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.
Huizenga & Hergt P.C.