If you believe in workers’ rights and want to practice employment law, then you are going to be on the plaintiff’s side. And if this is the path you choose, then prepare to embrace the fate of Sisyphus, condemned to push a boulder to the top of the mountain only to watch it inevitably roll back down. For there is an inequality of resources in plaintiff-side employment discrimination work, Anne C. Vladeck warns, such that it’s easier and more lucrative to do management-side defense. But if you are a true believer—like Vladeck, who has a strong family history of left-of-center politics and her name on the door—you would never consider representing a company that had wrongfully fired an employee. Never.

Vladeck took her BA, magna cum laude, from the University of Pennsylvania and her JD from Columbia Law School. She is an adjunct faculty member at Columbia Law School and has taught at Fordham and Cardozo Law Schools. She is a trustee of the Federal Bar Foundation (secretary), a member of the Executive Committee of the Federal Bar Council Inn of Court (president-emeritus), a former member of the Association of the Bar of the City of New York Professional Discipline Committee, and a Fellow of the American College of Trial Lawyers. She has received numerous awards for her work and is a frequent speaker on employment law and litigation issues.

Clare Cosslett: When was the firm of Vladeck, Waldman, Elias & Engelhard founded?

Anne Vladeck: My parents started this firm together in the late 1940s for the purpose of representing unions and workers. They were on the ground floor of employment discrimination because the antidiscrimination laws began to develop in the sixties and thereafter. The firm’s discrimination practice has been a natural outgrowth of the labor practice.

Cosslett: Did your parents have a particular political ideology that made labor law a natural area in which to practice?

Vladeck: I think that labor and employment law is one of the areas where you normally do have a political bent. If you are just interested in the subject matter but don’t have a political leaning, you should do management-side work and represent companies, because you earn more and you’re treated differently by some of the courts. If you believe in workers’ rights, then you’re going to be on the union side or the plaintiff side. And, more than just about any other area of law, it is political in the sense of which side you pick. There are some people who do both sides, but that’s fairly rare. They tell you in law school that you can do either side and it doesn’t matter, but I think with labor and employment law that’s wrong.

Cosslett: When you say you’re treated differently by the courts when you’re representing the plaintiff side, what do you mean?

Vladeck: Many judges think that employment disputes are not really worthy of federal court because the plaintiffs are individuals. Some federal judges are more interested in antitrust or corporate cases . I’m not saying this is true of all judges, but certainly some judges think that employment cases should be dealt with by separate courts, like Social Security or immigration, they should be given a different designation. And it makes it more difficult when you have an employment case if you have a judge who, to some extent, thinks you’re wasting his time. It’s always been our belief that we have to put in papers that are better, and clearer, and more succinct, because we’re going to lose the attention of the judge. It’s not necessarily political, but some of it is also politics. Some judges really think that courts have gone too far in the antidiscrimination laws.

What’s interesting, I think, is that judges are not happy to see certain claims in their courtroom, but if it becomes an issue for a friend or relative, then all of a sudden they’re the best claims ever and we should go to the Supreme Court.

Cosslett: Why did you decide to go to University of Pennsylvania for college and did you know that you were going to go on to law school?

Vladeck: I grew up on the Upper West Side in Manhattan and went to PS 87. I then went to a very small high school and I wanted something that was big and urban. Penn just seemed to be perfect. And it was. I thought it was great. I actually didn’t make the decision to go to law school until I walked in the door of Columbia Law School .

Cosslett: What other career paths were you considering?

Vladeck: When my mother was asked what I was going to do, she used to say I was going to be a doctor or a lawyer or do batik. If I had more talent, I would have been an artist. And if I could stand the sight of blood and been better at science, I would have been a doctor. Law school was a default position.

Cosslett: Once you had made the decision to go to law school, did you plan to join your parents’ practice? Or did you say, “I’m going to do this, but I’m going to carve my own path”?

Vladeck: I don’t think either. The first firm I went to right out of law school was an environmental law firm, and it was presented as a public interest firm, with clients like the Adirondack Council . There were issues relating to what they were going to do with Whiteface Mountain for the Olympics. I thought that was perfect.

They were then retained to defend a class action against a medical school. They thought I would be perfect for that. I didn’t agree. I hated the work and so, while I still liked a lot of people who were there, I left after about a year to go to what was then Frankfurt Garbus Klein & Selz, which is a First Amendment entertainment firm. It is now Frankfurt Kurnit Klein & Selz.

