Let’s talk about the stages of your case. I will discuss them further below, but first I want to address two common questions: (1) What is litigation? and (2) When does the lawsuit start?
Litigation is a broad term and could mean any time you start an adversarial process: for instance, when you or your lawyer sends a letter to your employer threatening a lawsuit.
But when most lawyers talk about litigation, they are talking about a lawsuit.
That brings me to the second question: When does a lawsuit start? A lawsuit starts when you (or your lawyer) has filed a complaint in court and “served” the complaint on the company. I often have clients concerned about starting a lawsuit. They know they want to, say, get a better severance, which may involve raising the possibility of a lawsuit in a letter to the company. When I discuss this with my clients, sometimes they express concern that they will somehow slide into a lawsuit without knowing it. If this is you, let me assure you that this will not happen. Filing a lawsuit requires several steps and your input. In some ways, the commitment is like signing a lease for an apartment. Before you sign a lease, you may have significant discussions with a landlord. These discussions are a prerequisite to entering a lease, but they will not result in you accidentally signing alease. You’ll know when it comes time to do that.
Now we’re getting into the real lawsuit part. The procedures for a lawsuit all are laid out in the Federal Rules of Civil Procedure. This uniform set of rules governs federal courts.
Each state system will have a different set of rules, but they will likely mirror the federal rules in most respects. You’re not required to read these rules, but they are a useful guide if you want to go to the source of much of what I’ll talk about in this chapter.
Complaint
The filing of the complaint is the opening salvo in a lawsuit. The three most importantparts of the complaint are the heading, the facts section, and the claims section.
The heading will contain your name as the plaintiff and then list the defendant(s).
Sometimes there will be only one defendant, the company. Sometimes there will be more than one defendant: for instance, when you sue your company and boss..
The second important section is the one setting forth the facts of your lawsuit, generally set out in individually numbered paragraphs. The facts section can go on for pages. It need not (and probably should not) contain everything that happened to you at thecompany.
This brings us to the third section: claims. The claims are the specific violations of the law that the company committed. You can have more than one claim under the same law.
For instance, you might sue your company after being fired following a request for leave to take care of your newborn. Let’s assume your boss at first told you that you could not file for FMLA leave to care for your child. This is an illegal attempt to interfere with your right to take FMLA leave. This is claim number one. When he tells you this, he says, “Child rearing is incompatible with this workplace.” This is illegal gender stereotyping based on sex. This is claim number two. Let’s further assume that, after some effort, you get HR to sign off on your FMLA leave. But six weeks into your twelveweek leave, you are fired. The company alleges that you left several invoices unpaid when you went on leave. This is untrue, and you can prove it. Everything suggests that the company fired you simply because you took FMLA leave. This is unlawful retaliation: claim number three. So, this complaint will have three separate claims under two laws.
Each claim is further made up of “elements.” These are the basic building blocks of the claim. The building blocks are the law required for a plaintiff to “state” a claim. Take, for instance, an FMLA retaliation claim. The elements of this claim are that (1) you were entitled to take FMLA leave, (2) you requested leave, (3) the company took an “adverse employment action” against you as a result of your request for leave, and (4) you suffered damages as a result of that action. So, to “state a claim” for FMLA retaliation, you would have to say in the facts section something like this:
- Mary Smith worked for AMC Welding as an accountant. She had held this position for two years, working full time both years. (This statement is required because you must work for at least a year and more than 1,250 hours to be eligible for FMLA leave.)
- AMC Welding has one hundred employees who all work in Arlington, Virginia. (An employer must have at least fifty employees within a seventyfivemile radius for FMLA to apply.)
- On March 3 of this year, Ms. Smith applied for FMLA leave to care for a newborn. (An employee can take leave under the FMLA to bond with a newborn child.)
- Six weeks into the leave, AMC fired Ms. Smith, who had a strong record of performance prior to her leave.
