Litigation is hard, complicated, and always surprising. It can be very difficult for an organization to plan for the business issues that litigation brings. But no matter how many times you have dealt with litigation, some things seem to take businesses by surprise every time. These are all issues that are worth discussing with your manager, board, and other stakeholders to make sure you are prepared for some of the more jarring cognitive dissonance moments we will find in litigation.
The Truth Is Stable, But Perception Is Fluid
A lot of people involved in litigation, whether they are witnesses or parties, feel that once the truth is told, the issues will be resolved because the truth is, of course, a stable concept. However, what you discover during the process of litigation is that perception is completely fluid.
An employee may perceive your inquiry as to how their child, mother, son, or dog is doing to be invasive while you meant it exclusively as a simple, “How are you doing?” While participants are always encouraged to tell the truth, we all see truth slightly differently, and it is the plaintiff and the plaintiff’s attorney’s job to present the circumstances in a way that supports their case. This can be a particularly difficult concept when you are working through various issues with decision-makers or maybe the next step up the food chain, where you are justifying certain decisions that have been made. Objective truth is important, however, perceptional belief and emotion always come into play, particularly in employment law cases.
Strategy and How You Behave Matters
Litigation isn’t a game (unless you are thinking in terms of gladiator pits), but the principles of gamification can apply. An analogy would be the video game Epic Mickey, a beautifully illustrated game produced by Disney in 2010. Epic Mickey has a “morality system” where how you make alliances and how you behave (polite and rule-following versus gameplay destruction) changes the course of the game and your options for play. While everything leads to the same basic outcome, your behavior can change how you get there. While all-out destruction can be compelling, cooperation with opposing counsel can sometimes be in the best interests of your litigation to reach the result that you want. Litigators assisting you through the process will take into consideration the venue, the court, the individual judge, and the expectations of that judge or court. Individual decisions matter in litigation.
There Are a Lot of Layers to Litigation
Particularly in the employment realm, there are a lot of administrative layers that employers may not always anticipate. For an employee who has a claim such as a race, age, or disability discrimination, those typically must first be filed with a local human rights commission, a state-based civil rights commission, or the Equal Employee Opportunity Commission (EEOC). It may end with the agency, or it may proceed in a state or federal court.
Each commission has its own independent rules, requirements, and processes to navigate. The culture of that commission or administrative body, as well as the culture of the court, can drive strategy in how you approach litigation. Culture varies from state to state and within different regions, including the EEOC. These are all issues that must be taken into consideration, but when you are discussing these issues with someone who has not had a significant amount of experience with litigation, it can be complicated. For example, explaining the multiple levels, how each level functions, the appeal processes, witnesses, experts, and more can seem daunting. In the long run, it is worth walking through them step by step to make sure people are comfortable with the process.
Call Your Insurance Company
A lot of litigation in employment law is covered by Employment Practices Liability Insurance (EPLI), but many EPLI policies require early notification to the insurance company in order to fully utilize all of the coverage. Employers may not want to notify their insurance provider because they think the claim will be resolved quickly with minimal cost or that the claim simply is unfounded and will disappear. That is certainly a business risk that an employer could choose to take, but before you make that decision, you need to look carefully at your policies, the nature of your coverage, any exceptions, and whether you receive certain benefits for early notification. Don’t skip assessing the insurance coverage because you think a case will go away. Cases you think are going to disappear sometimes linger and can cost quite a bit.
Retaliation Claims Don’t Require that Original Claim Was Any Good
One of the things that can be surprising to people involved in litigation is that retaliation claims stand alone. If somebody has asserted a claim that they have been discriminated against, even if that claim is found to be invalid, the later retaliation claim can still stand. If someone complains about discrimination and then you later demote or terminate them from employment (particularly if termination is close in time to the complaint), it is likely that a commission will assess that very carefully for a potential retaliation claim. Retaliation is the most commonly filed claim in the United States because it attaches to the other claims. Whether you have a disability claim or a sex claim, there will likely also be a retaliation component. You need to be careful and assess those issues with your defense counsel in order to ensure you are making decisions that best support the defense of all claims.
Discovery Can Be Broad, Intrusive, and Brutal
Opposing counsel typically asks for a lot of information, and the request doesn’t always make sense. In addition, it’s possible that you may not think the information applies to the case at hand. It is a time-consuming, expensive, and sometimes really difficult process. While there are ways to rein in certain types of discovery requests that are excessive, or in some instances flat-out ridiculous, this is also a process that needs to be managed through litigation.
If lawyers cannot agree on what should and should not be produced, the intervention of the court is required. The court will then assess what documentation is necessary. In many instances, courts err on the side of over-inclusion in order to avoid either party’s claim that they were denied pertinent information.
Of great importance, well before you see any litigation, are your document retention policies This includes how files and data are stored, whether they are secure, accessible, and stable, and the fact that you’ve put a litigation hold in place. In other words, once you were aware that there might be a claim, you haven’t destroyed anything. These all are critical factors that will help manage discovery.
Litigation Takes a Really Long Time
It doesn’t matter if the truth seems obvious. It doesn’t matter if the claim has no foundation whatsoever or if your attorney has been prompt and done everything that they are supposed to do. Litigation is a bit like playing tennis. One side smacks the ball over the net and then you must wait for the other side to hit it back before the process can continue. Sometimes, you have to wait for the ref to make a call. It’s very difficult to force the plaintiff to make a settlement demand, engage in mediation, or do anything that might help reach a resolution early on in litigation. While an employer’s defense counsel can compel discovery response, there are things they simply cannot do in the litigation. Even if all deadlines are being met, litigation can take a significant time period to make it through the process, and your board or others who are part of the litigation planning process should be aware of the timeframes that are likely to be applicable.
Fee Shifting
Many employment law cases settle, at least in part, because of fee shifting issues. In the United States, if you are defending certain employment law claims such as race, age, or sex harassment, and the other side wins the case, the statutes allow for fee shifting. In other words, if they are awarded even small amounts, the attorney for the plaintiff can make a demand for fees and the defense must pay it. Plaintiff’s counsel certainly takes this into consideration when they make demands in litigation and to settle any form of it. Insurance companies also consider this. So, your planning group needs to be aware of the potential issue of fee shifting in order to plan appropriately.
Bottom Line
Even though the problems covered above sometimes seem like they are identical to what every other company faces, every piece of litigation is unique. But there are consistent scenarios that you need to plan for well before litigation occurs, including:
- Documentation retention policies and storage plans;
- Training for supervisors; and
- Checks and balances as they relate to discipline and termination.
Having these steps in place all help you demonstrate objective truth during litigation. While much of litigation seems counterintuitive, being prepared helps you address those types of issues.
Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines, Iowa. You can reach her at joellen.whitney@dentons.com.