What strikes me about the cases my firm handles is that the emotional issues involved are often the primary consideration, and the money is just a nice side benefit. Of course, there are exceptional cases that involve a whole lot of money, but large awards are rare, particularly in employment cases.
That’s not to say that the money isn’t important. Of course it is. By the nature of our practice, many clients have just found themselves without a job. Certainly, a pressing need is being able to pay the mortgage. But the driving force for many people is the need for an apology, justice, or, at the very least, answers. Money would be nice, but it is less important than the first three. I often find that the less of the first three someone can get, the higher the price tag for settlement. If, after you filed a complaint, your CEO called you, offered a sincere apology and evidence that she was going to change the company culture, and offered $10,000, you might very well take it (okay, let’s bump it up to $30,000) and, with just a bit of effort, put the whole thing behind you.
But that almost never happens. The litigation process rarely produces an apology. The company doesn’t want to expose itself to legal liability, it doesn’t believe that anything wrong happened, or the executives just don’t care. They have third quarter numbers to worry about! Or some combination of the three.
Litigation can sometimes deliver some version of justice, just often not the one people hope for. Litigation can deliver justice in that it can force the company—through the process of litigation—to answer for its conduct. You can force your boss to sit for a deposition. The company’s lawyer will have to double check the company policy on, for instance, reporting sick leave. But there is no guarantee of systemic change. The best way to achieve this is to go to trial and win a public verdict. That is rare, unfortunately. Even then, for a large company, it may have little effect. If the company had insurance for your claim, the insurance company will handle the litigation. Any payout will likely be within the policy’s limits. If you win, the CEO will most likely get a call or an email version of “aw, shucks” and then quickly forget about it. That’s not to say winning a trial isn’t cathartic. There is virtually nothing like it for an employee. A colleague recently told me about a client who stopped him on the courthouse steps after winning a jury trial that involved claims of sexual harassment. She said, “I appreciate the money. But I mostly want to thank you for getting my dignity back.” Priceless, indeed.
Justice short of trial also exists. I once represented a man fired from a company after delivering top sales numbers for more than twenty years. The real reason the company fired him was because his multiple sclerosis was getting worse. But the reason the company offered was that my client was not performing as well as others on his sales team. During discovery, the company produced a chart that the vice president of human resources said she used to rate the salespeople. The vice president, who was twenty years younger than my client, had been at the company for less than five years. During the litigation, the vice president sat in on all the depositions as the company representative.
We also got to depose the vice president for the better part of a day. I questioned her extensively. She admitted that she had made the chart after the company fired my client. Huh? The case settled before we got to trial, not for make-your-eyes-pop-out money, but not bad. (Our legal argument had weaknesses that made it possible to lose on some of the bigger claims.) Shortly after we settled, my client learned that the vice president got fired. There is no doubt that my client liked the settlement, but he got even more satisfaction knowing that the vice president had received her just desserts. Litigation always produces answers. They may not be the answers you want, but you’ll get them. In most states, an employer is not required to give you any reason for firing you. Your HR department can literally hand you the proverbial cardboard box and walk you to the door without so much as an “I’m sorry to do this, but…” If you sue and get past a motion to dismiss (and most cases do), your employer will have to explain in great detail why it fired you. And your boss is likely to have to answer in person when he or she is deposed. But you should be prepared for what your boss is going to say. The most common defenses raised by corporations are that you weren’t doing your job well enough and, even worse, you couldn’t get along with others, were abrasive, couldn’t spell, and on and on. The company may even produce as witnesses people you considered friends. It can be a lot of fun to watch your attorney poke holes in these stories, but they are still hard to hear.
That leaves money. It is important, but only in relation to how important the other factors are to you. Before you sally forth into active litigation, have a frank talk with your attorney about the strength of your claims and the art of the possible. Sure, it probably would take $550,000 to make up for the lost work, missed mortgage payments, and credit card interest, not to mention the sleepless nights. But can you get that? How far would you have to push? For that amount of money, you’re likely going to need to push deep into litigation, probably all the way to trial. What are the chances that you could lose it all? Once you have those answers, give it some thought. Would it be worth it if you could get $80,000 and the pleasure of watching your former boss squirm at a deposition? Only you can answer that question. But you should have a sense of your objective and the numbers—recognizing that these are something of a moving target—before you give your attorney the goahead to file the complaint.
