Expenses in Employment Cases

This article is just a general description, not specific to any case, of the kinds of expenses that might be encountered in lawsuits (not in out-of-court settlements), and a very rough estimation of the amounts needed. This article will give you some insight into why Employment Lawyers are reluctant to advance expenses in typical cases, considering the Pros and Cons of Employment Litigation.

Please do not let the prospect of expenses and attorney fees keep you from calling Employment Lawyers and talking about your case. Many cases settle before any significant expenses have been incurred. Many cases settle out of court. Many court cases settle early at a Mediated settlement conference (mediation). Many times, lawyers make very attractive fee arrangements. Sometimes, lawyers do not require expense deposits. Sometimes, lawyers work on pure contingency fee and agree to advance expenses. It’s all case by case, and it’s possible you could get a good deal.

Major Categories of Expenses in Court Cases

Filing and Service of Process fees Depositions Witness fees Investigation Experts Copying

Trial preparation Other expenses Losing in court: paying your opponent’s expenses Attorney fees Conclusion – Keep your chin up.

Filing and Service of Process fees

Filing fees vary by court. You can call the court clerk in your county, or the clerk of the nearest Federal court for details. Some courts will charge a flat filing fee, which may be in the neighborhood of $125 – $160, and some courts will charge a little extra for each additional defendant.

“Service of Process” refers to the formal method of delivering the lawsuit into the hands of each defendant. Generally speaking, either the sheriff or a specially approved “process server” will go to the defendant (or its “registered agent” if a corporation) and place the lawsuit in defendant’s hand, and then swear to the Court that they placed the lawsuit in defendant’s hand. Service of Process is a very important formality in the legal system. Usually, sheriffs have special deputies whose job it is to serve process. Sheriff Departments usually charge about $20 for the service, if the defendant does not avoid service by hiding.

Special process servers must be approved by the court, and are usually people who are in the private business of serving lawsuits and other formal legal papers. They charge $25 – $50, usually, to serve papers locally, where the defendant does not hide. If the defendant hides from service, the cost of finding him can explode. You might have to pay for the special process server to locate the defendant, and stake him out. It will cost a lot more if the special process server has to travel outside the local community. Special process servers tend to be more efficient than sheriff’s deputies.

Depositions

What is a deposition?

A deposition is a formal process where your lawyer orders or arranges that a witness come to a specific location and sit down and be interrogated under oath. The defendant’s lawyer will be there. A court reporter will be there, taking down the questions and answers, to produce a transcript.

Deposition costs are probably the biggest expenses in the case

Deposition-related expenses are probably going to be the major expense in the case. But the expenses are variable, and case by case. For example, I’ve had cases where the depo-related expenses were zero, because the cases settled before we had to do any depositions. On the other hand, I’ve had cases where the depo expenses were much higher than the specific hypothetical example I talk about below. It’s all case by case.

The two major deposition expenses are as follows: Costs for depositions that YOU take, and costs for copies of the transcripts and videos for depositions YOUR OPPONENT takes.

In employment cases, depositions often make or break the case.

Your and your lawyer MUST learn what potential witnesses know and what they have heard, and what they might intend to say about you and the facts of the case if they were to be called at trial as witnesses. Depositions are where you do the major investigative work in most employment cases, toehr than document discovery.

Deposition testimony is often critical to discovering evidence either helpful or hurtful to the case. The more important the witness, the longer the questioning will last. Some witnesses are only deposed for an hour, and others for 4 hours or more. Depositions can last two workdays sometimes for highly important witnesses.

Deposition costs

Deposition costs usually consist primarily of the Court Reporter’s Fee for time and transcript, Court reporters tend to charge an appearance fee that varies by reporter, and then a per-page charge for the transcript that varies by reporter. However, since you pay the appearance fee even in a short deposition, the first hour tends to cost the most. So a one hour deposition might still cost $200- $300 (due to the appearance fee and transcript page fee), and each extra hour might cost only the transcript fee of maybe $3.00 per page of testimony. If you take a two hour depo, the cost might be $250 – $400. Much of the cost depends on how many words are spoken. Fast talkers cost more if they speak a lot. I usually tell people, as a rough ballpark guess, to expect depos to average about $150 per hour of testimony.

