Contrary to the wisdom of the bumper sticker, it is not enough these days to simply ‘QUESTION AUTHORITY.’  You gotta speak with it too.

A friend shared this video with me last night and I wanted to pass it along.  There are many great nuggets of wisdom in this brief performance.  While the presentation is not directly related to employment or employment law, I think there are a number of applicable points – especially for younger employees and younger attorneys.

Let me guess:

I’m sure you’ve come across some good employment law information in your cyber-travels.  But, I imagine you are no closer to knowing the actual value of your employment law case.  There are so many media reports of seven and even eight-figure employment law verdicts.  But, you understand that those cases are the outliers that do not represent what your case might be worth.  So you’ve continued looking for the real useful information.  You’ve probably run into some great articles out there (like this one) that warn you of the consequences of being unreasonable in employment law cases.  You want to be rational and reasonable.  But, you are still in the dark about the value of your case.  This article is for you.  The text below may not be what you want to hear, but you should read it all the same.  I think I might be able to save you a headache or two.

I don’t typically give out advice on my blog.  Today I will unashamedly break that rule.  If you are trying to Google the settlement value of an employment case,  I advise you to call an employment lawyer immediately! It doesn’t need to be me — I’m not trying to sell you anything.  Just contact a good employment attorney.  If you already have an employment attorney, I advise you to call him or her right now. I am giving you this advice to save you from yourself.  If you don’t at least call a lawyer, you are hurting yourself and other employees who are dealing with similar problems.  You are giving corporations and insurance companies exactly what they want.

Allow me put this in perspective.  Let’s pretend that a magical “Employment Case Settlement Value Calculator” existed somewhere on the web.  It’s exactly what you were hoping to find!  To use this calculator, you would type in a bunch of data (salary, type of case, etc.).  Then, using that data, the calculator would compare your case to thousands of others and pop out a reasonable settlement value.  It goes without saying that you would immediately plug in your information and press the submit button.  I’d do the same thing.  Next, let’s pretend the calculator tells you your case is worth $98,153.23.  Then what?  Ah yes, you would open up MS Word and draft a letter. “Dear Employer, You owe me $98,153.23. Respectfully, John Doe.”  Each night thereafter, as you drifted to sleep, you would think of how you would spend the settlement check.  You’d receive the check in the mail the next week and live out your dreams.  Exactly what you wanted, right?  Wrong.

My example is admittedly facetious, but it illustrates a few important lessons.  First, employment case value presupposes two things: (1) you can “win” your case; and (2) someone is willing to pay reasonable value without contest.  In reality, even if you have a strong basis for a lawsuit, unless you seek assistance from a professional, neither of the above-listed conditions are likely to occur.  The fact that you do not have counsel will drive down settlement value and you most likely get nowhere.  Likewise, the chances of you doing something wrong and messing up your case are very high, simply because you are inexperienced and ill-equipped to handle the intricacies of an employment case.

Second, being able to “calculate” employment case value assumes that complete and accurate information is available.  Not surprisingly, comprehensive information does not exist. The facts in one case are very rarely identical to those in another case.  People, situations, and ability to prove a case vary widely.  Cases often settle with confidentiality clauses.  Even when non-confidential settlements are recorded somewhere, it is always in a very sporadic manner.  In fact, there is no central identifiable place where courts and lawyers “report” verdicts and settlements.  This restricts access to data associated with case value.  Some cases are dismissed.  Some are never filed.  Sometimes employees are reinstated into their jobs, which might reduce an otherwise high verdict or settlement.  Case values change depending on geographic location.  Some plaintiffs are more likable than others. There are an almost infinite number of factors that contribute to verdict and settlement amounts in employment law cases.  I cannot even scratch the surface.  Even if you think you’ve found a verdict or settlement on Google that is similar to your case, chances are it is not.  Your case, if you even have one, could be worth substantially more or less.

Finally and perhaps most importantly, if employment case value were ascertainable via Google search, that would undermine the very system that gives value to your case in the first place.  The reason the courts work so well is because they operate on a case-by-case basis.  12 of your peers sit down, consider the evidence in your case and apply the law.  The court recognizes you as an individual.  The reason defendants settle cases is because they acknowledge the costs and risks associated with trying a case to a jury.  If settlements were reduced to mere calculations, large companies and insurance companies would run the show and you would never get the justice you deserve. Neither with anyone else – you’d all be slaves to the calculator.  And that calculator would eventually fall under control of the corporations and insurance companies.  So, when you get frustrated by the uncertainty involved with the law, try to remember that uncertainty can benefit you when it comes to settlement.

Wrapping things up, if you are questioning the value of a potential employment law case, the bottom line is that you need competent counsel.  And I mean “counsel” as the term is used in “counseling.”  You need someone who can spend time with you to get to understand the facts, get to the bottom of things, prepare your case properly and assert your legal rights vigorously.  If you do not do things correctly from the beginning, I can confidently say that the settlement value of your Oregon employment law case is zero or close to it.

