Seriously?

Couple things here for Friday diversion that are either good satire or just plain stupid.

First, this from London via India:

Next time you think of putting away your office files high-up on a shelf behind your desk, think again, as it may seriously curtail your shelf life in the office , as well as nail you for sexual harassment.

A law firm in Scotland has issued warnings to employers not to store important files and documents on high shelves, as if found guilty they could be charged of sexual harassment since only tall people are able to reach them, and in general, men are taller than women.

“Putting files on high shelves tantamounts to sexual harassment!” (India News)

Yeah, right. The better warning is not to stare at (or grope) their legs or bottoms as they stretch to reach the top shelf! Even better: keep a stepstool around.


Second silly item:

Heard on the radio on my way home last night on Marketplace, was this contrarian management advice: “Don’t despair. Or then again, do.”

Listen to the radio story (mediaplayer).

It’s conventional wisdom that happy workers are productive workers, and productive workers are profitable workers. Lawrence Kersten is a management consultant who says conventional wisdom is very wrong.

Skipping Work to Watch the Playoffs

I just returned from Busch Stadium (probably my last game there before they tear it down to make way for the new one growing up next door). Very satisfying first playoff game — Cardinals victory over Padres, highlighted by Reggie Sanders Grand Slam way into the left field stands.

Back home, trying to catch up on a little reading and blogging, I found a very troubling story telling me I was part of a major economic problem.

This article talked about all the lost productivity (about $225 million) caused by employees skipping work to attend — or even just watch or listen to — the playoffs:

Who is an Applicant?

We just got a tip by email from David Manaster of the Electronic Recruiting Exchange about the new regulation defining an applicant.

See the definition and some questions and comments about it.

David asked for our thoughts.
Michael is following this issue more closely than me, but may not have time to respond, so here’s my best shot.

The issue has become problematic because of recordkeeping requirements for government contractors relating to applicant flow. The issue may also be important for disparate impact hiring cases, in which statistical “applicant flow” analysis requires a known pool of applicants so that the impact of the selection process on protected groups within the applicant pool can be determined.

There always was an ambiguity about unsolicited resumes. Electronic jobsearching has aggravated this by allowing applicants to flood employers with resumes and/or electronic applications. The regulation establishes that only those who are considered for a particular position and whose resume or application indicates they meet its basic qualifications are deemed applicants.

So my interpretation would be that persons submitting unsolicited electronic resumes or applications not directed at or reviewed in connection a specific opening would not be applicants. Nor would those whose submission does not disclose they meet a basic qualification such as a degree or industry experience.

Tort Reform and Contingent Fees: Practical and Ethical Considerations

Recently the ABA Journal e-Report ran a story on contingent fees, inspired by a study concluding that “imposing caps on contingent fees is probably an ineffective way to achieve [tort] reform.”

Contingent fees are significant in employment litigation as well as traditional tort litigation. Though federal employment statutes provide for specific fee awards, my understanding is that many plaintiffs’ employment attorneys nevertheless work on a contingent fee basis. Even if they do not, the effect is similar in that their recovery of fees is dependent upon their success.

The article contains some back-and-forth between experts regarding this study’s conclusions.

The study correctly notes the role of contingent fees in “improv[ing] access to courts for low-income plaintiffs.”

Yet while I agree with this observation, and with the authors’ reluctance to interfere with freedom of contract by setting arbitrary limits to such fees, I am troubled by the potential for deep conflicts of interest between contingent fee lawyers and their clients over settlement proposals. 
Lawyer and client will often have very different risk tolerance, and it is not unusual for settlement proposals that would otherwise appeal to plaintiffs to be unappealing to their lawyers once they have invested much time in a case. 
On the flip side, if the lawyer has invested relatively little time, the result of a contingent fee may be extremely high compensation of the lawyer, calculated on an hourly basis.

A solution more flexible then some sort of one-size-fits-all contingent fee caps already may exist in the form of the ethical rules governing legal fees.

Rule 1.5 of the ABA Model Rules of Professional Responsibility provides:

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee . . . The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

Subsection (c) then further addresses contingent fees:

A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited . . . . A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined . . . . The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

What is the relationship between subsection (a) and subsection (c)? Can the circumstances (the subsection (a) factors) ever be such that an agreed contingent fee is not a reasonable fee? I would submit that they may — and often are. If (c) was intented to be entirely separate, it would have been expressly excepted from (a); instead, the contingency is mentioned as only one factor in determining reasonableness.

Someone needs to start challenging contingent fees in extreme cases: those in which lawyers have expended very little time and effort, yet obtained large settlements — mainly because of the inherent value of the case — and thus received huge fees when calculated on an hourly basis.
E.g., wrongful death case settles for $1M with a 40% contingent fee after 10 hours of work; lawyer “earns” $2M $400,000 or $40,000 an hour.
Is this a reasonable fee under the above standards? Is the Pope Catholic?

“Fee Caps Won’t Solve Liability Crisis, Study Says,” by G.M. Filisko (reporting on Alexander Tabarrok and Eric Helland, “Two Cheers for Contingent Fees.”)