Cosslett: So many lawyers start out in their career and they get to the first place, and they think, “Oh, this isn’t what I thought. I don’t like this.” And then they feel stuck.

Vladeck: This was in 1979 and the market was very strong. I said to myself, “This isn’t for me,” did some exploratory work and had a job within a week.

When I was hired, I was the tenth lawyer at Frankfurt Kurnit . I think there are now about sixty lawyers. I did a lot of First Amendment work. I did some of the libel work for Viking/Penguin, which was a major client. Some of it was entertainment litigation, where a star was in a magazine and they airbrushed out her dress. Things like that.

Cosslett: You avoided the big-firm route, and I’m sure they were beating down your door.

Vladeck: It never occurred to me to do that. Even during the summer, I worked as an intern for the US Attorney’s Office . I didn’t want to work at a big firm. One summer in college, I worked at a big firm proofreading legal documents. It was mind numbing. I said, “Not for me.”

Cosslett: You were with Frankfurt Kurnit for about three and a half years. Did you find that you took on a lot of responsibility fairly early on?

Vladeck: Yes. And it was a firm where there was some supervision, but there was also some, “Just go do it.” There were a lot of very good lawyers there, so there were people you could ask questions of who were more senior and who would help. It was very collegial. It was a great place.

The firm was divided between entertainment and litigation, with litigation being the smaller practice. It was intense, but it was good intense because instead of having six layers, where I was an associate reporting to a more senior associate who reported to a more senior associate, it was one on one with the partner and the client. It was much more collaborative. So I thought it was great. There was no time or money for a small firm to do make-work—to say, “Do a memo on this that I’ll never use.”

Cosslett: Sounds as though you were pretty happy there. Why did you leave?

Vladeck: My father died in the late seventies. One of my older brothers is a lawyer, and he and I were thinking it was probably a good idea to have a family member join my parents’ practice if we were going to maintain it as a family firm. We believed that our parents had created something valuable. My brother was firmly ensconced in DC. At the time, he was at Public Citizen Litigation Group and was about to argue before the Supreme Court. So it seemed to be a more natural move for me. I started here in 1982.

Cosslett: How big was the firm when you joined?

Vladeck: I think there were about ten to fifteen lawyers. About the same size as we are now. We had gotten to be a much larger firm doing more union-side labor work, but we don’t do very much of that anymore. We find that the employment litigation practice is really our specialty. There are a few small firms in New York that do labor work, and they tend to have certain institutional clients.

Cosslett: When you joined Vladeck, you were a fifth-year associate. Your mom was a senior partner. How was it to walk in as a midlevel associate? Did your mom take you under her wing, or did she say, “You’re on your own kiddo”?

Vladeck: It was very natural because she treated most of the young associates like her kids anyway. The one thing that we had a very hard time with was figuring out what I was going to call her. We had a major case when I was first here called Whittlesey v. Union Carbide . We represented an employee who sued Union Carbide under the age discrimination act. Union Carbide argued that he was a high-enough-level employee that they were able to mandatorily retire him. It’s a case that went up to the Second Circuit. We were in court on an injunction motion and we were in one of those old federal court elevators. My mother, who had one speed, which was fast, was getting out of the elevator before it arrived at the floor, and all of a sudden, I screamed, “Mom!” And everybody in the elevator cracked up, even people we were just yelling at.

So I ended up just calling her “Mom.” That was the only real issue we had to deal with.

Cosslett: How was the Whittlesey case decided?

Vladeck: We had a bench trial before Judge Pierre Leval, who’s at the Second Circuit now. He found that our client was discriminated against. And he also, for the first time in this circuit, ordered front pay instead of reinstatement because, under the circumstances, reinstatement would have been difficult for both the plaintiff and the company. It became one of the cases that’s cited all the time for the front-pay principle.

Cosslett: I’m very confused about mandatory retirement .

Vladeck: If there’s a real partnership, you can have mandatory retirement. But if it’s not and you have employees, then you can’t because it’s unlawful for age to be the motivating factor in a decision. Contrary to what a lot of people believe, there’s no upper limit on the laws against age discrimination. You have to be over forty to be covered by the ADEA,¹ but you could be ninety and sue for discrimination. One of my partners had a sexual harassment case for someone who was in her late seventies. It was settled.

Cosslett: How have you built your reputation as a litigator ?

