Some of the best language for workers in last week's wage-and-hour decision Brinker Restaurant v. Superior Court [pdf] came in a separate concurrence that Justice Kathryn Mickle Werdegar wrote to her own unanimous opinion.
Werdegar affirmed that representative testimony, surveys and statistical analysis remain available as tools for courts to determine "aggregate liability" in wage-and-hour cases.
Some plaintiff attorneys speculated that Werdegar was merely offering guidance to trial courts on behalf of the entire Supreme Court. But if that's the case, why did only Justice Goodwin Liu sign her concurrence?
We may have received a clue from the Supreme Court today. In the criminal case People v. Hernandez [pdf], the court ruled that a trial judge did not err by forbidding a defense lawyer from sharing a witness' declaration with his client. U.S. Supreme Court Justices Thurgood Marshall and William Brennan once frowned on the practice, but they did so in a concurring opinion, in a case called Geders.
"It is perhaps significant that the majority opinion [in Geders] did not embrace the expansive view of the concurring justices," the California Supreme Court observed today in Hernandez, rejecting Marshall's and Brennan's view.
And the author of Hernandez? Justice Kathryn Mickle Werdegar.