- On information and belief, AMC fired Ms. Smith in retaliation for taking FMLA leave. (This is the illegal act. Note that Ms. Smith need not have all the facts necessary to prove retaliation at this stage and may use the phrase “on information and belief.”)
- Since her termination, Ms. Smith has been unable to find work, and remains unemployed as of the date of this complaint.
In this case, Ms. Smith had a strong record of performance at the company, never receiving less than an “excellent” rating in her three reviews. In her last review, she received “excellent” ratings across the board and was granted a 5 percent raise, the highest available. These facts are not included in the complaint in this example. An attorney could include them, and might in this case to rebut the employer’s claim that Ms.
Smith was fired for misconduct. But understand that this is not required. The complaint is only to set forth what we call the “prima facie elements” of each claim. It is not meant to include everything about your case.
Don’t “Hang It Out Like a Christmas Tree”
I have had numerous clients who want to include everything they can in the complaint. I had one client who said he wanted to “hang it out like a Christmas tree.” While you want your complaint to be thorough—in part because you want to force your employer to answer your allegations—you don’t want to make your complaint too extensive.
First, this can weaken your credibility with the court. You may have some claims that you could bring, although they are weak. It doesn’t help you (or your lawyer) to be up before the judge defending a bad claim. You run the risk of running into the boywhocriedwolf syndrome. Bringing weak claims can make your other claims suspect.
Second, and related, litigation is expensive. The defendant will take every opportunity to get a weak case dismissed. Defending weak claims requires a lot of time to research and write briefs to file with the court. This will slow down your case and cost you money.
Where Should I File My Complaint?
There are several courts that you may file your discrimination or retaliation claim in once you have exhausted your administrative remedies by filing with the EEOC or a state agency. There are state and federal trial courts. Most federal laws permit discrimination claims to be brought in federal or state court. However, many times you will have state law claims as well, such as intentional infliction of emotional distress, negligent infliction of emotional distress, or an independent state law discrimination or tort claim. If you have federal law and state law claims together, you can also file these in either federal or state court under the doctrine of “permissive joinder.”
Generally, a federal judge is not required to allow state law claims in federal court, but may allow the state law claims to be brought alongside federal claims if both the federal and state law claims arise out of the same facts. This is a strategic decision, but often, if you have federal law claims (such as under Title VII)and file in state court, then the defendant has the option to remove the action from state court to federal court.
Filing Is Only Half the Battle
Once you have written the complaint, you must file it with the court. This means someone must take the complaint to the clerk and have it entered into the court system.
There is a fee associated with this. In federal court, the fee is currently $400. You will also need a summons for each defendant. This is an order from the court that requires the defendant to file a response. You (or your ttorney) will also need a cover page, which the court uses for administrative purposes.
Once you have paid the fee, the court will take your complaint and file stamp it with an official time/date stamp. You’ll see this on the first page of any complaint in any court.
Congratulations, you have filed a lawsuit!
But guess what? If that’s all you did, your case would go nowhere. The next step is to serve the complaint on the defendant. This must be done according to specific rules of civil procedure that allow the court to certify that the defendant has been served. Why?
Because if a defendant fails to respond to your complaint with a legal document called an “answer,” the court can enter what’s called a “default judgment.” This, in essence, means that you win. There would have to be a hearing to determine how much money you are entitled to, but you’d be awarded something. And if the defendant failed to pay, you could get an order from the court directing law enforcement to take anything owned by the defendant and sell it. Clearly, this is a big deal.
Given those stakes, the court has to have proof that the defendant received your complaint and the summons, which essentially orders the defendant to answer the complaint and warns about the consequences I discussed above. This proof is called “service of process.” In federal court, anyone who is over eighteen can serve the complaint through a number of methods, the most direct, of course, being to hand deliver it to the defendant. You’ve likely seen something like this in movies. The process server throws papers at an unsuspecting person and says, “You’ve been served!” And it really can happen like that!
