Things were going very well at your job until you reported a health hazard in the warehouse where you work. The company did not correct the health issue, so you reported it to OSHA. Before the reports, you won awards, regular merit increases, and bonuses. After your reports, your manager unleashed a constant stream of criticism and mistreatment culminating, a month later, in you getting fired for poor performance. Co-workers have called you to say they support you and will testify on your behalf if you sue the company. You think you have a good wrongful termination case and have hired a lawyer.
What happens now? Read on to find out how a lawyer can help you fight your wrongful termination.
Your lawyer will ask you what money you have lost as a result of your termination. This includes lost pay and benefits, but also medical costs you may have had to pay after losing coverage on your employer’s health plan or increased premium costs. It can also include lost bonuses, stock options, and profit sharing. And, your lawyer will discuss other types of damages a jury may award if you win your case, such as emotional distress damages or punitive damages (damages intended to punish the employer for egregious misconduct).
Then, your lawyer will assess the likelihood of actually getting all of these types of damages. This discussion will include an evaluation of the risk of litigation and the relative strengths and weaknesses of your case and of the employer’s defenses. Even if you have a lot of losses from your termination, you may have to “discount” that amount if the lawyer evaluates the likelihood of winning at trial as something less than a slam-dunk.
Not every person who is wrongfully terminated files a lawsuit. In some situations, a lawyer may recommend that you authorize him or her to send a letter to the employer summarizing the legal claims you could bring in order to find out whether the employer is interested in negotiating a settlement before you file. This approach can allow you to resolve your dispute relatively quickly, without having to spend the time and resources a lawsuit requires. And, if the effort fails, you can move on to other strategies, including filing a lawsuit.
Another approach to resolving a case is mediation. Mediation is a settlement negotiation between you and your former employer, facilitated by a third party (the mediator). Your lawyer and the employer’s lawyer represent each of you at the mediation, but you are an active participant. Essentially, the mediator “shuttles” between the parties (who are typically in separate rooms with their respective counsel) and communicates offers and counter-offers made by each party. The mediator will also give you an idea of how he or she views your case’s strengths and weaknesses to help you assess its value. And, your lawyer advises you confidentially throughout the process.
The goal is for you and your former employer to reach a settlement agreement. However, the mediator has no right to impose a decision on you. There's no settlement unless both sides agree to it. If an agreement is not reached, you still have the option of filing a lawsuit.
Mediation can (and often does) take place after a lawsuit is filed.
You may decide to file a wrongful termination lawsuit against your former employer. A lawsuit is a lengthy process with many steps, and your lawyer can help guide you through them all.
Discovery is the stage of a lawsuit in which the lawyers for each side gather evidence. Your lawyer will send your former employer interrogatories, which are written questions that must be answered under oath by the employer. Your lawyer will also send a written request for your former employer to produce relevant documents. And, your former employer’s attorney will send interrogatories and document requests to you through your lawyer. Your lawyer will help you answer the interrogatories and prepare the documents, and will examine all of your former employer’s answers and documents to find evidence for your case.
Your former employer’s attorney will take your deposition and your attorney will attend that deposition to defend you. A deposition is an interview, under oath. The lawyer asks questions, and the witness must answer them. The witness swears to tell the truth and the answers he or she gives have the same effect as if the witness were testifying in court. Before your deposition, your lawyer will help you prepare for the questioning.
Your lawyer will also take the depositions of key witnesses, possibly including your former manager or boss, co-workers, human resources managers, and others with information about your employment and termination.
The evidence uncovered in the discovery stage will enable your lawyer to tell you how strong or weak your case is, based on whether evidence supporting your claims -- or undermining them -- turns up in discovery.
Your lawyer represents you at trial by calling witnesses to the stand for questioning and by offering other types of evidence (documents, expert witness testimony, and the like). Your lawyer will also cross-examine witnesses called by your employer’s lawyer, and will make objections to evidence that your employer’s lawyer tries to enter. And, your lawyer will make a final argument to the jury to try to persuade them to find in your favor.
Your lawyer will also file and oppose motions, file briefs, and submit other written arguments and documents to the court on your behalf throughout the lawsuit.
Translating the Process
Throughout the process, your lawyer will “translate” what is happening so that you (a non-lawyer) can understand it and make necessary decisions along the way. You and your lawyer are a team in your wrongful termination case, with the shared goal of obtaining financial compensation for the harm you suffered.