Vladeck: We have a lot of contact at this firm with clients and potential clients. So I started meeting people and helping them. It’s word of mouth. The one thing that can be very satisfying is that we get a lot of referrals from the other side—from our adversaries—and even from the courts. So we have the sense that if we had left money on the table in a settlement or had not done a good job, our adversaries would not be sending us their friends or their partners. So reputation is developed in part in that way and then also through speaking or teaching. There are a lot of opportunities for speaking, such as courses and events for the Practicing Law Institute, the American Law Institute Continuing Legal Education, and ABA and bar associations. I’ve also done adjunct teaching at Fordham, Columbia, and Cardozo.

In teaching, you find that you learn things that can be very useful in your practice that otherwise you wouldn’t have focused on. You go back and read some of the early cases that you use but haven’t really thought about in a long time. It can be very, very helpful.

Cosslett: Is your practice primarily national, or is it New York–oriented ?

Vladeck: It’s primarily New York area, but it is national in the sense that we do have cases in other states. If we have a lawsuit out of state, we have local counsel. We also have some lawyers who have membership in bars outside New York, but the firm’s practice is generally local. The companies, on the other hand, can be national and now with people working remotely, it’s like a law school exam: “They work in Canada, but their headquarters are in New York, but the act took place in Florida.”

Cosslett: Where does jurisdiction lie?

Vladeck: Your guess is as good as mine.

Cosslett: Are you seeing more of a particular type of employment ­discrimination than you used to?

Vladeck: The type of case that we have seen a lot of recently is employees who are fired after they inform their employer that they have cancer or some other debilitating disease. It’s really hard to watch. Some of the employers are beyond callous. It’s not uncommon for us to have cases where someone went in for chemotherapy and then all of a sudden they got a bad performance review. It’s terrible.

Cosslett: To what do you attribute the influx of these kinds of cases?

Vladeck: Companies are becoming more bottom-line-oriented. They’re concerned about the cost of health insurance. Some of these companies are self-insured, and so they’re concerned that having a sick employee is going to be an economic drain both in terms of having an employee out and the insurance costs for the treatment.

If the company is self-insured and is concerned that it is going to pay more it’s brutal. They say things like, “You’re fired, but we’ll keep you on COBRA for two weeks.” They actually have to offer you COBRA for eighteen months—it’s now longer in New York State. It can be quite expensive. So they tell somebody who has a potentially fatal illness that they no longer have a paycheck and have no health insurance.

This is what I meant by “it’s political.” There are some people who could represent either side. I could never, ever represent a company who did that. I just couldn’t do it.

Cosslett: Are these are big companies?

Vladeck: One of my partners is working on a case where our client was fired from a very large and well-regarded company, and there were e-mails suggesting a total lack of sympathy for his illness. Our client died.

Cosslett: Why do people believe that what they write in an e-mail is not discoverable?

Vladeck: You wonder. And you know that there are always more e-mails out there than what you see. Some of the stuff is just unbelievable. We had a case recently where there were e-mails that started out, “Guard this with your life. Don’t show anybody.” And we thought, “Oops!”

Cosslett: Oops! Are there other areas in which you’re seeing an influx of suits?

Vladeck: There are pregnancy cases: women who do great and then all of a sudden they’re pregnant and they can’t walk and chew gum. And we’re finding it’s even worse if you dare to have a second child. Employers might be very proud of themselves that they let an employee come back with the first—but if it’s a second, they’re not so happy. There are age cases, race cases . . . they run the gamut. There are always a large number of cases in these areas but there are definitely more cancer cases. People don’t think that companies would fire an employee when he or she is sick, because in some ways it’s the height of cruelty. They do.

Cosslett: You must want to take every case that comes in.

Vladeck: We do sometimes.

Cosslett: You have a finite amount of time, yet there seems to be an infinite amount of employment discrimination out there. How do you decide what cases you’re going to take?

Vladeck: It’s a little bit of an eye of newt. Some of it is your instinct, and sometimes your instinct is wrong. But you meet the person, you have a sense of whether they’re credible, and you try and get a sense of what their expectations are. There are a number of people who really just want their jobs back. A lot of people who oppose discrimination laws say people just want money. That’s not true. People just want to be treated fairly. People want their jobs. I think that there is a common misperception that you can only be fired for cause, which in New York is not true. Unless you have an employment contract or you’re a member of a union, employment is at will.

Cosslett: You can be fired at will, but you can’t be fired when it comes to certain protected areas, right?

