I’m going to talk about discrimination cases and judicial activism. Simply put: Federal Rule of Civil Procedure 56 provides that summary judgment can only be granted where there are no material factual disputes. Meaning that if a reasonable jury could rule for the plaintiff, then the case should go to trial. But many federal judges are not applying Rule 56 correctly in discrimination cases. Instead, many federal judges have decided that they do not like discrimination cases. They view plaintiffs in discrimination cases as seeking a payday. And, so, they have created a heightened standard – call it Rule 56X – that applies in discrimination cases. When judges depart from the text of a Federal Rule and create their own, more demanding standard, that constitutes judicial activism. That is what is happening here.
This has been happening on a widespread basis for the past 20 years or more. There is now an absurd body of case law applying and backing up this judicially-created, Rule 56X. To be clear: There is no Rule 56X. This is my name for what courts are doing. Under Rule 56X, courts have decided that only the most egregious, blatant, terrible racism or harassment matters.
Have you seen the cases where courts say that being called the n-word 15+ times over the course of two years just isn’t enough to create a hostile work environment? It’s absurd. Have you seen the cases talking about a woman being grabbed, groped, forcibly touched — but the court didn’t think (a) it happened enough times or (b) was really bad or violent enough to constitute a hostile work environment. There are some really deplorable cases out there.
Likewise, there are countless cases where the facts clearly are in dispute, but a federal judge simply decides that one side is telling the truth (the company), and the other side is lying. We have a fascinating case up on appeal right now. On one side, you have the plaintiff. The plaintiff’s story has been 100% consistent. He has never been caught in a lie. His story is straight and it make sense. Not only that, but his wife backs up his story 100%. Both sat for depositions that lasted hours.
On the other side, you have the company. The company’s lead witness and head of HR was caught lying multiple times. There are multiple inconsistencies in the company’s story and between the company’s witnesses. And there’s a bunch of blatant, ugly racism. What happened? The trial court decided that the company was telling the truth and the plaintiff was lying. So the court granted summary judgment in the company’s favor. The judge (a) misapplied Rule 56 (b) ignored relevant and binding case law (c) assumed the company was telling the truth (d) made sweeping credibility determinations (e) resolved all factual disputes in favor of the company and (f) usurped the role of the jury. The case and the judge’s ruling in the case are utterly shocking.
I do not have very much faith in the American legal system. It is full of machinations like this. Dysfunction. Error. Judicial activism. Egregious miscarriages of justice. But I will die on this hill, as the saying goes. I don’t know any lawyers who are willing to come out, take a stand, not hedge, not equivocate. I don’t know any lawyers who will say, yes, a federal judge ruled X. The judge was wrong. I’m appealing. And I will win the appeal. Lawyers don’t do that because they’re afraid of losing. They’re afraid of the mockery and the scorn. They want to save face. But I’m beyond all that.
On Picking (Legal) Fights that Matter
The average American citizen has no faith in the courts. And that is for good reason. Because the courts are rampantly dysfunctional, frequently unfair and unprincipled, and sometimes nakedly corrupt.
Let me be clear: I don’t have to do this. I don’t have to do any of this. I could have gotten an MFA and been a writer. I could go be a professor. I’ve had colleges and universities recruit me to be their next president. I could be a high school principal. I’ve had companies ask if I would consider being their CEO. I’ve had people with tons of money ask me to just join there team as a jack-of-all-trades thinking man. Hell, I could even shut everything down, stop doing litigation, just do consulting and advising, work 20 hours a week, and get by just fine.
I do this because I want to do this. I do this because somebody had to go out and do this and most lawyers just don’t have the brains or the guts to even try. So, right now, I working on correcting this long-standing problem of judicial activism / judicial dysfunction in discrimination cases. And I plan to set that right (“Shall I at least set my lands in order … shantith shantith shantith”). Some people laugh at that and me and say yeah, right. But what I’m doing right now is not without precedent — the precedent being my own career.
When I Had to Explain to People that Non-Compete Law is Antitrust Law
More than a decade ago, I realized that America had a huge problem with non-compete abuse. I was one of the first people working on that issue. I said that trial courts throughout Florida were routinely misapplying the law. And I set out to change that landscape. I litigated 100+ non-compete cases in Florida. I won several key appellate decisions out of the state and federal appellate courts. And that area of law began to change.
I had one case in the Middle District of Florida (federal court). The court issued an injunction against my clients (i.e. shut their business down) without even giving them an evidentiary hearing and a chance to testify. That was clearly wrong on the law. I said I would appeal. The lawyer on the other side laughed in my face and told me that was how they did things in Tampa and in the MDFL. It was business as usual, she said. I would never win, she said. The mediator laughed in my face, too. But I won the appeal. Then I came back down to the trial court and moved for the judge to recuse herself. Then I beat a renewed motion for a preliminary injunction. Then I won partial summary judgment. Then I basically went to the other side and said: Did I stutter?
I won two major state court appellate decisions, two major 11th Circuit appellate decisions, and some other huge appellate motions (i.e. motion to stay a trial court injunction order). I won a bunch of trial court decisions. After 10+ years, we would go into court and beat an injunction in a non-compete case — and my partners and I would talk about it and say, “You realize we never would have won 10 years ago. We had to lay all that groundwork and create all that case law.”
We played a huge role in transforming this entire body of caselaw in Florida and pushing for national non-compete reform. And now, we’re running it back. But this time, we are correcting the judicial dysfunction that has plagued employment discrimination cases for the past 20+ years. Strangely enough, the 11th Circuit and the Supreme Court are already going this direction. Just give me two years.
Jonathan Pollard is a lawyer and a writer. He only does the work that he considers meaningful and sporting. To his knowledge, he is one of only two lawyers in the world with a tattoo of the day that John Brown was hung and executed. The other such lawyer is his partner Deaken Shuler. Pollard PLLC has offices in Fort Lauderdale, Miami, and St. Louis. They can be reached at 954-332-2380.
