Most people will spend a third of their lives asleep. Similarly, as incredible as it may sound, another third will be spent at work. Unpleasant, but true: for most of us, one third of our adult life will be spent engaged in furthering the goals of our employer, which may or may not align with our own personal goals. Particularly if you are a long-term employee, when your work situation becomes unpleasant – for reasons of harassment, discrimination, retaliation, or issues over pay — you may find yourself unusually upset, confused, and feeling weirdly “off balance.” If you think of a job as a kind of marriage, it’s really no surprise that turmoil at work can cause disruptions in your sense of well-being.
If you are currently unhappy in your job, have recently quit or been terminated, you are by no means unusual. According to a US Bureau of labor Statistics, the average length of employment fell from 9.2 years in 1983 to 4.1 years in 2008. A 2010 Metlife poll showed that roughly two out of every three employees either plan to leave their job by the end of the year, or would leave their job if something better came along. A professor at the Wharton School of Economics suggests that this restlessness is actually explained by a 30-year trend in which employers increasingly have valued profit over loyalty to their employees, and have come increasingly to view employees as disposable. Employee lawsuits have also become common. In California alone, employee-filed EEOC charges of harassment, discrimination and retaliation rose by almost 12% between 2009 and 2012, from 6,654 charges filed to 7,399.
Very few lawsuits that are filed ever actually go to trial, and of those that go to trial, most plaintiffs don’t fare as well as they had hoped, with verdicts typically falling between $10,000 – $99,000, not exactly a windfall.
To sum up, there appears to be less loyalty on both sides of the employment equation, employment stints are getting shorter, more discrimination lawsuits are being filed, but 99% of them aren’t going to trial. Those cases that do wind up in a court room typically obtain small verdicts.
With that in mind, what should you be looking for in an employment lawyer? Here is a list of eight subjects to consider for your first interview.
SUBJECTS TO RAISE (OR NOT) WITH YOUR POTENTIAL LAWYER
1.) How Well Does S/he Communicate? You don’t need your lawyer to be your therapist, but you probably want someone who is easy to talk to (or has someone in his or her office to fill that role), easy to reach by phone, email, or text, and who reports back to you regularly about what’s going on with your case. It probably isn’t reasonable to expect your lawyer to communicate with you every day, but once every two weeks is probably reasonable in a long-term representation, unless there is a lot of activity going on, in which case you may hear from him or her, or an assistant, a couple of times in a week. Find someone computer and texting-literate.
2.) Use of Private Investigator. A good investigator can dramatically increase the value of an employment case. A competent, licensed investigator will use computer database searches and personal interviews (by phone and in person) to obtain information about the people involved in the dispute. Ask your potential new attorney if s/he uses an investigator, and when that person will be brought into the case. The earlier, the better. By the time the Complaint is filed, you don’t want there to be any surprises.
3.) Make Full Disclosure. Relationships are built on trust, even your relationship with your attorney. S/he needs to know that you have reported everything that is potentially relevant in an accurate, complete manner. So, for example, if you are asked by your potential attorney if you have ever been convicted of a crime, and you have, say so; if your case is otherwise solid, you will not be shown the door. If you have other legal issues, bring them up early. Don’t wait until your deposition is about to be taken. Don’t think that secrets in your past won’t come out in a legal dispute because they probably will, and if you haven’t disclosed them earlier to your lawyer, you will lose control of their impact. You want your potential lawyer to know all the “dirt” on you before anyone else does, so s/he can work with the facts, not against them. The same goes for bankruptcies, other lawsuits, arrests, undocumented worker status, and other employment issues with prior employers. Your lawyer can’t help you fully unless you fully disclose. And, conversely, if your potential lawyer doesn’t ask you probing questions about your past, that could be a sign that s/he is not a good match for your needs.
4.) To Try to Resolve Early, or to Litigate? There are fine employment lawyers whose practice is to litigate first, resolve later. There are fine employment lawyers whose practice is to try to resolve first, litigate later. Both practices have their benefits and drawbacks, subject for a much longer article that would discuss the potential financial pay-offs of litigation versus the emotional toll. I think both practices are appropriate, depending on the facts, and depending on who you are. Litigation is unpleasant for everyone. You may feel that you are just so emotionally beat that you don’t want more of a fight; you just want resolution. Or you may have deep, clear fantasies of seeing your adversary in a court room at trial. Whatever avenue you prefer, there is a lawyer out there for you. My only point here is that you should ask your potential lawyer what percentage of his or her practice emphasizes early resolution (before a lawsuit is filed) versus litigation. It may actually be to your benefit to ask an experienced litigation attorney to attempt early resolution of your case, because if he or she is well known in his or her area, it is also known that he or she is not afraid of a fight.
5.) Reasonable Contingency Fee. Practices vary, of course, but it is common for an employment lawyer to charge a contingency fee, which is a percentage of your case if it settles, and nothing if your case never settles. It is also common for employment lawyers to charge 40% of the gross recovery, and to take that fee “off the top,” i.e. before any other amounts are deducted. Costs typically come off after calculation of the fee. That, too, can be negotiated. Other than for representation of minors, for which the percentage fee has to be approved by a court, the attorney fee percentage can be negotiated freely between the parties. For pre-litigation (the time before a lawsuit gets filed), it is my opinion that a 40% fee is excessive. Before a lawsuit gets filed, I advise asking the lawyer if s/he will accept 1/3 (33 1/3%) if your case settles before your Complaint is filed.
6.) Ask about your strengths and your weaknesses. Take “do I have a case?” a step further by asking your potential attorney, “As you see it, based on what I’ve told you so far, what do you think are the strengths and weaknesses of my case?” Both you and s/he need to start practicing early on to develop the strengths and minimize the weaknesses of your case. And every case has weaknesses. Your employer may be on the verge of bankruptcy. You may have received two years of questionable performance reviews that can’t be tied to a claim for retaliation. Your employer may have received another complaint about the person you’re complaining about. You may have quit and never said anything about having been harassed. These are all potential facts that will impact the strength or weakness of your case. So ask up front: “Tell me the truth. What’s good and what’s bad here?”
7.) Go Armed for Bear. If you really want to impress your potential lawyer, take along to the meeting a list of people who have agreed to speak to him or her about what happened to you at work, along with their phone numbers. Percipient witnesses, as these folks are called, are invaluable to a case. Anyone who can corroborate what you are claiming is useful. Anyone who has had an experience very similar to yours with that particular co-worker, supervisor or employer is an asset.
8. Don’t ask “What’s my case worth?” A good lawyer won’t tell you. An experienced lawyer can’t possibly know from the first meeting what your case is worth, and you put him or her in a tough spot by asking. I had one case come into my office several years ago that initially appeared to have a settlement value of around one hundred thousand dollars; and it settled for almost four million dollars two years later, after all the egregious facts had emerged. On the other hand, I’ve had cases that I initially thought were worth seven figures shrink in value as the facts emerged. Value is subjective, and fact-dependent. So if you ask how much your case is worth, your prospective lawyer might honestly say something like, “It depends!”