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Tuesday, July 13, 2004

Oh Yes! It's Ladies Night

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I had occasion to think about the UNRUH Act recently while, of all things, listening to my favorite morning show on the radio. Did you know that some Smart-Ass civil court plaintiffs have done away with Ladies Night? It's an outrage! How can you make a discrimination argument out of drink discounts given to encourage ladies to come out and get drunk? I would have figured most guys to be all for Ladies Night. (Truth is MOST guys are all for it)

So what the heck happened here?

Apparently some guys are more interested in litigation than getting drunk with the ladies. These particular guys are opportunists, I am sure, though I don't know them personally. The condensed version of what happened goes like this:

Some clever guys figured out that the Ladies Night discount is a violation of the UNRUH Act. (I call them clever only because they know about the UNRUH Act)

Then they go around to clubs which have Ladies Night promotions and demand equal treatment from the management.

The club managers laugh at them. (Since they were unaware of the UNRUH Act)

Then the opportunistic-litigation-lovers head straight to court to vindicate their statutory right to equal treatment by a California business.

Viola! The end of Ladies Night.
If you find this absurd, you're not alone. The idea that these guys were some how injured by this, damaged by it, is nuts. After all, this Act was intended to protect people from harmful discrimination, not the denial of drink discounts.

Nevertheless, our opportunistic plaintiffs won. Because they were able to make out a cognizable cause of action under the law as it is presently written. (for you non-lawyer types this just means that they had a case) We don't make subjective value determinations when deciding if the plaintiff has made a case. We just look for those prima facie elements (English = stuff you need to have a case) and say "yea" or "nay".

My Dad (Let's call him Diva's biggest fan) doesn't like this. And to be honest, I don't really like it either. But we disagree on whose fault it is and what to do about it.

We can agree that litigation in this country seems to be out of control. Every time you turn on the television there is another TV Tort Lawyer hawking his wares. People day-dream about winning the personal injury lottery, scams abound and "I'll SUE you" is as common a salutation as "Have a nice day".

On the other hand, every day people are injured by the negligence or malice of others. We should be able to agree that those people deserve to be compensated, to be made whole.

In between these two positions is a vast and varied grey area, riddled with divergent facts and competeing interests. Whose responsibility is it to cull the wheat from the chaff? My biggest fan seems to think that lawyers are the gatekeepers, and every time a questionable case gets to court it's because some lawyer just wants to make a buck. Fan thinks that if the lawyer were an ethical person, he would not assist in the bringing of this subjectively silly law suit.

In stark contrast, I tend to think that it's the plaintiff who should be the gatekeeper. Afterall, it's his cause of action. If the law allows him to bring it into court, then it should be his choice to pursue it or not. To my mind the trouble lies in the bigger arena of what the law allows you to bring to court.

Take our opportunistic kill-joys for example. They did not invent the UNRUH Act. They didn't manufacture a cause of action out of thin air. They had all the pieces, all the parts, for a winning law suit. That's why they won. Now the fact that you or I wouldn't have brought the suit doesn't mean that they can't. Technically, they CAN. Even if the first 12 lawyers to meet with them suggested that they not let the door hit them in the ... buttocks. In any event, lawyers will make terrible gatekeepers because if you can't find a lawyer who will represent you, you can still just represent yourself.

The only effective gatekeeper, if we need one at all, is that prima facie case stuff. Not having a case at all will keep you out of court. (Or throw you out of court, depending on how tenacious you turned out to be) Maybe we should think about tort reform. If civil plaintiffs quit winning the lottery there would be a lot less incentive to cook up a law suit in order to cash in. Any way you slice it though, it comes down to the law. Plaintiffs have to play by the rules. Lawyers have to play by the rules. If you aren't happy with the game then it's time for some new rules.


Anonymous Anonymous said...

Hey You are a wonderful writer and also exceptionally good looking. What is your feeling on designer juries.

12:01 PM  
Blogger Girl Ipsa said...

I will think about designer juries and then write about it if I have anything interesting to say. But until then, I don't care that much about designer anything. I am a deep discount girl.

7:34 PM  

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