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         “It Could Have Been Worse”

By:  Bill Pilchak – 8/5/14

           As it turns out, Friday, August 1, was the 30th anniversary of my entry into the practice of labor and employment law. On July 31, 1984, I spent my last day as a Senior Trial Attorney with the Oakland County Prosecutor’s Office. The next day I joined a boutique labor and employment firm that produced an alumni group of some of the finest management lawyers (and perhaps a plaintiff’s lawyer or two) in the city, Dan Cohen and Rhonda Armstrong, included.

          I thought it fitting to look back on “the first thirty years.” (Fans of quirky films will recognize the above photo and italicized quote from So I Married An Axe Murderer, as Mike Meyers’ father- also played by Meyers- looks back over his 30-year marriage: https://www.youtube.com/watch?v=-f696J1NuAU)

          First, I remain honored that so many capable business owners, executives and district courts come to us for advice and guidance, especially when the wolf is at the door and litigation is served. We work with an amazing array of brilliant, talented and hard-working people. We know from the few occasions where we have served individuals without business experience, that the challenge of practicing law is made easier by our clients’ knowledge and understanding.

          Second, as other boutique firms disappear or merge into silk stocking firms – almost certainly to gain clients the principals could not attract on their own- and as we hear of attorneys with little work on their desk, we (but maybe not our spouses) are constantly grateful that our to-do lists are always long. But, we do wonder why at times. Looking back, I think that taking a deep breath, accepting higher levels of responsibility, tackling new challenges and navigating uncharted waters accounts for some of that. We have taken on some incredibly complex tasks over the years: Illustrating the surprisingly important role that a history of childhood sexual abuse plays in sexual harassment cases during potentially million dollar litigation; [1] Dan’s defense of litigation on behalf of a prominent regional bakery where he preserved the miscellaneous overtime exemptions under the FLSA for Michigan employers despite an adverse federal decision to the contrary; [2] Mapping compliance with the European Data Directive for clients with overseas operations; flowcharting the FMLA back when few understood the cross-hatch of regulations; unravelling hidden profits in a shareholder dispute. As the younger sibling, often reminded of how bright my brother was, I am proud of the level of sophistication we have achieved.

          Third, I am personally thankful that some benevolent higher power has sent people my way that have had a profound impact on my life and career: Certainly my wife, Toni, who has the patience of a saint and is still awaiting her proper share of my time; Dan Cohen, who I was smart enough to recognize as an exceptional legal talent in the first two years of his career, and who soon joined me after I moved on from that first firm; Dawn Burke, our office manager – who easily could have been an attorney herself, who has a farm-girl work ethic, runs the entire business side of our practice, and is actually an angel though she does not know it; and finally, a certain general counsel, who would be embarrassed to be mentioned by name, who started using us for his employment litigation matters in 1990 in each successive company he served, most of whom remain clients today, and from which many of the brilliant, talented and hard-working people we serve emerged and spread throughout the Detroit business community.

          Finally, I am grateful and proud of our outstanding record of success in contested matters and in avoiding litigation or at least liability though our assistance on discipline and discharge matters. For years, we had an unblemished record where no client had been sued on a discharge where we assisted with the termination paperwork. That perfect record fell, we later learned at deposition, when one plaintiff stopped showing the termination letter to attorneys after the first four refused to take his case. Although now a few cases have been filed, no client has ever taken an adverse verdict (and we don’t recall having to settle litigation) on the basis of a termination upon which we consulted.

          With regard to contested matters, those clients who have faced litigation will know our job is to employ a gauntlet of defensive tactics to end the case long before our clients face a jury. Part of that gauntlet is tracking down easily-overlooked witnesses and records that illustrate the falsity of an opponent’s factual representations. Increasingly in the past few years, such gumshoe efforts have blown up cases in progress by confirming that: Indeed, the plaintiff was running a competing company on the side, as suspected; The suspected disloyal officer had set up a post-office box to which payment for diverted deals were sent; The recently resigned recruiter’s trash showed she had indeed taken and was copying her employer’s secret procedure manual; The records that the plaintiff entered into the company’s database about a candidate’s qualifications were completely false; The phone calls recorded by the allegedly-sexually-harassed employee included her discussion of cultivating the harasser as a “sugar daddy.” Most cases have a thread, which if pulled, unravel the facts.

          Given our caseload of contested employment matters per year (Charges, state/federal litigation, discrimination, etc. claims in arbitration), it’s reasonable to assume that we have handled at least 400+ over the years. Many, and possibly most, were dismissed on motion, and on appeal we made some important law for employers: That temporal proximity between whistleblowing and termination is not enough to make a plaintiff’s case;[3] That a person who violates a rule after being told of the rule is not similarly situated to someone who merely violates the rule; Delineating the fine distinction as to when vacation becomes “vested” and illustrating how arbitration decisions on pure questions of law are reviewable on appeal.[4] Some plaintiffs, especially over the past two years, folded their tents after we uncovered evidence that plaintiffs had lied in discovery or fabricated evidence. Occasionally, a wrongful decision was reversed on appeal. All but one of the others were resolved on terms that were a good business decision for the client.

          But it’s that one case that got through to an award that bothers me. I could take heart in the fact that the arbitrator awarded about $100,000 less than the settlement demand, or that the client was insured. However, because of our loyalty to all clients and that client in particular, the decision still bothers me…and causes me to resolve not to repeat the experience.

          So, with the daily interaction with bright and interesting people, a constant flow of intriguing problems crossing the desk and a record of about 400 to 1, the first 30 years have been a pretty good start to the practice. I can’t wait to see what the next 30 years bring.

 

[1] Though my 1997 American Bar Assn. article is no longer available on-line, it was quoted in 2012, in the Journal of Sexual Compulsivity:   http://www.adenabanklees.com/wp-content/uploads/2014/05/Sexual-Harassment-as-Cycles-of-Trauma-Reenactment-and-Sexual-Compulsivity.pdf

[2] http://www.michbar.org/opinions/appeals/2005/062805/27860.pdf

[3] http://caselaw.findlaw.com/mi-court-of-appeals/1170079.html

[4] http://www.michbar.org/opinions/appeals/2012/052212/51726.pdf