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.  

Communication Failure - Angus Part 3

Earlier that day, I had picked up a manikin from my weaving store.  We no longer needed him at the store, but I hadn’t decided what to do with the “dummy.”  I had grown fond of him over the years and had named him Angus.  He looked like a ferocious warrior in his regimental jacket and Prince Charles Edward Stewart kilt.  Selling him seemed like a betrayal after all we’d been through together, but there was no place to store him at home.  And he certainly didn’t belong in an uptown law office.  There was some space in the janitor’s cleaning supplies closet, so with deepest apologies, I wedged Angus in the dirty room in front of the upright vacuum cleaner.  I didn’t want him to frighten the janitor, so I put a warning sign on the outside of the closet door.  It stated, “Manikin in closet.”  I had considered putting up a sign that said, “Dummy in closet,” but I feared the janitor might take it the wrong way.

As the day wore on, I forgot about Angus.  Because of constant interruptions, I had not finished a brief due at the Court of Appeals.  The deadline for filing was the next day.  Frustrated, I had no choice but to stay late to complete the brief.

I worked my way through law school as a janitor/maid for a home and a couple of office buildings in Chapel Hill and Carrboro.  Back then, banks did not consider young, female law students to be a good credit risk, so there were no student loans available.  I really grew to hate the job.  I didn’t mind emptying the trash or the vacuuming or dusting.  But at the end of the day, cigarette butts and ashes emit a nasty stench that would stick to me   no matter how carefully I cleaned the ashtrays.   Dirty bathrooms acquire equally offensive odors and stains that assault both the eyes and nose.  Cleansers reek of chlorine and always managed to get on my clothes.  Those years taught me to have great sympathy for the cleaning crew.

My law office janitor was an elderly scarecrow of a man with toothpick arms and legs. A graying stubble always shadowed his face.  His overalls covered dirty, ragged shirts and his well-worn boots were splattered with splotches of paint.  I never knew much about him, but he always seemed hyper-active and a bit jumpy.  He never smiled, but knowing the joys of his profession, I didn’t take his grumpiness personally.  

As my office was in downtown Chapel Hill, I didn’t feel very safe working alone after dark.  Wanting to finish the brief and get home as soon as possible, I was totally focused on my work when the janitor arrived.  Concentrating on my brief, I didn’t hear him come in the office, walk down the hall, or open the door to the cleaning supplies closet.  But I certainly heard the blood-curdling scream that followed when he ran into Angus. 

My first thought was that a deranged criminal was gutting someone with a serrated butcher knife.  Total panic set in as I imagined the bloody scene that must be taking place just down the hall.  I desperately wanted to call for help, but couldn’t think of the phone number for 911.  To add to my confusion, the scream was quickly followed by a long stream of high pitched cussing.  It was then that I recognized the voice of the janitor.  Fearing that he must be having some sort of a seizure, I rushed out to help.

He trembled with anger as he stood screaming at me.  His death grip on the closet door was probably the only thing that kept him from collapsing.  I was afraid of getting too close as he was clearly in a rage. A collection of dangerous brooms and mops were at his right hand.

As he continued to curse at me, I figured out that he had not expected to find a huge, menacing Scotsman facing him when he opened the closet door.  When the yelling finally quieted somewhat, I asked him why he had not read the sign on the door?  It clearly stated, “Manikin in closet.”  In reply, the janitor asked, “What the  **** is a ** *** manikin?”  Thankfully, I caught myself before answering, “It’s a dummy.”  I just pointed at Angus and said, “That’s a manikin.” 

I stumbled back into my office and looked at the brief.  I was still shaking from the encounter with Angus and the janitor and I knew that I probably couldn’t finish anything that night.  But, I decided to read the brief once more before going home.  It was then that I noticed all the “henceforth’s”, “whereas’s,” “heretofore’s” and “thereto’s” scattered across the pages. 

I had learned an important lesson that night.  When trying to communicate, it’s important to choose words that your reader can understand.   I took a few minutes to delete all the legalese I could find in the brief.  I certainly didn’t want to confuse the Court of Appeals.  Perhaps the brief would even be good enough that I could take another “win” with me as I went into the “hereinafter.”  And, I really needed to find Angus a home.

Help! They've Arrested the Easter Bunny!

