SELECTING AN EMPLOYMENT ATTORNEY
Thirty-Five
years ago there was no such thing as “employment law.” If you wanted to research an employment issue
you had to consult one the various legal references under the heading “master
servant.” This phrase pretty much summed up the nature of the relationship between
employers and employees at that time. In
the late 1970’s however this law firm and a few others began to explore the use
of existing legal principles to create new protections for workers who were not
union members. As you may know, as a
general rule if you don’t have a contract with your employer for a definite
period of time or don’t work in Montana your employment is “terminable at
will.” That means your employment may be
terminated “without cause” for any or no reason. To have a claim for “wrongful discharge” without
an employment contract your discharge must be one that offends “public policy.”
What
violates “public policy” is based on state and federal laws that legislatures or courts have declared are illegal motivations for
employment decisions. For example, there
are numerous laws that prohibit various types of discrimination or retaliation. With a few exceptions, one thing these laws
all have in common is that it is the illegal “intent” of the employer that
triggers protection. Unfair treatment
standing alone typically is not sufficient to invoke legal protection. So when an employee is terminated and seeks
legal representation an attorney must first gather enough facts to determine
whether or not there is any proof that the “motive” for the termination is
illegal.
Now
what does all this have to do with selecting an employment attorney? Unlike personal injury cases where actions
rather than motivation usually determine liability employment law is all about
motive or intent. To prove motive
requires not only a thorough understanding of what the court will accept as
proof of an illegal intent but the skill to obtain that proof. We often hear potential clients say they want
an “aggressive” attorney when they really need a skilled surgeon of the law who
knows how to slice through defenses employers put up to conceal the truth. To get to the truth the employment attorney
needs to know what documents to look for and to be an expert examiner of the
witnesses. It is in “depositions” (the
sworn testimony of witnesses taken before trial) where cases are won and
lost. If the examination of the
witnesses is not thorough and strategically conducted your chances of success depend
on a wish and a prayer. In the final
analysis what you will have to prove is that the legal reason given by the
employer to terminate your employment is not the true reason because it is
either not credible or is contradicted by other facts. With these considerations in mind here is a
check list of things you should do in selecting an employment attorney:
THE TEN COMMANDMENTS FOR SELECTING AN
EMPLOYMENT ATTORNEY
First, have the attorney identify what possible “causes of action” (type of
case) you may have. If they can’t or won’t
tell you I would not want them representing me;
Second, ask the attorney to identify the legal elements you need to prove to win
your case. If you understand what the
law requires you will be better able to assist your attorney and evaluate the
strength of your case as it proceeds through the court;
Third, have the attorney explain how they will go about seeking and proving
the elements of your case. Does the
attorney intend to take many depositions?
From the facts you have provided who are the witnesses who should be
examined;
Fourth, ask what defense the employer will most likely assert and how that
defense may be exposed as a pretext to conceal its true motivation. If you don’t want to hear how you may lose
your case you will not be in the best position to win it;
Fifth, ask the attorney to tell you what they consider to be the most important
factors in winning an employment case.
If they don’t mention depositions be careful;
Sixth, if you have contacted a law firm make sure the attorney who you hire is
the one who will actually do the work. Some high profile media attorneys are
just “rainmakers” whose function it is to acquire new clients. If your case will be handed off to an associate
find out about the experience and qualifications of the associate who will be
representing you;
Seventh, you need to determine how well the attorney will
communicate with you. Employment cases
are collaborative efforts which require constant communication. If you have a hard time talking to an
attorney before they are hired communications may not improve once they are
hired.
Eighth, if the attorney you contact proposes to refer you to an “expert” find
out how much the attorney will receive as a referral fee;
Ninth, read the small print some attorneys advertise or will
tell you that you pay nothing to them if you don’t recover. This is true but not accurate. You don’t pay the attorney if you lose but
this does not mean that you don’t have to pay the costs for the fees and services
of others they use on your behalf. There
are filing fees and court reporter fees that you will have to pay for whether
you win or lose. If they claim that you
will pay nothing this is a good indication that they will do nothing;
Finally ask the attorney to tell you what experience they
have in litigating employment cases. What proportion of their cases settle? Most employment cases that survive summary
judgment settle. How often has summary
judgment been granted against their clients?
If they have had a large number of summary judgments granted against
them then they may be a mill who takes anything regardless of the merits.
John
Hergt
Managing
Partner
Huizenga
& Hergt P.C.
(248)
952-5200
