If your workplace problem involves a complex or ambiguous area of law—negotiating a complicated settlement, filing a claim of blacklisting, or suing for discrimination or violation of public policy—you will probably need to hire a lawyer for help. Depending on your circumstances and location, a number of places may provide referrals to lawyers with special expertise in workplace law:
If you take detailed notes on each lawyer mentioned during your research, you should soon have your own small directory of lawyers with employment-related expertise from which to choose.
Be careful that people do not merely give you the names of lawyers they have heard of—or one who handled an entirely different kind of case, such as a divorce or a house closing. Any lawyer can become well known just by buying a lot of advertising time on television or a large block in the yellow pages. Beware that in many states, lawyers can advertise any area of specialization they choose, even if they have never before handled a case in the area.
Keep in mind that individual preferences for a particular lawyer are guided by intangibles such as personality or your comfort level with the person. Here are a few questions you may want to ask a person who gives you a glowing review of a particular employment law lawyer:
It may be slightly more difficult to evaluate a lawyer referral you get from an agency or special interest group. Reputable organizations will strike from their referral lists the names of lawyers about whom they have received negative reviews. You can help groups that make referrals keep their information accurate and useful to others if you let them know of both your good and bad experiences with a particular individual.
Once you have a referral to a lawyer—or even better, several referrals—contact each one and see whether he or she meets your needs.
Come forearmed with some inside knowledge. Most lawyers are guided by the principle that time is money. And time and money should also be your guiding concerns in deciding whether to hire a lawyer to help with your workplace claim.
Even the simplest problems can take a long time to be resolved through the legal system. And potential legal problems in the workplace do not often present themselves as straightforward issues. If the case requires a court proceeding, it can take from five to eight years before a final judgment is reached.
A lawyer’s help rarely comes cheap. Legal organizations estimate that workplace rights cases eat up an average of between $8,000 to $30,000 in lawyers’ time and other legal costs such as court filings and witness interviews.
Lawyers often take on workplace cases for little or no money up front. They depend on court-ordered fees and often a percentage of your recovery, or a contingency fee. (See “Paying a Lawyer,” below.) This means that a lawyer will be assessing whether your case is likely to pay off so that he or she will be compensated.
Given these circumstances, you will want to be as certain as possible that any lawyer you hire will be doing the utmost to represent you fairly and efficiently—and that you are comfortable with his or her representation.
Start by calling for an appointment. Some lawyers will try to screen you over the phone by asking you to discuss the basics of your case. A little of this can be helpful to you both. You can begin to assess the lawyer’s phoneside manner; he or she can begin to assess whether you truly need expert legal advice.
Many lawyers will agree not to charge you for an initial consultation to decide whether your situation requires legal action. But be prepared to pay a reasonable fee for legal advice. A charge of between $75 and $250 for a one-hour consultation is typical. Organize the facts in your case well before going to your consultation, and be clear about what you are after—whether it is a financial settlement or reinstatement to your old job. Bring any important documents (such as an employment contract, disciplinary warning, or proposed severance agreement) with you to the meeting. An hour should be more than enough to explain your case and obtain at least a basic opinion of how it might be approached and what it is likely to cost. If you find the right lawyer and can afford the charge, it can be money well spent.
Keep in mind that very few employment law disputes actually end up in a courtroom. Most are settled or resolved in some other way. So you need not be swayed by a lawyer’s likely effect on a jury alone. A good lawyer may also offer the valuable advice that you do not have a good case—or may suggest a good strategy for negotiating a settlement.
Most disagreements between lawyers and clients involve fees, so be sure to get all the details involving money in writing—including the per-hour billing rate or the contingency fee arrangement, the frequency of billing, and whether you will be required to deposit money in advance to cover expenses.
Most workplace cases are handled under some form of contingent fee arrangement in which a lawyer agrees to handle a case for a fixed percentage of the amount finally recovered in a lawsuit. If you win the case, the lawyer’s fee comes out of the money awarded to you. If you lose, neither you nor the lawyer will get any money.
A lawyer’s willingness to take your case on a contingent fee is a hopeful sign of faith in the strength of your claim. A lawyer who is not firmly convinced that your case is a winner is unlikely to take you on as a contingency fee client. Be very wary of a lawyer who wants to take your case on an hourly payment basis. That usually signals that he or she does not think your case is very strong in terms of the money you might be able to recover. It could also mean financial disaster for you, as your legal bills are likely to mount up with no useful results. At the very least, insist that the lawyer write down some specific objectives to be accomplished in your case—and put a cap on how high the fees can climb.
