Law Office of Jeffrey D. Fulton
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How to Hire an Employment Attorney

Have you been thinking about interviewing employment attorneys to determine whether or not you haver a case against your current or former employer? Here are some tips to locate, contact, and interview attorneys for your potential case:

Locating the Proper Attorney

Friends, Family Members, or Other Attorneys

If you have a current or former attorney who you trust and has done good work for you in the past, this is often the best way to seek an employment attorney. Most attorneys are not qualified to handle a case against an employer, but they know attorneys who are. Attorneys who are skilled in other areas and enjoy a good reputation in the community will usually know who the more qualified employment attorneys are in your community.

Family members and friends who have positive experiences with their attorneys can refer you to them, or even request the names of qualified employment attorneys from attorneys who are handling other matters for them. Of course, if they have had a positive experience with a qualified employment attorney, that is even better.

Internet Search

Many potential clients discover the hard way that there are far more attorneys who represent employers than those who represent employees. Very few will handle both sides on a consistent basis. Any search you conduct should focus on determining those attorneys who represent employees so that you are not wasting your time contacting firms that will turn you away after learning that you are an employee client. They will not even want to discuss your case with you out of fear of a conflict of interest.

Once you create a list of attorneys who represent employees, your research has only just begun.

Qualifications and Experience of the Attorney

Our firm has been approached on numerous occasions by non-employment attorneys who started off representing an employee in an employment case only to discover they lacked the experience and knowledge to continue the case. Unfortunately, it is not uncommon in these situations for mistakes to have been made that made the case less attractive to employment attorneys than it would have been if a qualified employment attorney had handled it from the beginning. In general, you should avoid hiring non-employment attorneys unless that is your only option to pursue a valid case. Of course, there are always exceptions, and you should use your own judgment to choose the best fit for you.

How do you know if an attorney is qualified to handle your employment case?

1. Ask about the attorney's experience with employment cases. If possible, avoid attorneys who are practicing in any area that comes along. Employment cases are complicated, require unique tactics and strategy, and employment law is constantly changing.

2. Ask other attorneys who you know about the reputation of the employment attorney. Even if they are unfamiliar with the employment attorney, they can often learn of the employment attorney's reputation by asking colleagues in the community.

3. Check the California State Bar website at http://members.calbar.ca.gov/fal/ membersearch/quicksearch to determine if the attorney has been subjected to disciplinary procedures. Not all disciplinary procedures are made public. You can also ask the attorney if he/she has ever been subject to discipline.

4. Trust your gut. Interviewing an attorney can be an intimidating process. But most potential clients know when they have found the right fit. The right attorney will not hesitate to share their education, experience, and prior results with you. If an attorney is not willing to discuss such things, this is an obvious red flag. The right attorney will also be willing to be honest with you about their opinion of your potential case. In California, attorneys are prohibited from guaranteeing a particular result and even if that was not the case, no attorney can guarantee a particular outcome. Litigation is unpredictable. If an attorney is promising you a particular outcome, it is a major red flag.

Contacting the Attorney's Office

Many attorneys who represent employees are sole practitioners or work in small offices. This means that the attorney cannot personally speak to every potential client who contacts the firm. Do not be surprised if the initial screening process is conducted by a staff member who will then pass on the information for the attorney's review.

If you inquire by email or submit information through a website intake form, you should provide as much information as possible so that the attorney can properly evaluate your case. Point out your most compelling facts early in the writing in order to point out the strengths of your case.

USE ONLY YOUR OWN ELECTRONIC EQUIPMENT WHEN COMMUNICATING WITH POTENTIAL ATTORNEYS AND THE ATTORNEY YOU HIRE.

DO NOT USE THE EMPLOYER'S COMPUTER OR CELLULAR TELEPHONE TO SEND EMAIL OR TEXT MESSAGES TO THE POTENTIAL ATTORNEY. Not only will your employer possibly be able to see these communications in real time, they also may discovered later in the case and may even be used against you at trial.

You should be prepared to provide as much information as possible before you contact the attorney. The more information you provide, the better the chance that the attorney will be interested in your case. You must understand that the attorney is interviewing you and your case just as much as you are interviewing the attorney. Contact that attorney from a private place where others can not overhear your discussion and set aside time for the call so that you do not need to end it prematurely.

What Information Should You be Ready to Provide?

Aside from the obvious (contact information, name of the employer, job title, dates of employment, rate of pay, etc.), you should also be prepared to explain why you think it is that you believe you need an employment attorney:

  • What employment action was taken?
  • When was the employment action taken?
  • Who took the employment action?
  • What was the reason given for the employment action?
  • What was the real reason for the employment action?
  • Are there any witnesses to support your version of events? Who? Are they still employed by the employer?
  • What are your economic losses to date? What are your future expected economic losses?
  • Have you found a new job? If not, what is the job market like for your position?
  • How have you been impacted emotionally? Have you sought psychological or medical help as a result of the adverse employment action(s)?
  • What are you hoping an employment attorney can do for you?

