Areas Of Practice
Not every hassle at work is something you can sue for: not even every unfair termination. The law only protects lousy employment actions that are motivated, at least in part, by a violation of your specific legal rights. These vary by location, but in New York City, for example, you can't be fired for your gender race, your age, though it is legal to fire someone because he makes too much, unfortunately, even though age correlates with earnings. Your sexual orientation, gender identity, disability, ethnicity, national origin, reasonable use of sick leave, religion, military service, and even your arrest record (in many instances) are also protected. You may also complain about being discriminated against, or support another person's claim of discrimination without being fired. You can not be discriminated against for associating with people in these protected classes as well, because that's another way of discriminating against you.
Most employers will lie before they say they discriminated, and when they want to get rid of someone, start papering the file. But you can still prove it with careful investigation. No case is a slam dunk in this area of law, but I love to play detective, and I'm looking for the best cases where there is at least some evidence of an employer treating someone differently because of a protected characteristic. If you believe that be a motive, you are not "disgruntled," you are aggrieved: dig in and you can often find employers playing cover up - making paper records before or after their wrongdoing, and coming up with ridiculous excuses. For me it is manna when I can expose that.
Sexual harassment is sex discrimination. Please understand, though, not every nasty boss can be sued for "harassment" in the general sense, even if she is consistently unpleasant. The harassment must be based on your sex, race, ethnicity, etcetera, in order for it to be the basis for a lawsuit. If you can't link the harassment to illegal motive, then you are just out of luck.
Disability Discrimination is illegal and requires an employer to make accommodations to people with impairments who can perform their jobs with changes to a job function. A simple example would be giving a person in a wheelchair a ramp to get to the office, or giving a deaf person an amplification device for use of a telephone. Again, no one can be retaliated against for asking for such accommodations. Employers, however, are stubbornly resistant to making the simplest changes; one I remember wouldn't even move the desk of an elderly woman who used a walker so that she could more easily get to the bathroom. They just wanted to get rid of her, but their actions were illegal. A failure to discuss and then provide reasonable accommodations when they are not burdensome, and could have solved the problem, is a basis for a disability-discrimination lawsuit.
The Family and Medical Leave Act (FMLA) also requires most employers to give most employees up to twelve unpaid weeks of leave per year - intermittently or all at once - to care for the employee’s own, or a family member’s serious health condition. The FMLA applies only to employers who have at least fifty employees, and only to employees who have been employed by the employer for at least one year, and who have worked a minimum number of hours for the previous year’s employment. New York City has its own leave law, which is more generous.
The economy has improved, but so-called "reductions in force" have always been common. Businesses are allowed to do that to save money if made in a non-discriminatory way. Why are older people more often the ones who get sacked? If you were "downsized" - and especially if you were a "downsizing of one," and someone less qualified did not get sacked, or was hired afterward, you might have a claim for discrimination on the basis of age, or some other protected characteristic. At a minimum, if, as part of staff reductions, companies commonly offer severance packages and ask you to sign away your right to sue. You may be successful in getting the employer to enhance the severance - either on your own, or with the assistance of an attorney.
I have represented hundreds of employees in these areas.
Protecting Victims of Police Misconduct
The law gives you the right to sue for misconduct of rogue police officers. Did you know that your right to remain silent means that if a cop asks you a question and you ignore her and walk away, you are exercising your constitutional rights? Did you know that if the cop arrests you because of that, he or she is liable? Most people don't and are afraid remain silent, and many cops are bullies who don't like being ignored. If, for example, you were arrested and there was no probable cause – a legitimate reason based on some evidence – to take you into custody, you can bring suit against the police officer and usually the governmental entity that was his or her employer. Cases under this area of the law include false arrest, police brutality (excessive force during an arrest) and malicious prosecution.
In New York City, the police have adopted an "us versus them" attitude toward the public, and feel they can get away with anything; they so often do that it breaks my heart. There is no more "Officer Stan" who comes to the class to explain public safety; rather, now parents have to teach their children how to remain safe and conduct themselves when stopped by an officer, especially people of color. I'm lily white, and have never once been stopped in over twenty years the City - but it's not that I couldn't have been had I looked different. That bothers me - especially when I hear about and see it happen to people of color all the time. Police brutality is a given, previously eclipsed only by excessive stops. There will always be bogus arrests, most often for "disorderly conduct" - a vague phrase that actually has a specific meaning - but the police ignore it and use "dis con" like cotton candy. The NYPD arrests so many people for "discon" that they have pre-printed forms so they don't have to do any writing - they merely check boxes on a sheet: flailing arms, alarming the public, obscene language, what have you. The Civilian Complaint Review Board (CCRB) almost never sides with complainants, because the standard of evidence is so high to prove a cop did something wrong. In the rare cases in which the CCRB finds misconduct, the Police Commissioner can overrule it. I say it's an agency with good intentions that has done nothing to decrease police abuse.
The best way to protect your rights if the police have illegally detained you or abused you physically is to get a lawyer. The CCRB can help in collecting evidence, but if you think it will cause the officer to lose his or her job, you are almost certainly mistaken. Even after police officers are successfully sued by private citizens, they are kept on the force; officers sued multiple times don't even get disciplined. The common refrain is that it is only the few police officers who are guilty of misconduct - the vast majority serve us well. If that were so, there would not be so much police misconduct because the "good" police officers would tell on the bad ones. Of course, that never happens.
