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The linked threats of terrorism and recession are posing new challenges to lawyers who specialize in handling disputes between employers and their workers. The surge of work force cuts is sure to produce a new flood of lawsuits claiming discrimination in layoffs — a potential bonanza for plaintiffs’ attorneys. At the same time, though, there is a new national mood that places a lower value on individual rights. Some employment lawyers believe that will weaken public sympathy for complaints that, in these new conditions, now may seem less serious to juries. The changed economic and political atmosphere is likely to make it harder for disgruntled employees to win judgments, particularly in federal court. Already, plaintiffs in employment suits face an increasingly skeptical reception from federal judges in Florida and around the country, in the face of what even plaintiffs’ lawyers admit is a significant percentage of frivolous lawsuits. That’s prompting plaintiffs to take their cases to what they believe are the friendlier confines of state court. “I think that over the next four or five years, the odds will favor management — not in the sense of getting new legislation but just in the mood of officials and the public,” says Sean N.R. Wells, a nonequity shareholder at Feldman Gale & Weber in Miami, which represents corporate defendants in employment cases. A leading plaintiffs’ attorney, William R. Amlong of Amlong & Amlong in Fort Lauderdale, Fla., agrees. “The World Trade Center has made the entire nation reassess what’s important,” he says. “By those standards, a lot of what employees complain about is not important.” But Walter E. Aye, a solo practitioner in Tampa, Fla., who devotes much of his time to employment cases, doesn’t believe the current climate will have a major impact on jury decisions. The war on terrorism, he says, “has not altered the core beliefs of most Americans about what is right.” JUDGES MORE SKEPTICAL Still, many lawyers on both sides think there is enough of a shift in the judicial climate to accelerate a trend that’s already well under way in Florida — filing discrimination and harassment suits in state court to avoid increasingly hostile treatment by federal judges. While no statistics are available from the courts, both plaintiffs’ and defense attorneys say that in recent years there has been a rush to the federal courthouse by disgruntled employees. Employment lawsuits, including discrimination, sexual harassment and retaliation claims, have become one of the most common types of federal civil filings. That’s created a heavy burden for federal district judges. The strain has been exacerbated by a significant percentage of frivolous complaints and by the natural tendency of plaintiffs’ attorneys to push the envelope of the law. The judges’ reaction in many cases has growing skepticism. “When workers are terminated, they usually feel wronged even when it’s their own fault,” says Heather L. Gatley, a partner and vice chair of the labor and employment department at Steel Hector & Davis in Miami. “The judges see so many of these that it undermines the intent of the law and hurts people with real grievances.” “A lot of complaints are bogus,” Amlong acknowledges. Both plaintiffs’ and defense attorneys say federal judges are showing a growing readiness to summarily dismiss employment cases. “I’ve been doing this for 16 years,” Amlong says, “and I used to never get summaried out. But in the last five years the rate of dismissals has increased dramatically.” Plaintiffs’ lawyers also complain that federal judges frequently overrule juries that have decided in favor of their clients, usually on grounds that the jurors substituted their notions of fairness for actual evidence that the defendant broke the law. In a recent study of federal employment lawsuits over a nine-year period, two Cornell University law school professors found that only 30 percent of all job discrimination cases tried in federal court resulted in victories for plaintiffs. When employers appealed plaintiffs’ verdicts, 44 percent of the verdicts were overturned. In contrast, when plaintiffs appealed defense verdicts, fewer than 6 percent were reversed. Particularly disturbing to plaintiffs’ attorneys are several recent cases in which federal judges ordered or recommended stiff sanctions against South Florida lawyers for bringing what they considered frivolous suits. In one case, a U.S. magistrate judge in Miami recommended that Amlong & Amlong be ordered to pay nearly $500,000 to defense lawyers in three South Florida firms — Jon Stage, a partner in Akerman Senterfitt’s Fort Lauderdale office; Averill Marcus, a Miami solo practitioner; and Dale L. Friedman, a partner at Conroy Simberg Ganon Krevans & Abel in Hollywood — to reimburse them for their costs. That case is still pending. STATE COURTS FRIENDLIER As a result, plaintiffs’ lawyers are looking for alternatives to federal court. Loring N. Spolter, a Fort Lauderdale solo practitioner who handles many employment cases, says plaintiffs’ lawyers are filing an increasing number of cases in Florida circuit courts, which they see as friendlier to workers. Employers are doing the opposite, trying to move state employment cases to federal court. Many states, including Florida, have passed laws that parallel federal civil rights laws, providing ample grounds for discrimination and other types of employment suits. In this state, the Florida Civil Rights Act is a major grounds for action. Plaintiffs’ lawyers say that because state judges are elected, they tend to be more populist-minded and sympathetic to little-guy plaintiffs. They also are less likely to summarily dismiss a complaint. Plaintiffs are using a variety of strategies to keep employers from transferring state lawsuits to federal court. For instance, if the defendant employer is based outside Florida, that ordinarily would result in a transfer to federal court on diversity grounds. One way around that, Spolter explains, is to sue co-workers or supervisors, in addition to the employer. If the co-defendants are Florida residents, out-of-state employers can’t move the case to federal court. FOR THE LITTLE GUY One major advantage of filing in state court is that it’s generally easier to get a case in front of a jury. “Going to federal court is much more time-consuming,” says Irving M. Miller, shareholder at Akerman Senterfitt in Miami, who defends employment cases for corporate clients. “Federal judges are much more sophisticated and sticklers for procedure.” Miller acknowledges that defendants have a better chance of winning a summary judgment before a federal jurist. Nearly everyone agrees that the plaintiffs’ odds increase greatly if they succeed in getting their case to a jury. “Jurors are for the little guy,” says Robert Kofman, an employment defense attorney with Stearns Weaver Miller Weissler Aldaheff & Sitterson of Miami. “They really don’t care much about the details of the law. They just ask does he deserve this treatment, is it fair?” Miller also cites the special difficulty employers face in defending age discrimination suits. While jurors may not be black, female, Hispanic, gay or disabled, they all face the prospect of getting older and are particularly sensitive to complaints of discrimination against older workers. The pace of employment litigation is likely to heat up in the months ahead, as companies lay off workers. Kent Spriggs, a partner at Spriggs & Davis in Tallahassee, Fla., warns that “we know a lot of employers are going to have cuts that are biased — age-biased, gender-biased, race-biased.” Employers often target older workers, who generally make more money than younger workers. But they do so at their peril. “You can prove that 90 percent of your layoffs were done right,” Miller says, “but if just one guy feels wronged you’ve got a problem.” For that reason, many corporate law firms are spending a lot of time these days counseling their clients on how to set up a termination system that will pass judicial scrutiny. One important element is to relate layoffs to specific job requirements and qualifications. Another hazard will be retaliation lawsuits — complaints from employees that they were fired for revealing wrongdoing by company officials. Even when an employee loses a case charging discrimination, the courts have held that the plaintiff can sue on grounds that the company has retaliated against the worker for making the original complaint. Both plaintiffs’ and defense lawyers say that it’s much easier to prove retaliation than discrimination. Retaliation complaints, lawyers on both sides agree, could become an increasingly potent weapon in the looming employer-employee downsizing wars.

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