The person serving the complaint then fills out an affidavit describing who was served and how that person was served, and he or she files the affidavit with the court under penalty of perjury. In most cases, it’s not quite so dramatic. For instance, businesses are required to have a designated agent whose job it is to accept service. Many corporations hire companies that specialize in this sort of work. So, to serve, say, McDonald’s in Virginia, you can look up the company’s registered agent with the State Corporation Commission and just send a process server to the agent to serve the corporation. No drama there.
Sometimes it can be difficult to serve an individual. You have to find that person or a family member and get the complaint in that person’s hands. That’s why the courts usually will give you some time to serve the complaint. In federal court in Virginia, you have 120 days. In state court, it’s one year. Sometimes it makes sense to wait to serve the complaint. For instance, you may need to file a complaint to stop the statute of limitations, but you want to negotiate with the defendant before you kick litigation into high gear.
Tip:
A few times a month I get a call from someone who has received a righttosue letter.
Now they need a lawyer, but don’t have enough time to find one before the ninetyday period expires. Here’s a trick if you can’t find a lawyer in time and your back is against the wall: file the complaint yourself.
The complaint need not be perfect. Though I don’t recommend it, you could even handwrite it. Consider making a trip down to the courthouse to the civil clerk’s office and ask how to file a complaint. You’ll need a certain number of copies, a summons for each party, and likely a cover sheet. (Many courts have a website with this information.)
After you file the complaint, you have some time to find a lawyer before you have to serve the defendant. What happens if you don’t ever serve the complaint? Nothing. Your complaint will eventually be dismissed, and you’ll lose your right to sue. But, if you do find a lawyer to take your case, she can always file what’s called an amended complaint to fix any problems.
Motion to Dismiss
Once you have served the defendant and the affidavit of service has been filed, then the litigation gears are truly in motion. In most cases, the defendant has twenty days to file a legal document called an “answer” to the complaint. The defendant must answer, even if it is just to deny the numbered paragraphs in your complaint. Or, instead of filing an answer, the defendant can file a motion to dismiss.
A defendant can try to get your case thrown out of court at several stages during the litigation. The first is at what is called the motion to dismiss stage. The second involves a motion for summary judgment. Before I get into those, let me briefly describe what lawyers call “questions of fact” and “questions of law.”
A question of fact is what it sounds like—an issue of whether something did or did not occur. A straightforward example is a car accident. Let’s suppose an orange truck hits a blue car in an intersection. The person driving the blue car that is struck suffers a broken arm. This person sues the driver of the orange truck. The issue in the lawsuit is whether the driver of the orange truck ran through a red light before hitting the blue car.
There is no issue of law in this case; it doesn’t take a law degree to know that it is negligent to run a red light. The issue here is one of fact: did the orange truck in fact run the light? The driver of the truck says that the light was green when he passed through it.
You can imagine the evidence you might want to see if you had to decide that issue. You’d probably want to hear from both drivers and any witnesses in the area. It would probably also be helpful to have records about the time of day the accident occurred and records from the computer that controls the light. For instance, does the light change from red to green at certain times, and can you match this up with when the accident occurred?
These facts could help you decide whether you believe the truck ran a red light.
In a lawsuit, questions of fact are supposed to be decided by the trier of fact. This is often a jury. Jurors listen to testimony and other evidence, and then come up with a verdict. In some cases, the trier of fact is the judge. In these cases, the judge does the same thing a jury does: he or she listens to testimony, reviews evidence, and then makes a decision. (In some cases, the law determines whether the person suing is entitled to a jury trial. In all cases, the plaintiff—or the defendant in a criminal trial—can opt for a judge or “bench” trial rather than a jury trial.) Judges are not supposed to decide questions of fact before the fact finder—again, often a jury—has a chance to hear the evidence. In particular, our legal system emphasizes having the jury eyeball a witness. Sure, you can say on paper whatever you want, but if someone watches you tell your story, he or she might or might not find you believable.