I'll tell you something - I've done mostly employment work, but I crave these cases, have gotten two six-figure settlements and like to take a case that stands for an important principle. Some of my police cases, without any input on my part, have gotten publicity because they shined a light on the scummy underbelly of common NYPD practice. In representing Heth and Jed Community Rockers, for example, I was able to show how a bigotted cop harassed and threatened physical harm on two men legally performing their music in public. We were able to trace this officer's racism and homophobia all over the internet. Of course, the CCRB did nothing. Gothamist, a blog about life in the City tells the whole story.
In representing a young man from Staten Island, first, as a (somewhat) experienced criminal defense attorney, I got the client's charge for resisting arrest dismissed after a full trial. I had all of the documents to show the inconsistencies between the arresting officers' stories, and the wholesale perjury of another, then demonstrated how one of their "brethren," who was watching the brutality on camera, conveniently lost the videotape that would have showed the abuse and proven my client not guilty. Luckily, these cops, previously sued multiple times for their misconduct, couldn't get their stories straight. We then sued in federal court. Staten Island Advance tells more.
In Thames v. City of New York, Jezebel, a division of Gawker, explained how my Transgender client was abused after a petty arrest and being chained to a fence for over 24 hours. This is what the police call "Courtesy, Professionalism and Respect," or "CPR," an NYPD motto adopted back in "Giuliani-Time" after Abner Louima was sodomized by some cops in a toilet stall. But "CPR" was never carried out in any meaningful way; many say the police got worse under Bloomberg. Some Brooklyn College journalism students did a "60 Minutes" style video on the project, in which I, Ms. Thames and some experts in the field offer their opinions.
None of these cases made me or the clients rich, but I cannot deny that I enjoyed each immensely. I've always been a rebel for justice; in my heart there is a strong desire to Fight the Power when those who wield power abuse it.
Lawsuits against Lawyers
Yes, in a rare case, I sue lawyers. Earlier in my career, I sought these cases; now I am here only when someone has undeniable evidence that his lawyer messed up and cost the client money. The vast majority of lawyers are competent and ethical, but an small minority is not, and do not take to heart the trust that is the basis for the attorney-client relationship. Also, mistakes happen. Some otherwise good, even excellent and ethical lawyers mess up, as does everyone. Sometimes these mistakes harm the client and the lawyer must be held responsible. I don't take these cases lightly, and only when I believe the misfeasance is undeniable.
You've heard of medical malpractice, but there is also legal malpractice and it involves, usually, a situation where a client entrusts an attorney to take her case, and because the lawyer does something wrong, the client loses the case. A simple example is a person who has a lawsuit against a someone else or a company, goes to a lawyer, and then the lawyer doesn’t file the lawsuit on time. When that happens, the lawyer is responsible for the client’s damages that he would gotten in the original lawsuit. A lawyer might also give awful advice causing damage; I had one case where the client incurred a tax burden that would not otherwise be imposed I got a $219,000 settlement. Another I litigated involved a home buyer’s attorney’s failure to disclose a financial relationship with the seller that resulted in the attorney’s soft-pedaling her client’s legitimate objectives and failing to disclose things that only he could have known. Before a lawsuit against an attorney can be considered, the client must suffer actual, ascertainable monetary damages. Also, the attorney must be insured for me to consider taking the case. I am fully insured, because if I make a mistake, I want the client to be protected. The sad thing is, however, that New York, like most states, does not require an attorney to have insurance, nor even to disclose that she does not. It's a sad comment on our society when lawmakers require merchants like Best Buy to post their returns policy, but attorneys do not have to warn their clients that they don't pay a couple thousand dollars a year for an insurance safety net.
The very first legal malpractice case I litigated, Baker v. Dorfman, involved an attorney with no insurance. It went on forever, taught me much about the law, resulted in two published opinions at the Second Circuit very early in my career. The case was so novel and chock full of "stuff" (the defendant made many, many arguments to relieve himself of the judgment), that it made new law in the State of New York was taught in tort classes to Columbia Law students, and in Professor Steven Giller's Professional Responsibility Class at NYU. This unforgettable case involved a client, Ricky Baker, who was incorrectly diagnosed as HIV positive. It was a lab error: one person's blood sample was swapped for Ricky Baker's and he learned an incorrect result at a time when HIV was a near certain death sentence. Attorney David Dorfman took the case, and sold himself to the client by misrepresenting his credentials. The claim against the lab was dismissed because Dorfman was inexperienced, so Baker rightfully sued Dorfman. After a trial and an appeal, the Second Circuit held that a negligent diagnosis that one is HIV positive when, in fact, one is not states a claim upon which one can sue the laboratory in the State of New York. The case also held the attorney liable for fraud because he grossly misrepresented his credentials in order to induce the client to give over the case. We finally collected about 40% of the judgment after ten years, but I learned so much in that case that I would never give up the experience.
I have also represented clients who have sued their attorneys for gross overcharges. An attorney deserves to be paid, but secret charges and double dipping is, if not common, more prevalent than it should be. One case I argued, Siagha v. Katz, made new law: the judge held that a retainer agreement that states a lawyer will obtain a percentage of the clients’ winnings cannot be read to contain any hidden fees for an appeal or collection on the judgment. In that case, the lawyer double billed and was ordered to refund a total of over $330,000.