More focus on new court term from lawyers, less from media. (News & Trends).

Most U.S. Supreme Court watchers agree, it will be hard to top last term.

The Court's 2000-2001 term not only determined the fate of the presidency but, said commentators, also reigned as a dismal year for trial lawyers. In a single term, the Court validated arbitration clauses in employment contracts, gave police departments new muscle to arrest citizens for minor offenses, and struck down private causes of action under Title VI. The Court so eviscerated individual rights, some trial lawyers thought, that by the end of the last term they would have gladly traded places with Al Gore.

In Cooper Industries, Inc. v. Leatherman Tool Group, Inc., the Court set de novo review as the standard for reexamining punitive damages awards, making it easier for businesses to vacate high jury awards. (121 S.Ct. 1678 (2001).)

By term's end, the Court had even made it to the golf course, upholding the rights of disabled PGA players to use golf carts.

As the justices return to work on the first Monday of October, court observers are watching to see what the Big Case will be. However, most seem to agree the 2001-2002 term won't attract the media spotlight of the previous one.

"There's not a Bush v. Gore this year," said Davison Douglas, a professor at the College of William and Mary Law School in Williamsburg, Virginia. "There won't be a case of quite that magnitude."

By press time, the Court had granted certiorari to only about half the cases it will probably hear over the term, leaving plenty of room on the docket for major, and controversial, cases. Decisions in cases already granted certiorari may clarify employee rights under arbitration clauses, set further limits on affirmative action programs, and address the death penalty. Trial lawyer associations, employment rights groups, and civil rights advocates are all preparing to support their causes with amicus briefs.

One of the issues at stake is the Equal Employment Opportunity Commission's (EEOC) authority to pursue relief for individual victims of employment discrimination. In Equal Employment Opportunity Commission v. Waffle House, the Supreme Court is slated to review whether an arbitration clause between an employee and a company prevents the EEOC from going to court on the employee's behalf. Oral arguments are scheduled for Oct. 10.

The plaintiff in the underlying case, a grill operator at Waffle House, filed an Americans with Disabilities Act (ADA) complaint with the commission, claiming he was fired because of a medical condition that caused him to have a seizure at work. The EEOC filed an enforcement action against Waffle House.

The Fourth Circuit upheld a boilerplate arbitration agreement in the fine print of Waffle House's employment application and ruled that the agreement precluded the EEOC from seeking relief in court on the plaintiff's behalf for individual remedies such as back pay, reinstatement, and compensatory and punitive damages. But, the court said, the EEOC could not be forced to arbitrate its claims in protecting the public from discrimination. (193 F.3d 805 (4th Cir. 2001).)

The commission has petitioned the Supreme Court to overturn the Fourth Circuit decision, claiming that the ruling, if allowed to stand, "could seriously compromise the EEOC's ability to enforce the antidiscrimination laws."

"The reasoning of the court of appeals is flatly inconsistent with the policies reflected in Congress's structuring of the Title VII enforcement scheme," lawyers for the EEOC wrote in their brief to the Supreme Court. "The court of appeals' conclusion ... conflicts with the determinations Congress made in expanding the EEOC's enforcement role in 1972."

Washington, D.C.-based Trial Lawyers for Public Justice (TLPJ) is supporting the EEOC's position with an amicus brief.

"According to Waffle House, this short-order cook can only have his case heard if he pays out the equivalent of two years of his salary to arbitrators picked by Waffle House," said F. Paul Bland Jr., TLPJ staff attorney. "The obvious point of Waffle House's system is to make it impossible for its employees to challenge the company in court no matter what it does. If the Supreme Court rules for Waffle House, its employees will be stripped of any realistic chance at justice."

Amicus briefs have also been filed by a host of employee rights organizations and state human rights commissions, including the Lawyers' Committee for Civil Rights Under the Law, the National Women's Law Center, the National Employment Lawyers Association, and the American Civil Liberties Union.

Affirmative action

Another case to watch this month is Adarand Constructors v. Mineta, a case involving the constitutionality of race-based preferences in the award of public construction contracts. In the case, scheduled for argument on October 31, a subcontract on a Colorado public highway construction project was awarded to a minority-owned small business over Adarand's lower bid.

This will mark the third time the case, which has spent 12 years in the judicial system, has gone to the Supreme Court. Adarand has won two High Court victories, including a 1995 decision limiting government-run affirmative action programs. This month, the Court will review the Tenth Circuit's reversal of a grant of summary judgment in favor of the government in the latest round of trial proceedings. (228 F.3d 1147 (10th Cir. 2000).)