What you want is to avoid a conversation like this one:
ATTORNEY. (After a six hour mediation.) The company has just offered $75,000, plus it will pay your attorney’s fees. As we discussed—even though I understand this has caused you great pain—juries in Virginia will award back pay, but not much for emotional distress. If you went to trial and won, you might not net much more than $75,000.
CLIENT. That just doesn’t come close to what I would need to feel good about this. I lost my house after losing my job. It caused tremendous stress on my marriage. And my creepy boss is still there. (Pause.) But I can’t put another $50,000 into this. (Pause.) Fine. I’ll take it. But I want my boss fired and an apology from the CEO.
ATTORNEY. I completely understand that, but you can’t make the company fire your boss, even if you win at trial. And your boss is never going to apologize. In fact, all settlement agreements contain language saying that neither side admits wrongdoing. The settlement is to resolve the dispute and avoid future litigation. We can ask to exclude that language, but—having done this for a while now—I can tell you that will be a nonstarter.
CLIENT. Really? This is pathetic… Fine. I’ll take the company’s money and start a blog about the truth about that place and how things work there. See how they like that.
ATTORNEY. (Shaking head.) I wish you could, but the company is going to require a non-disparagement agreement, which will virtually bar you from even talking about this case, much less starting a blog. I might be able to get the company to tone down that language, but you won’t be able to blog about the company if you accept the agreement.
CLIENT. This is bullshit! Forget it. They can keep their damn money. I want my day in court. I’ll sign anything they want, but it will cost them $2 million. Minimum.
ATTORNEY. Look, I get it. I’d be mad, too. But if you take this to trial and knock it out of the park, the most you can recover is around $100,000. There are statutory caps on compensatory damages of $50,000, which would include emotional distress. And you have about $45,000 in lost wages. You have a new job, so that number is not going up. Plus, as we discussed, you have a good chance of losing this at summary judgment. The judge could come down with her opinion any day. Some of the depositions did not go well for us. Even if you win the motion, we could easily lose at trial. Then you not only walk away with nothing, but you will also owe me about $125,000 in attorney’s fees and you will have to pay costs to the defendant. Those would probably be between $7,000 and $10,000. I know this seems unfair. And it is. But this is a very good settlement offer, given the possibilities here.
CLIENT. Can’t you just waive your fees if we lose? We’ve come so far together. This can’t all be about money.
ATTORNEY. If I had a trust fund, sure. But I don’t. This is how I pay my mortgage. Going to trial will mean that I have to work on this case exclusively for weeks at a time. I’d go out of business if I did this without getting paid for my time. Look, this is ultimately your decision, but if it were me, knowing what I know about this process, I’d take that money and run.
CLIENT. I know, but it’s not you. I’d rather take my shot at trial. I want the chance to tell my side to someone. I mean, I haven’t even been able to say one word to the judge. All she knows is what was said in the papers everyone has filed. And those are all damn lies by the company. You believe me, right? All damn lies. (Crying now.)
ATTORNEY. Of course, I know it’s true. But proving it at trial is a much different thing. I just think we have a good chance of losing at trial. That’s due to the vagaries of the litigation process, not because we don’t have the truth on our side.
CLIENT. I get it. But I want to sue. Tell the company to pound sand. We’ll see them in court.
ATTORNEY. (Long pause.) I want to see you get the most you can out of this case. And I think this offer is it. I hate to bring this up, but there is no way around it. You have forgotten that in our contract for legal services, there is a part that says I can withdraw from your case if you refuse to accept what I deem to be a reasonable offer. If I do that, under the contract, you owe me for attorney’s fees up to this point, which are about $78,000. I can cut that some, and would, if we end up there. But I don’t want to end up there. Let’s do this. Let me see if the company will keep the offer on the table for twenty four hours. If it will, and I bet it will, go home. Get a good night’s rest. Talk to your husband. Then decide what to do. We’ve been at this a long time now. I can tell you’re tired. Hell, I know I am. Now is not the time to make this decision.
How do you think this person feels about the litigation process? You got it. Not very good. She has been through a long, sometimes painful process, only to find out that all she’s likely to get out of her case is money, and not nearly enough to make it worth the pain.
It’s much better to feel like this person in the email below does. This is an unedited email that I received from a client.
