THE ORIGIN OF RIGHTS

“You cannot do this to me. I know my rights!”

In fact, virtually none of us knows our rights. What we have is a sense of entitlement that results from living in one of the world’s richest countries, having the privilege of attending a college or university, and enjoying the luxury of reading and thinking. Add to this situation an excess of lawyer advertising¹ and the publicity given to some seemingly outrageous jury awards.²

In a legal sense, rights come from a number of sources that can be identified and consulted.³ These include the following:

A variety of rights can be involved in a particular event. For example, it is a crime to hit someone. That means the conduct violates a written law that is part of the criminal code (perhaps of both the state and federal government). It is also a violation of the common law (battery), because that law protects the “right to bodily integrity” even if the state had not also stepped in. These rules have different consequences if they are broken. Break a criminal statute, and one can be put in jail and made to pay a fine, which goes to the state; violate the common law, and one will pay money (damages or restitution) to the victim.

There are also two systems of justice at work: state and federal. In most cases, it is only the law of the state in which the dispute arose that will matter. In some instances, however, there is an overlay of federal rights and obligations stemming from the Constitution of the United States, the laws enacted by Congress and the president, and the rules and regulations promulgated by federal agencies. When a federal contract or right is involved in a dispute, federal law is triggered and the federal courts can become involved. If the person one has punched has rights that are protected by federal law (e.g., the right to be free of discrimination on the basis of age, sex, race, disability, or national origin), one’s conduct may be subject to investigation in two proceedings at the same time.

In academia, rights under the law can acquire new and added dimensions. It is likely, for example, that a university prohibits faculty members from punching a colleague or a student—it’s far enough removed from academic freedom to be punishable as a violation of the university’s code of conduct. Faculty could be suspended or even lose a job. That’s a matter of contract law: When faculty members took the job (or when students accepted the offer of admission), they agreed to live by the rules of the university. Not knowing that was a possible consequence of their actions is not a defense.⁴

Another example worth considering is academic dishonesty. Suppose a junior member of the faculty, intent on tenure, is “creative” in their research, borrowing data from another source and claiming it as their own, and entirely making up other data. The original author had her work stolen, so there is a violation of the common law. The university has its most fundamental precept of integrity dashed, so the employment contract was broken. The researcher may also have violated the terms of a grant that was funding the research, threatening adverse consequences to the university (possibly disqualification from future grants, not to mention damage to its reputation). It may have violated federal or state regulatory requirements, for which there might be fines or penalties. And what about those who read the fraudulent results and relied on them—perhaps using a therapy that really was not proved and that ended up causing harm? All of a sudden, satisfying tenure requirements seems inconsequential.

DECIDING WHO’S RIGHT

We all decide dozens of disputes every day—conflicts in our calendars, disagreements in an approach to a problem, competition for a parking spot, and confrontations with aggressive drivers. We don’t spend much time or effort on them because they are so small. The bigger the issue—the more important to our future, our family, or our wallet—the more time and effort we’ll spend. And when it’s really important, that’s when most of us head for a lawyer.

Because of the way that our country was founded, we strive to make our courts open to those who have complaints. Not only are the filing fees relatively low, but in the United States, plaintiffs can engage their attorneys on a contingency fee basis, meaning that the attorney will be paid only out of money won for the plaintiff; and the attorney is even allowed to pay the out-of-pocket costs for the plaintiff on the same basis.

Going to court can be incredibly expensive for defendants—costs can easily rise to six figures to defend hotly disputed claims such as employment discrimination or medical malpractice. Oftentimes defendants won’t get the opportunity to testify or to defend themselves at trial because they signed away that right to their insurance company in the policy they bought: For the insurance company, it’s only money, and the company is not obligated to worry about the defendant’s reputation. Insurance companies also know that juries (and judges) make mistakes, and sure-win claims can be lost. Even a “win” at trial won’t mean it’s over (or that the meter has stopped running), because decisions can be easily taken to an appellate court.

The expense, the time, and the publicity involved in litigation are all reasons that people have decided to take their disputes to other places to have them resolved. “Alternative dispute resolution” is a phrase that encompasses many different methods, each of which one may experience as a member of a college or university faculty.