Vladeck: Exactly. You can be fired for any reason or no reason. You can’t be fired for discriminatory reasons, such as age or race, but you can be fired for totally arbitrary reasons, like you are wearing a white shirt today.

Cosslett: They can fire you for wearing a white shirt?

Vladeck: They could say, “Okay, anybody in a pink shirt today, you’re fired. Anybody in a white shirt today, you’re fired.” And that would be totally lawful.

Now, if everybody wearing a white shirt on a particular day happens to be an African-American woman, then there might be an issue, but that’s the theory.

Cosslett: There was a case, Ezold v. Wolf Block , in which a female attorney was denied partnership at her firm and claimed that it was sexual discrimination. Could you talk about that case?

Vladeck: Ezold was a 1993 case that Debra Raskin and my mother tried. It was a bench trial because in those days, you didn’t have a jury in sex discrimination cases. And the district court found that she had been discriminated against.

The law firm said she was not analytical enough for partnership. And the court found that she should have been made partner. It went to the Third Circuit, and the Third Circuit said essentially: “We are not going to get involved in partnership decisions. They are subjective, and they’re allowed to make whatever decision they want”—and they reversed. I think that it is true still that there are certain employers who are given more deference: educational institutions on tenure decisions, and partnerships on whether somebody’s going to become a partner. Those are areas that I think courts are less willing to delve into. Subjective decision making is a way of masking discrimination, but a lot of judges believe that whether somebody should be admitted to partnership or be given tenure are subjective decisions.

Cosslett: When you take those sorts of cases, do you feel that the evidence of discrimination needs to be stronger because of that predisposition?

Vladeck: You never know what’s going to happen. I had a case years ago that was a tenure case against Columbia . And we had two judges who supported the district court and affirmed summary judgment. And one judge who wrote a scathing dissent about how the courts were not doing what they should, and this person had been discriminated against, and that Columbia might win this decision, but at what cost? Our philosophy is that you have to take a case that you’re willing to lose. If the principle is important—which it is—then you have to be willing to lose, even if it’s subjective and even if it’s harder.

Cosslett: What about discrimination issues relating to sexual orientation ?

Vladeck: There is no federal statute that prohibits it, but there are state and city laws. And there are more cases than there used to be, because now it’s protected. But we don’t see a huge number. We see some. We see cases where if somebody had not been out when they were hired and then they come out, all of a sudden they can’t do anything well. I think also with sexual orientation issues and with some of the illness issues, companies and managers in companies haven’t really learned to be subtle in their comments and their e-mail communications.

Cosslett: Can you talk about defamation and how that fits into your practice?

Vladeck: You can have a self-standing defamation case where somebody is not an employee. But defamation cases also do arise within an employment context. For example, if a company wants to cover up its discrimination based on age, to suggest that an employee had done something either criminal or dishonest can become a defamation claim. There are different privileges that are available to employers in the defamation context with respect to an employee, but there are still cases where you win or you settle because what is said about an employee is not only false, but the employer knows it to be false. So you have self-standing defamation claims, but you also do have them in the context of employment. Or you might have a discrimination claim and also a defamation claim.

Cosslett: Do you find as a business that you take certain cases because you want them and you believe in them, and other cases because you also have to keep the lights on?

Vladeck: We’ve been very lucky that we’ve been able to keep the lights on with the cases that we want to take.

There’s a saying that, “You can do well by doing right,” and it’s true. We’re lucky that there are some equal-opportunity pigs out there who are very rich and just keep doing what comes naturally.

Cosslett: How does your firm work in terms of billing? Do you work on contingency ?

Vladeck: It totally runs the gamut. We will occasionally work on a full contingency, but not normally. We will work on a hybrid, which is an hourly rate plus a percentage. It’s all over the lot. We evaluate the case and the person, so while we have some general rules and general hourly rates, billing is more tailored to the particular person and the particular case.

Because of the way the laws have developed in discrimination cases, you’re considered to be a private attorney-general in bringing a case that is supposed to have a public interest. Knowing that individuals couldn’t afford to prosecute cases, discrimination laws provide for the award of attorney’s fees to a successful plaintiff. So it’s prevailing party, but if you lose, you don’t automatically have to pay their fees. That has a different standard, which is that the case has to be frivolous. But there is a wrinkle: New York State law doesn’t provide for attorney’s fees, but New York City law does.

Cosslett: So you either have to have a federal cause of action or a city cause of action to have attorney’s fees?

