Finding (and Paying for) a Lawyer

There are a number of good resources for finding an employment lawyer. I recommend starting with the National Employment Lawyers Association (NELA), an association of attorneys who represent individuals in employment matters. The website (www.nela.org) has a “find a lawyer” function that will allow you to search for a lawyer in your area. Note, however, that lawyers must pay to be on this list. So, it is not a comprehensive list of attorneys.

For employment attorneys in the Washington, DC, metropolitan area, a great resource is the Metropolitan Washington Employment Lawyers Association (MWELA). Like NELA, MWELA provides an attorney search function, which you can find at www.mwela.org. Any attorney you find here focuses on representing individuals in employment disputes. Again, like NELA, the list is not comprehensive; that is, not all good employment lawyers are on it. But it’s a great place to start your search.

Tip:

Most employment lawyers who represent individuals work solo or in small firms. Larger firms generally represent employers.

Some other good resources for finding an attorney include the following websites:

• Avvo.com: This website includes a comprehensive list of attorneys searchable by specialty and geographic location. You will notice that some profiles are complete, while others are not. This is because attorneys can “claim” their profiles and add information. Avvo gets the rest of its information about listed lawyers from public resources. The rating system (one through ten) is a bit arbitrary, but does give you some indication of your lawyer’s areas of expertise. Just remember that the lawyer’s rating is based, in part, on his or her participation on Avvo, so one with a perfect ten rating is not necessarily better than one with a lower score.
• Nolo.com: Nolo is a legal publisher that puts out some very good educational information on all areas of law, including employment law. I highly recommend this site. Nolo also has a list of attorneys, and you can search by geography and specialty. Attorneys pay a fee to be listed and are not screened by Nolo.
• Justia.com: Justia is another good resource for locating attorneys. As with the other two, attorneys pay to be listed on this site. One interesting thing about Justia is that it allows attorneys to post filings from other cases so that you can see samples of their work.
• Google: Of course, you can also do a blind Internet search for employment law attorneys. Make sure you search for attorneys who represent employees, known in employment actions as the “plaintiff.” You will undoubtedly pull up a number of attorney pages. This is not a bad way to research, but recall that a prominent placement in search engine results does not mean the attorney is the best one for your case.

Tip:

The Internet is a terrific resource for researching lawyers, but it is a “buyer beware” system. Lawyers can, within reason, advertise for any type of case that they want, and a slick website does not necessarily mean the lawyer behind it is the best one for you.

Choosing a Lawyer

Employment law is highly technical. Winning an employment law case requires knowledge of case law, statutory law, constitutional law, and regulatory law. There are rarely simple employment cases. You need someone who knows what he or she is doing.

Here are some ways to find the right lawyer for your case:

• Look for a lawyer who advertises as a lawyer that represents employees, as opposed to, for instance, an attorney who describes himself as a general litigator.
• He should put his advertising dollars where his mouth is: that is, the attorney should do more than simply say he practices employment law. He should have written about the topic and have information to give you about employment law.
• He should be able to tell you about employment cases that he has successfully litigated in the recent past. Ideally, he should have experience in the particular area in which you need help. A breach of contract case in Virginia is very different from a race discrimination case in the District of Columbia.
• Ideally, the lawyer should have trial experience. Defendants are more likely to offer favorable settlements if they believe your attorney will take your case to trial, if necessary. However, extensive trial experience is not required. Civil cases, like employment cases, most often settle before trial. I would choose the experienced employment lawyer over a seasoned trial lawyer without employment law experience.

What Your Lawyer Is Thinking from the Beginning

If you’re a cynic, you may think that the first thing a lawyer considers is “How much money can I make off this case?” Okay, the secret is out (not that it is much of a secret). Any lawyer in private practice has to pay the bills and thus must, on average, make a profit from the cases he or she takes. Involved in that question for the lawyer is whether he or she can win.

For that reason, from the moment you start taking to your lawyer, he is thinking about what might happen if you were to go all the way through trial and win. What is the best possible outcome in dollar terms? (As I discussed in an earlier section on money, the civil legal system is, at bottom, a system for transferring money from one party to another.) For this reason, all legal disputes—from the tragic death of a baby to which party is in the wrong when an apartment floods—are reduced to money. That is, what amount of money is the party who is suing entitled to get? So, lawyers thinking about taking a case are considering—and changing throughout the course of litigation—the amount of money the dispute will generate.

This may be why you would be excused for thinking that your lawyer is planning to run off to the courthouse from day one. He or she may start out talking about “damages” and trial while knowing that your case will resolve before you get to trial. Your lawyer is also thinking this way because the lawyer for your employer will think this way. As soon as your company’s lawyer becomes aware that you might sue, he or she is thinking about the possibility that you might win, and if you did, how much money would be on the line. Lawyers often refer to the amount of money on the line as the company’s “exposure.”

