Below is the famous 1915 drawing by W. E. Hill. 1 What do you see?
Viewed one way, the drawing depicts a young woman looking to her right into the distance. Viewed another way, it depicts an older woman, looking down and to her left.
I’ll leave it to you and your psychiatrist to determine why you first saw one woman and not the other. Putting a positive cast on it, I draw on Mark Twain: “It were not best that we should all think alike; it is difference of opinion that makes horse-races.” 2
This is an important point. Lawyers must contend with facts, law, and weltanschauung, or worldview. Take EEOC v. Peoplemark, Inc., 732 F.3d 584 (6th Cir. 2013), for example. The Sixth Circuit Appellate Blog (9 Oct 2013) calls it “a tale of two lawsuits.” 3
The EEOC alleged that Peoplemark had a “companywide policy of denying employment opportunities to persons with felony records and that this companywide policy had a disparate impact on African Americans.” Ultimately the EEOC voluntarily dismissed the lawsuit. The dismissal, however, “provided that Peoplemark would be the prevailing party for purposes of determining who was entitled to fees under §706(k) of Title VII, as amended at 42 U.S.C. §2000e-5(k).” This set the stage for a fee award.
The $751,942.48 fee award against the EEOC “included $219,350.70 in attorney’s fees, $526,172.00 in expert witness fees, and $6,419.78 in other expenses.”
The Sixth Circuit majority upheld the discretionary award over a detailed dissent. As the Sixth Circuit Appellate Blog put it:
According to the majority, the EEOC pursued a meritless claim and was dilatory in its prosecution of the lawsuit. The dissent, by contrast, portrays the EEOC’s actions as reasonable litigation conduct against a barrage of obstructionist tactics by the defendant.
The dissent—pages 17-67 of the slip opinion—found the district court’s “interpretation of the merits” of the EEOC case to be “clearly erroneous” and based on “a misinterpretation of the role of the prima facie case in employment discrimination law.”
In contrast, the Sixth Circuit Appellate Blog summarized, “the majority agreed with the district court that the EEOC’s claim was frivolous, unreasonable or groundless, and that the EEOC continued to litigate after it clearly became so.”
So, three appellate judges—Sixth Circuit Judge Danny Boggs and opinion-author Sixth Circuit Judge David McKeague for the majority, and District Judge James Carr, sitting by designation, in dissent—assessed the same facts and applied the same law—and saw things quite differently.
What do you make of this? It may depend on your worldview.
If you think the EEOC abuses governmental power, serving ideology at the expense of business, or if you have race-neutral antipathy for felons, then maybe you see this decision as one rare occasion where a dogmatic agency got its just deserts (although, ultimately, the taxpayers get the bill).
If, however, you see the EEOC as a bulwark against invidious discrimination, or if you think your taxes are high enough, you may see this decision as inappropriately chilling vigorous advocacy of salutary public purposes or burdening public funds.
The Sixth Circuit Appellate Blog sees the decision as “another good reminder to litigants to ensure that their case is properly prosecuted or defended, because the consequences can be severe if they are not.” Good advice, but it only goes so far.
Here, Judge Carr thought that the EEOC properly prosecuted its claim. Judges Boggs and McKeague disagreed. So, doing what you think is proper may not be enough.
Another lesson might be to seriously consider settlement. A reasonable settlement may be better than a good case, because someone with a different worldview may see your case as not good enough. This means a lot when the opposing worldview is shared by two of the three judges on your appellate panel.
There is the warning about the Court of Chancery offered by Charles Dickens in Bleak House“Suffer any wrong that can be done you, rather than come here.” 4 Any wrong? That goes too far. Sometimes you need that “day in court.” But staying out of court is a good rule of thumb.
We trust that judges strive for neutrality, objectivity, self-reflection, and humility. Still, sometimes being in court is like being Nathan Detroit shooting craps with Big Jule, with dice from which Big Jule removed the spots. Big Jule remembers where the spots used to be. 5
In this literary simile, you are Nathan Detroit, the court is Big Jule, and where the spots used to be is what determines the outcome of your case: part facts and part law, yes, but, also someone else’s worldview.
1 The drawing, and others like it, are ubiquitous online. See e.g., http://mathworld.wolfram.com/YoungGirl-OldWomanIllusion.html.
3 Pierre Bergeron, “Sixth Circuit Upholds $750,000 Fee Award Against EEOC,” in the Squires Sanders Sixth Circuit Appellate Blog (9 Oct 2013). See www.sixthcircuitappellateblog.com.
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