Friday, May 16, 2014

Why You Shouldn't Sue Your Employer (or anyone else for that matter)

Lots of people hate their jobs. It can be demoralizing, stressful, and unhappy. Sometimes, illegal things happen, like you're paid late or people tell lewd and inappropriate jokes. Let's face it: the workplace can really stink.

I've posted before about how not everything that's wrong in the workplace is illegal, which means that there's not always reason to sue for everything that's wrong or unfair. But even when there is cause to sue, it's rarely a good idea.

It might seem odd that an employment attorney is trying to talk people out of suing. The fact is that a good attorney will try to help you preserve your employment relationship, if possible, because suing is such a poor alternative. A good attorney will encourage you to work things out if you can, because these days, you'd probably much rather have a job than a lawsuit.

Don't worry; I'll still have plenty of work.

1. The Time Commitment

I used to be able to tell people that, from the filing of a lawsuit until they got to a jury, it would take about a year to a year-and-a-half. I can't tell people that anymore. Unfortunately, state budgets have de-funded our court system to disastrous levels, and getting in front of a jury is a sketchy proposition. I've seen the time it takes go up now from about 1 1/2 - 2 years. And there's no sign it's going to get any better.

2. The Monetary Risk

I often represent people who have lost their jobs illegally. That means that they probably don't have a lot of money for a lawsuit. If I like their case enough, I'll advance the costs (which can be tens of thousands of dollars), and get it back at the end of the case. (No, the attorneys aren't the only ones who make money, the way you hear on the news. If I make money, so do my clients, and that's true of reputable lawyers.)

The fact that I'm advancing the costs of the lawsuit, though, doesn't mean that it's risk free for my clients. Did you know that, if you go to trial and lose, you will owe the defendants their costs (except in rare, specific circumstances)? Losing doesn't mean you get nothing. It means you actually owe money, which, like the amount of money I advanced, can be tens of thousands of dollars.

In rare cases, a losing plaintiff can owe attorney's fees, which can even be hundreds of thousands of dollars.

3. The Poor Return

People frequently have illegal things happen in the workplace short of being fired. Maybe they've been sexually harassed with lewd jokes, or they've been repeatedly paid late.

While these things are illegal, they may not justify a lawsuit. The law only compensates you for what you've lost. If you haven't lost any money, then you have nothing by way of what attorneys call "economic damages." And without economic damages, juries frequently don't want to allow money for emotional distress damages.

So in cases where illegal things are happening in the workplace, but you still have a job, it's often a better idea just to try to find something else, rather than suing.

4. Collecting can be Tough

When an employer doesn't pay on time, there's usually a reason, and the reason usually is that they don't have any money. If you win a judgment against a defendant, the court doesn't help you collect it. The money has to come from the defendant, and if there's no money to be had, suing becomes a useless exercise.

5. The Time and Energy Drain

There's nothing pleasant about a lawsuit. It's a stressful time, which demands energy and attention which could likely be directed better toward finding new employment. You spend your time filling out forms, answering detailed questions, and having former employers and doctors subpoenaed for their medical files as the employer looks for anything and everything they can to humiliate and discredit you.

I never encourage anyone to sue. The clients who do wind up in litigation are the ones who don't really have much choice about it. Perhaps their reputations have been ruined, or their situation is such that finding another job will be next to impossible. In these rare situations, it might make sense to exercise their legal rights. But as a matter of course: don't sue. Spend that time, energy and money looking for other ways to make your life better, in ways that litigation can't.

Sunday, May 4, 2014

Truth or Consequences: The Five Best Answers at your Deposition

A deposition is the taking of a witness's testimony under oath. An attorney asks questions, and the witness answers them. Meanwhile, a court reporter is taking down everything everyone says. There may be a video camera recording. The witness's attorney may make objections.

If you are the plaintiff (the person suing the defendant), your deposition is the most important one in the case. Not to put any pressure on, but how the plaintiff comes across as a person can be as important as the facts in the case. No matter how the other attorney acts, treat that person with courtesy and respect, answer the question that was just asked, and wait for the next one.

With all of this going on, depositions can be confusing and intimidating. They don't need to be. In fact, depositions can be straightforward with some preparation and the right approach.

There are Five Best Answers to deposition questions. If you can answer a question with one of them, you are on the road to a successful deposition. They are:

1. Yes.
2. No.
3. I don't know.
4. I don't remember.
5. I don't understand the question.

If you answer questions with one of the Five Best Answers, no one can say that you were evasive. You answered the question (or asked for clarification), and you will appear straightforward and confident. Many witnesses feel that, the more they tell the other lawyer, the faster they will be done with the deposition. The opposite is true. The more you talk, the more you tell the other attorney things they didn't know already, and the more you are giving them to follow up on.

It's the other attorney's job to ask good questions to get the information needed. It's not your job to offer information they didn't ask for. Your job is to be truthful, not helpful. I'm not saying to give the other attorney a hard time or to make getting information from you like pulling teeth. Don't artificially limit what the question means to try to limit your response. Just answer the question in the shortest, most truthful way possible.

It's also a human tendency to want to explain and put things in context. Your deposition isn't the time to do that. You will not convince the defendant's attorney that you are right no matter how much you explain. All you will do is appear evasive and defensive. Your deposition is like the Dodgers being in the outfield: nothing good can happen. Answer the questions, finish up, and get out.

Feel free to say "I don't remember" or "I don't understand," but don't try to narrow the question so as to try not to answer or to give a misleading answer. I never recommend giving the other attorney a hard time; that's the person who will recommend whether and for how much to settle your case. Also, don't say "I don't remember" when you really do, or "I don't understand" when the question is clear to you.

Sometimes, questions aren't susceptible to one of the Five Best Answers. Listen to the question, and make sure to answer what it asks for. The response to a question that asks "who" is a name. The response to a question that asks "when" is a date or time. The response to a question that asks "where" is a place. Remember not to think aloud when answering. Take the time to think about your answer without talking about it, and respond in the shortest truthful way you can.

Of course, these are just guidelines and they don't apply to every question or every situations. For some questions, you will want to let 'er rip and testify about everything that happened. A good example is if you're asked about your emotional distress, or how the events of the lawsuit affected you personally. When that happens, it's time to be fully expressive.

This is how I approach depositions, but every attorney has their own outlook. Make sure to ask your lawyer how to go about giving your best, most truthful testimony in your deposition.