For instance, before a lawsuit begins, your lawyer might say to the company’s lawyer, “Look, John, if your company pushes this to trial and loses, you’re looking at back wages of at least fifty thousand dollars, an award of front wages of possibly the same amount, not to mention my attorney’s fees and a possible award of punitive damages. You saw that recent case where the jury awarded one hundred thousand dollars in damages. If you add that up, your client has significant exposure here, maybe in the range of three hundred thousand dollars or more.” The company’s lawyer will then respond with why she thinks your claims are worthless because the judge will kick the case out before trial. This scenario describes how 90 percent of all employment cases start. But, to my point, these conversations often begin, and sometimes end, before the complaint is drafted.

That’s why you may be confused to hear your lawyer talk to you about your case as if you’d already filed a complaint and were on the way to a trial.

Paying Your Lawyer’s Fees

Employment lawyers charge their clients in various ways. Here are just some examples.
Hourly: The most traditional way lawyers bill in any practice is by the hour. Rates in this area vary, but can range anywhere from $250 to $500 per hour. The advantage of this type of system is that you pay the lawyer only for the time he works on your case. The disadvantage is that the bill for any particular month will be unpredictable.

Retainer payments: Many lawyers who bill hourly require what is called a retainer. This is a down payment by a client toward future fees. Here, you give the lawyer a sum of money that the lawyer deposits into a trust account. These funds still belong to you.

The lawyer will deduct funds from the trust account, according to an agreement with you, as he works on your case. An “evergreen” trust account is one that, by agreement, you must replenish when the balance of the account drops below a certain amount. The lawyer decides the amount you put in the trust account. Generally, the more complicated the matter (for instance, matters in active litigation), the bigger the retainer.

Contingency: Contingency fee agreements are those in which the lawyer collects fees only if you win: that is, his fees are “contingent” upon your success either in settlement or at trial. Generally, a lawyer in these situations gets one­third of the money you win. So, if you settle your case for $10,000, the lawyer would get $3,330, regardless of how much work he or she has put into the case. These fee agreements are the norm in physical injury cases.

The advantage to the clients for these fee arrangements is clear: you don’t have to pay your attorney unless you win. The disadvantage is that you may end up paying the lawyer more than you would have if you paid hourly. For instance, let’s use the example above and assume you win $10,000. Let’s also assume that your lawyer spent five hours total on the case and charges an hourly rate of $300 per hour. Under a contingency fee arrangement, you would pay $3,300, but if you paid hourly, you’d pay less than half of that amount: $1,500 (five times $300).

Another disadvantage to contingency fee arrangements is that lawyers who use them are

(understandably) very careful to take only those cases that have a good chance of success. Thus, a lawyer who bills on contingency may not take your case simply because it has a good, but not great, chance of success. Some employment lawyers bill on contingency, though many do not, given the uncertain nature of employment litigation.

Contingent hourly billing: This is a variation of the straight contingency fee case. In these cases, like straight contingency cases, a client does not pay the attorney unless he or she wins at trial or receives a settlement. Unlike a straight contingency fee case, the lawyer keeps track of his hours and bases his fee on an hourly rate rather than on the percentage of the win. Thus, if you win $10,000 and the lawyer has billed five hours at $300 per hour, he gets $1,500. But if he has billed two hundred, he gets $60,000.

These arrangements apply only when there is a “fee­shifting” statute. This is a law that allows a court to award attorney’s fees to the winner. In an employment context, this means that if you sue your employer and win, the employer must pay its attorney’s fees and yours. Discrimination and civil rights statutes often have fee­shifting provisions. Fee­shifting does not apply other employment law claims like breach of contract and defamation. Thus, if you win one of these cases, you must pay your own attorney’s fees.

Mixed hourly/contingent: This is an arrangement in which the client pays a portion of the hourly rate, with the rest to be recovered only if the case settles or if there is a victory at trial. For instance, if your attorney’s hourly rate is $300, a mixed contingency arrangement might be an agreement in which you pay $200 per hour, with the attorney collecting the remaining $100 at settlement or trial, plus a percentage of the winnings, though less than the one­third that is typical in a full contingency case.

Your attorney will generally choose the arrangement that will work best after reviewing your case and paying close attention to the likelihood of achieving settlement or victory at trial. Cases are expensive to litigate, both in terms of cost and attorney time. An attorney will not take a case on full contingency—and bear all the risk of loss—if you have a marginal case. However, an attorney may take such a case if the client is willing to bear all the risk by paying a straight hourly rate.