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5- Deciding what to do - Suing, etc
6- Missouri Service Letter 290.140
 
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ARTICLES:

Deciding what to do
about job problems

When people see me, they want me to tell them what they can do about their situation. This article contains an introduction to how complex the answer truly is.

People often phrase the question as “Should I sue”? Maybe. But maybe there is much more to do at this stage. Maybe a more accurate way to frame the question is this: “Here’s the problem – what is worthwhile to do about it?”

That’s because “suing” is a last resort, full of risks and potentially high expenses.

Many times, it’s best to take certain steps, short of suing, in order to lay a stronger foundation for suing later on. Careful strategizing is often called for. Careful execution of a well-thought out plan will often pay dividends down the road. Sometimes the very worst thing to do is to run into court and sue. On the other hand, sometimes it’s entirely appropriate to run right into court and sue.

– – – It all depends on a million variables and on your unique circumstances – – –

 

Steps lawyers usually take in helping you decide what to do:

  1. An in depth interview with you to discover your unique facts and circumstances. Your unique situation is more important than any other single factor. Maybe most people in similar situations should take one path, but you should take a different path, because a particular piece of evidence exists in your case that changes everything, etc, etc, etc. I cannot over-emphasize the importance of your detailed unique circumstances in determining the strengths and weaknesses of your legal position and in deciding what is right for you to do.
  2. An in depth discussion of both sides of the issues and considerations, considering your detailed unique circumstances.
  3. Analysis of how your unique circumstances might fit within the laws at this early stage, whether your case appears strong or weak in the early going, and if it appears weak then what is the likelihood that your legal position might be strengthened over time. Here are a few articles from this website that talk a bit about some of the major sources of legal rights that Employment Lawyers will be considering:
  4. Rules of Evidence and Civil Procedure: You must consider the evidentiary problems your proof will face in court, and the procedural traps that might be in store for you. Generally, it takes a legal education and some experience to appreciate what those problems and traps might be. Depending on the potential case, lawyers may have to consider the Federal and/or Missouri Rules of Civil Procedure, and also the Federal and/or Missouri Rules of Evidence, and how those rules can hurt you or help you.
  5. Legal research to see how courts have ruled on substantive or evidentiary or procedural issues that might be present in your unique case, where such issues may be of critical importance to your potential case.
  6. Are you a “good plaintiff”? I mention some of the traits that make for good plaintiffs and cases in my article on Things I like to see in cases.
  7. Determining how much Bargaining Power you have.
  8. Determining whether you can handle the risks and disappointments that might occur in a lawsuit, as discussed in The pros and cons of litigation, and also Timeline of Cases in the legal system.
  9. What is your personal situation in life, and your opponent’s? For example, Can you afford the expenses of litigation? How desperate are you for money? Do you understand the reality of what it means to be taking legal action? Can your opponent pay a judgment or big enough settlement to possibly attract a lawyer on favorable financial terms?
  10. Can you handle the stress? We’ll discuss stress and depression, attempting to determine whether you can handle the plan we design for your case. I talk a lot about stress and depression in my article Mental Health – Stress and Depression and Job Problems.
  11. Determining whether you have a case-type that might have a less rocky road through the legal system, as I mention very briefly in Things I like to see in cases.
  12. Determining how much you have to worry about some of the traps described in The Sorry State of our Employment Protections.
  13. Determining what kind of expenses and attorney fees might be required under the circumstances. I talk about how I personally do things in Tim’s Services and Fees, and My procedure for handling your call and consulting with you. But each lawyer will have their own procedures and preferences.
  14. Evaluating the chance of settlement.
  15. Evaluating the chance of surviving the hurdles of “summary judgment” and/or a “motion to dismiss”.
  16. Evaluating the chance of success.
  17. All of these things, and much more, will be flowing through the lawyer’s head as you talk.
  18. In the end, the lawyer will try to condense all of the above into a discussion that you can comprehend, to help you decide how you should best proceed, considering your unique facts and circumstances.

Maybe you are not ready to sue, and other steps need to occur first

By “other steps” I am referring to things that are common, and also things that are uncommon. Here are some examples:

  • You might have to file a charge of discrimination. See Discrimination for more info about that.
  • You might benefit from getting a Missouri Service Letter, to strengthen you case or help the lawyer decide whether you even have a case.
  • Maybe you should make an internal Complaint of some type first, or make another one if the first one was deficient.
  • Maybe you think you’ve engaged in Whistleblowing, but you really have not, and so you need to do so first.
  • Maybe some background investigative work needs to be performed first, or witness statements taken, before deciding whether your case is worthwhile. If your potential witnesses aren’t going to back you up, sometimes it’s helpful to know that before you sue. But sometimes it’s not reasonably possible to take sufficient witness statements, for highly technical legal reasons.
  • It might be appropriate for your lawyer to make contact with the other side and try to work out a deal before the harsh step of suing.
  • Sometimes an early Mediation can occur and the case gets settled.
  • Sometimes cases get resolved during employer-sponsored grievance hearings or conferences, where you might have the right to have a lawyer assist you.
  • If there is to be an Unemployment hearing, then it’s often a good idea to go through the hearing before suing, using your lawyer at the hearing, because of the great damaging evidence your opponent can give you at the hearing.
  • Etc …

CONCLUSION
It’s sometimes very difficult to decide what to do.

I hope you begin to appreciate the complexity of the strategizing and decision making that must occur, after reading this article and the other articles linked to above.

Many times, there is no clear answer on how best to proceed. We choose our path based on considerations that seem right at the time. We sometimes wish we had chosen a different path, but that’s Monday Morning Quarterbacking.

So it’s important to try to be careful in deciding how to proceed. Generally speaking, time spent up-front in careful planning and consideration tends to pay dividends down the road.

Article written by | Tim Willoughby


***** END OF ARTICLE *****

Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

Missouri Bar Website (To view the directory of lawyers).

Phil Willoughby, Attorney
Licensed in Missouri and Kansas

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