Dear Tom,
First, I want to thank you for your professional courtesy and kindness during a time that was so difficult and stressful for me. I am finally coming out of the haze of shock and disappointment that I was engulfed in for the last three months. My last day in the office was in August. I received the severance that I wanted with full benefits until the final payment has been made, and I was paid all my accrued vacation in a lump sum. That wasn’t bad considering they originally offered me best wishes and a luncheon. 🙂
I gained some courage through all of this. I asked and it was given. I’ve never been good about asking for money, raises, etc. And I didn’t take the lunch.
For some people, going full tilt into trial is worth draining the 401(k). Having carefully weighed the options with their lawyer and family, they rest easy knowing what they’re after. Others just want a few months’ severance and the pleasure of telling their guilty boss where he can stick his “going away lunch.” Either one can be a perfectly rational choice. But make sure it’s a conscious choice that you make after careful consultation with your conscience and your lawyer. You have to make that decision at some point, regardless. Better to do it at the outset of your case (and at various points throughout the process) than wait until you’re forced to make a choice at the mediation table.
The Emotional Aspects of Litigation
Few sane people equate a lawsuit with happiness, but there are upsides. Here are some positives that I’ve seen my clients experience.
Standing Up for Yourself Is Empowering
By the time people end up in my office, they often have been kicked around at work. For instance, they’ve put up with an abusive boss or had the indignity of being fired simply because they got pregnant. When a high performing professional gets invited to a surprise meeting where she sits across a table from the vice president of human resources and a soon to be former supervisor and hears that “things just aren’t working,” she is left with a lifetime mental scar.
It feels good to do something about that. Who’s waking up at night now, boss? Enjoying that deposition prep where you get to explain to your lawyer what you meant in that email
where you said you wanted to “replace that accountant with someone not quite so pregnant”? You must have felt like a badass when you sent it—like a kingmaker. I’m guessing not so much now.
Even for clients who lose a lawsuit, standing up to fight can be a cathartic experience. As this article by Emily Esfahani Smith in The Atlantic discusses, sometimes meaning in life comes from the struggle. “There’s more to life than being happy.” Writing about the famous psychiatrist Viktor Frankl, Smith notes:
As he saw in the camps, those who found meaning even in the most horrendous circumstances were far more resilient to suffering than those who did not. “Everything can be taken from a man but one thing,” Frankl wrote in Man’s Search for Meaning, “the last of the human freedoms—to choose one’s attitude in any given set of circumstances, to choose one’s own way.”
Of course, being discriminated against in no way compares to the atrocities that occurred in concentration camps, but the same principle applies. The experience of discrimination—especially when it results in job loss—can be devastating. Taking legal action is one way to take meaning from that situation. It is your opportunity to choose a course of action to deal with a bad situation not of your creation.
Getting Answers
A company that fires you is generally under no obligation to give you any reason for your termination. Let’s suppose that you were fired a month after requesting medical leave to care for a child. You are replaced by a man with no children. You’re fairly certain this guy had twice been reprimanded for submitting improper expense reports. In contrast, your record is without so much as a blemish. When the director of HR meets with you in an effort to get you to sign a severance agreement waiving your right to sue, you raise this issue. She looks at you blankly and eventually moves on, not even responding to the question. Perturbed, you raise the issue again. The HR director says, “That’s just not right. He has a clean file.” You say, “Well, let’s settle this. Go get his personnel file.”
How do you think this request will go over? Do you think you’ll get that personnel file? No. You’re more likely to get walked out of the building by security. But if you file a lawsuit, you’ll get that personnel file and more. The company will have to give it to you under the rules of discovery. If the company refuses or hides information, it will have to face a very angry judge. Remember President Clinton and the Paula Jones litigation? In that case, a sitting president was required to participate in a deposition under oath. Powerful people are not exempt from the legal system. If David sues Goliath, Goliath has to answer, no matter how fearsome he is. Those involved in your case will likewise have to sit for a deposition. If the CEO of your company knows something about what happened to you, he too will have to sit down at a deposition table
and answer your questions (or your lawyer’s questions) under oath. Powerful stuff. The only way to get that satisfaction is by going to court.
Receiving Money
Most people who come into my office are not motivated primarily by money, contrary to what the Chamber of Commerce would have you believe about individuals who choose to enforce their rights. I would never recommend to a client that she sue only in the hope of achieving a substantial award. The risks involved in any litigation, particularly employment litigation, do not make suing an efficient moneymaking endeavor. It is certainly not uncommon for an employee to lose in court. That said, money can be a very nice result. I have had the privilege of handing to clients the largest onetime payment they have ever received.
