If you have been wrongfully dismissed, given a severance package or handed a new employment contract, you will probably want to consult with an employment lawyer. How should you choose the right employment lawyer? Here are some points to think about:
Knowledge and Expertise
Does the lawyer practice exclusively in the area of employment law? A lawyer who specializes in the area is likely to be on top of the latest cases and trends. An experienced employment lawyer will have provided advice in hundreds, if not thousands of wrongful dismissal situations and will be able to provide you with an appropriate assessment of your case at an initial consultation. You should not have to pay for the research or “getting up to speed” time of a lawyer who only dabbles in the area.
Will the employment lawyer you have chosen handle your case personally? Some firms will promote one lawyer in particular but when you go to arrange a consultation, you might be meeting with a junior lawyer or a lawyer who does not even practice employment law exclusively. Make sure that you meet with the lawyer that you have selected. After all, if you are interested in the experience and track record of a particular lawyer, you will not be getting that same benefit with a junior associate. If the lawyer is not available and proposes that you meet with someone else, check in to that other lawyer carefully before agreeing to a meeting.
Interest and Reasonable Advice
At an initial consultation, an employment lawyer should be prepared to spend as much time as you require to review everything and provide proper advice. You will need to assess if the lawyer is really listening to your story and if the advice given sounds reasonable and feasible. The lawyer should be able to review the pros and cons of your case and provide a reasonable range of what the case should be worth. The lawyer should also review the impact of “mitigation” with you and review any employment contract or offer letter that you might have signed. You should have a comfort level that the lawyer knows the practice area, understands your situation and has a solid plan for dealing with it.
Fair Billing Practices
Most employment lawyers will charge an initial consultation fee. The lawyer will review your situation and provide advice. Sometimes the advice might be that the severance package makes sense for you in all the circumstances. Nothing further might be required. Other times, the advice might be that your case is not worth pursuing. More often that not, there will be some room for improvement if you have been offered a severance package. Legal fees in employment law situations are generally tax deductible against any severance pay. Often, the employer will agree to pay the fees.
It is often the case that you will get what you pay for. If you meet with a lawyer for a “free consultation,” you may not get very much advice about your situation. At the consultation, the lawyer may ask for a very large retainer or a very high percentage of the results. Before you go to a free consultation, you should ask about the billing practices that the lawyer will be using if you retain him or her.
Going forward, there are different billing practices that lawyers often use. You should have a clear understanding of how you will be billed and a reasonable ball park estimate. Some lawyers will charge an hourly rate. If this is the case, you should get a reasonable estimate of the amount that is likely to be billed at each stage of the proceeding. You should check if your lawyer charges a “premium” on top of the hourly rate. If so, you should be wary of how your bill might be calculated. If the lawyer is already billing you an hourly rate of hundreds of dollar, what is the “premium” charge for? Doing a proper job? If the lawyer proposes charging a premium, ask for benchmarks. And ask for a corresponding reduction in the hourly rate if the results are less than discussed. This arrangement should all be put in writing.
Other lawyers will charge on a contingent basis or a mixed-contingent basis (mostly contingent with deposits at different stages). If the arrangement is contingent, you should clarify the percentage and ensure that you are only being charged on any improvement to your severance package. Some lawyers propose a contingent fee that is based on the entire final severance package, even if there has been an initial offer. So if you were to walk in the door with an eight month severance package and walk out the door with twelve, you would be paying the lawyer a percentage on the eight months that you already had when you walked in addition to the four month improvement.
For clients, fair billing practices is a very important issue. There are many well known employment decisions in which the case went on for years before a judgment was obtained. In some of these cases, the only parties to benefit were the lawyers. The plaintiff was left with little, if any, of the judgment amount after paying the legal fees. You should ensure that the amount you will be required to invest in your case will, at the end of the day, be reasonable in relation to the results. You should be prepared to ask questions about any billing arrangements that are proposed and you should be able to come up with a fee arrangement with which you are satisfied.
Diligence and Timing
When meeting with an employment lawyer, you should be able to work out a reasonable timetable for the progress of your case. Most dismissal cases are time-sensitive and require action quickly. Your lawyer should be able to get things done within a reasonable time frame. If your lawyer will not able to get to your file for a few weeks, or longer, you may need to consider finding a lawyer who is prepared to make your case a priority, even if that lawyer has many other cases going on simultaneously. In most cases, an initial demand letter, if required, should go out within a day or two of your consultation. You should, of course, ensure that you will be reviewing all correspondence that your lawyer sends out on your behalf before it is send.
Philosophy and Results
It is very important that you choose a lawyer who is going to be well suited to the approach that you would like to take. If you have been given a severance package that is somewhat reasonable and you are looking for the right approach to have it improved, that may require one type of skill. In this situation, often a reasonable sounding letter that does not overreach will get great results.
In other situations, where you have been treated unfairly and given a low-ball severance package -or where just cause has been alleged improperly, you may require a much more aggressive approach.
You should also feel free to ask your lawyer about trial decisions. Note that the actual decision is not the only important thing. What did the client wind up with at the end of the day? How did that compare to any offers that were made before a trial or at mediation. If the lawyer tells that he or she is always in court in employment law cases, you should be concerned about whether a reasonable approach will be taken in your situation. After all, the vast majority of employment law cases can be resolved well before a trial unless one side or the other is being unreasonable.
Some lawyers pride themselves on having a very aggressive reputation. This might work occasionally. But more often than not, taking an unnecessarily aggressive approach will simply lead to lengthy, time consuming, costly litigation that will not necessarily be in your best interest. Usually, the lawyer in these situations will ask for a huge retainer to bankroll that kind of litigation approach or will send exorbitant monthly accounts.
Choosing the right employment lawyer is a very important decision and one that could be quite costly if it is not made properly. Meet with the lawyer you have chosen and make sure that the lawyer and the proposed approach are right for you in all the circumstances.