Although there is no set percentage for contingency fees in most types of cases, lawyers demand about a third if the case is settled before a lawsuit is filed with the courts, and 40% if a case has to be tried. Keep in mind that the terms of a contingency fee agreement may be negotiable. You can try to get your lawyer to agree to a lower percentage—especially if the case is settled quickly—or to absorb some of the court costs.
Sometimes, a lawyer working for you under a contingency agreement will require that you pay all out-of-pocket expenses, such as filing fees charged by the courts and the cost of transcribing depositions—interviews of witnesses and others involved in a lawsuit who may provide additional information about the facts and circumstances. If this is so, the lawyer will want you to deposit a substantial amount of money—a thousand dollars or more—with the law firm to cover these expenses. From your standpoint, it is a much better arrangement for the lawyer to advance such costs and get repaid out of your recovery. A commonsense arrangement might involve your advancing a small amount of money for some costs, with the attorney advancing the rest.
In some types of workplace lawsuits, such as discrimination or harassment claims, the court may award you attorneys’ fees as part of the final judgment. However, this award may not be large enough to cover the entire amount owed to your attorney under the legal fee contract. Therefore, the contingency fee contract should spell out what happens to a court award of attorneys’ fees.
One approach is to have the fees paid to the attorney in their entirety—and subtract that amount from the contingency fee to which you have agreed. Another common approach is to add the awards for fees and damages, then subtract the attorney fee as a cut of that total. Attorneys are apt to angle for this approach if they disagree with the amount a court awards in legal fees.
Most complaints against lawyers have to do with their failure to communicate with their clients. Your lawyer may be the one with the legal expertise, but the rights that are being pursued are yours—and you are the most important person involved in your case. You have the right to demand that your lawyer be reasonably available to answer your questions and to keep you posted on your case.
You may need to put some energy into managing your lawyer.
Carefully check every statement. Each statement or bill should list costs that the lawyer has paid or that you are expected to pay. If you question whether a particular bill complies with your written fee agreement, call your lawyer and politely demand that a new, more detailed version be sent before you pay it. Don’t feel as though you are being too pushy: The laws in many states actually require thorough detail in lawyers’ statements.
Do your homework. Learn as much as you can about the laws and decisions involved in your case. By doing so, you will be able to monitor your lawyer’s work and may even be able to make a suggestion or provide information that will move your case along faster. Certainly if the other side offers a settlement, you will be in a better position to evaluate whether or not it makes sense to accept it.
Keep your own calendar of dates and deadlines. Note when papers and appearances are due in court. If you rely on your lawyer to keep your case on schedule, you may be unpleasantly surprised to find that an important deadline has been missed. Many a good case has been thrown out simply because of a lawyer’s forgetfulness. Call or write to your lawyer at least a week before any important deadline in your case to inquire about plans to meet it.
Maintain your own file on your case. By having a well-organized file of your own, you will be able to discuss your case with your lawyer intelligently and efficiently—even over the telephone. Being well informed will help keep your lawyer’s effectiveness up and your costs down. Be aware that if your lawyer is working on an hourly basis, you will probably be charged for telephone consultations. But they are likely to be less expensive than office visits.
If your relationship with a particular lawyer does not seem to be working out for some reason, or if you truly believe your case is not progressing as it should, consider asking another lawyer to take over. Beware, however, that if you are in the midst of a lawsuit, the judge may need to approve the switch—and has the discretion to refuse the request if he or she believes change would cause an unreasonable delay or prejudice the other side.
If you are able and anxious to change lawyers, be clear with the first one that you are taking your business elsewhere, and send him or her an immediate written notification of your decision. Otherwise, you could end up receiving bills from both lawyers—both of whom might claim that they handled the lion’s share of your case, complicating the matter of who is owed what.
Before you pay anything, be sure that the bill does not amount to more than you agreed to pay. If you have a contingency fee arrangement, it is up to your new lawyer and former lawyer to work out how to split the fee.
Take prompt action against any lawyer whose behavior appears to be deceptive, unethical, or otherwise illegal. A call to the local bar association, listed in the telephone directory under Attorneys, should provide you with guidance on what types of lawyer behavior are prohibited and how to file a complaint.
Most state attorney regulatory bodies are biased toward lawyers. Unless the lawyer’s conduct is plainly dishonest or he or she has abandoned your case, you will probably not get much satisfaction. However, sometimes the threat of filing a complaint can move your lawyer into action. And, if worse comes to worst, filing a formal complaint will create a document that you will need if you later file a lawsuit against a lawyer for malpractice.