Hiring an Employment Law Attorney: 8 Topics to Raise (or Not) at Your First Meeting
Most people will spend a third of their lives sleeping. Similarly, incredible as it may seem, another third will be spent at work. Unpleasant, but true: For most of us, a third of our adult lives will be spent furthering our employer’s goals, which may or may not align with our own personal goals. In particular, if you’re a long-term employee, when your work situation turns unpleasant (because of harassment, discrimination, retaliation, or pay issues), you may find yourself unusually upset, confused, and feeling oddly “off balance.” If you think of a job as a kind of marriage, it’s no wonder that confusion at work can cause disruptions to your sense of well-being.
If you are currently dissatisfied with your job, have recently resigned, or have been laid off, it is 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 survey showed that about two out of three employees plan to leave their jobs. job at the end of the year, or quit your job if something better came along. A professor at the Wharton School of Economics suggests that this concern is actually explained by a 30-year trend in which employers have increasingly valued profits over loyalty to their employees, and have come to regard every employees as disposable. Employee lawsuits have also become common. In California alone, charges of harassment, discrimination, and retaliation filed by the EEOC by employees increased nearly 12% between 2009 and 2012, from 6,654 charges filed to 7,399.
Very few lawsuits that are filed make it to trial, and of those that do go to trial, most plaintiffs don’t fare as well as they hoped, with verdicts typically ranging from $10,000 to $99,000, which isn’t exactly a windfall. .
In short, there seems to be less loyalty on both sides of the employment equation, terms of employment are getting shorter, more anti-discrimination laws are being filed, but 99% of them will not go to trial. Those cases that end up in a courtroom usually get small verdicts.
With that in mind, what should you look for in an employment attorney? Here is a list of eight topics to consider for your first interview.
ISSUES TO RAISE (OR NOT) WITH YOUR POTENTIAL LAWYER
1.) How well do you communicate? You don’t need your attorney to be your therapist, but you probably want someone who is easy to talk to (or has someone in your office to play that role), easy to contact by phone, email, or text, and who will report regularly on what is happening with your case. It’s probably not reasonable to expect your attorney to contact you every day, but once every two weeks is probably reasonable in a long-term representation, unless there’s a lot of activity, in which case you can hear from him. or her, or an assistant, a couple of times in a week. Find someone who is computer and text literate.
2.) Use of Private Detective. A good investigator can dramatically increase the value of an employment case. A licensed and competent investigator will use computer database searches and personal interviews (by phone and in person) to obtain information about the individuals involved in the dispute. Ask your potential new attorney if they use an investigator and when that person will be brought on the case. The sooner the better. By the time the Complaint is filed, you don’t want there to be any surprises.
3.) Full disclosure. Relationships are built on trust, including your relationship with your attorney. He/she needs to know that he/she has reported everything that is potentially relevant accurately and completely. So, for example, if your prospective attorney asks if he’s ever been convicted of a crime, and he has, say so; if her case is solid, she will not be shown the door. If you have other legal problems, bring them up early. Don’t wait until your deposition is about to be taken. Don’t think that the secrets of your past won’t come out in a legal dispute because they probably will, and if you haven’t disclosed them to your lawyer first, you’ll lose control of their impact. You want your prospective attorney to know all the “dirt” about you before anyone else, so you can work with the facts, not against them. The same goes for bankruptcies, other lawsuits, arrests, undocumented worker status, and other employment problems with previous employers. Your attorney cannot fully help you unless you fully disclose. And conversely, if your potential attorney doesn’t ask you probing questions about your past, that could be a sign that he or she isn’t a good fit for your needs.
4.) Try to settle early or litigate? There are excellent employment lawyers whose practice is to litigate first and settle later. There are good employment lawyers whose practice is to try to settle first, litigate later. Both practices have their advantages and disadvantages, the subject of a much longer article that would discuss the potential financial benefits of litigation versus the emotional cost. I think both practices are appropriate, depending on the facts and depending on who you are. Litigation is unpleasant for everyone. You may feel like you’re so emotionally beat up that you don’t want to fight anymore; you just want resolution. Or you may have clear and deep fantasies of seeing your adversary in the courtroom. Whichever path you prefer, there is an attorney for you. My only point here is that you should ask your potential attorney what percentage of their practice emphasizes early resolution (before a lawsuit is filed) versus litigation. In fact, it may be to your benefit to ask an experienced trial attorney to attempt an early resolution of your case, because if he or she is well known in your area, he or she is also known to not be afraid of a fight.
5.) Reasonable Contingency Fee. Practices vary, of course, but it is common for an employment attorney 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 attorneys to charge 40% of the gross recovery and take that fee “off the top,” meaning before any other amount is deducted. The costs are usually reduced after the calculation of the fee. That can also be negotiated. Apart from the representation of minors, for which the percentage of fees must be approved by a court, the percentage of attorneys’ fees can be freely negotiated between the parties. For pre-litigation (the time before a lawsuit is filed), a 40% fee is excessive in my opinion. Before a lawsuit is filed, I advise you to ask the attorney if they will accept 1/3 (33 1/3%) if your case is resolved before your Complaint is filed.
6.) Ask about their strengths and weaknesses. Take “do I have a case?” Take it one step further by asking your prospective 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 he/she should start practicing early on to develop the strengths and minimize the weaknesses in your case. And each case has weaknesses. Your employer may be on the verge of bankruptcy. You may have received two years of questionable performance reviews that cannot be linked to a retaliation claim. Your employer may have received another complaint about the person you are complaining about. You may have quit and never said anything about being harassed. These are all potential facts that will affect the strength or weakness of your case. So ask from the beginning: “Tell me the truth. What is right and what is wrong here?”
7.) Go armed for Bear. If you really want to impress his potential attorney, bring a list of people who have agreed to talk to him or her about what happened at work, along with their phone numbers, to the meeting. Insightful witnesses, as these people are called, are invaluable to a case. Anyone who can corroborate what you claim is helpful. Anyone who has had an experience very similar to yours with that particular co-worker, supervisor, or employer is a plus.
8. Don’t ask “How much is my case worth?” A good lawyer won’t tell you. An experienced attorney may not know from the first meeting how much his case is worth, and you put him in a tough spot by asking him. I had a case in my office several years ago that initially appeared to have a settlement value of around one hundred thousand dollars; and it was settled for almost four million dollars two years later, after all the egregious facts had surfaced. On the other hand, I’ve had cases that I initially thought were worth seven figures, only to have their value shrink as the facts came out. The value is subjective and depends on the facts. So if you ask how much your case is worth, your prospective attorney might honestly answer something like “It depends!”