I Guess That’s What Makes Horse Races … and Lawsuits!

by Rich Cassidy on January 22, 2015

If more than 30 years of practicing law has taught me anything, it is that few things are as easy as they look. That includes the practice of law itself.

Let me use a recent victory to show you what I mean. In Vermont, we have a statute that regulates the hiring and firing of town managers. I’ve handled a number of cases involving the statute, and I thought I had a pretty good idea of what it meant.

It says:

24 V.S.A. § 1233. Qualifications; authority of selectmen

Such a manager shall be selected with special reference to his education, training and experience to perform the duties of such office and without reference to his political belief. In all matters he shall be subject to the direction and supervision and shall hold office at the will of such selectmen, who, by majority vote, may remove him at any time for cause.

Now I admit, the statute does use two phrases that are polar opposites when it comes to job security. On the one hand. it says that town managers “shall hold office at the will of such selectmen.”  Id. On the other hand, it says that the selectmen “by majority vote, may remove him at any time for cause.” Id.

Nonetheless, the meaning of the statute seemed obvious to me: Selectmen could make the decision to remove the town manager, but they could only do so if the manager gave them cause.

In my earlier cases, counsel for municipalities typically acknowledged — without much struggle – that to fire a manger their clients had to show they had just cause to do so. In fact, typically, that wasn’t the issue. Related, but different issues came up. For example, I once a negotiated severance agreement for town manager employed pursuant to a contract for a term of years. The town’s attorney acknowledged that during the term of the contract they had to have just cause, but relied on the language of the contract to assert that they simply weren’t obligated to renew the contract at the end of the term.

Even the relevant association, the Vermont League of Cities and Towns, advised its members through its website that just cause was required to terminate a town manager. VLCT Municipal Employment Law Handbook at 149, March 2004.

When the Town of St. Johnsbury tried to terminate its manager, I thought the fight would be over whether it in fact had just cause to do so.

Still, I wasn’t too surprised when the Town’s attorneys’ moved for summary judgment arguing that my client was employed “at will.” After all, that’s what defense lawyers in employment cases do, they try get summary judgment. It’s not that much fun to face a jury made up almost exclusively of employees when you represent the employer.

I felt more confident as I studied the matter more closely and put the town manager statute in context of other law relating to municipal employment and into its historic setting.

So I was surprised when the trial court granted summary judgment and found that the statute made town managers employees “at will.”

We appealed, and the hard work of preparing the briefs began. I argued the case in front of an audience of law students at Vermont Law School last St. Patrick’s Day. Argument seemed to go well.

Then we waited.

Last Friday, the Vermont Supreme Court sided with my client. If you like, you can read the decision, Nelson v. Town of St. Johnsbury, right here. The meaning of the statute may have seemed clear to me, but it didn’t seem perfectly clear to the Court. Even Justice Dooley, who wrote for the majority and came down on our side, had to go beyond text of the statute into its history to conclude that the statute establishes a just cause requirement.

And Chief Justice Reiber didn’t agree at all. He dissented.

Finally, we get to go back and try the question that I thought this case was all about: Did the town have just cause to terminate my client?

A majority of the Court agreed that I read the statute correctly from the beginning. That’s satisfying.

What’s more interesting is that two very capable judges didn’t see it that way. I guess that’s what makes horse races, and lawsuits.

Rich

P.S. A secondary issue in the case established what seems likely to be a far more significant precedent than the interpretation of the town manager statute. The Court also held that Chapter I, Article 4 of the Vermont Constitution is self-executing. Article 4 guarantees due process of law as against Vermont government. As a self executing provision of the Constitution, it is more than a platitude: an individual deprived of due process has a right to sue!
 

 

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From time to time, lawyers may grapple with the problem of representing individuals who have suffered significant emotional trauma. I know that I do.

These clients and their cases can be particularly challenging: claims adjusters, opposing counsel, jurors, and even the courts, can be skeptical about claims in which emotional damage is a significant factor. Even more important, clients with significant emotional issues, particularly those who suffer from post-traumatic stress disorder can be very hard to work with. They often have serious trust issues, and other characteristics that can make handling their cases problematical. For example, they frequently tend to blame themselves for the wrongs others have inflicted upon them.

Yet representing such clients can be very rewarding when successful.

Obviously, lawyers can’t treat these kinds of problems, just as we wouldn’t undertake to repair a broken limb or operate on a damaged organ.

But sometimes the lawyer is the first professional to observe that emotional distress is a consequence of the circumstance brought the client to the office. Even when that’s not the case, the lawyer may face a client with serious emotional trauma that hasn’t been treated, or hasn’t been adequately treated.

For the lawyer, even making a good referral in such a case is a delicate business. Finding the right therapist is not easy. And if the fact that the lawyer made the referral comes out in litigation, that fact alone may hurt the client.

That’s why when I heard WBUR’s “Here & Now” public radio news magazine story: “New Ways of Treating Trauma: Try Some Yoga,” yesterday, I listened intently.

Jeremy Hobson of “Here & Now” interviewed Dr. Bessel van der Kolk, founder of The Trauma Center, and author of The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma, (Viking, New York: 2014). The fundamental thesis of the book is that treating serious emotional distress requires more than drugs and talk therapy. Dr. van der Kolk urges a flexible approach, but one that recognizes and deals with the physical implications of serious emotional trauma by helping the patient feel physically competent. He recommends exercise, breathing and mindfulness as important elements of treatment.

His take away is simple:

“It’s not one size fits all. You need to find some way where your body once again feels like ‘I am in control of myself.’”

The lesson for me as a practicing lawyer is simple too: when working with clients dealing with serious emotional trauma it’s important that I do what I can to be sure that the client is also the patient of a competent professional who understands these issues, and has the skills to treat them effectively.

The “Here & Now,” interview is worth your time if your work brings you into contact with clients suffering from PTSD and similar emotional problems. You can listen to it here:

An excerpt from Dr. van der Kolk’s book is on the “Here & Now” website at:

“New Ways Of Treating Trauma: Try Some Yoga”

Thanks, Dr. van der Kolk, for this important insight, and thanks Jeremy Hobson, “Here & Now,” and WBUR for bringing it to my attention.

Rich

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