If you need a video tape of the deposition, the cost goes up. If you have to travel to the witness’s location, the cost goes up in travel fees. If you conduct the deposition by long distance telephone, the cost goes up. If you conduct the deposition by video conference or internet conference the cost goes up.

Cost of copies of deposition transcript and videos: Generally, as a ballpark, assume that it will cost about 1/3 of the regular fee to obtain a copy of the transcript or video of a deposition taken by your opponent. You generally want to buy the copies, because otherwise your opponent will have an advantage later on in the case if you don’t have a copy. Your opponent will have a record of testimony that you do not have.

Witness fees: See separate section, Witness fees and related costs. Witness fees and costs are usually modest but can get expensive, particularly if a witness is located out of state or far from the community where you are suing.

EXAMPLE – Conservative estimate of costs for depositions YOU might take: In a common employment discrimination or wrongful termination case, you will probably take 10 or fewer depositions. Of those 10, maybe 3 will be highly important and worthy of spending 4 or more hours of deposition time with (12+ hours total). The 7 remaining people will probably be deposed for an average of 1.5 hours each (10.5 hours total). All together, you might take 22.5 hours of depositions. If the cost averages about $150 per hour of deposition time for the court reporter, you might incur an expense of about $3,375 for those depos ($150 x 22.5). Then you buy copies of the depositions your opponent took —

YOUR OPPONENT will probably incur similar or higher deposition expenses. But for purposes of our example, assume that your opponent also spent $3,375 for his depos. Then, at 1/3 cost for copies, you would spend about $1,125 for the copies.

TOTAL: In our rough example, you incurred expenses of $3,375 for the depos that you took. Plus, it cost you $1,125 to buy copies of the depos your opponent took. You’ve spent about $4,500 on deposition-related expenses so far. Add in a modest amount for Witness fees and related costs, and you get to a grand total of about $5,000.

When you speak to Plaintiff’s Employment Lawyers about your potential case, they might tell you to expect about $5,000 in deposition-related expenses in a typical discrimination case. From the above example, you can see why lawyers might ballpark the figure at $5,000.

Your mileage may vary, because it’s all case by case and the unique facts and circumstances of your situation govern everything.

Witness fees and related costs

You will often have to pay a small fee to the witness for his time and mileage. There are rules of civil procedure regarding when and how much you will have to pay. It’s usually modest. Expect witness fees in Missouri to be no more than about $50 or so per witness. That’s not an exact number, because the cost is variable, but it gives you some insight into the modest nature of the expense in typical cases.

OUT OF STATE WITNESSES: But sometimes a witness is located out of Missouri and he agrees to come back voluntarily to be deposed. As part of the agreement, you might pay his airfare and lodging. It often makes sense to enter into such an agreement with witness, to save the expense of you and your lawyer traveling to some other state to take a deposition. Also, it’s not easy to force an out of state witness to sit down for a deposition. There might be court action needed in the other state to get a judge to order that the witness appear for the deposition. You avoid all those problems when the witness agrees to return to Missouri in exchange for his expenses being paid. Sometimes a defendant will agree to share the expenses, because they want his testimony as much as you do.

Investigative expenses, records, interviews

Medical records often cost $20+ for each doctor you’ve seen. Medical reports dictated by a doctor especially for your case can cost several hundred dollars.

Witnesses might need to be tracked down so you can send them a subpoena to appear at a deposition. Private investigative services charge variable (but sometimes pretty high) fees to find people.

Sometimes you will want to send someone out to interview a potential witness informally, to see if that witness might be useful. Investigators and interviewers charge varying amounts for their time and travel.

Expert evaluations and testimony fees

If you want to maximize your potential award for emotional distress damages, you are probably going to want a psychiatrist or other mental health professional to be on your side testifying for you. This costs a lot of money. Practitioners charge highly variable fees. But an evaluation and report fee of $500 – $1,500 is commonly charged. Then, the expert might charge for time to appear for questioning and prepare for testimony.