If you are in possession of them, you should bring pay stubs, employee handbooks, memos/letters that relate to the case, and anything that relates to your employment. You should have these items organized by subject and in chronological order, if you have time to do so before the meeting.

Of course, every case turns on its own facts, and there may be important information that you should provide in addition to the above.

How Can You Afford a Qualified Employment Attorney?

Most potential employee clients do not realize that when they are seeking representation they are asking the employment attorney to accept their case knowing full well the lawyer will work hundreds, if not thousands of hours, and to finance costs in the tens of thousands of dollars, with the possibility that the attorney may never be paid for his/her time or recoup the money spent to finance the case. But that is the reality for the vast majority of employee side cases.

Fees vs. costs

There generally are two types of expenditures in an employment law case: fees and costs.

Fees are what the attorney earns for work on the case. Most commonly, this can be an hourly rate, a flat (fixed) fee, or a contingency fee. Most employee clients cannot afford to pay an attorney on an hourly or flat fee basis, particularly given the fact that many of them have become recently unemployed. Even clients who would be considered wealthy by most standards cannot afford to pay an attorney's hourly fee for the life of an employment law case. That is why most employee side cases are taken on a contingency fee basis.

What is a contingency fee and how does it work?

A contingency fee case means that the attorney agrees to take the case without accepting any money from the client until and unless a recovery is made for the client. While some attorneys will accept employment law cases for one-third of the recovery (as is standard in personal injury cases), employment attorney fees usually range between 40% to 45%, depending on the stage of the case. This is because employment law cases are usually riskier, more complicated and require a larger number of hours for the attorney to prosecute the case.

Because the attorney is risking the possibility of no compensation for enormous amounts of time, the client contracts to provide the attorney a significant stake in the outcome of the case. This means that in some cases, the attorney will make a seemingly large amount for what might be considered a small amount of time, and in other cases, the attorney will receive little or no compensation for significant hours of his/her time. This is the risk that both attorney and client agree to take.

Most importantly, the contingency fee allows individuals (as opposed to corporations or other large organizations) to hire qualified counsel to handle their employment law case against well-funded and qualified defense attorneys hired by the employer. The contingency fee arrangement also creates a situation where the lawyer and client are "in it together" often creating a strong dynamic of teamwork and passion for the case.

What are costs?

As opposed to fees, which are to compensate the attorney for time spent on the case, costs are "out-of-pocket" expenses required to initiate and prosecute the case. Filing fees, court reporter fees, jury fees, mediator fees, are examples of typical expenses incurred in prosecuting an employment law case.

In California, an attorney is allowed to advance, but not pay for the costs of a case. This means that if your case is not successful, you will owe your attorney for costs incurred in the prosecution of the case. This means that your attorney is not allowed to contract with you to pay for the costs but will often agree to advance funds to pay for costs. Whether or not your attorney chooses to pursue you for costs may be an entirely different matter. Many attorneys will do so only if the client was dishonest or uncooperative, but legally, the client is responsible for costs.

In some cases, the client agrees to pay for the costs of the case even though the attorney is accepting the case on a contingency fee basis. In some of those cases, the attorney may be willing to reduce the amount of the contingency fee in exchange for the client handling the costs as they arise, or as deducted from a deposit made by the client.

The following is an example of the distribution of a contingency fee verdict or settlement:

Verdict/Settlement of $100,000 divided by 45% contingency fee ($45,000) = $55,000 -$10,000 reimbursement for costs = $45,000 to the client.

The Interview

The attorney may telephone you to conduct a telephone interview and/or you may be contacted to meet with the attorney in person. Most attorneys (including our office) will not take your case without meeting the client in person. Unless there are exceptional circumstances, an employment attorney willing to accept your case without first meeting you is a red flag.

Phone Interviews

Often times, the attorney may contact you by phone to gather specific information to determine whether or not an in-person meeting is warranted. If the attorney contacts you by phone, listen very carefully to the questions and try to provide as detailed a response as possible. Most attorneys will explain to you what they are focusing on and why, and will be willing to answer questions about their initial thoughts on the case, their experience with similar cases, and whether or not they are willing to schedule an in person meeting with you.

In-person meetings

If you are scheduled to meet with the attorney in-person, it is likely that the attorney has learned enough about your case to be possibly interested in accepting it. What does this mean for you?

Employment cases often turn on how the client presents at deposition and at trial. This means that the attorney will be evaluating your appearance (appropriate dress, grooming, hygiene, etc.), your ability to communicate the facts of the case, your likability (in front of a jury), your honesty, and numerous other factors. This means you should dress appropriately (business casual or similar) and come prepared to discuss your potential case. If possible, you should come alone. Allowing others in the meeting could waive the attorney-client privilege, so most attorneys will discourage meeting with anyone other than you unless another person is necessary to facilitate the attorney-client meeting (interpreters, aides, etc.). If you bring your children, they will most likely be required to wait for you outside of the meeting room, which could result in having to end the meeting prematurely. Make as much time as the attorney would like as it may be the only attorney willing to meet with you.

