“I’ve heard of him.”
“He’s an old nemesis of Mary’s, and she beat him last case and he’s coming back with a vengeance. We believe he put the plaintiffs up to this matter. He manufactured the case.”
Roger blinked. “So my intuition was correct.”
“Yes.”
“Then I decline the representation.”
“Roger, come on. You represent lawyers accused of legal malpractice. How much more personal can it get?”
“This. A personal vendetta.”
Bennie blinked. “How did you even know that from the Complaint?”
“I asked myself why the plaintiffs are proceeding under the Pennsylvania Human Relations Act as opposed to Title VII.”
“Our firm is too small to be covered by Title VII. We’re only four employees and three partners.”
Roger raised a hand. “That’s not what’s significant here. Although both the federal and state statutes outlaw discrimination on the basis of gender, the Pennsylvania Human Relations Act has sharper teeth. Most significantly, under the PHRA, a plaintiff can sue a defendant personally and individually. That’s what they’re doing in this case. You three were named as individual defendants. That’s not possible under Title VII.”
“Damn, I should have realized that.” Bennie pursed her lips, frowning. Judy and Mary exchanged glances. They should have realized that, too, but they’d been too upset. The baby kicked hard, like a rebuke.
Roger frowned slightly. “This provision weaponizes the statute. You’re personally liable for any damages. It also throws your liability coverage into question. If you’re not covered by insurance, then each of you would have to pay damages personally.”
“Understood.” Bennie nodded, and Mary felt a wave of fear. She and Anthony didn’t have the financial cushion to withstand a personal judgment. And she felt a wave of guilt, too, for getting him, Bennie, and Judy, into this mess. She was Machiavelli’s real target, but they were caught in the crossfire.
Roger continued, “Secondly, under the PHRA, there’s no cap on compensatory damages, as under Title VII. Under Title VII, damages against even a firm of fourteen employees are capped at $50,000. Punitive damages are available under Title VII, but not under the PHRA, but they’re so rarely awarded that it doesn’t make a difference for your purposes.”
“So the exposure is broader.”
“Correct.” Roger untented his fingers. “You have thirty days to answer the Complaint. Though extensions are freely given, I would suggest you do not extend.”
“I absolutely agree. That’s how we litigate. Even as defendants, we’re aggressive. We take the lead and never let go. In fact, we need to file an answer to this, right away.”
“No, you don’t.”
Bennie frowned. “Why? Don’t you want to take the initiative?”
“Yes, I do. That’s why I would wait.”
“How is waiting ‘taking the initiative’?” Bennie asked, but Roger only smiled, somewhat condescendingly, to Mary’s eye.
“I have the same question,” Mary said, backing Bennie up.
“Then I’ll explain,” Roger answered calmly. “To answer quickly is to react to Machiavelli. When you react to Machiavelli, you give him the initiative by your actions. Under the rules, you have ample time to answer. You respond to the rules, not to Machiavelli. Do you see the difference?”
“Fine,” Bennie answered.
“After the Complaint is answered, the Pennsylvania Human Relations Commission begins its investigation. As you may know, you’ll be deposed and there will be additional discovery. The focus will be the decisions you made not to hire the plaintiffs, as well as anecdotal or statistical evidence of gender bias in favor of women at your firm.”
“How long do you think that takes? Six months to a year?”
“Yes, and after a year, the plaintiffs can go to file suit in court. Before that, as you know, the Commission will pressure you to settle.”
“We’ll never settle.” Bennie folded her arms, and Mary realized they hadn’t even discussed the possibility of settlement. Still, she felt the same way and suspected that Judy did too.
Roger frowned slightly. “I would advise you to keep an open mind about settlement.”
“No, absolutely not. It would be an admission. I know you’re going to say it’s not, but it is, in reality.”
“Nevertheless. Settling this dispute without prolonged litigation benefits you and the firm.” Roger blinked. “Time is also a factor. The fact that they have a year to investigate prolongs the damage to your reputation, given that they’re off to a fast start. Reports of the allegations are already popping up online.”
Bennie grimaced. “That’s why I wanted to meet right away. I also think we should hold a press conference today at the firm. We need to take our case to the media, too. I texted our associate Anne Murphy to set it up for two o’clock this afternoon.”
“Good, go ahead even though you’re not represented yet. In fact, it plays better. Their complaint is colorable, given the admission by your associate John Foxman, and he is the only male lawyer employed by you.”
“It’s not intentional.” Bennie flushed, defensive.
“I’m sure it isn’t. But the optics are poor and the numbers cut against you. In addition, your firm had its genesis as an all-female law firm. You have made many comments to that effect. It’s not an illogical conclusion to think that what you manifested, you intended. The plaintiffs’ position has a commonsense appeal.”
Judy cringed, and Mary was feeling more worried. They needed Roger to take their case, and fast.
Bennie pursed her lips. “Don’t tell me you think they can win, Roger.”
“On the contrary, I do.”
“The hell they will. We’ll fight them tooth and nail. Tooth and nail!”
Roger blinked. “I’m sure that whichever lawyer you go to will be thrilled with the representation. You know everyone and you’ll have your pick.”
“Roger, seriously?” Bennie raised her voice. “You can’t be turning me away. We’ve known each other forever.”
“That’s why another lawyer will do better for you than I would.”
“Why? This case could not be more important to me!”
“That’s why.” Roger leaned back in his chair, spreading his elegant hands in appeal. “You’re facing an existential threat to your law firm. For you, it’s your reason for being. Your baby, your way of life. Your emotions are at an all-time high.”
“Of course they are! What else would you expect?”
“Nothing else.” Roger turned to Judy and Mary. “I don’t know either of you, but I’m sure as partners, you share her concerns, temperament, even energies. Yes?”
“Yes, we do,” Judy answered, and Mary let it go. She didn’t know whose energies she shared. Lately she didn’t have any energy.
“Thought so.” Roger nodded. “I operate very differently from you three.”
“Oh come on!” Bennie scoffed. “Don’t be such a control freak! We’re all litigators, for God’s sake!”
“True, but we litigate in our own way.” Roger paused. “Ours is a Darwinian profession. Litigators are strong. We self-select. Only the toughest survive, so there’s lots of toughness. Talk of force. Force meeting force. Conflict. Clashes. Battle imagery. War. Fighting. Like this.” Roger smacked his hands together, a harsh sound echoing in the still, quiet office. “In addition, our justice system is adversarial. There’s two teams, two sides. They fight, and one wins.”
“So?” Bennie shot back, and Judy looked over, surprised at the crankiness in her tone. Mary was getting cranky herself, since evidently, Roger spoke haiku.
“I’m strong, but there are different forms of strength. I don’t fight. I don’t use force. I assert my position but I remain flexible. My associates are strong, too. But we’re strong in a different way. I’m not sure the Vitez firm and the Rosato firm are well-suited.”