So, a judge is not supposed to decide questions of fact by just looking at what people say on paper.
However, a judge can decide questions of law without any factfinding hearing. (Some situations involve mixed questions of fact and law, but those are not as common.) That is because questions of law generally do not depend on deciding what facts are true.
Let’s say that your neighbor sues you for emotional distress because you stuck your tongue out at her. We all know that it is not illegal to stick your tongue out at someone.
It’s bad manners, but it’s not illegal. In this case, you would file a motion to dismiss after your neighbor filed the complaint. Note that you can file a complaint about anything under the sun. The clerk will not screen cases to see whether they state a claim. In a motion to dismiss, your argument would go like this: “Your Honor, I’m not saying that I did or did not stick my tongue out at my neighbor. If I did, she had it coming. But it doesn’t matter whether I did or I didn’t. It’s not illegal for me to do that. So, you shoulddismiss this case.” And the judge would.
Increasingly, defendants are filing motions to dismiss in employment cases. As a tactical matter, it is a way to delay the case and force you and your attorney to spend time and money defending it. (This is one reason why it doesn’t make sense to bring weak claims.)
When the defendant files a motion, the court must treat all the facts in the complaint as true. Assuming those facts are true, the issue is whether your complaint states something that is against the law.
The court will decide the issues you raised on a claimbyclaim basis. Indeed, a defendant may file a motion to dismiss only as to certain claims in your complaint. If the court grants a motion to dismiss only some of your claims, your lawsuit will proceed. If the court grants a motion as to every claim (some lawsuits have only one), then your case is over.
The good news is that, even if the court grants a motion to dismiss, it will usually do so “without prejudice,” which means that you can refile an amended complaint. Of course, you will need a factual basis to do so. That is, you must have something different to say in the new complaint that would justify filing it again. If the court grants the motion but some claims survive, your lawsuit goes forward. You can later file an amended complaint to include the dismissed claims, again, if you have a factual basis to do so.
Remember we discussed the burn rate above. The burn rate for an employer at this point is not substantial, but it is starting to grow. Paying an attorney to draft, file, and argue a motion to dismiss can be expensive. But the case still hasn’t required a tremendous amount of time from company officials.
Note that filing an opposition to a motion to dismiss will not take a tremendous amount of your time, and you are not required to attend the hearing, though you can if you wish.
At the hearing, only the attorneys will make arguments to the judge. The judge is very unlikely to ask you anything.
Answer
If your employer does not file a motion to dismiss, it must file an answer, as discussed above. This filing does not require a hearing, and the case will proceed to discovery after the answer is filed.
Sometimes a court will require both sides to attend a hearing to discuss how the case will proceed, setting deadlines for discovery and for motions to dismiss. If both sides can agree on these issues, they can sometimes file a joint discovery plan and avoid a hearing.
Discovery
Discovery is the stage when parties begin to formally investigate the case by asking questions and taking testimony. It is roughly divided into two parts: “paper” discovery and depositions.
Paper discovery consists of interrogatories, requests for production of documents, and requests for admissions. Interrogatories are written questions that each side can send to the other. The party answering interrogatories is required to sign the answers as being true. Each party is usually limited to thirty questions. So, if there are two defendants, you can send a separate set of thirty questions to each. Each defendant can also send you thirty questions to answer. The questions and answers are not filed with the court, and thus they do not become public unless they are attached to a motion or used at trial.
A request for the production of documents (RFP) is just what it sounds like. You can request that any party turn over documents that are relevant to the case. There are usually no limits on how many RFPs you can serve on an opposing party.
Requests for admissions are written requests that the other side admit something as true.
You can use these for basic facts, such as “Admit that Ms. Smith worked for your company from January 1, 2013 to December 4, 2013.” The purpose of obtaining admissions is to get these facts “in the record.”
