Court that he is not entitled to equitable relief.” Id. at 181.

But our plaintiffs' cases are different since their claim was filed not three years late but less than 33 days late.

You have now, by exception finding, found a potential exception to the 300-day time requirement. Now you can go into what I call “fact finding.” In “fact finding,” you determine whether there are any facts that will allow you to fit under whatever exceptions you have found. In this case, you will want to determine whether the employer had posted the statutorily-required notice. This then leads us back to Mercado, where the First Circuit stated in part:

“We then [in Earnhardt v. Commonwealth of Puerto Rico, 691 F.2d 69 (1st Cir. 1982)] separately addressed plaintiff's argument that the failure to post statutory notice excused his untimely filing and remanded for inquiry into the facts concerning, inter alia, the plaintiff's knowledge. We thus treated the employer's violation of the posting duty as a possible alternative path to equitable tolling, an approach we adopted again in subsequent cases. See Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 752-53 (1st Cir. 1988) (where an employee's ignorance of his statutory rights ‘is caused . . . by failure of that employer to conspicuously post the informational EEOC notices . . . , there may be a valid claim for equitable tolling'); Cano v. U.S. Postal Serv., 755 F.2d 221, 222-23 & n. 5 (1st Cir. 1985) (per curiam). (Footnote omitted).

Many other courts similarly view lack of notice as adequate justification for equitable tolling.”

Id. at op. 3-4.

And the Mercado court ultimately vacated the district court's dismissal for the late filing and remanded the case for evidence as to whether the plaintiffs were entitled, under the facts to be presented, to the benefits of equitable tolling. So the plaintiffs' attorney found (or knew) that if the employer had failed to post a required notice there was a potential way to save his clients' cases. Thus, using “exception finding,” or its sibling “exception knowing,” he has potentially saved their cases. And if they were your actual clients, you too might have saved their cases using the “exception finding” technique.

Postscript:

To find a library that has Solving Statute of Limitations Problems, go to Google and, in the search bar, enter the following — including the quotation marks: “find in a library” “solving statute of limitations problems”. Then continue, clicking on the resulting link which should lead you to a page of the Online Computer Library Center (OCLC) website.

Link:

Mercado v. The Ritz-Carlton: http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=04-1630.01A

Copyright Adolph J. Levy 2005 All rights reserved.

Do you want to watch surgery being performed? You can now see different types of procedures such as cervical and thoracic disc operations and prostate procedures

I just learned of OR-live, a site that shows tapes of surgeons performing surgery and includes running commentary from physicians.

You can browse the site's archives by its 17 separate specialities, such as, for instance, cardiovascular/cardiothoracic, gastroenterology, neurological/neurosurgical, obgyn, and orthopaedics. You can also browse the archives by the name of the institution where the surgery was performed and by the date it was performed.

The neurological/neurosurgical archive listing includes, for example, links to a herniated disc repair using a microdiscectomy technique, an anterior approach cervical discectomy with fusion, and a mini-open antero-lumbar interbody fusion.

Procedures in the archives for the urology specialty include a hernia repair and a radical prostatectomy by robotic surgery to remove a cancerous prostate.

You may also hear comments from the surgeons and from other physicians before, during and after the procedures. In addition, you may also hear questions from other physicians while the surgery is proceeding.

As an example of what you can find, if you go to the page for a webcast of the cervical discectomy, you will see that the procedure was performed in 2004 and that you can view the entire webcast, or, if you prefer, just preview the webcast or just see and hear the doctor comments. If you choose the entire procedure, the webcast lasts two hours and six minutes and includes both video and related slides in side by side windows.

LINKS:

ORlive: http://www.or-live.com/

Archives by category: http://www.or-live.com/archives.cfm

Cervical discectomy: http://www.or-live.com/aurora/1150/

Neurological/neurosurgical archives: http://www.or-live.com/archives.cfm?browseby=specialty&id=10

Urology archives: http://www.or-live.com/archives.cfm?browseby=specialty&id=3

An out-of-the-box vacation - - Think you want to stop practicing law and do something else? Here's how you can spend a day or more with an expert in your dream field

The ABA just had an article about VocationVacations, a fascinating business that lets people try out their secret (or not so secret): “This is what I'd like to do if I weren't practicing law.” (The article was in the June 17 edition of the ABA Journal eReport. Subscription may be required.)

According to the ABA's description: “The company offers 60 different packages, including brewmaster, horse trainer, cheese maker, sports announcer, wedding coordinator and golf pro, says founder Brian Kurth. Prices range from $350 for a one-day stint as an animal therapist to $5,500 for a week with a fishing guide in Alaska.”

I checked out the golf pro listing. You can get one to two days of mentoring with a PGA Tour Professional including two rounds of golf at a world class golf facility for $5,999 - $8,999 per person. There's another golf pro listing where you can have two days of one-on-one with a Golf Pro for $899 + taxes.

The site has a list of what the company calls its “holidays” that are currently available.

It also lists “VocationVacations in the making,” and the potential newbies range from Animator, Aquarium Manager, Archeologist, and Art Auctioneer to Whiskey Distiller and Zookeeper.

A postscript:

In case you're wondering about the "animal therapist" vacation and how a therapist can give therapy to an animal, that's not how this animal therapy works. Here, the animals give therapy to humans instead of the other way around. As the site explains it, therapy animals visit the elderly in nursing homes and children in the hospital.

