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While there is certainly no shortage of "scum lawyers", not every lawyer who represents a client with a bad case is scum (you can't imagine how hard this is for me to say this). If the client wants to go ahead with the case against the advice of his attorney, it is the client that is scum, not the attorney. Now I will agree that a scum client can also have a scum attorney; and in fact, is usually the case, but not always.

As for the legalities, she has a slam dunk case. The real dispute here is not really whether she will get the car; that is a done deal. The real dispute is who will get to decide who and how much more money she will get for additional damages.

ConservativeLawyer, What is your take on what is really at issue here?

There has to be some expectation on the waitress in this case. Could she reasonably have an expectation that she and her coworkers could sell enough extra beer (beyond the average consumption) which would provide the resteraunt with enough revenues to buy her a car? How much extra beer did she sell? 100 glasses, 1000 glasses? Did she think this was enough to actually earn a car? Did she ever wonder "how can they afford to buy me a car on X glasses of beer?"

Another factor is agency. Was the person who promised her the car authorized to act as an agent for the owners? Perhaps under the terms of her employment contract she was made aware that the sales manager couldn't bind the company to such a deal. Yet she relied on him despite reading in the manual that he couldn't deliver on any promises made on behalf of his employer. Isn't there an expectation on her to find out the terms and conditions of such a contest?

Obviously the guy thought he was playing a joke. But IMHO a bad joke is not an intention to commit fraud. Literally, he may win, since she technically won a toy yoda. But, I suppose some compensation is due..not much... perhaps $1 a glass or something. But as I said, it would be cheaper for the owners to just buy her a Toyota than to pay a retainer in this case.

ConservativeLawyer, What is your take on what is really at issue here?

Ms. Berry has won the first round on the threshold issue: i.e. whether she gets a jury trial or will she be forced to arbitration.

Arbitration clauses are generally enforceable, but in this case the article reads:

Company lawyers filed a motion to dismiss saying employees agree when hired to TRY TO settle disputes through mediation or arbitration before suing.

I don't know whether that is just sloppy writing on the part of the AP or whether the clause only requires that the parties "try" to settle the dispute before suing.

That doesn't sound very binding to me. Its an agreement to agree. One would expect a good binding arbitration clause to mandate arbitration for all disputes arising out of or relating to employment and expressly waive the right to a jury trial. Otherwise, why give the plaintiff a choice between arbitration (usually with a binding result, but not necessarily) and mediation (never binding result unless agreed by the parties at mediation)? And why say "before suing" if you don't contemplate a lawsuit if the "trying" fails?

Lastly, Ms. Berry's lawyer could argue that this promotion was a whole new contract that superseded the previous agreement, and therefore not bound by the arbitration provision.