By Howard Levitt
Be skeptical of the ‘settlers’ who avoid courtrooms like the plague and achieve poor settlements as a result
Between hiking at 13,000 feet, meditation, lectures and shamanic healing ceremonies, the subject of our respective day jobs eventually came up.
After learning what I did for a living, one young Washington State business owner asked me a legal question. He said he had an employee — a disastrous performer whom he had to dismiss — who was now suing him, with multiple allegations which, he assured me, were entirely contrived.
Exasperated, he explained that his local lawyer had told him that the employee’s lawyer was very aggressive and would never settle a case for less than US$100,000.
After the necessary disclaimer that I cannot opine on Washington state law, I proceeded to provide him some practical advice.
I informed him that the employee’s lawyer was likely on contingency, and therefore highly motivated to settle the case with as little work as possible. As a result, he would take less for his client if he could resolve the case quickly.
For that reason, I assured him, if the case was genuinely worth little, the lawyer would never hold out for US$100,000, both because he or she would know they would never recover that much, and because they would waste disproportionate time and effort in a vainglorious attempt to obtain it — which would be contrary to his business model.
I also expressed concern that the business owner’s lawyer might be exaggerating the opposing lawyer’s reputation in order to make himself look better when they inevitably settled the case for a lesser amount — or, alternatively, to get him to pay more than necessary so his own lawyer would not be challenged to actually perform.
Whether in Washington state or Canada, a lawyer’s approach, like anyone’s, is influenced by their particular personality and psychology.
There are many lawyers in my field, including those with decades of “experience,” who have never seen the inside of a courtroom. Many others have done the odd trial but never taken a case to appeal. Such lawyers are liable to fold like a cheap suit if the other side pushes a case to trial, because they have no confidence that they can perform.
Such lawyers “sell” themselves to credulous clients as being good at “settling cases.” And, of course, every client — employee and employer — would rather settle their case than go to court.
But the single most important factor in a lawyer coming to a good settlement is how the other side views their potential performance at trial. Obviously, when a lawyer considers what amount to settle a case for, they look at their opponent’s litigation track record.
Besides the “settlers” who avoid courtrooms like the plague, and achieve poor settlements as a result, what else should employment law clients be skeptical of?
1. Social media and projected reputation
Some lawyers talk a tough game on social media, making themselves appear to be fearless, indefatigable warriors, even heroes. But the reality is often dramatically different. A client should review a lawyer’s actual performance, not how they choose to advertise themselves on social media.
One such tough-talking lawyer I know posts so much on social media you sometimes wonder how they have time to practice. And new clients are assured of the value of their cases to the point of exaggeration. This lawyer starts off with a loud bark, but if the other side (intelligently) refuses to capitulate, the lawyer basically disappears, seldom to be heard from again — by the other side, and even their own client.
But however loudly these lawyers might bark, there is no bite. No follow through. The clients have trouble getting their calls returned once the fervour of the initial demand letter subsides.
2. Overpromising and underdelivering
Some lawyers oversell their clients on their cases and sue for dramatically more than they have any hope of recovering. They issue claims for hundreds of thousands of dollars for cases that should be in small claims court — if there is any case at all. But they never warn the client of the calamitous cost consequences if they end up at trial and are awarded dramatically less.
Even when an employee wins their dismissal lawsuit, if the judge decides that the case should have been commenced in small claims court, because of the amount awarded they will be deprived of costs entirely.
By that point, tens of thousands of dollars or more in costs will have been incurred — far more than the small claims court limit. And even if the recovery is more than the small claims court limit, if the employee did not limit their claim to the simplified rule provision in some provinces, they will be penalized in costs, even if successful.
Employers should be aware that the amount claimed has nothing to do with the amount that will be awarded and, in fact, can boomerang against an employee who claims too much. It is even more important for employees to understand this and not be influenced by the amount in the statement of claim.
3. Lawyer as social advocate
Some lawyers take strong public social and political positions. This can be a credit to them, but sometimes it is simply a method of obtaining clients by appealing to a certain market.
Prospective clients should ask themselves if that social position is consistent with the corporate values of their company, or contrary to the views of their employees, such that they may not want to be associated with that lawyer. Furthermore, is the lawyer’s public persona something that could potentially antagonize a mediator or a judge?
Early in my career, I had this problem in reverse. I acted for a notorious public figure in a fascinating case outside of my usual employment law beat. I had my corporate employment clients tell me that, unless I dropped this client, they could no longer be associated with me — a lesson I learned.
These are all issues to consider in selecting counsel.
My advice for finding a good lawyer is to ask a judge for a recommendation. And if you don’t have access to a judge, ask a lawyer whom they would most fear having on the other side of a case.