Picking Your Battles: When to Take, or Walk Away From, an Employment Case - ABA YLD 101 Practice Series

By David C. Nelson and Joseph A. Jordano

You are asked to accept an employment litigation matter. Should you agree? Employment law and litigation is a challenging area of complex litigation for both plaintiff and defense counsel. Not only is the scope of the substantive law expansive, but such cases often require a blend of legal skill sets that go beyond just a knowledge of the substantive law. This article will discuss the considerations for the plaintiff's counsel and defendant's counsel when choosing to take an employment matter.

FOR PLAINTIFF'S COUNSEL:

Do you know the substantive law and is there independent verifiable facts going to the merits that make it likely that the case can withstand summary judgment?
When considering whether to represent a plaintiff, your first question must always be: can this case survive a motion for summary judgment? Most employment cases are decided on summary judgment in favor of the defendant. You must have a sufficient knowledge of the substantive law including familiarity with federal employment statutes (Title VII, ADEA, ADA, etc.), any parallel state statutes and the common law. Both federal and state laws often have administrative exhaustion requirements that present case-ending pitfalls for the unwary. You must also consider any potential defenses. If your client's potential case cannot survive summary judgment, it is unlikely that the defendant will be motivated to settle with you.

Equally critical is doing the initial legwork to determine if there is independent evidence that supports the merits of a potential case, beyond simply what the plaintiff tells you. Are there documents the client can produce that support the facts or co-workers you can interview before you accept the case? The more information you have without having to use on discovery, the better, because you should not rely on the defendant to give you the evidence to survive summary judgment.

Can you commit the necessary resources to litigate the matter properly?
Assuming that the initial analysis of the merits indicates that you should take the case, you should then consider whether you can devote the necessary resources. Employment litigation is often fact intensive and your strategy may require numerous depositions and paper discovery. The paper discovery alone can be voluminous. If you do not spend the time and money during discovery, you may not generate the evidence needed to survive summary judgment.    

Can the client withstand the stress of a trial?
Even if the case has potential merit and the resources are sufficient, a critical question is can your client stand up to the rigors of litigation. This is more complex then merely, "will the jury like my client?" A defense to an allegation of a discriminatory termination may involve unfavorable evidence about plaintiff. It is not easy for some plaintiffs see their former co-workers disparage their reputation. For some victims of sexual harassment, reliving the experiences can be traumatic. Is the plaintiff's industry so small that a public trial will hurt the plaintiff's chances of finding work elsewhere? It is not a fun experience to be on the verge of trial only to find out that your client cannot handle the stress.

FOR DEFENSE COUNSEL:
Whether to accept defense of a case begins from a slightly different posture because the plaintiff has most likely already made a claim.

What are the employer's goals?
Before agreeing to represent a defendant, you must also understand exactly what type of representation the defendant desires. The question is, basically, does the defendant want to litigate or compromise? There exists both economic and non-economic factors, the foremost of which is can the client afford to litigate the matter and bear the results of the outcome. Federal and state statutory remedies for certain types of cases often provide for recoveries that include compensatory, punitive and treble damages, as well as attorney fees, costs, interest, back pay and benefits. The financial costs to the employer above the hourly attorney fees it must pay counsel to defend the case could be considerable.

Employment discrimination cases are also influenced by non-economic considerations. The defendant may be concerned with public perception, piggyback suits, employee moral, or labor issues that will cause an employer to either fight harder or settle quicker. Implicit in this question is whether the defendant will commit the resources to make its choice possible. You need to understand your client's goals and the reasons behind the goals before you agree to representation.

Are there any special skills sets required to accomplish the employer's goals
Once you understand the potential client's goals, you must also determine if you have the expertise to achieve those goals. Employment litigation requires a broad range to skills and experience, such as evidence, trial and appellate procedure, statistics, and the ability to formulate a comprehensive litigation strategy. There are unique affirmative defenses to certain causes of action that you must be familiar with. If you have the skill to implement the client's goals and you are comfortable with those goals, you can agree to represent the client.

Employment cases are fun because they involve human elements and a developing area of the law. They involve discovery, motion practice, and litigation and call on the full range of a lawyer's skills. As long as the case is right for you and your client, we encourage the experience.

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About the Author

Assistant Attorneys General for the State of Connecticut. The views presented here do not represent the views of the Office of the Attorney General of the State of Connecticut. Assistant Attorneys General Nelson and Jordano work in the Employment Rights Department representing State Agencies in employment matters.

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