Let’s detour for a minute and discuss what “in the record” means. When facts are in the record, it means that they are properly before the court. For instance, the complaint, answer, answers to interrogatories, documents produced during discovery, and deposition testimony are all part of the record. If a fact is in your head but not in one of these documents, it is not in the record and cannot be considered by the court as part of therecord. Of course, trial testimony can put facts in the record. It is often the simple factsthat attorneys sometimes forget to put in the record.
Let’s suppose I want to write in a motion, “Ms. Smith, at fiftyfive years old on October 4, 2013, was the oldest employee at AMC Welding.” If your birthday or that fact is not stated somewhere in the record, the court cannot consider it, even if your attorney says it is true. This fact would likely be in the complaint. But if it weren’t, I might use a request for admission to the employer to obtain the information: that is, “Admit that on October 4, 2013, Ms. Smith, at fiftyfive years old, was the oldest person working for AMC Welding.” If the employer knows this fact to be true, it must admit it.
Back to the allimportant burn rate. The burn rate is increasing at this point because the attorney will have to go to the company to help learn the answers to these questions and dig up relevant documents. It takes time for the attorney and company officials to gather all this information. It can get particularly expensive if the company must search computer records, which most discovery requests require these days.
Tip:
Most people know that work email and social media can get you in trouble. You should also know that there is a federal statute called the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, that allows employers to sue you if you “access” a work computer “without authorization.” This broad language gives employers wide latitude to go after you if use a work computer for personal gain or to help you in a lawsuit. If you removed material from a work computer before your employment ended, let your attorney know right away. There are ways to handle this situation to help limit any potential liability to you.
As a general rule, the burden of the paper production falls more heavily on defendants. Companies have more people to talk to, more databases to search, and so on. But it will be work for you, too. The defendant will ask for every piece of information you have that could be relevant to the case. The most difficult part of this is that some of this information may be very personal. For instance, if you are claiming emotional distress, a defendant may have the right to request certain medical records. You cannot refuse to turn these documents over if they are relevant.
I once had a case in which my client noted in her lawsuit that she suffered from emotional distress as a result of the events that had happened to her at work. Prior to the lawsuit, she had worked with a therapist regarding these issues. As part of her therapy, she kept a diary. Although it was embarrassing to her, she turned the diary over to the defendant. Initially, she resisted, noting the personal nature of the records, until I explained that she had no choice. Why? The rules of civil procedure are designed to prevent either side from hiding evidence.
Courts don’t like “gotcha” tactics. They want both sides to share the evidence relevant to the case. This promotes earlier settlement. If one side refuses to turn over evidence, the other can file what’s called a “motion to compel production,” where the party asks the court to force the other side to turn over the requested information. Not only can a court require the production, it can also sanction the other side for failing to comply with the discovery rules. The discovery rules are far from perfect, and defendants often obfuscate and refuse to turn over documents, requiring motions to compel. Depending on how heated this part of discovery becomes, it can raise the burn rate dramatically.
Costs—those expenses not associated with attorney’s fees—can begin to creep up here. Again, this is more likely on the defense side, but there can be expenses for you as well. These might include large copying jobs and perhaps even a computer forensics firm to retrieve electronically stored information from your phone or computer.
Tip:
Litigation involves two types of expenses: attorney time and costs. Costs include court filing fees and deposition expenses. Depositions require hiring a court reporter to take down testimony, and then you have to pay for the written transcript. As a general rule, a deposition costs approximately $1,000 per day. It is not uncommon for even a simple case to involve five or more days of depositions. Other expenses include hiring process servers, retaining investigators, and copying documents. Most single plaintiff cases involve between $5,000 and $15,000 in costs. Even attorneys who take cases on full contingency often require clients to cover costs.
Depositions
This is where the burn rate kicks up substantially. During a deposition, one party gets to ask questions of someone from an opposing party under oath. It’s not exactly the same as courtroom testimony, but it is close. A deposition can last for less than an hour to more than seven. A court reporter takes down testimony, which can be used in motions filed with the court or in the courtroom during the trial.