In the lawsuit I mentioned above, which was filed against a Kansas-based staffing agency called Spencer Reed Group, a 55-year-old Caucasian female employee was subjected to differential treatment by her younger male African American supervisor.  The employee submitted a complaint and was fired one day later.

There is not enough information to remark on the strength of the employee’s actual discrimination claims.  However, it appears that retaliation is a real problem for the employer in this case.  Even if the employee cannot prove she was subject to discrimination, there is no getting around the fact that the employer fired the employee within 24 hours of receiving a complaint.  The timing of the discharge is very problematic and is likely to overshadow whatever legitimate, non-discriminatory ground for termination the employer will allege.

This case is also a great example of why the new Oregon whistleblowing law is so important.  H.B. 3162, which was signed by the governor on June 24, 2009, prohibits retaliation against employees for good faith reports of information an employees believes to be evidence of unlawful activity.  (Read bill here).  The law applies to actions filed on or after January 1, 2010, which means that retaliatory conduct occurring any time after January 1, 2009 could theoretically be subject to this new law.   Retaliation has been prohibited in various forms under the Oregon common-law for some time.  See e.g., Galenbeck v. Newman & Newman, Inc., 2004 US Dist LEXIS 9249 at **21-25 (D. Or. May 14, 2004); McGanty v. Staudenraus, 321 Or. 532 (1995); Goodlette v. LTM, Inc., 128 Or. App. 62,65 (1994).  However, the new law will alleviate the need for employees to navigate the nuances of a wrongful discharge claim.

There are many approaches on what it means to be a trial lawyer and how one becomes a trial lawyer.  I could go on and on, but I really think the best summary written on the topic comes from John Day, a Tennessee trial lawyer.  Here is a link to Day’s articles. I’ve condensed his articles to a list below.  I smile when I read this.

• Knows the substantive  law applicable to the cases and evaluates, accepts, settles and tries.
• Has a solid knowledge of the laws of civil procedure
• Has a solid knowledge of the law of evidence
• Takes time to think
• Maintains a reasonable caseload
• Does NOT cheat
• Learns the facts
• Understands the importance of depositions
• Has the ability to pull the trigger
• Is willing to be one’s self
• Is able to organize
• Has the courage to tell the client the truth
• Has an ability and willingness to undertake (and share with the client) a cost-benefit analyis throughout the litigation.
• Has a passion for the work
• Has a healthy respect for the judicial system
• Has an understanding of the human condition and what it takes to motivate jurors to action
• Has an appreciation for the discretion vested in the trial judge
• Is willing and able to delegate
• Has luck
• Knowledge that you are only as good as your next verdict

This list is a gem and I sincerely hope that all of the employees out there looking for a lawyer show up with this list at their initial consultation asking whether their potential lawyer possesses these traits.

Laws do not exist in a vacuum.  Anybody can go look up a statute or research precedent.  Laws are useless without facts.  If I tell you that Oregon law requires employers to provide a 10-minute rest break for every four hours worked, I am telling you what a particular law requires.  That statement of the law is pretty useless on its own.  Now, what if I tell you that Susie works for ABC Corp. every day from 8 a.m. until 5 p.m. and ABC Corp. refuses to let Susie take a 10-minute break until 2 p.m. each day?  Now the law is useful because we know ABC Corp. is violating it (even though Susie won’t be able to personally sue ABC Corp. in Oregon at the time this post was drafted – read here). “The law” is far more than just rules, regulations and theories.  In the end, it is about being able to prove facts and being able to present those facts to a judge or jury in a manner that invokes or avoids application of certain rules, regulations and legal theories. The law is an interactive process, not a mandate.

How does this relate to investigation?  In law, facts are things that can be established by the required burden using admissible evidence.  It’s one thing to say “ABC refuses to let Susie take a 10-minute break until 2 p.m. each day.”  It’s something completely different to be able to prove that.  In most of the Oregon employment law cases I handle, the employee needs to prove that something is more likely than not using evidence.  If Susie takes the stand and says, “I have not had a single rest break in the last 3 months of work at ABC Corp.” and ABC Corp. has 2 employees who each say that Susie took her 10-minute breaks each day during the same period, Susie runs a serious risk of losing her case.  That’s why investigation is so important.  If Susie had investigated and found: (1) a written ABC Corp. policy prohibiting rest breaks in effect during her employment; (2) video surveillance footage showing Susie working without breaks; (3) handwritten notes and email messages from her supervisor reprimanding her for taking rest breaks before 2 p.m.; and (4) testimony from 4 co-workers supporting her claim, then things would look better for Susie.

Regardless of which lawyer or law firm you choose to represent you, be sure that you are confident in your attorney’s ability to investigate the evidence and put that evidence to work for you.