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As lawyers, we know all too well that employment law is an emotional field. Regardless of whether you represent the employer or employee, if you want to win it’s important to accurately perform a case assessment and evaluation.

When a potential client walks into an office and feels grievously wronged by a current or former employer, the person wants to know “What are my chances of winning a case” and “What amount of money will I be entitled to receive.”

It’s important to temper such expectations with a dose of reality. The likelihood of resolving the case, even on favorable terms, is greatly reduced if the potential client is not provided an honest assessment of the potential value of the case from the outset.

Especially in the context of employment law, there are caps on damages for many types of cases. It’s important to counsel clients on the potential liability and damages that encompass this type of litigation.

For example, in a discrimination case against an employer with 70 employees, the maximum damage amount a client can receive is back pay, plus $50,000 in compensatory and punitive damages, and reasonable attorneys’ fees and costs. And that’s assuming the client wins at trial. So, if back pay is $20,000, the maximum amount a client can obtain (before taxes) is $70,000 (not including attorneys’ fees and costs).

That’s not going to be a realistic outcome or settlement for most clients.

Many clients believe that regardless of their case—be it gender discrimination, ADA, breach of contract, whistleblower retaliation, FMLA, or something else—the sky is the limit to how much money they are entitled to receive.

That’s why it’s always important to evaluate cases based upon their risk assessment.

What You Should Know

Many lawyers make a common mistake at the very beginning that can hurt their chances of having a successful case. They pick up on their clients’ emotions, particularly if there is a compelling story, and then send an accusatory demand letter. This usually includes a detailed description of how the employer is “bad” and why they should pay for any potential wrongdoing. Sending such a document may put the employer on the defensive, inflame emotions, and potentially create a lengthy battle in court.

The real issue for purposes of settlement is whether the employer will prevail on a summary judgment motion. These motions are often brought by employers to have employees’ cases dismissed as a matter of law by judges instead of going to trial before a jury.

Given the importance of summary judgment, rather than send the accusatory demand letter, the goal of your letter should be to show that there are material issues of fact that preclude an employer from winning as a matter of law. If you can convince the other side that you will prevail in summary judgment, then negotiating an early resolution becomes a new ballgame. It’s also important to remember, in certain types of cases such as FMLA and wage-and-hour suits, both parties may file cross motions for a summary judgment.

To make sure you’ve got a strong case, consider these important risk assessment factors in assessing summary judgment.

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What To Assess

When assessing the value of a potential case, start by identifying issues of material fact.
 
 
Direct comments that show bias or discrimination.
These can be verbal or written comments about someone’s “protected status,” including derogatory comments and racist, sexist or ageist remarks.
 
Look at the demographic composition of employer’s workforce.
Is there a lack of employees with your client’s protected status in the workplace? For example, if there are very few women in the workplace and your client is woman, that may be a factor in analyzing your case.
 
Determine what kind of documentation exists.
Obtain the complete personnel file of an employee. The existence of positive performance reviews—or simply the absence of negative performance reviews – plays into the analysis.
 
Review positive performance reviews, promotions and/or raises.
Look for any awards, honors or distinctions earned by the employee as well as multiple promotions and raises. The stronger the employee’s performance, the more likely a judge or jury will look favorably on your client.
 
Look for disparate treatment on the job.
There needs to be evidence that casts doubt on the employer’s decision-making rationale to show that discrimination may have been a factor.
 
See if an employee was treated differently from other employees based on his or her race, gender or another protected status.
For example, if a Caucasian employee is given multiple opportunities to improve, and an African American employee isn’t given the same opportunity for the same offense, that could be a factor in your client’s favor.

It’s also important to review how the employer handles the complaints of the employee, which may also warrant a factual dispute and indicate any biases.
 
Look for a lack of anti-discrimination training.
Employers who only have anti-discrimination policies in place, but no training fail to place themselves in a position to argue they take discrimination issues seriously.

See if employers have implemented any type of employee training programs on anti-harassment, anti-discrimination or retaliation policies that fostered a culture that doesn’t promote or accept discrimination in the workplace.
 
Look for shifting rationales, by the employer.
If an employer is constantly changing the reason an employee no longer works within the company, it can cast doubt on its credibility and may show discrimination was an issue.

For example, maybe an employer says first a worker was terminated, then says he resigned, and then says his job was eliminated. Changing rationale often creates an issue of material fact.
 
See if there is a temporal connection between protected activity and adverse action.
This is a crucial element in many retaliation claims. It’s important to see if there was a short time frame between a protected activity and the adverse action.

For example, if an employee was known for doing a good job and then complains about sexual harassment and is terminated, it raises a question about employer retaliation and you may have a strong case. Likewise, if an employee’s poor performance was tolerated for years with little or no repercussions, but was terminated shortly after engaging in protected activity (i.e. complaining about discrimination), it raises a question about the employer’s motive and retaliation.
 
Remind your clients of the fee-to-return ratio.
Attorneys’ fees play a large factor in a settlement because your client’s fees will likely be larger than the back pay or other damage claims that your client might receive in a case.

Closing Arguments

Focusing on the likelihood of prevailing at summary judgment allows both parties to turn their concentration away from who is right and who is wrong. This creates a more productive, less emotional discussion, while allowing both parties to recognize the positions of their respective counterpart.

When the mystique of summary judgment is removed, employers are suddenly left without one of their most potent weapons of litigation. That’s when a settlement becomes an increasingly attractive possibility for an employer and its defense counsel. On the flip side, if summary judgment appears to be a real possibility, an employee should be more open to early resolution.

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