Depositions themselves are stressful enough, but they are made worse by the time it takes to prepare for them. It can take hours to review information relevant to the case and prepare for the proper way to answer questions. The other side has to do the same.
Preparation is even more critical when the depositions are videotaped, as the recorded testimony can be shown at trial.
But depositions have many benefits as well. This is the part of the case where you can force people from your company to sit down across the table from your lawyer and answer questions. Now, the burn rate increases substantially because of the attorney time involved and, for the defense, time that key personnel have to take away from the company.
Depositions can be useful because they get everyone in the room for an extended period. That allows time for the attorneys to communicate in person, which is often effective in moving the ball forward in settlement. Depositions also give attorneys a more realistic review of the case. For instance, defense counsel may lose some faith in the strength of the company’s case when the senior executive, who appeared so reasonable when talking from the secure confines of his office, suddenly comes across as both illinformed and dismissive in a lengthy videotaped deposition.
Of course, the stakes will be high for you, too. The value of your case will drop like a stone if you can’t offer evidence in support of your claims or come across in your taped deposition as whiny and evasive.
Motion for Summary Judgment
Summary judgment is the main event short of trial. It is what defendants pin great hopes on. The result of this stage often ends the case, one way or another. Unlike the motion to dismiss stage, a court here is supposed to evaluate the facts. The legal question is whether there is a genuine dispute of material fact relevant to the claims at issue. (You can look at the exact language in Federal Rule of Civil Procedure 56.)
Let’s take, for example, a classic discrimination case, one in which the employee claims that the employer fired her because it did not believe a woman with a new baby could perform at a high level. The employer claims that the termination had nothing to do with the employee’s sex. Rather, it occurred because the employee had not been performing well at her job.
After completing discovery, the defendant files a motion for summary judgment attaching your answers to interrogatories, some pages from various depositions, and some emails produced during discovery. In the motion, the defendant’s main argument is this: “Your Honor, at the motion to dismiss stage, you could not look at facts or the evidence. Now you can. Looking at all these facts produced by the plaintiff, there is no way a reasonable juror could find in favor of the plaintiff.”
Here, the judge is supposed to look at the evidence in a light favorable to the nonmoving party, which is usually the employee. That means that a tie at this stage goes to the employee. What the judge is looking for—and it is the judge at this stage, not the jury—is a “factual dispute” about an issue relevant to the legal claims. The idea is that the judge is not supposed to act like a juror or fact finder. She is supposed to put herself in the shoes of a hypothetical reasonable juror and decide whether, given the facts that have been developed through discovery, this juror could decide the issue in favor of the employee.
The judge is not supposed to decide the case at this stage. She is not supposed to say, “Well, I don’t think it happened this way. I don’t find the employee’s story credible, so I’m granting summary judgment.” She should deny summary judgment if she says to herself, Well, I don’t think the employee’s story holds water, but I can see, given these facts, that a reasonable person could think differently. That’s what a jury is for, so I’m letting the case go forward.
Motions for summary judgment and (if you are the employee) oppositions to them are a big deal. Unlike a motion to dismiss, which usually involves only legal arguments, this motion involves factual and legal arguments. The facts have to be supported by evidence.
To do this, both sides must attach numerous documents, including deposition transcripts. For instance, a single sentence like “Ms. Smith’s manager knew full well that she performed at a high level throughout her time at AMC Welding” might need support from an interrogatory answer from the defendant, a string of emails produced during discovery, and three pages of testimony from a deposition. You can imagine how much time it can take to comb through a deposition transcript several hundred pages long to find the exact statement you need. It is for these reasons that motions for summary judgment and oppositions to them take dozens of hours of attorney time and can result in a filing over a hundred pages long. Indeed, it is in some ways like writing a book.
