Q&A With Nossaman's George Joseph
Nossaman's Managing Partner George Joseph was profiled in Law360 as part of its popular Q&A series. Mr. Joseph's full Q&A can be found below.
George Joseph is the managing partner of Nossaman LLP. He has experience representing employers in litigation and counseling employers on personnel issues, including discipline and termination procedures, layoffs, harassment and discrimination, severance agreements, wage and hour issues, flexible scheduling arrangements, vacation, sick leave and other benefits, leaves of absence and employee disabilities. Among the services Joseph provides are drafting of employee handbooks and personnel manuals, comprehensive reviews of existing policies and procedures and seminars on issues such as sexual harassment, discrimination, wage and hour and medical leave laws.
Q: What is the most challenging case you have worked on and what made it challenging?
A: My most challenging case involved an allegation of sexual assault in the workplace that, as far as we could tell, almost certainly did not occur. As sometimes happens in these cases, however, it appeared that the plaintiff had managed to convince herself that her version of events was correct. For obvious reasons, developing the examination for the plaintiff's deposition was quite a task, and conducting that examination required me to walk a fine line between questioning her story and showing appropriate restraint, given her delicate condition.
The plaintiff was so emotionally overwrought that her deposition stretched over six sessions, none of which lasted more than about an hour. After the sixth session, plaintiff's counsel advised me that she could not go on and was dismissing her case. It was difficult to revel in this "victory" because it was quite obvious that the plaintiff was deeply disturbed. This case was a poignant reminder that employment litigation is, first and foremost, about people and that it is the responsibility of all practitioners in this area, on both sides, to keep in mind that we do share a common interest in facilitating the resolution of workplace disputes while minimizing the damage to people's lives.
Q: What aspects of your practice area are in need of reform and why?
A: An area in desperate need of reform is the allocation of liability for attorneys' fees upon conclusion of a case. The rules as currently applied make it far too difficult for an employer to recover attorneys' fees if it prevails in the litigation. While I understand the importance of access to the courts for those who cannot afford the legal fees involved, the system as it exists is broken and allows for abuse. There is virtually no disincentive for an employee to bring a frivolous suit as there are few upfront costs and plenty of upside. Similarly, there is every incentive for the employee's attorneys to run up the costs of litigation, which often dwarf actual damages if the case is mediated or tried.
The standard for a prevailing employer's recovery of attorneys' fees should be liberalized, and it would be appropriate for plaintiffs' attorneys (who are not typically in the same economic straits as their clients) to bear some responsibility if a case is ultimately determined to be without merit.
Q: What is an important issue or case relevant to your practice area and why?
A: One of the most important cases to come down in recent years has been the California Supreme Court's decision in the Brinker case, in which the court finally brought some reason to the meal break rules. The issue of meal breaks, while seemingly mundane, is a perfect example of well-intentioned efforts to protect employee rights gone completely awry.
While there are no doubt situations in which employees are improperly denied meal breaks, the vast majority of employees prefer to have flexibility in scheduling their work and break time, and the ruling facilitates that. Until Brinker, the meal period issue had become an opportunity for vexatious class actions that had little to do with advancing the interests of employees.
Q: Outside your own firm, name an attorney in your field who has impressed you and explain why.
A: While he does not typically practice in the employment area, an attorney who has particularly impressed me is Erwin Chemerinsky [, the current and founding dean of the University of California, Irvine School of Law]. Mr. Chemerinsky is one of the most brilliant legal minds of our time, yet he is also one of the most humble, gracious and approachable attorneys I have ever come across.
Years ago, I was fortunate to retain Mr. Chemerinsky as an expert on issues of legal ethics in a case I was litigating. The preparation for his deposition was the most fascinating intellectual exercise in which I have ever engaged, and the deposition itself was pure entertainment. I particularly marveled at Mr. Chemerinsky's ability to patiently explain to our opposing counsel, in the politest way possible, why his questions were ridiculous.
Q: What is a mistake you made early in your career and what did you learn from it?
A: A particularly painful lesson from my early days involved the careless adaptation of a form from one case for use in another. I was asked to prepare a stipulation in a case to extend certain deadlines, and in order to avoid "reinventing the wheel," I used a similar stipulation that had been prepared in another case. Unfortunately, I included some language from the prior stipulation that inadvertently waived our right to move to dismiss the case for delay in prosecution.
The price I paid for this mistake included a rather public dressing down by my supervising attorney and an embarrassing declaration I had to submit to the court to undo the error. Moral of the story: If you're working from a form that was used in another case, read each word carefully, and think about whether it belongs there.
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