Vladeck: It’s very convoluted. And some employers understand, even in settlement, that payment of attorney’s fees is something that they’re going to have to include because they would have to do it later. They are going to have to pay their own lawyers, too.

Cosslett: Do you see a lot of cases coming out of Wall Street ?

Vladeck: There’s always Wall Street, the bigger financial institutions, but in the past year or so, there have been a number of smaller hedge funds that have issues, generally involving bonuses. Somebody doesn’t get their bonus. They’re discrimination claims and retaliation if somebody complains. Retaliation is a big area.

If you have a reasonable basis to believe that you’ve been discriminated against and you assert a complaint, and then all of a sudden there’s something done to you, like you’re fired or demoted, that’s unlawful. It’s a separate claim. And that is where employers trip up a lot, because you can win a retaliation claim even if you don’t win an underlying discrimination claim. So if you come to an employer and say, “He’s sexually harassing me. He’s done this, that, and the other,”—and then, all of a sudden, they start looking and seeing whether you’ve done anything with your expense account or they transfer you to Siberia: that’s all a claim. They did it in reaction to the original claim, even if the sexual harassment claim is not enough under the law.

Cosslett: Aren’t bonus cases just about breach-of-contract?

Vladeck: They are, but they’re also potentially labor law claims. If you have earned a bonus but the company has these rules where they’ll only pay you on an alternate Tuesday if the moon is in Arizona, then you end up having not only a contract claim, but a labor law claim, which gives you additional damages and attorney’s fees, which contract claims do not. The issue is whether it is a discretionary bonus or something you’ve already earned. We have a fair number of those cases.

Cosslett: Do you tend to represent groups of people, or is it usually individuals?

Vladeck: We tend to represent groups for the wage and hour cases. But for the discrimination cases, we occasionally represent groups, but very often they are individuals or two or three people.

Cosslett: You’ve been involved in some very high-profile litigations, probably the most well-known of which was the 2007 lawsuit against the New York Knicks general manager Isiah Thomas and Madison Square Garden, in which you represented Anucha Browne Sanders in a sexual harassment action and secured an $11.6 million jury verdict on her behalf. How did you approach that case, and was there a moment in the courtroom when you realized, “Wow! All the stars are in alignment. I’m going to get a huge verdict for my client”?

Vladeck: I think a successful litigation starts well before you get into the courtroom. It really starts with the process of discovery and getting documents and knowing what they are and what they mean, and getting depositions. I think one thing that was critical in Anucha’s case was that we had locked in testimony in video depositions of the decision maker saying he relied exclusively on his HR executive to learn that Anucha had done certain things that had led to firing her. And we had the HR executive on tape in his depositions say, “I never talked to him about her, ever.” And we had the ability to show the jury the tape: “I just relied on him. That’s where my knowledge comes from”—and then roll to the second tape: “I never talked to him about her, ever.” So, as the judge said, one of them was lying, and they were lying about why she was fired, which was the ultimate issue, or at least part of the ultimate issue in that case.

So it really goes back to taking the discovery process extremely seriously, knowing your case, and not underestimating juries. Some lawyers assume that jurors are not smart and talk down to them. It’s hard because there are certain things that you need jurors to understand, but you don’t want to give them the impression that you think that they’re not smart.

Cosslett: Do you find that the issues involved in a discrimination cases are interesting to and understood by jurors ? Do you think there is more of a sense of empathy—“I could be that person in the plaintiff’s chair next week”— than there might be in, say, a derivatives trade gone wrong?

Vladeck: I think jurors are interested in employment cases in the sense that everybody is either an employer, or an employee, or lives with somebody who’s employed and so it’s within their knowledge—which is very helpful in some ways, and in some ways it’s not. People often have wrong ideas about what’s protected, what’s not, what’s acceptable activity in the workplace, and what’s not.

Cosslett: How different is a case that takes on front-page proportions from a case that’s lower profile?

Vladeck: Even the judge was somewhat surprised by how much media attention the Anucha Brown Sanders case generated. When he did the voir dire—the jury selection—he had asked the potential jurors whether they could read the paper without reading the sports section during the trial. And then when the trial started, it was on the front page because you had Stephon Marbury and other high-profile individuals.

It can be daunting when you have so many people watching, many of whom are sure you’re going to lose. You really have only two audiences: the jury and the judge—and not the people who are writing about the trial or reporting on it. But, obviously, that’s something that you hear about and see. The number of people who predicted that we were going to lose was huge. To the extent that I could just talk to the jury, that’s certainly what I tried to do.