There is a good reason to have a standard tilted in favor of letting the case move ahead. At the summary judgment stage, the judge will usually have yet to hear from a single witness. Motions for summary judgment are decided based on the written evidence put forth by each side. Our system likes for the jury (or the judge) to be able to hear from a witness on the stand before making a decision. At this stage, parties can submit testimony from depositions. But this usually happens by printing out pages from a cold deposition transcript and attaching them to the motion as an exhibit. For instance, the employer might attach a page from the deposition of the employee’s manager that reads like this:
Q: Why did you fire Ms. Smith?
A: Because she routinely came in late and failed to follow my instructions.
Q: Did the fact that she had just had a baby in any way affect your decision?
A: No. In a transcript, this seems pretty straightforward. But imagine the same testimony at trial.
Q: Why did you fire Ms. Smith?
A: [Long pause; witness fidgets in his seat, appearing uncomfortable, eyes downcast.] Because she routinely came in late and failed to follow my
instructions.
Q: Did the fact that she had just had a baby in any way affect your decision?
A: [Swallowing hard.] No.
Different, right? His answer sounded solid on paper, but if you see him answer those questions, you might find him a liar based on the nonverbal signals.
However, the sad truth is that federal courts have increasingly used motions for summary judgment to dismiss cases. Judges do what they aren’t supposed to do, though they don’t come out and say so: they actually decide what they think happened and often throw the case out. Why? Federal courts are busy, busy places, with each judge having to decide all kinds of cases, including a crush of criminal cases and other civil matters. For this reason, there is an institutional bias to “clear out the docket” by getting rid of cases before trial.
Trials take up a lot of court time and resources. Judges generally won’t dismiss a strong case, but when there is a close call, they now tend to find in favor of the defendant and toss the case out.
But what about the court of appeals? Sure, you can appeal. But appeals are expensive and timeconsuming.
Many individuals who lose at this stage just decide to pack it in and go home. Even if you do appeal, courts of appeal in this area are not considered employeefriendly.
So, you could very well spend more money, only to lose at the appellate level, too. And, even assuming you could pull together an appeal to the US Supreme Court, it is not required to hear every case appealed to it. In fact, the Court hears only a small percentage of cases presented to it.. Chances are, it wouldn’t even look at yours.
All this is to say that the summary judgment stage often decides the case. If the employee loses, the case is often over. If the judge rules in favor of the employee and lets the case go forward, then the next stage is trial. At this point, the advantage in some sense shifts to the employee. Trial offers risk to both sides, but particular risk to a defendant:
- A trial is public. While defendants generally don’t care so much about the public nature of complaints and motions, they care more about a trial. For instance, no employer wants to spend days in the spotlight trying to defend claims that it doesn’t like women with kids.
- The burn rate for trial is very, very high. Now the company has to pay for the defense attorney—and sometimes a team of them—to take the case to trial. Also, the company witnesses have to be prepared to testify. No business wants its employees—sometimes highlevel employees—sitting around the courthouse waiting to testify rather than working.
- The risk is higher. If a defendant loses, it likely will have to pay its own attorneys as well as the attorney’s fees for the employee. Even in a simple case, that couldbe a combined cost of more than $250,000. Of course, the company then has a very public loss on its record.
For this reason, settlement offers will sometimes increase dramatically—I’ve had them increase tenfold—after a company loses at summary judgment. With real money on the table and a risk that they could also lose at trial, employers frequently choose to settle.
Summary judgment, then, is often the highwater mark for cases moving through the litigation process. As a matter of numbers, employers win more often than employees.
Given this, employers look at settlement as a business matter. The first issue is cost. A good rule of thumb is that it will cost an employer anywhere from $50,000 to $100,000 just to get through discovery and file a motion for summary judgment. The bestcase scenario at that stage for the employer is that it wins. But that’s all it gets. It won’t get most of that money back. It is true that the loser has to pay costs (not attorney’s fees). For an average single plaintiff employment claim, these are usually between $5,000 and $10,000. That’s right; if you lose at this stage, you have to pay your former employer.