OMBUDSMAN

Often a university has a standing position called the ombudsman. This is not a process but a person who is available to help resolve certain kinds of complaints or issues. This person has no power, cannot order anyone to do anything, and cannot punish anyone for not participating. The university cannot force anyone to use ombudsmen. They don’t decide anything. All they can do is ask questions, make suggestions, and help the disputants work through their issues. Typically, the ombudsman is someone whom everyone respects and holds in high regard; typically, the ombudsman is sworn to secrecy, keeps no notes, and cannot be forced to divulge what anyone said. But “typically” means not always: The role of the ombudsman is defined by university policy or procedure, which must be read carefully.

MEDIATION

Like the ombudsman, a mediator helps disputants reach an agreed-on solution, but the mediator’s role is more formal than that of the ombudsman: There is a process to be followed and the expectations for each are better defined. The disputants often get to choose the person who will serve as the mediator. The mediator is subject to a code of ethics. The mediation process is typically described in a written document to which the disputants are required to agree, but in all respects it is a voluntary process that requires agreement of both sides every step along the way.

Before actually tackling the problem at hand, the mediator will typically require the different sides to discuss and agree on the way the mediation will be handled, dates, what issues will be discussed, whether they will submit written materials (e.g., their statements of claims and defenses), ground rules for behavior (complete confidentiality being the most important), and when and how the process might end. The role of the mediator then becomes that of “shuttle diplomat,” operating in the zone between the two sides and working to bring them closer together.⁵ Sometimes mediation will resolve the whole dispute, sometimes just part; it can clear away collateral issues and forge agreements on how the remaining parts of the dispute can be handled. It is important that it ends with an agreement between the parties—an enforceable contract—if it results in anything at all.

INTERNAL ADMINISTRATIVE HEARINGS BY THE COLLEGE OR UNIVERSITY

Codes of conduct, student and faculty handbooks, and collective bargaining agreements routinely specify ways of resolving certain kinds of disputes in a way that is more formal than mediation but less formal than going to court. Objections about how a member of the faculty has been treated (grievances) or behaved (disciplinary problems) are typically required by the university to be submitted to this kind of process. Universities do this because the courts will enforce that kind of requirement and not allow lawsuits to be filed until the process is over.

The governing document (code, handbook, policy, or contract) will specify both what the process is and who will sit as the hearing officer(s); the disputants typically are given very little say in either matter. The hearing officers are members of the university community—faculty, staff, or students as appropriate given the nature of the panel and dispute. They are given certain stated powers—for example, they can require university employees to appear and give evidence. They also have certain specified duties, including performing their duties in fairness to all and rendering a decision within a set period of time. Lawyers may or may not be allowed to participate. The time for presenting each side may be limited. Witnesses may or may not be allowed to be called to testify. The decision-makers may be allowed to render only certain kinds of decisions or dispense only certain kinds of remedies. All of these issues are typically specified in the governing documents, but never with enough specificity to answer every question; in those cases, the panel members make the decisions.

The disputants may or may not have rights to appeal the decision to another university official (e.g., dean of students in the case of student disciplinary matters, provost in the case of faculty grievances, president in case of tenure denial), but the “scope of review” (what issues can be considered) is typically very small. Once this step is over (or if no appeal is taken), the decision is called final and it must then be implemented. Sometimes one side or the other will take a further appeal to the courts, but the appeal will not postpone (or stay) the duty to comply with the decision. The law strictly limits the issues that a judge can consider. On the merits of the dispute, the law requires judges to defer to the expertise of the university in certain key areas, promotion and tenure being prime examples, unless there is a clear and convincing reason that the university is wrong. In the end, it is only in the rarest of circumstances that the law gives judges the authority to undo a decision made during a grievance or disciplinary proceeding, either about who should win or what the remedy should be.⁶ In virtually no case is one party or another ever given the chance to start over.⁷

ARBITRATIONS

Arbitrations are like administrative proceedings, but have broader applicability. The parties to a contract may have agreed (at the start of the contract) that they would submit to arbitration all disagreements arising out of or relating to the contract. They can agree to arbitration after a contract is in place and a dispute has arisen. A judge can force them to take their claims to arbitration before they go to trial before a jury. Employers often insert mandatory arbitration clauses in their employment contracts with employees. Although not without controversy, some colleges and universities have included mandatory arbitration provisions in their enrollment contracts with students.

