Imagine this: You are an attorney employed by a government entity (County child support office) and have been for about ten years. You apply for a promotion which, in part, requires taking an exam testing your knowledge of the child support law. Before taking the exam, your employer gives you a study reference guide which tells you the subject matter of the multiple-choice test. In order to pass the test, you have to score at least 70 percent.

You take the test and barely squeak-by scoring a 71.91 percent. Remember, this is a test that evaluates your knowledge of the law of the area in which you have been practicing for ten years. Not stuff like the Rule in Shelley’s case or the Trust Indenture Act of 1939, but stuff like the law relating to child support.

The applicants for promotion receive scores based half on their test scores and half on their score assessed by the applicant’s two most recent performance evaluations. The applicants are the ranked and placed into five “Bands” with Band 1 being the highest and Band 5 the lowest.

You are ranked in Band 4 and don’t get promoted because all of the promotions went to attorneys in Band 2.

You have a choice at this point: study the reference guide and work to improve your score on the next test and make sure you get great performance evaluations, or drum up a lawsuit and allege race and marital discrimination under FEHA and other associated claims.

It seems to me the wise attorney would study hard for the exam and work hard to ensure a good performance evaluation because that would enhance the wise attorney’s chances for promotion.

An unwise attorney would file a lawsuit alleging discrimination under FEHA and blame everyone else for her lackluster test grade. This is an unwise decision because a case like this has no jury appeal whatsoever, but that does not matter because the attorney would lose at the summary judgment stage. An even more unwise attorney would appeal the summary judgment, because then it might result in an appellate court opinion (even though it’s an unpublished opinion, it’s still there in Lexis and Westlaw and Google Scholar for all to read) about how a child support attorney for the County for a decade managed only a paltry 71.91 percent on a test for promotion.

I think this is crazy! But that’s just me.

Anyway, the wise attorney might be promoted by now, some six years later, instead of the unwise attorney who is reading an appellate court opinion detailing her failings and probably hoping the opinion isn’t being emailed around the office by snickering colleagues.

But what really hurts is the court’s opinion on attorney’s fees. Since the court determined the unwise attorney’s lawsuit was “unreasonable and without foundation,” the court ordered the unwise attorney to pay a 50 percent of defendant’s attorney’s fees.

Bummer. The FEHA attorney’s fee provision swings both ways.

Hopefully the unwise attorney is a littler wiser now.

Nichols v. County of L.A. Child Support Servs. Dep’t., 2014 Cal. App. Unpub. LEXIS 5073 (July 18, 2014).