Your opponent might also use professional testimony. You might need to hire another expert to rebut the defendant’s expert.

Doctor and Expert testimony can get quite expensive for the above, and sometimes for other reasons.

Copying mountains of paper

We always need multiple copies of everything, and in court we prove our cases with paper as much as with testimony.

• We carry multiple copies of a lot of paper evidence to depositions, and we give copies of our paper evidence to our opponents and witnesses when we ask questions about the evidence.
• When we file court briefs and motions, we include copies of documents, and we provide further copies to our opponents.
• We make in-house copies of everything, so we can spread out the evidence on a table and organize our proof, and mark up documents.
• We make further copies to use at trial.
• After trial, or after the case is ended through some other form of judgment (such as dismissal), there is a phase of the case where the parties continue to argue the case, on paper, requiring more copies.
• If a formal appeal occurs to the Court of Appeals, a truly breathtaking amount of copying must occur, because giant exhibit books of the evidence must be prepared and copied about 15 times over.
• Consider that a 4 hour deposition might generate 300 pages of transcript. 80 pages per hour is a good rough guess for deposition testimony. In the example I used in my deposition section, we took 22.5 hours of depos. Assuming 80 pages per hour, we have 1,800 pages of deposition transcript. A significant number of those pages will be copied over and over again throughout the case.

Copy costs tend to run from a low of maybe 4 cents per page inside the lawyer’s office using his own copier, to maybe 8 cents a page for a professional copy service to take the documents and copy them. Copy services will also collate or otherwise organize the copies, for an appropriate fee. For the larger copy jobs, lawyers are going to use a copy service. For smaller jobs, the lawyer’s own office will probably make the copies on the office copier.

It’s difficult to guesstimate the copy-related costs, because it all depends on how much important paper is generated during the case, and whether any major legal battles or post-trial motions or appeals occur. Copy costs could run $500 to $2000, or even more.

Trial related expenses

• You might incur witness-related expenses to get your important people to the courtroom. These amounts are too variable to estimate.
• You might incur substantial copy-related expenses
• Posters: Some evidence is important enough to blow up to giant size for the jury, at a cost of course.
• Travel-lodging: If you or your lawyer has to travel to the trial location, plan on paying extra expenses.
• Equipment: If the courtroom does not have the techno gadgets you need to present your case, you must rent them or buy them. For example, overhead projectors, video tape machines, televisions for the jury and witnesses and judge. In the major metro areas, the courts are reasonably well equipped for video tape presentations. The new Federal Court in St. Louis is very well equipped overall. State Courts are not as well equipped.

Other expenses

The above discussion should suffice to give you some idea of the most common expenses.

It’s not possible for me to anticipate every expense you may have to incur in your case. So much depends on your unique circumstances, and also on the type of agreement you have with your lawyer.

• Your lawyer will probably ask you to pay for a lot of little things, just like you would want to put on an expense report if you incurred expenses on behalf of your employer. For a few examples, shipping costs, long distance telephone costs, office copying costs, parking when on business for you, travel and meals when out of town on your behalf, etc…
• Unforeseen problems might arise in a case that require unusual effort and expense to rectify. It’s impossible to tell you what these might be.
• Sometimes a defendant will file a legal claim against the plaintiff, requiring unanticipated attorney fees to defend against.
• I’ve asked some people to get mental health counseling before agreeing to represent them. I’ve asked some people to take polygraphs before agreeing to represent them. I’ve asked some people to clear up other legal matters or certain outstanding debts before agreeing to represent them.
• The court might require additional payments, as “sanctions” for not properly cooperating with your opponent in the case, particularly over discovery-related problems.
• Sometimes, the court will find that a case was “frivolous” and make you pay the other side’s attorney fees, and perhaps damages.
• And the list of potential other expenses could go on and on and on.

Losing in court: paying your opponent’s expenses

Generally, expect the following rule to apply: “Loser Pays Expenses for Both Parties”.

