Employment Law FAQ
Why is it so difficult to find a lawyer for my employment case?
Employment cases are less profitable for lawyers than many other kinds of cases. Many judges don’t like them. The cases are hard to win. They take more time and money than many other cases. The law is complex and hard to learn. Only a few lawyers do them.
What about all the ads I see for lawyers?
Those are personal injury lawyers. Almost every potential client injured in a car crash has a case. Conversely, employment law firms may go through hundreds of possible cases before finding one good enough to accept.
Can I stop by and wait for a chance to talk to a lawyer?
No; we do not take walk-ins for two reasons. First, we might be in trial all week. Second, when we are not in trial we have our day planned and can not stop to interview a walk-in. As a result, we have an orderly intake process that respects the client’s time as well as ours.
Do you charge for a consultation?
No, but we screen the intakes to make sure the consultation is on an appropriate case. Some consultations are by phone.
What is the fee?
There is typically a research, evaluation, and investigation fee for cases we accept. This is a modest, up-front charge to establish a professional relationship in which lawyer and client each do their part. It varies from case to case. There are also a few cases where a client hires us for an hourly rate. But the overwhelming majority of our cases are contingent fee cases where we get no fee unless we win or settle. There is some variation in fee arrangements because of the specific requirements of certain laws and the unique facts of some cases. Generally, our contract calls for us to receive either 35% of recovery or the amount agreed to at settlement if the case settles before suit; if the case settles during suit, we receive 40% or the amount agreed to at settlement; if we win at trial, we get the greater of either 40% of recovery or the court awarded fee, assuming the case is under a law that requires the employer to pay our fees if the employee wins.
Is this negotiable?
To some extent yes, as that is a client’s right. But, again, this is not the car-crash world where lawyers are hungry for cases. Many employment lawyers can fill all their time with clients who are grateful and happy to pay the standard fee. Employment lawyers have a very thin profit margin and little incentive to negotiate fees and may see overly-hard bargaining as a sign of trouble to come.
What are costs and expenses?
Costs and expenses are the out-of-pocket bills paid to start a case and keep it going. Examples of costs and expenses are the court filing fee, telephone calls, mileage, travel expenses, copying costs, postage costs, court reporter fees, expert fees, transcripts, and witness fees. We bill clients monthly for costs and expenses. The client owes these amounts, win or lose.
What can I do to help myself before I get a lawyer?
Gather and organize as many documents related to your issues or your employment as you can. Do not take anything from work that is confidential or restricted unless it is to or from you, but do try to keep all your timesheets, pay stubs, e-mails, policy manuals, employee handbooks, personnel action forms, reprimands, award certificates, etc. Figure out who can be your witnesses and, if you can confirm this discreetly, do so. Figure out what papers and witnesses the employer has to use against you and be prepared to present that story fairly. Do not threaten lawsuits or brag about your intention to see a lawyer. Remain professional and dignified even if you are being treated badly. Keep a diary at home or on a computer away from work. Write a chronology in detail including persons, places, dates, events, witnesses.
Are there certain red flags I should know about that mark a potential client as trouble in the eyes of an employment lawyer?
Yes. An employment lawyer should avoid anything that sounds like any of the following:
•’My last two lawyers were crooks and idiots.’
•’I want a pit-bull lawyer who is not afraid to fight.’
•’This case is worth $10 million.’
•’We could sell the movie rights to this case.’
•’I’m calling about my wife being sexually harassed.’
•’I need somebody from out of town.’
•’Trust me; they will settle this one quickly.’
•’They can’t stand the publicity.’
•’There is nothing they can say.’
Are there hurdles we have to clear before we can go to court?
Often times, yes. If your case is about sexual or racial or other harassment based on a protected characteristic, you should bring a complaint under your employer’s internal policies as explained in the employee handbook or other documents before filing an external charge. Give the employer a fair chance to solve the problem. Call a lawyer if you encounter trouble doing this. For many statutory claims there are pre-suit requirements that make you pass through administrative agencies on your way to court. In discrimination and harassment cases, you must first go through either the U.S. Equal Employment Opportunity Commission (EEOC) or the Florida Commission on Human Relations (FCHR). For public whistleblower claims, it is the FCHR. For certain corporate whistleblower claims under Sarbanes-Oxley and other such laws, it is the Occupational Safety Health Administration (OSHA). For some statutes, the delay is 180 days; for others 60 days; for others, something else. It is best to have a lawyer write your charge and steer you through this maze. There are some laws that allow you to sue immediately.
What if the employer takes action against me for complaining or filing a charge?
They often do, so make sure your issue is bad enough to complain about. But you can usually sue for retaliation. Retaliation is illegal for most such complaints and charges. The retaliation case is often easier to win than the original case is.
What happens once we get our suit filed?
Though cases vary, in a typical federal case, we start by filing the suit and serving the papers on the defendant. The defendant files an answer or moves to dismiss. The attorneys meet to agree on various deadlines in the case for the judge to approve. Discovery begins with each side giving the other a list of its witnesses and papers. The parties send written questions to each other called interrogatories. They also send requests for documents. It is usually necessary to ask the court to compel the employer to produce something they are wrongly holding back. More rarely, discovery involves requests for physical or mental examinations or inspection of premises or requests to admit. Perhaps the most important stage of discovery, depositions, comes after the papers are in hand. The lawyers for each side question the opposing parties and witnesses under oath in front of a court reporter. Then the defendant usually moves for summary judgment which means they ask the court to throw out the case with no trial. The court usually orders the case to mediation – a voluntary settlement conference — while the summary judgment motion is still undecided. If settlement fails and the court denies summary judgment, the parties submit final witness and exhibit lists, jury instructions, verdict forms, trial briefs and motions in limine (motions to exclude or include certain things from being heard by the jury) in preparation for trial.
What happens at trial?
After a general introduction, the judge and the lawyers pick a jury. Then each side makes its opening statement. Then we put on our ‘case in chief’ which means we put on our witnesses and put in our papers. We rest our case. The defendant moves to throw our case out. If that motion is denied, the defendant puts on its case. If we need one, we can then put on a rebuttal case. The defendant moves again to throw our case out. Each side makes a closing statement. The judge instructs the jury and sends them out. They bring in a verdict. If we lose, we consider an appeal. If we win, the defense moves for new trial, moves for the judge to take away our verdict, and may appeal. We may move, after verdict, for attorney’s fees or injunctive relief.
What about appeals?
They take about a year and a half to two years and a lot of attorney hours.
This sounds overwhelming. How much is required of me in all this?
Answer the interrogatories with the help of your lawyer, turn in all your papers, prepare for and attend your deposition, attend mediation, prepare for, show up and testify at trial. Be available to find witnesses and help in other ways. Stay informed and assist with decisions. You can do it.