Many employment lawyers will offer a free case review or consultation before deciding whether to take a case. This is because most lawyers represent plaintiffs on a contingency basis, meaning they invest time—sometimes hundreds or thousands of hours over the course of multiple years—in a case in hopes they ultimately will prevail and be paid for their work. Because of this, many employment lawyers are selective about the cases they will take.
The intake process can feel mysterious and stressful. This feeling can be compounded by the fact that many lawyers are afraid to tell you specifically why they are declining representation. For instance, if they think your claims are weak, they do not want to be sued for malpractice for advising you that they do not believe your claims are worth pursuing. This is even more complicated because smart, well-intentioned attorneys will often value claims and risk differently. A case that, to one attorney, seems very strong may seem risky to another attorney based on their personal experience and worldview.
Here is a primer to demystify the intake process. What are employment attorneys looking for? Why are they accepting or rejecting your representation? And how can you maximize your chances of having an attorney accept your claims?
Strength of the claims
Unsurprisingly, employers rarely admit that they’ve broken the law, and they usually dispute our clients’ narratives vigorously. Because of this, establishing your credibility at the outset is key. At the initial case evaluation phase, we consider how we will corroborate your word and prove that you are the trustworthy party. We do this in several ways.
First, we look at any evidence the prospective client has collected. This can include emails, performance reviews, doctor’s notes, disciplinary actions, payroll records, and more, depending on the type of case. We may attempt to interview friendly witnesses. We will research your employer and find out if the wrongdoers have been sued before for similar violations—do they have a pattern of this type of misconduct? By gathering this information, you will allow the attorney to see that there is evidentiary support for your claims, and will maximize your chances of finding representation.
From this information, we come up with a preliminary assessment of the odds we will be able to keep your case from being dismissed through a motion by the defense. While we don’t look for 100% odds of winning—all cases have risk—we look for high odds of beating defense motion practice.
Amount of damages
At the beginning of a case, we do not focus on the amount of damages, because the amount of damages is likely to be evolving.
That said, if you have evidence of the following types of damages at the outset of your case, it can be helpful in obtaining representation (because the attorneys do not need to speculate):
- Economic damages (back pay and front pay): Economic damages are made up of your actual economic losses. These include your lost wages and lost benefits caused by the discriminatory or retaliatory conduct. At the case evaluation stage, we consider whether you have obtained reemployment, whether you lost valuable benefits, and whether you are actively attempting to find another job.
- Non-economic damages: These are often the largest component of damages in employment discrimination cases. These damages are designed to compensate you for the emotional distress and suffering the discriminatory or retaliatory conduct caused you. At the case evaluation stage, we consider whether you are a credible, sympathetic witness whom a jury or factfinder will believe suffered because of the conduct alleged.
- Punitive damages: Punitive damages are designed to punish the defendant. They are not linked to the amount of harm you suffered, except that a judge can reduce the amount of punitive damages if they are many times the size of your actual damages. Punitive damages are only available if the defendant acted with “malice” or knowing disregard for your rights. Because we rarely can evaluate punitive damages at the case evaluation stage, we do not really consider them in determining whether to take a case.
You can learn more about valuing employment discrimination cases here.
Just like you may not “click” with every doctor, therapist, or other professional you work with, some clients are a better “fit” for some attorneys than for others. While some clients want more personal attention, other clients find litigation stressful and would rather receive a brief update every once in a while. Some clients want to take their cases to trial while others want to receive a settlement quickly and move on, even if it means less total money overall.
Just as all clients are different, all attorneys are different. Some provide a more personal experience, while others are more businesslike. Some attorneys rarely litigate lawsuits and instead send demand letters and negotiate resolutions. Some attorneys never try cases; others hope to try every case they accept. These factors obviously impact whether an attorney is a “fit” for your goals.
Be wary if an attorney does not attempt to understand your goals. This suggests they have a one size fits all approach that may or may not work for you. You should also beware of attorneys who will take your discrimination case but tell you it’s worth very little, as well as attorneys who suggest you can get a seven-figure settlement without reviewing additional information or speaking to witness. Believe it or not, most cases do not resolve for this much money, even if you hire the very best attorneys. Anyone who promises you this type of eye-popping outcome without getting their hands dirty in the facts of your case is selling you a bill of goods.
You can learn more about choosing an employment attorney here.
Sometimes, attorneys will turn down cases they would otherwise accept because they first need to hire new attorneys, settle some existing cases, or resolve cases through trial or hearing. This is particularly true if the prospective client is in a hurry to start litigation and the attorney has upcoming trials or other commitments that prevent them from working on the case in the short term.
At litigation firms like King & Siegel, each case is a major commitment. We spend anywhere from 200 to 2,000 hours of staff and attorney time working on our average case before it resolves through mediation, discovery, or trial. Because of this, we occasionally turn down a case that we otherwise would accept because we simply cannot commit the time to litigate the case to our standards.
Request an Honest Evaluation
Many attorneys will provide an explanation of their thought process if requested. If an attorney turns down your case, you also can ask them for referrals to attorneys who might be better suited to work on the case.
Talk to an Experienced Employment Lawyer Today
At King & Siegel LLP, we have one of the leading employment discrimination and wage and hour practices in California. If you believe you have been illegally discriminated against or subjected to wage theft, our attorneys are here to help.
We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. Contact us today through our website or give us a call at (213) 214-3757 to schedule a free consultation.