Employment litigation can be highly charged; both sides may be emotional about the case as well as being concerned with the costs of litigation and the time it will take. Given that reality, don’t pull the trigger on bringing an employment case until you’ve followed these five steps.
- Assess the case. Begin by ascertaining the facts from your client and through further investigation and discovery. Analyze the legal theories, claims, and defenses that arise from those facts.
- Find out what your clients wants and why. You need to figure out what your client wants and whether those desires can be obtained by filing the action at hand. For plaintiff’s attorneys, the plaintiff feels wronged and no doubt wants monetary damages. But damages may be limited, and the client may have other wishes or needs and may not be aware of additional remedial options that may apply. For defense attorneys, the defendant client wants advice as to the possible outcomes of the matter and how best to defend the case. But the client also may have other options, and it is equally important to know the client’s goals. Once you know what your client wants, learn why the client wants it. What losses or needs underlie the request for damages? What concerns underlie an employer’s position not to settle? What reasons do the employee and employer have for their positions on continued or resumed employment (especially if those positions differ from each other)?
- Determine which remedies or result is available. Review the statutory and common law remedies available in the employment arena to determine the legal possibilities based on the facts of the case at hand as ascertained during investigation and discovery. Help the client set reasonable goals and expectations, grounded in the facts and law. Although you should be ambitious and aim high, it’s counterproductive to generate unwarranted expectations as to outcome.
- Get to your client’s real interests. Analysis of what results are reasonably achievable may well lead you to conclude that your client may not be able to get what he or she wants. It’s important to identify the client’s real interests, i.e., to determine not only what the client wants but why he or she wants it. Litigation or arbitration is risky, expensive, and time-consuming. Settlement is a process of compromise; parties rarely get everything they want, but in settlement they often can get what they need.
- Check whether attorney fees and costs are recoverable. A major feature of employment law is attorney fees. The usual rule in California is that parties bear their own fees and costs, absent either a statute or a contract that provides otherwise. But there may be fee-shifting statutes available. Keep in mind that attorney fee motions are decided by the trial judge, not the jury; don’t assume they’ll be automatically granted as requested. An often overlooked but fundamental legal requirement is that the fees requested be reasonable and, of course, that they were actually incurred.
After you’ve taken these 5 important steps, you’ll be in a much better position to decide whether to bring an employment case. If you decide to bring that case — or are defending against one — CEB has you covered with our comprehensive Employment Law Library, including our new book, Employment Damages and Remedies. This book will help you answer the two fundamental questions in employment litigation: What is that employment case worth? How much will it cost my client? Check out the YouTube video of two of the book’s authors discussing some of the issues involved with damages and remedies in employment cases.
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