Practicing Employment Law: Common Pitfalls of the Young Lawyer

• Publication year: 1998
• Pages: 73
• Citation: Vol. 27 No. 3 Pg. 73

27 Colo.Law. 73 Colorado Lawyer 1998.

1998, April, Pg. 73. Practicing Employment Law: Common Pitfalls of the Young Lawyer

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73

Vol. 27, No. 3, Pg. 73

The Colorado Lawyer
April 1998
Vol. 27, No. 4 [Page 73]

Specialty Law Columns
Young Lawyers Column
Practicing Employment Law: Common Pitfalls of the Young Lawyer
by Carmen S. Danielson

Practicing employment law is not easy, but it can be rewarding. Practitioners will give varying advice on how to become a successful employment attorney, but one certainty in the conundrum of employment litigation is that the avoidance of the following basic mistakes will take the practitioner closer to success and will make life easier

Mistake Number One

Choosing the Wrong Cases

One of the first lessons to be learned by plaintiff lawyers beginning a practice in employment law is that most cases are "losers." The law does not redress all wrongs and conflicts in the work setting, much to the surprise of many disgruntled employees. Choosing the right cases, or at least avoiding the wrong cases, is difficult even for more experienced lawyers. The following suggestions are designed to help flag the losers

There are two kinds of loser cases. The first is when the facts do not support the claims. The second is when the odds of winning are poor, perhaps because there are no witnesses the witnesses are not willing to come forward or to testify favorably, or there are no "nasty" facts that make it easy to empathize with the client. The reality is that our society is developing dulled sensibilities to claims of discrimination.

Lawyers should ask themselves the following questions: Is the client credible? Are the employer's proffered reasons and defenses consistent, or do they contradict other statements? Are there witnesses who are willing to testify favorably for the client? What documentary evidence exists? Are the facts egregious? Will anyone care? Are the damages substantial? The answers to these questions will help in assessing which cases to accept. There is one certainty: not every case should be taken.

Another must-ask question is whether any previous lawyers have represented the client on the same case. If so, and if there has been more than one lawyer, the practitioner should think twice about accepting the case and should ask a lot of questions, including: What is wrong with this picture? Are there unrealistic expectations, or worse? Get permission (with a written release from the client) to speak with the previous lawyers before accepting the case.

Mistake Number Two

Taking Every Employment Case on a Contingency Fee Basis

A majority of the individuals seeking an employment law attorney request a contingency fee arrangement, even prior to setting foot in the attorney's office. A word of caution to new lawyers is warranted: Many employment cases are at odds with contingency fee agreements.

The attorney should delve deeply into the client's goals. If the attorney is working for a monetary recovery, but the client really just wants the job back, the attorney has a conflict and probably a soon-to-be dissatisfied client. This scenario occurs all too often when, for instance, the client has a disability that could be accommodated if only a proper request were made. Further, if the client is still employed but is seeking assistance on how to deal with harassment at work, a monetary recovery will not be likely or may not be conducive to a positive, future employment relationship.

The other side of this equation is the fact that many meritorious cases could not be pursued if members of the bar were not willing to take the cases on contingency fee arrangements. Either way, the new practitioner must determine up front what the client's goals are and select a fee arrangement that is consistent with those goals. Full disclosure to the client consistent with the Colorado Rules Governing Contingent Fees1 is the law.

Mistake Number Three

Improper Investigation

There is no substitute for immediately plunging into a case and gathering the facts from sources other than the client Presumably, the lawyer has determined that the client is credible and has gathered all facts available from this individual. Solely interviewing the client, however, is not a sufficient investigation. The law requires that the attorney make a reasonable inquiry into the facts, as...