Author: Daniel A. Lublin
“One should always play fairly when one has the winning cards.” – Oscar Wilde
Most lawyers will tell you that the outcome of your case is based on the facts, the prevailing law, the relative abilities of the lawyers involved and, not least, a bit of luck. In straightforward employment law cases, strategy is often overlooked. It ought not to be.
Generally, employers are in no hurry to move cases along quickly. They would much prefer to wait and let the employee’s legal costs accumulate and her frustrations grow. In typical cases, claims can meander through the court system for years, with inherent pre-trial delays, mandatory mediations and few, if any, deadlines. Few unemployed can afford to wait for a trial. Fewer can afford to pay for one. What’s more, the legal doctrine of mitigation provides that once an employee has found another job, any income she earns will be credited against the amount her former employer owes her. As a result, most employees’ cases do not get better over time; they are worth less and become harder to settle.
So how do you win an employment law case? Here are some of the tips that I’ve gleaned from the workplace trenches:
Address preliminary issues intelligently. The strategic advantage that specialized counsel offers is to argue a lawsuit in ways that take the opposing lawyer, and his client, away from their comfort zone. In a case that I recently argued, I brought a preliminary motion to compel the judge to grant summary judgment, which allowed my client to obtain damages long before she even suffered them. Although the defendant argued that the case couldn’t be heard, we successfully responded to the inference that a full trial was required by emphasizing the facts that were straightforward and downplaying those that were not.
Don’t make allegations that cannot be supported. Most employment lawsuits are riddled with hyperbole, as a matter of course. Some lawyers believe that flashy allegations of bad faith, the intentional infliction of mental distress and punitive damages add to the value of their clients’ claims. In my experience, the opposite is usually true. Not only does the case take longer to settle, it inevitably will cost you more to do so. As well, given the risk that the judge will award damages against you for wasting the court’s time, you had better be prepared to make out your claims or quickly withdraw them.
Where possible, proceed as a group. It becomes much more difficult for an employer to ignore your claim when it is shared by others. Even two employees proceeding together will garner greater attention from your ex-employer, and its lawyer, than if you stood alone. Especially now, with the mass restructuring of Canadian workplaces well underway, seldom should disgruntled employees be without any partners.
Choose your lawyer carefully. There are no rules that limit lawyers without much experience in employment law from professing that they practise it on their websites and in the media – and unfortunately they do. The reality is that there are few lawyers who exclusively practise employment law. Most just dabble in the area, despite advertising otherwise. But employment law is specialized. Inquire what percentage of the lawyer’s time is spent solely on employment law matters – and don’t pay for his or her education.
There is more to an employment law case than just the facts