There are several ways that the arbitrators can be selected: They can be assigned by a judge, chosen from a list of qualified individuals from which unacceptable candidates have been “stricken” by the parties, or selected by agreement. Once selected, the process that is followed will either be set by the document signed by the parties or governed by court rules.

In general terms, arbitrations may follow court procedures but will be less formal. There will be lawyers, and the lawyers will give opening statements. Witnesses will be called, examined, and cross-examined. Documents will be formally marked as exhibits and offered to the arbitrator. Legal memoranda will be submitted. The arbitrator will then issue a decision, rendering an award to one side or the other and specifying the remedy to be provided. In most cases, the award is for damages—money—but where the rules or agreement allows, the arbitrator can specify equitable relief—orders that certain actions must be done (e.g., return to work) or must stop and not happen again (called injunctions; e.g., ending a policy).

Whether there can be appeals from arbitration awards depends on the agreement or the rules under which it was conducted. Arbitrations can be binding—that is, the decision rendered by the arbitrator(s) can be final like those in an administrative hearing—or not.⁸

AGENCY PROCEEDINGS

Many federal, state and local laws and regulations are enforced by governmental administrative agencies or bodies designated by the law or regulation. More commonly known administrative agencies include the U.S. Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Education’s Office for Civil Rights, or the U.S. Department of Labor. Although this can depend on the law, often aggrieved parties must first file their allegations with the administrative agency before they can seek legal redress before a court of law. For example, a claim of employment discrimination under Title VII of the Civil Rights Act of 1964 must first be made to the EEOC or its corresponding state or local agency. Before employees claiming illegal discrimination, harassment, or retaliation can sue in court under Title VII, they must either wait for the agency to complete its investigation or obtain a “right to sue” letter from the EEOC.

The nature of the proceedings required by the administrative agency can vary, but often they will require the aggrieved party to file a complaint or charge with the agency to which the defending party must respond. The agency, through its employees, will investigate the allegations. This investigation may include a fact-finding hearing or conference conducted by an employee of the agency or by the agency employee interviewing parties or witnesses and requiring the parties to produce records and information to the agency. Parties can be represented by attorneys during these proceedings. The agency will issue a written determination as to whether it found the allegations to be proven or not. The agency may also offer to host a voluntary mediation session between the parties to see if it is possible to resolve the matter before the agency investigates the allegations further.

TRIALS

Disputes can go to trial and be resolved by jury verdicts or judicial awards. That happens in a very small percentage of the disputes that find their way to court. There are many reasons for this: Trials are very expensive (costs plus time that people must spend preparing for them and sitting through them), it takes a long time to get to trial (during which time emotions tend to lessen and financial reasons tend to dominate), the process reveals information that makes right and wrong less clear (making settlements possible), and judges regularly use their power to force settlements. Few people actually make it through the entire process, and only a small subset of them think the experience was worth it.

The following section outlines the process that leads from the filing of a complaint to the issuance of a decision ending the case. Virtually every lawsuit will go through each of these steps (unless it is settled earlier).

PARTIES

The person who believes they have been wronged and who starts the lawsuit is called the plaintiff. The plaintiff chooses who must respond to the charges of misconduct, and those persons are called defendants because the law obligates them to defend themselves (if they don’t, a judgment by default will be entered against them almost automatically). Being named a defendant, and being served with legal papers, often catches people by complete surprise. Sometimes the plaintiff names people who had nothing to do with the claim; more often, the people had something to do with the events that had something to do with the claim. The defendant(s) and the plaintiff(s) are together termed the parties.⁹

Lawsuits are begun when the facts are least clear; the facts get clearer as the lawsuit progresses, and that often allows innocent defendants to get out of the case before it goes to trial. But at the beginning, an attorney representing a plaintiff will err on the side of including as a defendant anyone who may have played a role in causing the injury to the client. This is because the law puts a very hard deadline on when people can file lawsuits (or, in an administrative setting, assert claims). These limiting rules are called statutes of limitation because they are usually enacted by the legislature (statute) and limit access to the court. If a lawyer learns after the time period has expired that someone else really did have something to do with causing the injury, even the guiltiest person can escape liability. Therefore, it is often out of an abundance of caution that people who are not really responsible—including nurses and nursing students—can find themselves named in medical malpractice cases.

