Things I like to see in cases, helpful but not required,
The following discussion will make more sense if you have a passing familiarity with the material contained in these articles:
- The Sorry State of Our Employment Protections,
- Pros and Cons of litigation,
- Time Lines in Discrimination lawsuits,
- Expenses in Employment Cases,
- Wrongful Termination,
- Sexual Harassment,
- Hostile Environment,
- Complaints – Protected Activity,
- Workers Comp Retaliation,
- Unpaid Final Wages,
- Service Letters,
- Contracts Generally,
- Severance-Waiver of Rights,
- At-will employment rule.
- And for good measure, it’ll probably help if you’ve studied the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and their Missouri counterparts, and had some experience litigating employment disputes. You’ve done all that, right?
Please keep in mind that I want to talk to you even if your type of case seems not to fit the criteria I list for special cases. Relatively few cases are special. Most cases are more ordinary, and many of those are worthwhile to pursue
Each case stands or falls on its facts and circumstances. Cases of any type can be strong or not, depending on the particular facts and circumstances. If you think you want to talk to a lawyer, please call no matter what type of case you think you might have.
When you call and talk with an employment lawyer, he or she is quietly considering how your circumstances might fit within the framework to be a special case. Employment lawyers are on the lookout for some or all of the circumstances and types of cases I describe on this page. But even when your facts seem, at first, to indicate that you have a special case, further interviewing most often reveals significant problems that weaken your position. Such is the nature of employment law.
Generally, just about any case can be special. A few circumstances must meet, whether by accident or design*. The closer your case comes to having these features, the closer you are to having a special case:
- The plaintiff is a decent, honest person whom a jury will like and have sympathy for.
- The plaintiff’s past is not too questionable, and he or she has recovered from any rough spots.
- The plaintiff is not significantly at fault in the current case.
- The defendant can be found to be entirely at fault, legally, in the case.
- There is fairly good evidence available to show that the defendant is entirely at fault.
- The law (or legal-principle or statute) under which we are suing allows us to collect a meaningful amount of damages and/or attorney fees if we prevail.
- The defendant seems to lack any strong defenses that are likely to kill the case.
- The defendant has the financial resources to pay a judgment.
- BONUS POINTS: The employee has the financial resources to fund the case and hire a lawyer.
*”Design” as used here means that you obtained legal advice early in the case, before a lawsuit was filed, and planned with a lawyer as to how you could strengthen your potential case. So you then took certain steps, or refrained from taking certain steps, with the goal of being in a stronger legal position if the time came when you needed to go to court.
Some categories of cases seem, in general, to have a greater chance of being special. Here is a little bit about what might make these categories special:
Some types of discrimination, retaliation and wrongful termination cases, and certain types of circumstances in other cases, just might provide the opponent with some additional incentive to resolve the matter acceptably. Sometimes the incentive might be that the historical court precedents are more favorable to the plaintiff than in other types of cases, so the legal risk to the employer is greater. Sometimes the incentive might be the delicacy of the situation. Some of the case-types on this page have a greater tendency to fall into one of those categories, in the right circumstances.
If settlement opportunities fail, these same types of cases provide a somewhat less rocky road (for highly technical legal reasons) if the case needs to be resolved by the judge and jury. Employment discrimination related cases are, statistically speaking, more likely than most types of cases to lose in court (if they don’t settle). However, most cases seem to settle at some point prior to an ultimate court decision. For most plaintiffs, a modest settlement is as close as they will come to getting any justice in the case.
- Contract cases in general are potentially special to me.
Here are a few examples of types of Discrimination, Retaliation and Wrongful Termination cases that might have a higher than average tendency to be special, in no particular order of importance (but any case can be special – it all depends on the facts)
- Retaliation for making certain kinds of complaints to the employer’s management. See my retaliation and complaints articles for more info. It’s very helpful and perhaps even critical that in your complaint you actually have mentioned a law (such as FMLA or the overtime laws or the OSHA laws, etc), or a specific category of discrimination such as “race” or “sex” or “age” or “disability” or “religion” or “pregnancy” etc. Bonus points for making the complaint in writing and saying enough of the right things and not saying too much of the wrong things.
- Retaliation for making a discrimination complaint to the EEOC or MCHR.
- Retaliation for refusing to break the law or refusing to break a code of ethics.
- Retaliation for reporting (to the employer or to the proper authorities) that other employees had violated the law or a code of ethics.
- Retaliation cases of almost any type have a higher chance of being special. See my retaliation article for a more detailed discussion of many of the different kinds of retaliation cases.
- ANY discrimination case where you heard supervisors or managers make direct discriminatory comments, such as offensive sex comments, racial comments, age comments, etc.
- Racial harassment cases in general.
- Pregnancy discrimination, especially where you announced that you were pregnant and right away bad things happened to you at work, even though you were still doing your job as you always had.
- FMLA – Family and Medical Leave Act cases in general.
- BONUS POINTS: Either the EEOC or the MCHR finds “probable cause.”
- BONUS POINTS: The plaintiff has sufficient financial resources to fund the case and hire a lawyer.
I know that I left off the list a lot of kinds of cases. Any case can be special. But as I sit here today, the above came to mind as more likely to be special. I left some cases off the list on purpose. In my opinion, ADA (employment-related) and Age Discrimination cases tend to have more than their fair share of problems, due to some very unwelcome court decisions. On the other hand, retaliation cases under the ADA and Age Discrimination laws are much more attractive to lawyers, in general, than pure discrimination cases.
What about general discrimination cases, such as race, gender, etc? I left off mention of these ordinary discrimination cases, because most people do not have strong facts. They might have worthwhile cases though. But the legal challenges facing them in court are, in some important ways, more difficult than the challenges facing other types of cases. Discrimination cases can be very strong. For one example, cases get stronger when you overhear management making discriminatory comments (which is a circumstance that I listed above).
Other types of cases can be special as well. Here is a short list of some non-discrimination, non-retaliation, and non-wrongful termination case-types that are potentially special (I could list many more and I will add to this list at some point).
- Contract cases in general are potentially special to me.
- Unpaid Commissions cases where you are a sales rep and the employer is shorting your commissions, and the amount is significant. Or you got fired and the employer did not pay you all of the commissions owing to you.
- Defamation cases in some circumstances. Here is just one example with some particularly appealing facts: You have been fired from a decent-paying job because, out of the blue, the president of your former company has contacted your new employer and told provable lies about you, just to get you fired. There are many other forms of defamation. This is just one example.
- Interference with contract or business expectancy cases in some circumstances. Here is one example of particularly appealing facts: You signed a one-year employment contract with a new employer, at an excellent base salary, and within about two months you were already successfully performing in the new job when your former employer got you fired by saying or doing something unreasonable. If anyone (using unreasonable tactics outside of ordinary business practices) causes someone to break a contract with you, you might have an interference claim. AND if they tell lies about you, you might also have a defamation claim.
- Service letter cases have potential especially where the employer does not respond at all. But the damages available tend to be rather modest. Where the employer responds but tells lies, it’s not always worthwhile to pursue for many reasons.
Why didn’t you describe a case like mine?
This list was not meant to be the Final Word as to what makes a case special to me. Any type of case can be special.
Article written by | Tim Willoughby
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.
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