The reputation of the litigation process is one that is rife with stories of glory. Large judgments, settlements, and ‘victories for justice’ are highly publicized, leading the general public to believe that the litigation process is a panacea for victims of injustice.
In reality, for the vast majority of complainants, the process is highly stressful, unpredictable and wearing to the bone for the undeserving plaintiff. Frequently, the overall result often does not make the process seem worthwhile.
The lawsuit (or litigation process by which it is typically referred) is arduous to the extreme in almost every case. Highly experienced and exorbitantly paid attorneys (some exceeding $500.00 per hour) are paid this rate to undermine any and every aspect of a complainant’s case.
These defense attorneys are incentivized to drag the offended employee through the mud at every turn. They can do so in many ways: random exploration of medical and psychological records, depositions and cross examinations to dig at their story, including questioning various witnesses and critiquing the employee’s credibility.
The process almost inevitably results in the employee feeling like crying ‘uncle’ and compelled to consider sparse settlement offers late in the process. While the harmed employee is feeling discouraged, the defense attorneys may have swollen their coiffeurs by upwards of $100,000 or more. The plaintiff’s attorney has often invested a tremendous amount of their time in this ‘war of attrition” and is also pressured to compromise the amount demanded rather than risk no award through a trial that could eat the same amount of their time on a contingent fee when all is said and done.
Defense attorneys often resort to a ‘summary judgment motion’, a process by which they request that the presiding judge dismiss the case on the basis that the legal grounds do not support the case, even if the facts being presented by the plaintiff are presumed to be true.
One would presume that such a tactic is rarely successful; but in reality, the courts do ‘dispose’ of more than 95% of the cases facing this challenge, thus reducing their caseloads substantially.
This is why I do this. After years of observing employees suffering through this merciless and exhausting process, it is my philosophy to strike hard from the start, present a persuasive set of facts and applicable law, and leverage the case to a prompt mediation, persuading the employer to consider an early resolution for the benefit of all. This could also result in an employee retaining their position if they wish and gaining acknowledgment and intangible remedies not otherwise available in the litigation process (including an employment reference and even an apology). The leverage that is typically gained by an ‘aggressive’ pursuit early on is the cost savings to the employer of an early and thorough resolution.
There is little to lose in this approach, but a lot to gain, by way of reduced stress and anxiety, prompt resolution and the attorney cost savings incentive for the employer to provide at least a portion of those cost savings to the employee as a settlement (not to mention the reduced disruption to the employer’s work environment over the course of extended litigation).
The above is general legal information and does not constitute legal advice. One should absolutely seek an attorney to review their facts and situation before taking any action or engaging on inaction.
I am Charles Goldstein, your advocate at work.
You can find me at AdvocateAtWork.com.