Individuals can be served with legal process by anyone anywhere at any time—at home, in the office, even in the middle of teaching a class.¹⁰ Written in rather stilted English, presented in numbered paragraphs, and referring to long-ago events in which one has no real or current interest, a legal document from the court is exactly the kind of thing that one will be inclined to put to one side to read later. Don’t. Process servers and the piece of paper they deliver are the modern-day equivalent of a person being physically arrested by a sheriff and there are penalties (which can include arrest) if the instructions contained in the paper are not followed within the (usually short) period of time allowed. If the claim has anything whatsoever to do with a faculty member’s or administrator’s service to the university, it is in that person’s best interest (and probably required by university policy) to deliver that paper to a university administrator or the university’s legal counsel immediately. Never ignore a legal process you receive because a “default” judgment can be entered against you or your institution if you fail to file a proper response to the complaint within the allowed time period.

PLEADINGS

A long time ago, those who were aggrieved submitted pleas to the judiciary to help them. Today, the pleadings are the written statement of what the claims and defenses are. In some jurisdictions (including many state courts), the claim must be stated with specificity, providing a detailed account of what happened and why the grievant (called a plaintiff, who starts the process by filing a complaint) should be given some help (called relief), such as money damages, return of property, orders forcing the other party to do something, and so on. In other jurisdictions (such as the federal courts), all the plaintiff needs to do is give a short-form notice that they have a complaint of a certain type against the defendant.

The defendant then has a short amount of time to respond, and is given a choice: They can file a motion that challenges the legal sufficiency of the complaint, or file an answer to it. In most cases, a motion is filed because the defendant’s lawyer thinks it might actually succeed in removing some of the claims, or will get the judge involved in the case faster, or just buys time. Few cases are actually dismissed at this point because even if the defendant is right, judges will usually allow the plaintiff a second (and often a third) time to plead a claim properly.

Once the motion practice is concluded and the judge has issued any preliminary orders, the defendant has to file an answer to all of the claims that remain—a response that not only challenges the facts (and defendants are often required to state their own contrary view of what happened, so the court knows where the factual disputes actually lie) but also asserts legal principles that either excuse the conduct or prove that the conduct was not wrong in the first place (defenses). The plaintiff then has the opportunity to test the legal sufficiency of the defenses through motion practice.

DISCOVERY

When the motion practice has ended and the pleadings are closed, the parties engage in what is called discovery. This is the period of time in which each party gets the chance to ask questions to discover the truth. They can ask questions of any of the other parties, of independent witnesses,¹¹ and of experts who have been hired to testify in the trial. The questions can be about the facts, the claims, the defenses, the opinions of the experts and the reasons for them, and anything else that might be important—including the mental abilities and capacities of the people who are witnesses. Great care must be taken in answering questions, because false answers suggest that someone is not a truth teller, and that opens up the questioning to other instances and events in which the person may not have told the truth. But everyone who has ever been involved with litigation will say that the questions are endless, require enormous effort to answer, and are terribly intrusive.

The manner in which the questions get asked are up to the attorneys. They can be in the form of written questions (interrogatories), oral questions (depositions), and requests to produce anything tangible for their inspection and copying. Virtually everything arising out of or relating in any way to the facts that are at issue is fair game for the questioning. The law also permits the attorneys to review any document (graphic, electronic, or other form of recording) and all files—even those marked personal, because they get to prove for themselves that one of the parties has been accurate in filing the information away and is not hiding something.

Electronic records are the greatest source of dispute because of how much we use email and e-documents. Once served with legal process, one’s personal obligation is to provide access to every device that might have been used to store or communicate information relevant to the dispute.¹² In addition, there are also federal and state laws that require that any and all records that might be related to a case be preserved, and the lawyers are allowed to check the parties’ hard drives (and everyone else’s, it seems) for deleted items. Discovery that one has destroyed documents or other kinds of evidence not only leads to the inference that it would have proved bad things against that party, but it can, under certain laws, subject one to criminal penalties, such as fines and even jail.¹³

For everyone involved, discovery represents the largest investment of time and the biggest intrusion into privacy, and the right of the parties (and their lawyers) to look almost everywhere explains why universities have policies that state nothing on an employee’s office computer, laptop, or cell phone is exempt from inspection review by the university, at least in certain situations. Collecting and imaging hard drives not only costs quite a lot of money but substantially interferes with everyone’s work; and because the law imposes a continuing obligation to disclose, collecting information may have to occur more than once. For those who have undergone this process, it is easy to understand why the university (typically in the role of the defendant) settles cases more often, or more quickly, than the merits of the cases suggest it should: As a purely economic matter, it is often far less expensive to pay early to get out fast.

