Labor & Employment

More Than Half of Bias Plaintiffs in ABF Study Deemed Their Lawyers Incompetent

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An American Bar Foundation study finds that neither side believes employment discrimination cases are fair, but plaintiffs’ dissatisfaction often extends to their lawyers.

The study is based on a random sample of 1,788 cases and 100 interviews with plaintiffs, defendants and lawyers, according to a press release. Plaintiffs start out optimistic, the study found, until they encounter significant obstacles. Costs are high, conflicts develop with lawyers, and personal lives are affected. They rarely get a final ruling on the substantive merits of their case.

Many of the plaintiffs cried during their interviews. Out of 41 plaintiffs interviewed, 27 reported their lawyers were incompetent or worked against them, according to the study published in Law & Society Review. A quarter thought their lawyers were corrupt. Some complained their lawyers failed to make them equal partners in the litigation.

Out of the 13 plaintiffs who said their lawyers had integrity or skills, five nonetheless thought the lawyers gave them bad advice, made mistakes or colluded with the defense. Many of the plaintiffs were shocked at the high cost of litigation. Some mortgaged their homes and took extra jobs to pay their lawyers, and some declared bankruptcy.

“I lost my wife and my family and my home,” one plaintiff recounted. “I had a million-dollar home at that time. … My wife left me … because I became unbearable to be around. And I lost my kids.”

Pro se plaintiffs, on the other hand, complained of confusing procedures. One told of reading “red-tape gobbledy-goo” and “big 25 cent words.” His case was dismissed when he mistook two court notices for a loss. He was being given 30 days to refile his complaint, but when he didn’t respond, his case was tossed.

On the other side, defendants say it’s unfair that anyone—including “problem employees”—can bring a meritless lawsuit. “Here’s what I hear from our managers,” one in-house counsel said. They say “the system isn’t fair. That we have to hire these attorneys and we have to pay this money and … go through this process and the employee has no skin in the game. And if, you know, if they lose, then it doesn’t seem fair that they shouldn’t have to pay.”

The study also includes embedded audio from interviews.The press release quotes ABF-affiliated researcher Ellen Berrey, an assistant sociology professor at the State University of New York.

There was nearly universal agreement among plaintiffs and defendant that the litigation is unfair, Berrey said. “Beyond that,” she said, “their experiences couldn’t have been more different. For plaintiffs, litigation is expensive and can bring real personal hardships. Many end up divorced, depressed, even bankrupt. Employers do not like litigation either, but they usually have the resources and expertise to keep these cases under control.”

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