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Are you an employee in an employment dispute, and considering whether to “drop the L-bomb,” and tell your employer you’re retaining an attorney?

Occasionally, an employee/prospective client who consults with me will tell me that he already dropped the L-bomb, and already told his employer he would be retaining a lawyer.

Often, this news was told to the employer in a huff, e.g. “If you insist on denying my medical leave, Ms. Manager, well then you’ll be hearing from my lawyer!”  Every once in awhile, an employee who I’ve never even met or communicated with will send an email to the manager he or she’s having a dispute with, and will copy my email address (found on the internet) on the email to the manager.  Thus this gives the impression I have been retained to represent someone I’d never been in contact with.  (For anyone considering using a lawyer/email address to do this, please DON’T– it’s not a good idea for many reasons).

Making L-bomb threats may feel good when one is frustrated.  However, what feels good to say or do “in the moment” of an angry employment dispute can often result in bad, long-term consequences.

In most situations, it will NOT help an employee to drop the L-bomb, and tell your employer that you’re retaining a lawyer.

In many situations, the employee’s mere mention of the L-word makes the employer even more upset, makes the employer take more adverse actions, and makes the situation worse.  Most employers are not intimidated by L-threats, because often the threats aren’t carried out.  It may be the employer’s experience that they’ve heard many L-bombs dropped, but usually a lawyer was not hired, there was no lawsuit, etc.  Or perhaps your employer anticipates you will likely get a lawyer, but the employer has planned for the worst-case L-scenarios and risks, and the employer isn’t worried about your particular legal issues.  And sometimes, an employee’s L-bomb threat appears to work, and the employer seems to back off, but only later the employee learns the L-threat just made the employer take more carefully-planned actions, without giving the employee (and her attorney) advance warnings anymore.

In sum, the L-bomb usually turns out to be less intimidating to the employer, and less effective in improving the employee’s situation, than the employee expects.

With all that said, there are certain occasions where the news of hiring a lawyer, when well-delivered, CAN make an abrupt and positive impact on an employee’s matter.  And if you’re hiring an attorney long-term, such as for litigation work, the employer must and will be told you have a lawyer at some point, in fairness to the employer.  But before you rush to deliver that news yourself, especially if you’re in a huff, you should stop to reflect.  Since you’re getting a lawyer involved, then it only makes sense you talk to that lawyer about your plans (including any planned announcement you’ve retained a lawyer) before you put those plans in action.

It’s best that the lawyer and employee/client discuss and plan in advance the announcement that the lawyer was hired.  Then that news can be delivered to the employer under carefully-considered timing and circumstances.

DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney (and an employment attorney for employment matters).

For more information about Wisconsin employment attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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Below, I’ll discuss what a “probable cause” (PC) determination means, what a “no probable cause” (NPC) determination means, and what each determination may mean for you. Bad news first.

“No Probable Cause:” What This Means, and What You Can Do

If the ERD determination states there was “no probable cause” of discrimination, this means the ERD investigator believed it was unlikely that discrimination occurred, and he or she decided your case should be dismissed. And your case will be dismissed, unless you appeal the NPC decision. If you appeal your decision, you will be entitled to attend a hearing, at which an administrative law judge (ALJ) will decide whether the ERD investigator erred and there is in fact probable cause of discrimination. At these “probable cause hearings,” the ALJs agree with the investigators the vast majority of the time, and uphold the NPC determination. So the odds of winning a probable cause hearing are low (not to mention the odds of going on to win a second hearing on the merits), although not impossible. In my view, there are occasionally cases with very good evidence of discrimination (e.g. documentation or witness statements supporting that discrimination occurred) that nonetheless receive an NPC finding. On some occasions, an appeal is a good idea.

• How to appeal.

If you get a NPC finding and are considering an appeal, you should immediately read the appeal instructions and the deadline stated in the NPC determination.

To appeal, you need to write a letter, and the NPC determination describes the (brief) information you need to include in the appeal letter.

The deadline for appeal is 30 days. This deadline requires that the ERD receive your appeal letter within 30 days of when the NPC determination is dated. In other words, because of mailing times, the deadline is shorter than 30 days. If you are considering an appeal, pay close attention to the dates, be mindful of mail delays, and act promptly.

• Should you appeal?

Whether or not to continue a legal action is an important decision, involving several factors.

Your decision should not be a knee-jerk reaction, based on a gut belief that you are “right,” or that there is a “principle” that you must keep pursuing. Perhaps these things are true. But you should also consider: (1) how much time could this appeal take?; (2) how much will this appeal cost (in deposition fees, expert fees, fees for an attorney you hire, etc.)?; and (3) what is the risk you will lose?