MOTION PRACTICE AND PRETRIAL PROCEEDINGS

For those subject to it, the process of discovery seems endless, but a date does arrive when the questioning is required to end. At that point, the parties and their lawyers spend enormous amounts of time organizing all of the evidence, presenting it in motions to the court, arguing about the legal sufficiency of the claims and defenses, and getting ready for the actual trial. This can take months or even years. It is also during this period that the parties—by their own decision, or directed by the judge—may try to settle the case through mediation, or agree to have it resolved by arbitration instead of trial.

After the discover period has ended but before the trial begins, parties will often file what is called a motion for summary judgment to try to get all or some of the counts or claims of the lawsuit decided by the judge without the need for a trial. The party filing a motion for summary judgment is asking the judge to agree that there is no genuine issue of material fact on that claim and that if all of the allegations of the claim are accepted as true, the opposing party must lose on the claim as a matter of law. If the judge rules in favor of the moving party, then that specific claim will not be argued during the trial. Should the moving party succeed in getting all of the claims or counts decided in their favor, then there will be no trial at all. However, the losing party may appeal the summary judgment ruling to a higher court.

TRIALS

Real-life trials are nothing like those on television crime dramas. They can span weeks at a time. The lawyers often meet with the judge behind closed doors, while everyone else sits in the courtroom, waiting without explanation. One is not allowed to have cell phones on in the courtroom or to talk above a whisper. If a person has been subpoenaed to testify, they may even be required to sit out in the hallway (so they don’t hear what other witnesses are saying), and they will have to remain there until the judge releases them. If a person is a party, the university will most likely require them to be in court every day, from the moment the jury is picked to the minute the judge gavels that the proceeding has ended. Depending on legal rulings made by the judge and tactical decisions made by the lawyers, the person might not even testify. It is a huge imposition on everyone’s time and the university’s funds.

Almost no one finds the experience satisfying. Witnesses are not allowed to give their stories; instead, they are confined to answering the lawyers’ questions, even if that means the full story is not given. The lawyers interrupt each other and the witnesses with objections that are very distracting (and sometimes intended to be). The lawyers will know the facts even better than the witnesses (that’s their job), and they will be ready to impeach anyone’s testimony with facts they have learned during the discovery process. Their objective is to prove that their client’s side of the story is the right one, the one that the judge and jury should believe, and that anyone who speaks against that version is wrong, or lying about it. It may not even seem fair—but it is, in the larger sense that everyone is playing by the same rules.

After all of the evidence has been presented, the lawyers will give their closing arguments in which they marshal all of the facts they have brought out in the trial into the story that they want the jury to accept, and argue why the other party’s story is inconsistent with the facts and not worthy of belief. The judge then charges the jury on what the law is and the jury’s obligation to interpret those laws to the facts of the case and decide who is right. This charge is not written: As in the rest of the trial, the members of the jury must try to remember what they have been told, as they are not allowed even to take notes in most jurisdictions. They retire to the jury room to discuss the facts and make their decision, and are allowed to be finished only when they have reached and announced their verdict in open court. Unlike criminal cases, the jury does not need to be unanimous: Each jurisdiction decides for itself the number of juror votes required to make the decision.

POSTTRIAL PROCEEDINGS AND APPEALS

After a verdict has been entered, the parties will try to persuade the trial judge that the jury was wrong, and the judge does have the ability to reject the whole of the jury’s verdict or to modify it. When the judge is finished with that process, the parties have the right to appeal whatever part of the decision they don’t like to a higher court called a court of appeals. At that level, the judges (typically a panel of them) will hear the argument and make what is in most instances the final decisions in the case.¹⁴

It is in this posttrial process that the law changes from oral (the jury’s decisions) to written form. Before the decisions are submitted to an appeals court, the trial court is required to confirm the reasons for its decisions in a written opinion. The appellate court, in turn, reviews that decision and issues its own, which is also written. These are public, recorded in the courthouse, published, and, at the appellate level, reported in both hard copy and electronic journals. It is these decisions to which the lawyers and judges look for guidance in presenting and arguing their next cases, and where most of the law is found.