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Eitan Arom: UC’s litigious approach doesn’t give others fair shake

By Eitan Arom

Feb. 10, 2014 11:48 p.m.

David French has a joke: “Everybody gets their decade in court.”

Court is messy. It’s ugly. And frankly, it’s not a very good way to resolve disputes. A trial that French is currently prosecuting illustrates that point.

French, a senior counselor for the conservative legal organization the American Council for Law and Justice, is representing a former UCLA researcher, James Enstrom, who is suing the University of California for his job. While Enstrom is the one who brought the matter to court, the whole ugly, messy affair has cast the University in some unbecoming and litigious colors.

To illustrate: A document from UCLA Records Management & Information Practices obtained by the Daily Bruin shows that, in 2011, more than $35,000 was paid to a law firm called Lewis, Brisbois, Bisgaard & Smith to handle Enstrom’s appeals and mediation.

That’s before the suit even landed in court in 2012.

So even before Enstrom got around to filing a lawsuit, the University spent $35,000 in legal fees to handle his case. Regardless of what the court now finds about the circumstances of Enstrom’s termination, this trigger-finger approach to seeking outside representation should give pause to UCLA’s leadership, as well as its students and faculty.

Enstrom alleges that his appointment through the dean’s office of the School of Public Health was ended because of his controversial views about air pollution, as well as his involvement in blowing the whistle on a UCLA faculty member that acted as an air quality regulator in California.

There are two sides to the story. UCLA alleges his termination was the result of a lack of productivity and his research not fitting with the mission of his department – that his non-reappointment was routine and unspectacular.

Enstrom says he’s an academic outcast and UCLA is trying to “pulverize” him. His critics at UCLA and elsewhere say he’s a nobody, too unimportant to merit the kind of persecution he claims to face.

But whichever interpretation of the facts you subscribe to, every UCLA student, faculty member and researcher deserves a fair shake – particularly if they have spent over three decades here, as Enstrom did.

And a fair shake means being able to defend your job without having to go up against a lawyer from a four-name law firm.

The only reason Enstrom is able to carry on his case now is because the American Council for Law and Justice, which is supported by donors, stepped in to offer pro bono representation.

And it’s hard to believe that the organization took the case out of pure human kindness.

Like all donor-supported organizations, the American Council for Law and Justice has an agenda. According to its website, the group “does not charge for its services and is dependent upon God and the resources He provides through the time, talent, and gifts of people who share our concerns and desire to protect our religious and constitutional freedoms.

Notably, Enstrom’s case has become a lightening rod for conservatives and industry players who think environmental regulation is overblown. The involvement of an international conservative advocacy group is not unrelated.

So, in other words, those in Enstrom’s camp are not just moral crusaders, pure of heart and mind. But that’s the point. If it weren’t for a conservative, anti-environmentalist agenda that goes far above his head, Enstrom wouldn’t have the means to challenge the people who he thinks robbed him of his job and academic freedom.

The University of California has deep pockets and a history of paying out multi-million dollar settlements to plaintiffs. It’s extremely difficult to go up against the institution and win, especially if your case doesn’t happen to catch the attention of a public interest group with larger motives.

Enstrom knows that, because he tried. Before French found his case, Enstrom was fighting UCLA on his own. He represented himself at an April 2011 hearing before a third-party mediator.

He was up against Alan Zukerman, a lawyer retained by the UC from Lewis, Brisbois, Bisgaard & Smith who is now defending the University in the court case. The transcript shows Zuckerman obtaining clean, directed testimony while Enstrom stumbles through a cross examination that at times seems more like arguing and frustrated bickering than a legal interrogation.

Matthew Malkan, a UCLA professor of astronomy who advised Enstrom at the hearing, called the affair “Kafka-esque,” referring to the Franz Kafka novel where the protagonist is prosecuted without ever knowing his crime or standing a chance against the all-powerful court.

Frankly, Malkan’s description is spot on. Enstrom’s saga with the School of Public Health has resembled something out of a Kafka novel, with UCLA playing the unfortunate role of prosecutor.

To be clear, UCLA as an institution needs to be able to defend itself. But so do its researchers, its students, its faculty. The issues Enstrom has raised point to an overly litigious culture at this university that at the very least deserves a long hard think.

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Eitan Arom
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