Cosslett: How long did the case take from the day Anucha walked in to see you until the day you got the verdict?

Vladeck: It was quick: about a year and a half. The trial itself straddled three weeks, but it was also during the Jewish holidays, so there were weeks that only had two or three trial days. It felt like a long time, but it wasn’t three weeks day-to-day-to-day of trial.

Cosslett: Do you like being in the courtroom ?

Vladeck: I love being in the courtroom. I love trials, and I love the process of putting together a puzzle and having the jury understand it. When you talk to jury members afterward, it’s amazing that they sometimes focus on things that none of the lawyers ever anticipated. Or they understand something in a way that you don’t have a clue where they got it. But sometimes it’s the opposite—where they really do understand what you have tried to do. We try to speak to the jurors after a trial to get their feedback and it is always interesting. Sometimes they’ll say, “Why didn’t you do this?” or “Why didn’t you do that?” or “Why didn’t they do this?”

Cosslett: Do you have a particular style when you walk into a courtroom?

Vladeck: I think it’s a mistake for people to be different than who they are, because I think it shows. A lot of people are very dramatic and walk around and gesture. I’m not like that, and I don’t do that normally, so I don’t do that with a jury. I try and connect and look at jurors as I’m talking, but I don’t think I have a particular style. It’s just who I am.

Cosslett: I’ve talked to several other litigators and they said exactly that. You have to go in and be who you are. If you’re flamboyant, be flamboyant. But if you’re not, don’t be.

Vladeck: There are people who would be critical if you’re not flamboyant. I think if I tried to be flamboyant, I would look like a jerk, and I wouldn’t even be credible to myself. So I think if there’s a connection and you can try and talk to a juror as if you were talking to him or her the way we’re talking, with coffee around the table—that’s the way I am, and I think it would look hollow otherwise. There are some people who are very flamboyant who can be flamboyant in a courtroom. That’s great.

Cosslett: Are there any “bells and whistles ” that you use in the courtroom to keep the jury engaged?

Vladeck: One thing that has happened that is totally different today from the first trial I had, which was in the eighties, is that in those days, if you had a demonstrative, like on a big piece of white oak tag or cardboard, that was pretty special. Now you need pyrotechnics. You need videos of depositions. You need PowerPoints. You need timelines. You really need some kind of visual because, otherwise, I think a jury will get bored.

Cosslett: If the other side is introducing a stream of visuals, you don’t want to look as though you’re being outdone.

Vladeck: Exactly. So you have to have some of that. It used to be that we would read the deposition to the jury while another lawyer playing the part of the deponent was sitting in the witness chair. Half the time, the jury would fall asleep.

But now you can videotape depositions and one thing that can be very helpful is that high-level people often don’t spend time being prepared for a deposition, so they can appear to be very, very smug and very, very cocky on their deposition video. They then come in trying to charm the jury. And the jury can see that these are two totally different people and think that they’re being put on. So that can be very useful.

Now deponents are getting better because their lawyers are preparing them for their depositions. In the beginning, when the videos were new, you got a lot of inconsistency, which was very helpful.

Cosslett: Does it cost more to defend than to prosecute ?

Vladeck: The amount of money that can be spent in the defense of one of these cases is frightening. Between the investigators, where they have people checking up on our clients going back to high school, with the jury consultants and so on, the money is astronomical.

You could spend the same to prosecute—but you don’t, because first of all, we don’t have it. What is remarkable is that companies will sometimes spend ten times the amount that they could have settled a case for. They want to prove something. They put their foot down.

Cosslett: These big companies are hiring big law firms. Do you enjoy going up against these firms? Is it a David and Goliath thing?

Vladeck: I do always have the sense that it’s David and Goliath because of the amount of money that is spent by the defense. We had three lawyers on the Garden case and they had more than we could count, over twenty. They used Epstein Becker, Morgan Lewis, Berke-Weiss & Pechman, Eisenberg & Bogas, and Manatt. They had a number of lawyers.

But the one thing about employment is that you have the same adversaries very often, and you know them and they know you. There are some lawyers that we’ve litigated against in seven or eight trials.

My first trial in 1985 was against the same lawyer who represented the Garden more than twenty years later, Ron Green of Epstein Becker. It was an age discrimination case against ABC in the Southern District with Judge Weinfeld, who was something of a legend.

