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SPLF Employment Blog

Maximizing your Investment

Has your employer misclassified you to avoid paying overtime?I’m certain you’ve thought about the costs of hiring an attorney to represent you. But you may not have considered that you can make much more by taking action than you will spend on your lawyer.

I know, I know. An attorney telling you that it’s good for you to pay an attorney? Right. You still with me? Good. Because it’s true. In fact, I rarely take a case unless it makes financial sense for the client. Most of my clients usually make more money than they pay me. For instance, I took a case on behalf of a woman who suffered terrible discrimination at her work and was eventually forced out, partly because she told the chief executive she planned to have another child.

She settled the case before trial for $100,000. She paid me approximately $25,000. I don’t want to say that she popped out the bubbly when the deal was done. The $75,000 she netted was not nearly enough to compensate her for what she went through, but it was certainly better than the zero dollars her employer was initially willing to offer. Plus, she had the satisfaction of standing up for herself and causing significant discomfort for the CEO who pushed her out.

Here are some steps to help you come out in the black.

  • Spend some time early on developing a settlement plan with your attorney. The plan should take into account the strength of your case and your litigation objectives: for example, do you just want to maximize your severance, stay in your job, or “swing for the fences” and go to trial if that’s what it takes? As you might imagine, it takes a lot longer and represents greater costs—both emotional and financial—to take a case to trial than to get one or two extra months tacked on to your severance agreement. Creating a settlement strategy may not be something your attorney will suggest up front, so you might have to push for it. If you need to pay hourly for it, do it. It may not feel like it initially, but it will pay off later.
  • Be realistic in your settlement objectives. I understand that you might prefer a trial in which your jerk of a boss is publicly humiliated and you win seven figures. That rarely happens, and pushing for it may very well result in many months of disappointment, a damaged relationship with your attorney, and minimal financial return. Listen to your attorney about the art of the possible. It’s fine to litigate for reasons other than money. The time, stress, and money might be worth it if, after careful consideration, you decide the fight alone is worth the cost. But to feel good about that course of action, you need to make it a conscious choice early on.
  • Do the background work for your attorney. No one knows your case like you do. Over time, your attorney (hopefully) will learn it, but it will take time. You can shorten the learning curve by drafting a timeline and a list of key names. If you have supporting documents, organize them and make copies.
  • Be an active participant in your litigation. Even diligent attorneys will occasionally miss facts and arguments. Don’t be afraid to ask your lawyer questions and offer suggestions and corrections, especially as to the facts of your case. However, don’t overdo it. Discovering your inner lawyer may be counterproductive and costly. Talking to your lawyer about key facts in your case can be helpful; talking to your lawyer about your latest legal theory will likely only slow down your case and irritate her.
  • Produce evidence that supports your case. Certainly, your testimony about your own case is strong evidence. But your lawyer (not to mention courts and jurors) will want to know whether there is evidence that supports your story. If there are e­mails, performance reviews, and other written documents, find them and give them to your lawyer in an organized fashion. You can even highlight important portions. Also, think about who can support important facts about your case. For instance, did your assistant see your boss stroke your hair in a weirdly inappropriate way? Is there anyone who can talk about the emotional distress? A good friend? Spouse? Doorman? But be careful. Resist the urge to turn into a gumshoe. There is certainly nothing wrong with combing through your e­mail for relevant documents. But speaking to co­workers to convert them into witnesses or accessing workplace databases without authorization could result in your employer suing you. Let your attorney know who could be witnesses and where evidence might be. She can use an investigator and the federal rules of discovery to get this information legally.
  • See a doctor. If you suffer from mental distress as a result of your employer’s actions, go see a psychologist or psychiatrist. You do not need medical testimony to be eligible to receive damages for pain and suffering. But your claim will have more value if someone with an MD behind his or her name can tell the jury about the effect the discrimination has had on you.

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