In the vast majority of cases, the attorney should not charge a fee for the initial meeting. There are circumstances, in which it may be appropriate, but in many cases this is another red flag. Most attorneys who work on employee side employment cases will meet with you for free because it is the contingency fee that makes up their income, as opposed to simply meeting with potential clients and charging fees for doing so. In other words, attorneys who work on a contingency fee basis would not want to lose a good case by charging a fee for the initial meeting.

You should bring every document that has anything to do with your employment to this initial meeting. If there are more than 100 pages of documents, they should be organized and catalogued to allow you to quickly find a document if the attorney should ask you for it. You should also bring a list of questions (and the checklist at the end of this article) so that all of your questions will be answered at the meeting.

Listen carefully to what the attorney asks you, and answer all questions honestly. Clients who lie to their attorney have no idea if they have a case or not...until it is too late and significant time and money has been spent.

If you are meeting with a qualified employment attorney, he or she will almost always know by the end of the first meeting whether or not they are willing to take your case, based on the known facts and how you present at the meeting. It is unlikely you are going to be able to convince an attorney who is not interested in your case to change his/her mind. Even if you could, why would you want to hire an attorney who does not believe in your case?

Unfair treatment at work does not necessarily mean you have a case.

Employment attorneys receive calls on a daily basis from employees who have been treated horribly in the workplace. Many of these people do not have a case. You have a case if there is a law that has been broken and there is a legal remedy to pursue. The law is not a guarantee of a fair, civil, or pleasant workplace. The law prohibits harassment, discrimination, and retaliation, among other things, and each of these theories have specific legal definitions. The law does not address every unfair workplace situation. Only a qualified employment attorney can tell you if you have a case or not and even if you are rejected by one attorney, you should speak to as many attorneys as possible to either confirm or refute that attorney's opinion. Similarly, you may have a case, but it may not be economically feasible for you or the attorney to pursue it.

How to Interview Attorneys

If you are able to only locate one attorney who is willing to take your case on a contingency, this may be a red flag. Whether or not it is a red flag depends on many factors, such as the size of your community, the availability of other employment attorneys at the time you are looking, and the qualifications and experience of the attorney who is willing to take your case. Ask the attorney why he is willing to take your case on a contingency. Is he going to try to withdraw from the case if there is not a quick settlement, or is he willing to take the case all the way through trial if necessary?

If you have more than one attorney who is willing to take your case on a contingency fee basis, that is a good sign, particularly if the attorneys are qualified employment law attorneys.

In addition to organizing your documents prior to the meeting, and preparing questions that you would like to have answered, you should also be prepared to interview the attorney so that you may decide which one is the right fit for you. You may be faced with a choice between equally qualified attorneys, which means you will most likely base your decision on with which attorney you will work best.

Trust your gut feelings!

In addition to interviewing the attorney about her qualifications, ask the attorney what she sees about the strengths and weaknesses of the case. Has she handled cases with similar facts, a similar employer, or similar defense counsel (if known at the time of the interview)? Watch closely as the attorney answers these questions and trust your gut feelings about the attorney. While there are many questions that attorneys are not able to answer at the beginning of a case, they should be direct and open with you even when telling you they are unable to answer your question at that time, or ever (promising outcome/guaranteeing a particular result).

Does the attorney take the time to answer your questions, or does she seem distracted and thinking about other matters? Qualified employment attorneys are often very busy people, but they should be mentally present with you in the interview. If she had time to conduct the meeting with you, she should be focused and engaged while you are there.

Is the attorney an excellent communicator? If the attorney is poor at communicating with you, how well will he communicate on or your behalf in settlement discussions, or with the judge and jury at trial? Successful litigators are master communicators and if your potential attorney is not one, that is a red flag.

Trust yourself. You wouldn't hire a plumber, mechanic, or contractor you do not trust. Do not hire an attorney you do not trust. Some people are intimidated by meeting with an attorney and do not feel qualified to assess the attorney. That is not true! Of course, you are gong to rely on the attorney to provide you with legal advice and an assessment of the case, but you have the ability to asses the attorney's communication skills and interactions with you. If something does not feel right, that is a red flag, and you should check with other attorneys before committing yourself to anyone with whom you have concerns. Of course, if there is a statute of limitations that is about to run, you must find a way to have your case filed before that occurs, or you will lose your right to proceed.

Protect the Attorney-Client Privilege

Do not discuss your case with anyone other than your spouse (legally married) or attorneys with whom you are consulting. One of the first questions defense attorneys ask in employment case depositions is who you have spoken to about your case other than attorneys and your spouse so that they can depose these people (usually your closest friends and members of your family). Do not turn your friends and family into witnesses unnecessarily.

Any communications with potential and retained attorneys are protected by the attorney-client privilege and communications between you and your spouse are protected by the spousal privilege (you must be legally married - "common law" marriages do not provide for the spousal privilege).

If you have already spoken to others about your case, inform the potential attorney so that he can properly anticipate any issues that may arise from the communications. It is very likely not going to impact whether or not your case will be accepted by the attorney. But as is the case with all facts, you are not doing yourself any favors by not disclosing them to the potential attorney.

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