Our client had worked on a soap opera for thirty years, and he was fired. We said it was for age, and they said it was because he wasn’t doing his job. And we were very lucky. Ron told me years later that he liked to try different strategies at different trials. In the ABC case, he was trying to show that our client’s hearing had gone and so he couldn’t do his job. When Ron started doing his cross, he did it in a very low voice. Unfortunately for Ron, the judge was over eighty years old, so when Ron was talking very quietly, the judge was yelling, “Speak up! I can’t hear you!”

We won the case.

Cosslett: What is it about litigation that gives you the most satisfaction, and what’s the most difficult?

Vladeck: The most satisfaction is that you have a client who needs to be heard and who is then believed. One of the things you get in these cases is that the client is a gold digger , or all they want is money, or they’re making it up—so it’s very satisfying to have that kind of affirmation. They were believed and can feel good about having done what they did. The hardest thing is when people that they thought were friends, and colleagues, and confidants all of a sudden are afraid to come forward and, even at the last minute, will sometimes say, “I can’t do it. I don’t remember.” These are very human situations, and so it runs the gamut of people who are, to some extent, heroic, because they are willing to do things that might cost them, to some people who, understandably or not, are either cowardly or want the jobs and the promotions that come with supporting the company.

Cosslett: You learn a lot about human nature in these cases, probably more than in other practice areas.

Vladeck: You do, which makes it interesting but hard. We have clients who do not believe that other people lie under oath, and we will have to tell them that people lie under oath all the time. I have to give them credit to some extent but they really think that that’s not going to happen, and then they’re open-mouthed when it does.

Cosslett: What continues to motivate you as a lawyer?

Vladeck: I like what I do. I think employment law is endlessly fascinating. You get to learn about a lot of different industries. You meet people at every level doing a lot of different jobs. You learn how widgets are made, which you would have otherwise never known. I think we’re doing good things when people tell us that we’ve changed their lives by either getting their jobs back or getting them money so that they could have a bridge to another job. You can’t beat that.

Cosslett: Are there issues of professional responsibility that come up for you in connection with your role as an employment litigator specifically, or in connection with your role as a litigator generally?

Vladeck: The one issue that comes up, and it comes up frequently, is that the people who believe they’ve been discriminated against are often human resources personnel or in-house counsel. And the question is, what can they show us? Or what is so privileged that they can’t even show their own lawyers? So there are ethics issues that come up in those instances.

The other thing is that very often we will not see somebody because there’s a potential conflict. For example, if somebody is an in-house lawyer or an in-house HR person and they want to have a consult with us, but we represent other employees of that company, legal and HR has access to what’s going on with those employees, so we have to send them elsewhere. A lot of people have a hard time understanding that that’s a potential conflict, even though we’re not representing the company. It’s our belief that that’s a conflict or a potential conflict, but that’s hard to explain. The people who seem to have the hardest time understanding the conflicts are the in-house lawyers.

Cosslett: Is there a skill set that’s particularly useful for an employment litigator or a general litigator?

Vladeck: I think both for an employment lawyer and a litigator, one of the skill sets is intellectual curiosity and curiosity generally. You’ll often follow down a path of either discovery or research, and while some of the paths may be fruitless, you may sometimes find amazing things. So I do think that curiosity is going to get you to the next step. It is also important to write well and be articulate. But I think the most important thing is to have interest in the area and to be willing to be like Sisyphus, where you continue to push the ball up when it comes down. There is an inequality of resources and reactions, so you have to be very committed.

The other thing about employment law is that very often you have cutting-edge evidentiary issues. And those are fabulous because they really help you realize that employment law is an interesting area of the law. For example, there’s the equivalent of the rape shield law, where, in a sexual harassment case, you can no longer go back through a woman’s history and find out information that really is not relevant to the case at hand. And you have issues related to evidence that are specifically for employment cases.

I think the most important characteristic for a lawyer and a litigator is that you have to learn to listen, and not just talk. People who just don’t listen don’t get the information that they really need.

Cosslett: Would you encourage lawyers who have that skill set to go into employment litigation ? Is it a deep practice in terms of opportunities?

Vladeck: Yes, although I will come full circle. If you just like the area, go to the management firms or go to a government agency. If you have a political interest in workers’ rights, then you come to a plaintiff’s firm. And I think absolutely if somebody has an interest in it, they should try it.

¹ The Age Discrimination in Employment Act of 1967.