The Decision to Litigate

“Idaho Employment Law Solutions’ mission is to provide effective solutions to employment and labor matters at the lowest level, avoiding costly litigation wherever possible. Idaho Employment Law Solutions’ approach with employers and employees is on stressing preventative law and helping the client avoid litigation.”

R. A. (Ron) Coulter
Owner, Idaho Employment Law Solutions

Notwithstanding Idaho Employment Law Solutions’ stated mission, inevitably, as the existence of the state and federal judicial system attest, some cases will proceed to litigation. What will happen if a case is filed? What is the process? How long will it take? These are questions frequently on the minds of potential litigants and this is not surprising. Our court system is foreign to most people, including many lawyers who actually have never seen the inside of a courtroom. Most clients who contact Idaho Employment Law Solutions for help have never been involved in a lawsuit and never imagined they would be. Most clients who seek legal redress are shocked that a case of sexual harassment may take over 2.5 years to go to a jury trial. They are even more dumbfounded when the defendant in the lawsuit files a counter-claim alleging wrongdoing on the client’s part. Add the appellate process to the legal landmine and it is easy to see that a case that starts in one year may not be settled for five years through litigation. So how does an aggrieved person intelligently decide to file and pursue a lawsuit? To gain insight to answer the latter question, an examination of a fictional case of sexual harassment brought by a female or male client in Idaho follows.

 Hypothetical Case

Filing the Complaint: In our hypothetical case of sexual harassment, the employee has suffered intolerable taunts, pranks and insults of a sexual nature from other employees on a regular basis. There is a question of whether the employer may or may not have been aware of the offensive behavior of harassing employees.

The employee may not have provided the employer with an opportunity to take corrective action. As happens often, the employee may have failed to have taken advantage of the redress that is offered by the employer and is stated very clearly in the Employee’s Handbook. Generally, the employer will have published, in an area accessible to, and frequented by employees, the procedures to be followed if an employee feels that the employee has been a victim of sexual harassment.

Good employers want to ensure the workplace is employer friendly and conducive to productivity. Nevertheless, the employee in this case feels that nothing will be done; and if the employee reports the wrongful activity, the offending party or parties will make the employee’s life miserable. The employee now files a complaint with the Idaho Commission on Human Rights (ICHR). Additionally, the employee retains Idaho Employment Law Solutions as the employee’s attorney.

A Word About Settling A Case, It is The Client’s Decision: There are some cases that will never, and should never be settled given the nature of the case; however, these cases are rare. Even in a case of sexual harassment where the client perceives that they have been a victim of outrageous behavior, given the state of the law, settling the case may be the best outcome for the client. Regardless, every case can start with negotiations.

If Idaho Employment Law Solutions can settle your case without filing a lawsuit, we save you time, money, and emotional energy. Often a case cannot be settled immediately. That’s okay because settlement negotiations can take place at any stage of litigation (even after trial) and as a case progresses the parties get more and more information which can lead to settlement. In the end, over 90% of cases do settle, the only question is when. Idaho Employment Law Solutions will always recommend settling the dispute when the settlement offer is reasonable. However, Idaho Employment Law Solutions recognizes that the decision to settle rests ultimately with the client. If the client refuses to settle, Idaho Employment Law Solutions will continue on the path to litigation based upon the terms of the contract for legal services entered into by the client and Idaho Employment Law Solutions at the time Idaho Employment Law Solutions was retained as counsel.

Investigating the Complaint: After the complaint is filed with the ICHR (the complaint is also registered with the Equal Employment Opportunity Commission (EEOC) for the person alleging that they are the victim of sexual harassment (the complainant), the ICHR will afford the alleged offender (the respondent) an opportunity to address the charges brought forward by the complainant. The complainant, upon receiving the respondent’s response, will have a reasonable opportunity to submit a rebuttal to the respondent’s response.

During this process, the ICHR will provide the opportunity for both parties to participate in mediation to try and resolve matter. For a number of reasons, Idaho Employment Law Solutions recommends that the client participate in the mediation process. This is an excellent opportunity to resolve the matter without resulting to litigation.

If mediation fails, or the parties refuse to participate in mediation, the ICHR will conduct an investigation to ascertain if there is cause to believe that a violation of the law has occurred. This investigation could take anywhere from six months to a year given the ICHR’s caseload. An investigation memorandum will be produced. After the comment period, the Commissioners will decide whether there is cause to believe that sexual harassment has occurred.

The Cause or No Cause Finding: If the Commissioners find no cause, the case will be dismissed. If they find cause, the Commission staff will attempt to resolve the case through negotiations resulting in a conciliation agreement. The terms of the agreement have the effect of a binding contract, and are negotiable between respondent, the complainant, and the ICHR.

In our sample case, the ICHR finds cause that sexual harassment has occurred; but, the respondent refuses to enter into a conciliation agreement, and the ICHR chooses not to take legal action. The ICHR will then issue a “Right to Sue Letter”. A “Right to Sue Letter” represents the fact that the client has exhausted all administrative remedies and is the document needed to file a case in either state or federal court. The complainant has 90 days from the issuance of the “Right to Sue Letter to file a lawsuit in state or federal court. At this point, the process has taken, on average, over one year.

Filing the Lawsuit: In our hypothetical, the client decides to file the case in federal court to take advantage of the remedies offered under federal law not available through Idaho’s anti-discrimination statute. When the lawsuit is filed, the client becomes the plaintiff in the case and the employer is now the defendant. In federal court, the party filing the complaint will have 120 days to serve the complaint on the defendant.

