The Very First Contract

     Mornings are not my favorite part of the day.  They were especially difficult when, in addition to trying to get to work or court, I had to herd three grumpy teenagers into the car so that I could get them to school on time.  One of my sons had developed a slightly rebellious streak that seemed to be getting worse daily.  Perhaps it had something to do with his deepening voice and sprouting facial hair. 

    On the way to school one typically miserable morning, he said, “You know, Mom, I’m bigger than you, stronger than you, and faster than you.  I’m sitting here wondering why I have to do what you say.”  I reached into my purse and pulled out my checkbook.  “The reason, son, is that the last time I checked, you were unemployed.”  He grinned and replied, “You’ve got a point there, Mom.”  He understood that in return for me providing care and support, he had an obligation to comply with house rules.

     I thought about that morning recently when reading about disgruntled voters who are threatening to kill our President.  Some claim that his election is the end of our democracy.  To save us from the “madness”, they have decided to resort to violence.  Like my teenaged son, they’ve forgotten about their obligation to comply with the very first contract.

     William Blackstone was an eighteenth century legal scholar who is still respected for his knowledge and wisdom.  He writes that the “original contract of society” is the foundation of all law.  This unwritten contract requires the community to “guard the rights of each individual."  In return for this protection, "each individual should submit to the laws of the community.”[1]

     From the beginning of time, societies have devised codes of conduct.  Our laws are the culmination of thousands of years’ experience in determining the best way to govern ourselves.  Our democracy is not perfect but our laws provide ways, such as voting and nonviolent protests, to address those problems.  Therein lies our government’s genius and staying power.  Therein lies its right to our respect and obedience. 

     For help with my parenting problems all those years ago, I consulted a neurologist about the change in my children.  Either I had suddenly become a bad mother or all three of them were developing personality issues.  I had gone from worrying about how I was going to pay for their graduate school tuition to praying that the mischief would never amount to more than a few misdemeanors.

     I was relieved but surprised when the doctor told me that it wasn’t my fault.  The kids were in fact flipping out.  He said that all teenagers’ brains are structurally unable to make reasonable choices.  The best I could do was to help them “keep it between the ditches” until their brains finished developing.  He assured me that once that happened, I would see the amazing people they were destined to become. 

     Wearily, I asked how long this development would take. He responded that by the time they reached the age of 23, all should be well.  I didn’t know how I would get through the next eight years, but at least there was a light at the end of the troubles.

     I’m happy to say that the doctor was right.  We experienced challenging times during those eight years and we all learned important lessons from them.  But now, I am once again a very proud mom of all three of my children.  They have each grown up to be more than I ever hoped for.

     It may be eight years before the current political turmoil settles down.  Like my teenagers, our government may be experiencing growing pains.  But history teaches that our government can survive great challenges.  Our nation has endured and learned from a bloody civil war, two World Wars, deadly epidemics, the turbulent sixties, and numerous economic depressions.  It can surely handle the upcoming challenges. We just have to “keep it between the ditches” and honor our fundamental contract.  

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[1] Blackstone’s Commentaries on the Law, page 29 (1941).

The "Professional Plaintiff"

     As I’ve been a lawyer for over forty years, it was inevitable that I’d eventually run into a “professional plaintiff.”  For those of you who haven’t had the pleasure, let me introduce you to one such man - Cory Groshek who operated primarily out of Wisconsin.  Mr. Groshek made his living applying for jobs.  It wasn’t that he wanted the jobs.  He was trying to catch employers who ran a credit check on him without complying with the federal laws on doing so.  Once an employer fell into his trap, he would threaten the employer with a class action lawsuit.  In one year, he collected $230,000.  Not bad pay for filling out 562 job applications.  A couple more years and he’d be a millionaire.

     Everything was going really well for Groshek until he tried to bully Time Warner Cable.  He applied for a job and signed the Time Warner form authorizing the company to check his credit.  Once he had proof that they had run the credit check, he began with the threats.  His initial demand was allegedly for $5 million.  When Time Warner refused to pay, he filed suit.  You may wonder what Time Warner did that violated federal law.  After all, the company did get written consent to check Groshek’s credit as required by the Fair Credit Reporting Act.  Groshek argued that their consent form contained irrelevant information.

     In May of 2016, the U.S. Supreme Court ruled that because Groshek had not been damaged by the credit check, he had no grounds to file suit.  Groshek had no damages because after running the credit check, Time Warner offered him a job.  Groshek probably wasn’t surprised by the job offer.  As he was making money hand over fist at that time, I suspect that he had a great credit score.

     Even lovely Chapel Hill, North Carolina, has seen  professional plaintiffs at work.  One lady in question was born with cerebral palsy and is wheelchair bound.  As of 2011, she had filed 290 lawsuits against various businesses alleging that they were not in compliance with the Americans with Disabilities Act.  This plaintiff lives in Florida but visited a Chapel Hill shopping center on three occasions on her way to see her attorney in Durham.  She claimed, among other things, that the disabled parking spaces “do not have clear and level access aisles”; that signs were “not mounted at sufficient heights”; and that curb ramps contained “excessive slopes.”  While she argued that these “excessive barriers” “endangered her safety,” she did not allege that she was denied access to the stores or that she suffered any physical injuries.  Indeed, she wanted to “visit Defendant’s property once again” because it “has an attractive selection of goods and services.”  The federal court tossed the lawsuit.  It ruled that the plaintiff had not suffered any injury and therefore had no case.      

     Although the plaintiffs lost the above two cases, there are thousands of claims that professional plaintiffs have successfully pursued.  For that reason, it was discouraging to see that in July of 2016, the federal government authorized patients to sue health care providers who do not provide them with federally mandated interpreter services.  During the months that followed, I began to receive telephone calls from clients who had been challenged by patients demanding interpreters.  As I had not received any such calls in the first 40 years of my practice, I cannot help but think that my clients were dealing with professional plaintiffs who were looking to make a buck using the new regulations.  Luckily, those calls have died down and as far as I know no one has been sued. 

     Professional plaintiffs tie up the court system and waste jurors’ time all at the expense of the taxpayer.  They also run up exorbitant attorney fees and court costs for hapless defendants.  When those defendants are health care providers, those expenses will be passed on to all of us in the form of higher health care costs.  Hopefully judges will begin to close the courts to these plaintiffs and order them to pay their defendants’ expenses and sanctions for filing frivolous cases.  Perhaps then, the courts can get back to the business of helping citizens who actually need access to the judicial system.