Chapter 28 - § 28.1 • INTRODUCTION

• Jurisdiction: Colorado

§ 28.1 • INTRODUCTION

The purpose of this chapter is to address case assessment, pretrial, and trial issues relevant to litigation of employment claims. Other sources should be consulted for more detailed guidance on general trial procedures and tactics. Rules for appeals are not covered here.

If a client is interested in pursuing a demand, charge, claim, or legal action to protect employment rights, or if an employer must defend such an action, it is essential to present the client with a realistic picture of how the legal system works and the efforts necessary to obtain any remedy. The attorney should advise the client about the employee's rights and responsibilities, the employer's rights and responsibilities, society's perspective on the employment relationship, legal requirements, and the attitude presented by the court system (emphasizing the atmosphere in Colorado or the jurisdiction where the case may be litigated). Counsel should understand and explain the facts from the view of both the employee and employer, the legal claims and defenses available, and the probability of success. This must include a frank discussion of cost analysis in the investigative and evaluative phases of the case, as well as in litigation. Counsel should discuss both incidental out-of-pocket costs and attorney fees. Settlement costs and potential verdict liabilities should also be explained.

It is extremely important that advice regarding potential litigation of a claim be concise, fair, competent, realistic, and never exaggerated. The attorney's advice should empower the client to decide whether and in what manner to proceed further. The initial contact by the client with the attorney sets the professional and ethical tone for the entire attorney-client...