When you get an NPC decision, that is a bad decision, and should serve as a reality check. Not necessarily a reality check that you’re wrong, but a reality check that, as far as ERD is concerned, you are more likely to lose your case than win it.

Often, this notion- that you can be right, but lose- is a big barrier for many ERD complainants to get over. If this is your first trip through the legal system, you may have assumed that the ERD would feel your pain, and would agree with the facts as you discussed them. Now you see that is not so, and that there is a serious risk you will lose your case, despite your best efforts.

With that said, there are certainly cases where I feel the ERD’s NPC determination was wrong, and where I feel an appeal is warranted. Also, for certain cases and circumstances, there may be an option to remove the case from ERD altogether and file a discrimination complaint in federal court.

Before proceeding with an appeal (again, be mindful of the deadline), you may want to contact one or more attorneys for their opinions, especially if you can do so for free. You can get their opinions whether appealing your NPC determination is the best decision, or whether there are other decent options available.

If you do decide to call an attorney, do it quickly. An attorney can be of much more help if you call on day one after the NPC determination, as opposed to the day before your appeal deadline.

The same is true for those of you who received a PC finding. While a PC decision is good news, that decision will trigger a series of legal obligations that you have to follow. There are several important things to consider after you receive a PC decision.

“Probable Cause:” What This Means, and What You Can Do

If you receive a determination of “probable cause,” this means (1) the ERD investigator decided there was evidence of discrimination in your matter; and (2) you will have a hearing before an administrative law judge (ALJ). At the hearing, the ALJ will decide whether the employer is liable for discrimination, and if so, what monies and relief the employer must provide you.

If you receive a finding of PC, you can take a moment to celebrate. You passed one big step. But before you win your hearing (the second big step), there are several things you should consider or do in the time following the PC determination.

• You should consider what damages (back pay monies) and relief you would receive if you won your hearing.

What is your case worth? If you haven’t asked yourself this by the point you’ve reached a probable cause decision, you should definitely do so. You are at a serious juncture. Going forward, you must make serious decisions, and possibly serious investments of time and expense, into your matter. Before you make these decisions and investments, it makes a lot of sense to figure out what you stand to gain in you win.

You could stand to gain considerable monies and relief if you win. With that said, some parties (despite a PC finding) stand to gain very little at the hearing. In any event, if you are assuming your case is worth hundreds of thousands, or millions, of dollars, chances are you are hugely overestimating what you stand to win.

The main things the ERD can award you if you win your hearing are the following: (1) reinstatement or placement in the job at issue (assuming you want that); (2) repayment of your attorneys fees (assuming there are any); and (3) payment of net wages (“back pay”) lost as a result of the employer’s discrimination.

I have a post here that describes, in the Section Titled “Damages (Monies that May Be Won),” how you can calculate back pay estimates.

• You should consider what your costs are going forward.

Costs? you may ask. Yes, costs. If you want to win your ERD hearing, you will have to invest some of your own money to do so. Even setting aside legal fees (which you wouldn’t have to pay if you didn’t retain an attorney, or if you retained one on a contingency-fee basis), there are other costs you’d have to pay if you want a realistic chance to win your hearing. These costs include: (1) deposition costs (ranging from about $200 to $750 per deposition); (2) expert witness costs (e.g. if you want to win a disability discrimination claim, you must have a medical provider testify- some doctors charge over $1,000 per hour for their time); and (3) witness fees, travel costs, copy costs, and other miscellaneous costs.

Up until the PC determination, your ERD complaint may have been a low-cost affair. But if you want to win your hearing, you’ll probably have to pay some significant costs between the time of the PC determination and the conclusion of the hearing.

The employer will have to pay significant costs as well. Because of this impending financial pressure on both parties, following a PC determination it is common for the parties to discuss settlement or attend mediation.

• You should consider whether to attend mediation (if the employer is also willing to do so).

After a PC termination, the ERD will offer you and the employer an opportunity to mediate- that is, to have a settlement-negotiation session conducted by a mediator. (The mediator is an ALJ, although not the one assigned to your hearing).

Mediation is usually a good idea for both parties. Employee-clients I’ve represented usually agree to go to mediation. Some employers will agree, some will not. If your opposing employer agrees, you should consider mediation.

However, before going to mediation, you should figure out how much your case would be worth if you won your hearing; there are several other important things you should also do before going to mediation.

I have a post about preparing for ERD mediation here.

• You will probably have to respond to written “discovery” requests in the time leading up to the hearing.

After the PC determination- and in the time leading up to the hearing- you will have several important requirements to follow. One big requirement is your obligation to respond to “discovery” requests- that is, written requests from the employer that you are required by law to respond to within 30 days.

