Employment Litigation: Who is Your Enemy?

employment litigation

When a company is sued by an employee, the company naturally views the employee as the problem.  But in many cases, another equally dangerous enemy exists in employment litigation – disguised as the company defense lawyer.  The legal fees paid to defense firms can easily eclipse the amount paid to resolve the case.

The legal profession as a whole has come under attack for being too expensive and inefficient.  Law school applications are declining and compensation paid to lawyers is falling as clients demand better value.

Many sectors have adjusted to the new climate, but the major employment defense firms remain largely unchanged. Let’s explore.

Your Legal Bill May Exceed the Cost of Settlement

Most employment defense firms today are made up of hundreds of lawyers and support staff in offices located throughout the country at prestigious addresses.  The lawyers are well compensated and enjoy large private offices.

Who pays for this massive overhead?

You do when you hire one of them to defend you. These giant legacy operations thrive on inefficiency.  They have a financial incentive to protract disputes to generate fees. This is why these firms send two lawyers to take the plaintiff’s deposition.  And it is why these depositions last an entire day or more.

That deposition, however, could easily be handled by a single lawyer in one or two hours.

Multiple Seven Hour Depositions of Employees

A recent wage and hour case brought by security guards serves as an example of billing abuse.  In that case, the security gaurds sued to recover overtime pay.  The issues were simple.  The job of a security guard is no secret.

Yet the defense firm deposed each guard for an entire day.  Two lawyers for the defense were present at each deposition.  The settlement obtained by the guards mostly likely was less than the fee earned by the defense lawyers.

The business owner would have been better off paying the guards early in the case.

Slim Odds and Big Bills

Summary judgment is another billing bonanza for defense firms.  In almost every case, these firms file motions and generate sizable bills.  The motions, however, are rarely effective and can easily be defeated simply by showing a material factual dispute.

Material fact disputes exist in most employment cases.

Affordable Alternatives and Better Service

The large traditional defense firms are safe choices for large enterprises with deep pockets or insurance.  The problem with these firms is that they are not cost effective.

Why pay $80,000 to solve a $40,000 problem?

What Should You Do if Sued by an Employee?

Here is a simple road map:

Assess Legal Costs in Advance

Conduct an early realstic assessment and try to resolve the matter before legal costs mount.  The employee and their firm are equally motivated to resolve the matter early and will do so at a discount.

Minimalistic Defense

If early resolution is not possible, take an aggressive, focused and minimalistic defense of the claim.  Do only what is abosultely necessary to win the case.  Most all cases are winnable.

Seek Project Pricing

Use a law firm that offers project pricing with upfront, agreed upon prices for each task. For example, the deposition of the plaintiff should take no more than two hours and cost $2000 or less.  Consider hiring a firm the also represents employees as they may have a more balanced approach.

Mediate a Resolution

Mediate a resolution if possible. Know that 95% of employment cases settle and your case will also. So keep your costs down but be prepared to win at trial if necessary.

Court Photo via Shutterstock

1 Comment ▼

Robert Ottinger


Robert Ottinger Robert Ottinger is an employment attorney with The Ottinger Firm, P.C. based in New York and San Francisco. He has been representing organizations and employees in employment matters for over seventeen years.

One Reaction

  1. When an employee initially sues a company, it does not mean that they are treating the company as an enemy. In fact, he or she is just looking for attention so that the company can address his or her problem. It is not asking for attention in the negative sense. It is about airing your problems so that the company can help him or her. If you do your act right, you may actually end up saving some money in the long run.

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