Generally, if a court rules against you, or a jury rules against you, or a court dismisses your case, or the court grants summary judgment against you – – – In other words, if you officially lose the case – – – the court will probably order that you pay your opponent’s reasonable expenses. If you win, the court will order that your opponent pay your reasonable expenses. This expense-shifting is one of the major risks of litigation, which I mention in my article on Pros and Cons of Employment Litigation.

Paying attorney fees: Some laws allow the winning plaintiff to get at least a portion of his attorney fees paid pretty easily, but make it tough for a winning defendant to get his fees paid. The major discrimination laws tend to make it easier for plaintiffs to win fees than for companies to win fees.

Some contracts allow the winner to get his fees paid.

Some laws allow the winner to collect fees from the loser.

When the loser must pay fees, the loser usually must only pay “reasonable” fees. Major legal battles then get fought over what part of the attorney fee bill is going to be considered “reasonable.”

Can’t get blood from a turnip: If you lose the case, and you have no significant assets, you might have to declare bankruptcy if the court rules that you now owe several thousand in expenses and/or attorney fees.

Attorney fees, contingency fee agreements

Technically speaking, attorney fees are not really part of the “expenses and costs” of legal cases, but attorney fees are definitely expenses and costs for you.

It’s a rare employment case where the employment lawyer agrees to pay the true expenses of the case, once the case gets into court. Outside of court, prior to the filing of a lawsuit, the expenses tend to be modest except in unusual circumstances. In many or most cases, employment lawyers are probably going to require that you agree to pay expenses, and might even require you to post a sum with them as advance payment for some anticipated expenses.

Your attorney fee agreement in an employment matter is a contract like any other contract. It will probably be in writing, and will probably spell out the key financial terms of your arrangement. Each case is unique, with its own Pros and Cons. The lawyer will evaluate the risk-reward ratio of your unique set of circumstances and decide how much risk he is willing to take.

Lawyers then offer a fee agreement to you that tries to balance the risk that they are willing to take, with the risk that they want you to take. In employment cases, the risks tend to be higher than in many other types of cases. That’s part of the reason why there are so few lawyers who concentrate their practice in employment law.

HOURLY FEES: Sometimes, lawyers will only help you on a straight hourly fee basis. It all depends on the type of case, and the risks of your case.

CONTINGENCY FEES: Lawyers often gamble some or all of their time on the case, and take a share of any settlement or court award. The share the lawyer can take is not required by law to be a certain amount – it’s a matter of agreement. You might have to give up a higher percentage of your recovery in an especially risky case. Common contingency fee percentages are 1/3 or 40% -50%. The settlement or award money will probably flow to the lawyer and the lawyer will take his cut and give you the balance, after deducting for any expenses advanced.

COMBINATION: Employment lawyers often balance the risk by taking some of their fee in the form of a guaranteed fee or retainer or flat fee or reduced hourly fee or other stream of payments that are less than the straight hourly fee, and then taking a contingency fee for the remainder of their compensation.

How Phil does it: I talk a little about my own procedures for determining fees in Phil’s Services and Fees, for those who might be interested.

CONCLUSION about miscellaneous expenses

Keep your chin up. If the first Employment Lawyer you talk to cannot make you a good enough deal, then consider talking to other lawyers as well. In my articles Things I like to see in cases and Tim’s Services and Fees, I explain some things about what might be going on in lawyers’ minds when they speak to you initially. One fact of life is this: Maybe a particular lawyer does not want to absorb the risk of your case right now, but maybe another lawyer will be willing to take on your matter on attractive terms – timing sometimes is everything.

So please do not let the prospect of expenses and attorney fees keep you from calling Employment Lawyers and talking about your case. Many cases settle before any significant expenses have been incurred. Many cases settle out of court. Many times, lawyers make very attractive fee arrangements. Sometimes, lawyers do not require expense deposits. Sometimes, lawyers work on pure contingency fee and agree to advance expenses. It’s all case by case, and it’s possible you could get a good deal.

Phil Willoughby, Esq.