by John Gause, Esq.
Published: Maine LAWYERS REVIEW, December 12, 2013
As I reenter private practice after eight years working as the Commission Counsel at the Maine Human Rights Commission there are a few things I will carry with me that I wanted to share. My private practice will, in part, include handling cases before the Commission, and I plan to do some things differently in light of my experience on the inside. I invite other lawyers to join me.
1. Trust the system
The Commissioners and staff are fair. Over the course of eight years, I approved over sixteen hundred Investigator’s Reports, sat in on biweekly Investigators’ meetings, attended each Commission meeting, and had countless casual discussions with staff and Commissioners. Not once in eight years did I see someone at the Commission decide an issue or case based on personal feelings toward the parties or lawyers or bias in favor of complainants or respondents. Decisions were made on the merits. Period.
2. Suggest improvements
That does not mean the system is perfect. It is evolving and improving, but it can be made better. The staff and Commissioners consistently work to make it so, but all of us have a role to play. That role is not the naysayer. Pointing out what is wrong does not get things fixed. What the Commission needs are concrete suggestions for improvement. Amy Sneirson, the Executive Director, is approachable and open to new ideas. If we come up with a way to make things better and schedule a time to sit down and talk with her about it, we will be surprised how easy it is to change things for the better.
3. Make sure we are heard
The fact that cases are decided on the merits is not to say that the parties, lawyers, Investigators, and Commissioners are always on the same page. We all have different abilities and perspectives, and we each focus on different aspects of a discrimination case. Communication is also imperfect. Sometimes an Investigator will see what we are driving at the first time we mention it; other times we need to work harder to drive our point home. We should not take for granted that our message has been received. We may need to repeat it, rephrase it, check in to see that we have been understood.
4. Do not take things for granted
We should not assume that the Investigators or Commissioners will see through to the salient parts of the case without our assistance. They are all smart, observant, and careful, but they are also extremely busy—the Investigators with caseloads of eighty plus cases; the Commissioners with thick stacks of Investigator’s Reports and party submissions to wade through prior to each meeting. It is dangerous to assume that they will pick up on something if we do not point it out. If we are afraid that shining the light on something will weaken it, we need to remember that if it cannot withstand the light of day it is not going to help us.
5. Marshal the facts to our advantage
Cases are decided on facts. We need to take the time to concisely identify the facts that show discrimination and understand why: A + B + C = unlawful discrimination. This takes work, but it works. No fact finder is going to be persuaded by someone simply saying respondent discriminated. We should take the time to find out why we think so. The Investigator will look to the parties’ and lawyers’ descriptions of the facts when preparing the factual background in their Investigator’s Reports. They will borrow from the version that makes the most sense. The party who is able to marshal the facts to her advantage usually wins.
6. Say what we mean
By facts I mean the circumstantial evidence that proves most cases of discrimination. By work I mean thinking about the reasons they support a finding of discrimination and then saying it. We should not simply give the facts, e.g., employee complained about a workplace safety issue and was fired two weeks later. We should say why the facts support our case, even at the risk of stating the obvious, e.g., employee complained about a workplace safety issue and was fired two weeks later, and the close proximity between the two raises an inference that the firing was motivated by the complaint.
7. Leave out the hot air
The Investigators and Commissioners are just like you and me. They do not buy baseless accusations, are annoyed by personal attacks on parties and lawyers, and see through hyperbole. They are doing what I found out is a very difficult job—deciding cases on the merits. I am sure they have mastered the ability to skip swaths of superfluous information and focus on the substance. If we give them just the substance in the first place it will save time, improve our credibility, and conserve paper.
8. Guard our credibility
Speaking of credibility, just as lawyers share their impressions of Commission staff members, staff members share their impressions of lawyers. As I said, they do not decide cases based on how much they like or dislike somebody, but I am sure our reputations affect how we are treated in more subtle ways. If a lawyer does something indecorous to one staff member, the others likely will learn about it. Also, a strong rebuke of an Investigator to the Commissioners while objecting to an Investigator’s Report is read by the same Investigator who may be handling our next case. We would be wrong to think that personal attacks go unnoticed. I am not suggesting anyone hold back legitimate objections, but we should be tactful.
I know I’ve been on the wrong side of plenty of these in the past. But with a view from the inside still fresh in my mind, I am going to try to do better. Join me.