WORKING WITH YOUR EMPLOYMENT LAW ATTORNEY
by Don Phin
Once you have an experienced employment law practitioner, begin by asking about their pattern or practice. Attorneys with insurance defense experience tend to have more structured relationships than do those of their colleagues. This document by Don Phin provides you with questions you should ask before hiring an attorney.
- What’s their battle plan? Managing claims is like going to war. Although you should be ready to negotiate an equitable resolution, be prepared for all out conflict. Your attorney should provide you with a strategic plan that indicates their intentions and reflects yours. The plan should answer many of the questions below.
- What do they know about the opposing attorneys? If they haven't dealt with them before, what can they find out? What has been their track record? Do they specialize in employment litigation? For how long? Do they like to litigate or settle? Are they courtroom savvy or right out of law school?
- What attempt will be made for an early resolution of claims? Discuss the possibility of mediation or arbitration. About 85% of all mediation efforts resolve claims. Let's hope that you won't be one of those 15% of claims that ends up going to trial.
- What’s the cost-benefit analysis associated with the claim? Find out the possible range of settlement and verdicts. Your attorney can obtain past settlement and verdict reports of similar cases in your jurisdiction. Determine the likely cost of defense through the various stages of litigation.
- What’s the litigation budget? Ask your attorney to prepare a budget that covers all costs, including the expenses of mediation, to help you assess the value of the case and decide if you want to go to trial. Get periodic updates on how the case is proceeding against the budget.
- What’s the discovery plan? What documents will the other side request? What witnesses will they depose and what investigations will they make? This an area where you need to be actively involved — after all, no one knows more about your case than you do.
- What type of communication will you and your attorney maintain? At what intervals will your attorney update you on the case status by phone, mail, or in person?
- How will your attorney use experts? What experts will be required to defend your case? These specialists offer expertise in human resource accounting, psychology, and vocational activities. Your attorney should determine their cost, credentials, experience in trial testimony, and the cost/benefit associated with their use.
- Does your attorney understand the potential hidden costs of litigation? In some cases, the adversarial nature of counsel for the employee can exacerbate stress, mistrust, etc. among the workforce. In one case, the way in which counsel tried to attack the performance of a trusted manager caused four former subordinates to quit. Replacing them cost the company close to $250,000 — an expense that didn't show up on the lawyer's bill and actually ended up higher than the settlement negotiated. So make sure that any attorney you hire doesn't interfere with the positive relationships you've developed.
- What’s your confidentiality policy? Be clear with your attorney about your expected confidences. Let them know whom you'd like them to talk to and whom you'd like them to keep out of the picture. Approach litigation on a “need to know” basis. Make sure that your attorney notifies you before they discuss any aspects of your case with colleagues at seminars or in publications.
These guidelines should help you and your employment law attorney work together for your mutual benefit — and that of your employees. We wish you every success.