Based on the Court's recent history, William & Mary's Douglas expects that Justice Sandra Day O'Connor, consistent with her pattern of narrow interpretation, will keep the ruling limited to affirmative action in the award of public contracts. He doubts that the ruling will be a sweeping pronouncement on affirmative action.

Many will be watching closely to see if the Court will end its silence on affirmative action in the educational context since its landmark 1978 decision in Regents of the University of California v. Bakke. Douglas said that might happen later in the term, given some recent federal appeals court rulings.

Whatever cases the Court addresses, the votes are likely to be interesting, observers say, because of the 5-4 splits that have marked decisions in many cases. "This continues to be a closely divided Court," Douglas said. "On the most important issues before it, O'Connor continues to be an important vote."

Other cases plaintiff lawyers will be watching this term:

Rush Prudential HMO, Inc. v. Moran. In a case that could significantly affect managed care companies, the Supreme Court will review whether the federal Employee Retirement Income Security Act (ERISA) preempts an Illinois state law requiring HMOs to provide coverage for medical care when an independent board or physician says the care is necessary. The Seventh Circuit Court of Appeals held that the plaintiff's claim was not preempted by ERISA. (230 F.3d 959 (Ill. 2000).) Thirty-seven states have similar laws, and patient rights advocates are concerned that if the Court rules for preemption, the decision will have a disastrous effect on patients.

"This case will be an important test of whether the Supreme Court is serious about protecting federalism and states' rights when doing so would protect the rights of individuals over companies," said TLPJ's Bland. "The HMOs want the Court to find that a federal law that was designed and intended to help employees can be used to wipe away some of the most important state laws protecting them. I hope the Court will reject that request."

Toyota Motor Manufacturing v. Williams. In this appeal from a Sixth Circuit finding of disability under the ADA, the plaintiff, an assembly line worker, suffered repetitive motion injuries affecting her hands and arms. The key issue was whether her physical difficulties using her hands, arms, and shoulders constituted a disability under the ADA. The appeals court ruled for the plaintiff. (224 F.3d 840 (6th Cir. 2000).)

Chao v. Mallard Bay Drilling Co. This is an appeal of a ruling that the Coast Guard, not the Occupational Safety and Health Administration (OSHA), had jurisdiction over a drilling barge on which four workers were killed and two were seriously injured by an explosion in 1997. The employer, Mallard Bay, argued that OSHA regulations did not apply to the vessel and could not be introduced as evidence at trial. (212 F.3d 898 (5th Cir. 2000).)

TRW, Inc. v. Andrews. This case, an appeal from the Ninth Circuit, examines the statute of limitations under the Fair Credit Reporting Act in instances of identity fraud. The Federal Trade Commission has filed an amicus brief supporting Andrews.

An imposter, abusing her position as a doctor's receptionist, obtained Andrews's Social Security and driver's license numbers and used them on credit applications. The receptionist quit her job, moved to Las Vegas, and rented an apartment using the plaintiff's name.

TRW gave inquiring creditors the plaintiff's credit history and then added the inquiries to the plaintiff's credit report. The plaintiff later sued TRW, alleging that the company had violated the Fair Credit Reporting Act.

One of the issues in the case became when the statute of limitations for the Fair Credit Reporting Act began to run--when TRW provided the information, or when Andrews discovered the fraud. The Court of Appeals applied the discovery rule to the case, keeping her claims alive. (225 F.3d 1063 (9th Cir. 2000).)

Criminal cases

One of the most closely watched criminal cases on the docket in the new term is McCarver v. North Carolina, in which the Court will consider whether executing a mentally retarded prisoner constitutes cruel and unusual punishment under the Eighth Amendment. Since the Court agreed to hear the case, North Carolina has ceased executions of convicted criminals with IQs below 70, raising the question of whether the case is now moot.

Overall, the Court's criminal procedure rulings will garner less attention, according to Indiana University law professor Craig Bradley. Since the Court decided to leave its landmark Miranda ruling in place, that spotlight seems to have dimmed, he said. For a long time, observers watched to see whether the current Court would over-turn or narrow some of the landmark criminal procedure rulings rendered under Chief Justice Earl Warren that enhanced the rights of the accused. But after its recent decisions, the comparisons seemed to have waned.

"The Court has finally cast off this albatross of the Warren Court," Bradley said.

In contrast to the 5-4 splits in about a third of the Court's cases last term, Bradley expects more unity in its criminal procedure decisions. Among the issues likely to face review will be the parameters of a "reasonable suspicion" that justifies an investigatory stop by police.

Although Court commentators try their best, they all acknowledge that no one can predict how the Court will rule this term. "It's very, very difficult to forecast" the Court's decisions, said Douglas.