Links:

ABA article: http://www.abanet.org/journal/ereport/jn17career.html

VocationVacations site: http://vocationvacations.com

VocationsVacation golf pro description: http://www.vocationvacations.com/vacations/PGAGolfPro/index.asp

VocationsVacations list of currently available holidays: http://www.vocationvacations.com/vacations/CurrentPackages.asp

VocationVacations in the making: http://www.vocationvacations.com/vacations/making.asp

Want to read a transcript of Thomas Mesereau's Closing Argument for Michael Jackson?

Here's a link to the transcript of Thomas Mesereau's closing defense argument for Michael Jackson:

http://aboutmichaeljackson.com/m-news+article+storyid-244.html

The site is devoted to news about Michael Jackson and other Michael Jackson related info and items. You can even purchase an "I ♥ MJ" teddy bear.

A couple of notes. First, it will be easier to read the transcript if you click on the button for the Printer Friendly Page at the bottom of the transcript. Second, the transcript, although lengthy, is not complete - - it ends in the middle of a sentence. However, reading the lengthy printed portion, even if it is not complete, will be educational.

Out-of the-box CLE credits - - You may be able to watch video seminars on your computer or on videotape or listen to audio tapes and receive mandatory CLE credits - - Louisiana, for instance, allows up to four hours of CLE credit for online seminars

General information

Most of the 40 states that have mandatory CLE allow, with some limitations, at least some of their required CLE credits to be earned online.

ORACLE (Organization of Regulatory Administrators for Continuing Legal Education) is a website that has a listing of what it states represents the 40 mandatory CLE jurisdictions. If you want to find your state's rules, you can simply click on a link to your state. You may be able to determine on that link whether your state permits CLE credit for the audio or video seminars, and, if so, the maximum number of hours your state permits. If there is no link on your state's site to the state's rules, the link should at least give you the phone number of someone at your state office who does have the information.

The West LegalEd Center includes a multitude of already approved programs for a variety of states. You should, however, verify with your state's administrator that the credits are still available because, for instance, some programs may be too old for you to receive credit.

You can also sign up with West to receive notifications of upcoming programs.

Other CLE sites

If you would like to have a listing of other online CLE providers, guru Robert Ambrogi has a December 2004 posting entitled “Correspondence Courses in the Internet Era.” He also has a highly-recommended blog in which he notes there that lawyers and legal groups are now having podcasts. Indeed, the Santa Clara County Bar Association is already allowing CLE credit for the Association's one-hour podcasts.

Partial list of links:

Ambrogi article on Internet CLE: http://www.legaline.com/Dec2004column.html

Ambrogi article on CLE podcasts: http://www.legaline.com/2005/03/podcasting-as-cle-from-theory-to.html

Ambrogi blog: http://www.legaline.com/lawsites.html

Oracle site: http://www.cleusa.org

West's CLE home page: http://westlegaledcenter.com/home/homepage.jsf

There is additional information regarding Louisiana's CLE rules. To view those rules, Click on the "Continue reading" link below.

Information for Louisiana lawyers - - The Louisiana rules and what's on the Louisiana State Bar Association site

Louisiana Supreme Court Rule XXX permits Louisiana attorneys to receive up to 4.0 hours of CLE credit for watching approved video presentations or listening to approved audio presentations. (Rule 3 of Rule XXX details Louisiana CLE requirements and Rule 4 deals with CLE credits.) Interestingly, you may obtain your mandatory ethics and professionalism credits with the on-line programming.

The Louisiana State Bar Association has a link to, as of now, over 100 qualifying on-line titles on its “MCLE Calendar of Technologically Assisted Programming.” There, you can search for all available programs or you can limit your search to specific fields such as Administrative, Bankruptcy, and Constitutional Law, to name just a few.

You will see references on the MCLE Calendar list to programs that are available from West (http://westlegaledcenter.com/home/homepage.jsf) and from the New Orleans Bar Association (http://www.neworleansbar.org/cle). When you find a progam on the MCLE calendar, you can go to the West or the New Orleans Bar websites for additional information. You may even be able to view a short demonstration video of the program on the West site. However, THERE IS A CAVEAT: If you see a program on either of those sites that is not listed on the LSBA MCLE site, it is imperative that you contact the State Bar Association (504-566-1600) to verify that the program qualifies for credit. For instance, some of the on-line programs that are on the West site are too old to qualify for the credit.

For more information, including a list of answers to Frequently Answered Questions, there is a link to the LSBA Support Center.

If you find other CLE programs that aren't yet qualified for Louisiana credit, and there are lots of them, you can also contact the State Bar Association (504-566-1600) for information about obtaining approval for the program.

Louisiana links>

Louisiana Supreme Court Rule XXX: http://www.lasc.org/rules/supreme.asp

Louisiana Supreme Court Rule XXX, Rule 3 regarding CLE requirements: http://www.lasc.org/rules/supreme/RuleXXXRule3.asp

Louisiana Rule XXX, Rule 4 regarding CLE credits: http://www.lasc.org/rules/supreme/RuleXXXRule4.asp

Louisiana State Bar Association general CLE information: http://www.lsba.org/CLE/cle.html

Louisiana State Bar Association Calendar of Technologically Assisted Programming: http://www.lsba.org/MCLE/mcle_calendar_tech.asp

Posted by ajlevy at 11:23 AM