Cattaraugus County, New York, will not soon forget the Easter of 1992. That April, two tourists decided to explore the 17 counties of the Western District of New York. The decision was not as random as it may first appear. One of the tourists had recently been convicted of felony tax evasion. His probation limited his travel to that area of the state.

The morning of April 23, the men stopped for breakfast at a café in the “Enchanted Mountains” of Cattaraugus County. They noticed a little girl at the diner all dressed up “in her Easter finery.” They thought it would be fun to put on the “Easter Bunny” mask they happened to be carrying in their van to surprise the girl. One of them then donned the two foot tall rabbit head, peered into the café window, and waved at the child. Locals also spotted him looking into bank windows and windows of the police department while disguised as the Easter Bunny. Having had a look around, the tourists headed out for Chautauqua County, New York.

Back in the Enchanted Mountains, alarmed villagers alerted local law enforcement to the Easter Bunny and his “surveillance” of the bank and police department. Worried about potential bank robbers, Police Lieutenant Travis issued an all points bulletin on the tourists. He warned that they should be considered “armed and dangerous.” Later, Travis heard from the FBI that one of the men had been convicted of “some type of perjury” under Title 26 of the US Code. Having never heard of Title 26, Travis went to the library where he learned that it was the federal tax code.

Meanwhile, New York State Troopers spotted the van, surrounded it, and - with weapons drawn- arrested the tourists. They handcuffed them, threw them into the back of the patrol car, and hauled them and their rabbit’s head back to the Enchanted Mountains. There, the local police interrogated them for two and a half hours. At the conclusion of the “interview,” they had a good laugh and released the men. To the Easter Bunny, however, this was no laughing matter. The tourists sued the county and its officers, claiming that police had violated their civil rights.

The court said the police had no reason to arrest the tourists. No bank had been robbed. Nor had anyone attempted to rob a bank. True, the men had “looked around,” but they were tourists and that’s what tourists do. Looking around isn’t illegal, nor is wearing a fake rabbit head. The court said, “It is hard to imagine why a true potential bank robber would don such a bizarre, attention-grabbing mask” if he were about to rob a bank. The judge noted that when robbing a bank, “stealth is preferred.”

Clearly this judge hadn’t seen the 1991 movie Point Break featuring robbers who wore Nixon masks. How inconspicuous is a Nixon mask? Moreover, at least one of the tourists owed a lot of money to the IRS. He probably needed some quick cash. Yet, the judge ruled that the Rascally Rabbit and his friend could take their claims to the jury.

There are many questions left unanswered by this case. If they weren’t going to rob a bank, why were these guys driving around with a giant fake rabbit’s head in their van? Where was the rest of the costume? Also, the entire episode was triggered by a child wearing her “Easter” dress. But April 23, 1992, was the week after Easter. Why was the child so dressed up? Who wears a rabbit costume a week after Easter? I may have discovered the answers to these questions.

In addition to its natural beauty, Cattaraugus County is famous for its annual Pond Skimming Party. In the frigid spring weather, locals don various costumes, enjoy the Margarita Bar, and try to ski down a snowy hill fast enough for the momentum to carry them across a watery pond without sinking. In photos from last year’s event, I saw a few costumed kids racing downhill in the snow and falling into the freezing water. This may explain the Easter dress. (Apparently, the county has no Child Protective Services agency.) I didn’t see any rabbit costumes in the photos. Perhaps the Easter Bunny no longer comes to Cattaraugus County. My favorites were the three men in togas wearing Mardi Gras beads and huge feathery masks. It must have been impressive to watch them hit the water. Togas, feathers and beads probably went flying everywhere.

For some reason, no one told the court about the Pond Skimming Party. Had the officers mentioned it, they would have had even less reason to have arrested the tourists. They had argued that wearing a rabbit costume was suspicious and warranted the arrest. However, wearing a costume during pond skimming season is not suspicious at all. Had the tourists mentioned the party, they would have had to explain why they only had the rabbit’s head. Perhaps the rest of the costume is in the bottom of the pond along with the togas that didn’t make it across. Maybe driving after drinking Margaritas would have been a probation violation. We’ll never know.

From what I can tell, the case eventually settled out of court. The Pond Skimming Party continues to be a popular annual event in the Enchanted Mountains. But if you go, leave the rabbit costume at home. The Easter bunny is no longer welcome in Cattaraugus County.