Once the defendant receives the complaint, the defendant, will most likely file an answer to the complaint, which will generally deny each substantive paragraph of the complaint. The defendant could also file a motion to dismiss the complaint for lack of stating a claim. If the court receives a motion to dismiss the claim at this point, the court, if it disagrees with the defendant, will order the defendant to file an answer. If the court agrees with the defendant, the court will usually provide the plaintiff with the opportunity to amend the complaint.

After the complaint has been filed, the court will automatically set a scheduling conference for which the parties (plaintiff and defendant) by their attorneys must come to court and the judge will set dates for all of the steps that follow. There will be a date for the completion of discovery, a date for dispositive motions, and maybe even a date for trial. If the court sets a trial date, depending on the court’s calendar, that date will probably be a minimum of one year in the future.

Litigation is an Expensive Proposition: This is a great time to discuss the expense of litigation. From television, most client’s think that nearly all civil rights or employment cases can be handled on a contingency fee basis. The client brings the claim with the idea that the attorney will shoulder the financial burden of winning the lawsuit and will take 33% - 50% of any recovery.

In today’s legal climate, your average practitioner can only keep one or two solid contingency cases; the rest are taken on an hourly fee basis. The reason for this is simple economics. An attorney cannot pay current bills on a promise of a monetary judgment to be received two years in the future barring an appeal of a client friendly verdict and award. Additionally, an analysis of the harm suffered by the client may indicate that the probable financial recovery does not meet the criteria of an acceptable contingency case. As our sample litigation stands, the attorney has conservatively expended twenty to thirty hours of billable time on the case. The client’s out of pocket expense has easily exceeded $5,000.00 -$10,000.00. If this is not a contingency case, the cost to pursue the lawsuit will only increase.

Discovery: A sexual harassment case is a civil case. The client may think the actions of the defendant are criminal; but, as a general proposition, a sexual harassment claim will always be tried in civil court. Cases filed in civil court are governed by the rules of civil procedure. As this case is filed in federal court, the federal rules of civil procedure are applicable. The rules of civil procedure are designed to identify the relevant facts and issues and ensure that there are no surprises as the case proceeds to trial. The latter being true, the rules are set to allow extensive discovery. Discovery generally has the following components:

Disclosures. In general, each party is required to give the other a list of the witnesses and documents each believes will support its case. In addition, the plaintiff will give to the defendant an estimate of how much money the plaintiff believes is owed and the defendant will identify for the plaintiff any insurance policies that may cover the claim.

Interrogatories. Interrogatories are written questions that each party gives to the other to be answered in writing and under oath.

Document Requests. Each party asks the other to provide for inspection or copying specific categories of documents. For example, the plaintiff might ask for plaintiff’s personnel file or the personnel file of some other person whom the plaintiff believes was treated more favorably.

Depositions. As a general rule, depositions take place in a lawyer’s conference room and the lawyer will ask questions of a sworn witness while a court reporter records all of the questions and answers. There is one other piece of discovery called a request for admissions; but, this device is not commonly used in a sexual harassment case. Yet in a case involving an alleged violation of the Family Medical Leave Act (FMLA), plaintiff’s attorney may ask defendant’s attorney to admit that the defendant is engaged in interstate commerce as such an admission is important in pursuing an FMLA claim.

Dispositive Motions: After all the discovery has been accomplished, the defendant will usually file a motion for summary judgment. This doesn’t mean that this motion is not available to the plaintiff; however, as a practical matter, it is generally filed by the defendant. In fact, the defendant’s attorney has been building his case in a way most favorable to having the motion for summary judgment granted by the court. A motion for summary judgment says that given all of the documents in the case, and all of the testimony in depositions, it appears that the parties do not disagree on the important facts. Therefore, and based on these agreed facts, the court can and should rule as a matter of law, in favor of the party making the motion.

If the defendant gets a favorable ruling on a motion for summary judgment, barring success on appeal, the case ends at this point. If the motion for summary judgment is not granted, then the case will proceed to trial. At this point, very serious efforts will be made to settle the case prior to going to trial. A case can be settled at any time. In federal court, an attempt will be made to have the case mediated to a successful outcome. However, if the parties persist, and the lawsuit survives summary judgment, the case moves forward to trial.

Pre-trial Order, Trial and Appeal: In federal court, each party will file a document with the court called a pre-trial order. The pre-trial order sets all of the rules for the trial. It includes a list of witnesses, who will testify, documents that will be used, and the proposed jury instructions. The court will review the pre-trial order and will give final approval to the rules for the trial that the court believes follow the law.

When the trial date arrives, all parties and attorneys will be present. If the case is not being tried by the judge alone, a jury will be picked. After jury selection, opening statements will be made. Next comes the presentation of evidence which will include the testimony of witnesses and the admission of documents. Closing arguments, where the attorneys will argue why their respective clients should prevail, are next in the litigation progression. The court will then instruct the jury and the jury will be excused to begin their deliberations. Once the jury renders its verdict, either party can ask the court to change the ruling if the party believes that the jury was unreasonable. The court may reduce the amount of money awarded, may order a new trial, or may change the verdict; however, as a general rule, the court will only do this in exceptional circumstances. At the end of the case, either party can ask that the court of appeals review any of the judge’s decisions if that party believes that the judge made a mistake.