Now, in many instances, employers will agree to waive their ability to collect costs in exchange for an agreement by the employee not to appeal.
Since the employer is looking at paying around $100,000 just to win, anything less than that is a good business decision. It makes a lot more sense just to pay you $30,000 to go away. The employer saves $70,000 and will usually settle only if you sign a confidentiality agreement, which means it buys your silence, too. The employer doesn’t et a confidentiality agreement if it fights and loses.
The closer your settlement number gets to six figures, though, the more likely an employer is to roll the dice. The employer will take a shot at summary judgment and come to the table with sixfiguretype money only if it loses. In fact, big companies are notorious for taking a shot at summary judgment no matter what. Do you think a company like General Electric cares much about spending, say, $60,000 to take a shot at winning? No, it doesn’t. In those cases, the employer will only make a “nuisance value” offer, likely under $10,000, until after the court decides the motion for summary judgment. Then, if the company loses, it will talk turkey.
There are reasons other than finances that companies do this. The second reason is setting a precedent for settling. The last thing a company wants is a reputation for early and generous settlements. I think the fear of this is overblown—that employees will line up around the block to sue if the company settles—but that fear is out there. The thinking here is, Let’s fight this tooth and nail. Even if we lose, our other employees will think twice about taking us on in court.
The third reason is that employees sometimes will just go away rather than sue. Gearing up for summary judgment, not to mention trial, is a big deal for anyone. Relying on this, employers will call your bluff. You can send a demand letter, only to get no response or a very low offer. The employer is counting on the fact that you will read a book like this or talk to any attorney about the process and decide it is just not worth the time and money.
The other problem is that, even if you are willing, you may have trouble finding an attorney willing to sign on if you need a contingency fee. You can imagine how strong a case must be before an attorney will agree to put her own payment at risk. The workload is high, and the chance of a big win is low. It often just does not make financial sense for an attorney to take a risk that she will do all that work, only to get nothing in the end.
Even if you love the work and the clients, that can be a good way to go out of business. Don’t get me wrong. It’s not all doom and gloom. If you’re properly prepared for the litigation process, it can be empowering. Remember that senior vice president who would not even bother to take your call after you were fired? This is the same vice president who signed off on a letter to your attorney saying that you were fired for incompetence.
Now, after receiving a subpoena from your attorney, he has no choice but to answer questions under oath. You can imagine a conversation with the company’s attorney:
VICE PRESIDENT. Look, I’m not going to meet with her attorney. It’s just not going to happen. We had good reason to fire her. End of story. I’m scheduled to be in Washington State that day.
ATTORNEY. I understand, but here’s the deal. You have been subpoenaed to appear. I cleared this date with you last month. You have to come.
I’m sorry. We have to show up.
VICE PRESIDENT. I’m not going. Tell them they can forget it.
ATTORNEY. If you don’t show up, you will be in violation of a court order.
Her attorney will file a motion to show cause. The court will set a hearing, and you and I will have to explain to an unhappy federal judge why you should not be held in contempt. There is nothing I can do about that. It’s the law.
VICE PRESIDENT. (Long silence.) Fine. But I can only stay for two hours.
ATTORNEY. You need to be prepared to stay all day. I’ll also need at least four hours the day before to prepare you for the deposition.
VICE PRESIDENT. (Clearly fuming, through clenched teeth.) As you wish.
(Slams down phone.)
This is good stuff. And the only way to force that kind of issue is to file a lawsuit. The question is how much it’s worth to you. For some people, that revenge plus a $50,000 settlement is worth it. For others, it’s not. You should consider what you hope to get out of the litigation, considering monetary and nonmonetary goals. Have a frank conversation with your attorney about accomplishing those goals.
Trial
Very few cases go to trial. For the reasons noted above, the economics favor settlement, particularly if the employee survives summary judgment. But it does happen. I won’t address the topic here. If you make it this far, you will have an attorney, and he or she will spend a lot of time preparing you for it.
