Have a question about how to use the law in your story? Need a character, plot twist or setting? Ask me in the comments section and I'll be glad to answer. I welcome all comments and questions.

Wednesday, April 27, 2011

If You’re Writing About Sunken Treasure Hunting, You’re Using Admiralty Law

I got really excited about this article because when I teach about using the law in writing I always challenge people to tell me why admiralty law can be pretty exciting. They look at me with blank stares, because it sounds deadly dull, doesn’t it? But admiralty is more than cruise ship accidents. That’s because admiralty law covers anyone who finds or is hunting for sunken treasure.

In the article, a group of treasure hunters called the Black Swan Project found over $500 million in treasure on the ocean floor. Most writers assume that the law is “finders keepers” but it’s way more complicated than that. In this case, Spain made a claim on the treasure because they were the original ship owners. Peru says Spain stole the treasure and they want it. Now a researcher whose research was used to find the ship has made a claim on the loot too. So far, the courts are letting him proceed with his claim.

The law of salvage is what governs the claim to the loot once it’s found, and the law is complicated. So never assume that your treasure hunting character will end up rich if they find that pot of gold.

In The Writer’s Guide to the Courtroom, I talk about admiralty law and admiralty lawyers in more detail. I think admiralty lawyers make great characters. Maybe your treasure hunter has a lawyer on retainer. Or maybe the insurance company who insured the sunken ship has their own admiralty lawyer come after your character.
However you handle it, make sure you get it right.

Wednesday, April 6, 2011

The Good Wife, Emotional Distress, and Employees

Last night’s episode of The Good Wife was called “Wrongful Termination.” (Yes, I'm writing about The Good Wife again. Sorry, but it's a great show). I cringed at the title because Illinois, like every state in the nation but one, is an at-will state, meaning employers can fire or discipline employees for any reason or no reason at all. So my expectations were low.

I got a pleasant surprise.

It’s still not clear to me what the lawyers’ theory of the case was, but the best I can decipher from the arguments is that they were claiming the tort called “intentional infliction of emotional distress.” Illinois, unlike my home state of Florida, does allow this type of case to be brought against employers.

The facts were that a company needed to do a 20% workforce reduction. Instead of laying people off, where they’d have to pay severance under their severance policy, they decided to make life so miserable that people would quit. They turned off the a/c, required ridiculous work hours, publicly berated and humiliated employees who were targeted for termination. Three employees committed suicide, one actually at work.

In order to prove a claim for intentional infliction of emotional distress, the employee has to prove: (1) the defendant’s conduct was extreme and outrageous, (2) defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress, and (3) the defendant’s conduct did cause severe emotional distress. That sounds like half the employment cases I handle, but Florida’s standard for what is “extreme and outrageous” is virtually impossible to prove.

In Illinois, however, they’ve allowed this kind of case against employers. For instance, in Naeem v. McKesson Drug Company a former employee was deliberately given high-stress and physical work duties during her pregnancy, to the point she needed to take short term disability leave. When she came back, she was repeatedly disciplined, humiliated and berated in meetings, and put on impossible deadlines, to the point where she began to suffer physical symptoms, considered suicide, and had to go into counseling. She was terminated. The court found that this behavior was extreme and outrageous enough to support a claim for intentional infliction of emotional distress and the jury awarded $495,000.

In general (in all states), insults, indignities, threats, annoyances, oppressions, trivialities, vulgarities or other abusive expressions aren’t enough to bring a claim against an employer. The conduct has to be so extreme and outrageous that it goes outside all bounds of decency. That’s tough to prove. In Florida, racial epithets, nooses, unwanted touching, obscene comments, and other pretty extreme behavior is not extreme enough. (In one case, the Florida courts did allow a case where there were death threats, and threats to rape the plaintiff’s children and other relatives, but it wasn’t the employer doing it. I wonder what would have happened had the perpetrator been a coworker).

Interestingly, the writers didn’t tell us how the case came out. Instead, it settled quickly when they uncovered the fact that the officers had looted the pension fund. Pretty realistic in today’s world. Still, I thought the writers did a good job of laying out what just might have succeeded as a claim for intentional infliction of emotional distress in Illinois.

One minor caveat – it was a class action in the show, and I think a class action for an intentional tort is pretty unlikely to succeed. They could have just brought the case in the names of the individuals who were driven out and had the same arguments. But the class action aspect was such a minor plot point that it didn’t bother me much.

The writers of The Good Wife bring up a great point. In today’s economy, shouldn’t more states recognize that deliberately making someone miserable to get them to quit is extreme and outrageous? With the average time to find a new job running at about 9 months, and many people finding it’s taking much longer than that, doesn’t the economic situation change the way we should look at employment?

Why bother to torment someone out of a job when you can fire at will? It’s to deliberately keep them from getting unemployment and to deliberately circumvent any entitlement to severance under severance policies and contracts. Now I call that extreme and outrageous.