There are three common forms of written discovery: (1) interrogatories (written questions) that one party asks and the other party has to answer; (2) “requests to admit” (numbered statements of proposed facts) that the answering party must admit as true or deny; and (3) document requests, where the responding party must turn over copies of important documents (e.g. performance reviews, disciplinary documents, medical records, etc. etc.) to the requesting party.

Discovery is serious business. If you have been served with written discovery requests, you will probably recognize that you’ve entered a new realm of legal formalities. There are more procedural requirements and legalese involved than what you encountered earlier during the ERD investigation phase. There are also legal deadlines and obligations, and if you violate them, there are potential sanctions and penalties.

If you are served with written discovery requests and want to discuss them with an attorney, please don’t wait until day 29 of your 30-day deadline period to do so!

You should also consider filing your own discovery requests (or having an attorney do this), so you can require the employer to provide documents and answers to questions that you want to request. There is a limited period in which you can issue discovery requests- if you wait too long, you may miss out on this opportunity.

• You will probably have to have your deposition taken in the time leading up to the hearing.

If you and the employer don’t settle your case after the PC determination and your case proceeds to a hearing, sometime prior to the hearing the employer will probably require you to attend a deposition.

A deposition is a question-and-answer session conducted by an attorney (e.g. the employer’s attorney), who questions a witness (e.g. you). If you are provided with a notice of deposition, you are required to attend. At the deposition, you are required to provide truthful answers under oath. A court reporter is present at a deposition, and transcribes a record (transcript) of everything that is stated . (The transcript- which you will need to prepare for your hearing- is the biggest deposition expense, and what pushes the total costs of a deposition into the hundreds of dollars).

It is unusual for an ERD case to proceed to a hearing without the employer conducting a deposition of the complainant-employee. Often, there are several persons who are deposed in a case. For example, an employee-complainant may decide to depose the supervisor and HR rep who terminated his employment, to see (in advance of the hearing) what answers those important persons will give to important questions. Your matter may need several depositions in order to thoroughly prepare for your hearing and give yourself the best chance to win.

• You will have to submit a witness list and exhibits within 10 days of the hearing, and follow any other deadlines established by the ERD and ALJ.

If your case proceeds to a merits hearing, no later than the 10th day before the hearing you must provide the ALJ with (1) a list of all the witnesses you may bring to the hearing; and (2) copies of all the exhibits (i.e. important documents) you intend to use at the hearing. To prepare for this, you may have to sort through mounds of documents and phone many prospective witnesses. Make sure you allow yourself enough lead time before the witness and exhibits deadline to make these sorts of preparations.

After your PC determination, you will receive a packet of information from ERD which describes the requirements and deadlines above, as well as other legal requirements. Please read those documents carefully, and schedule all referenced deadlines.

• You will have to prepare for the ERD hearing, including witness arrangements and organization of documents and exhibits.

If you wish to attend and win your ERD hearing, you will need to make several important preparations in the time leading up to the hearing. Namely, you will need to review and organize all your important documents and deposition transcripts, and you will need to plan arrangements and questions for witnesses. These detailed preparations are beyond the scope of this post, and will not be described here.

You can refer to Section I. of my post about preparing for an unemployment hearing, to get a general idea of the kinds of preparations you could make for an ERD discrimination hearing (e.g. preparing documents, preparing for witnesses, etc.). Please note that, while an unemployment hearing is similar to an ERD discrimination hearing, there are several large and important differences between these two types of hearings. Thus, the information in Section I referenced above- like all the information in this blog- is intended to give you ideas and information to consider, but is not legal advice that applies to your specific situation. Only an attorney can provide legal advice for your particular circumstances and your particular hearing.

• You should consider whether to get an attorney.

It is very difficult for a complainant-employee to win an ERD hearing without an attorney. (Even with an attorney, an ERD hearing is by no means a walk in the park to guaranteed victory). An attorney can improve your odds of success, and help you present your case in the an effective and legally- appropriate manner.

If you have a chance to consult with an attorney for free- many Wisconsin employee rights attorneys, including me, offer free phone consultations- it is definitely worth your time to do so. An attorney can help assess the potential advantages and disadvantages of your case, and potential monies that could be gained or lost.

Whether or not you retain an attorney and pay out-of-pocket fees (if any are charged) is an important decision. I have a post here about important questions to ask when you are considering retaining an attorney.

Ultimately, you must consider the costs of retaining an attorney versus the potential benefits that attorney can offer. There are several activities described above- particularly, written discovery, depositions, and preparing for and attending a hearing- where an attorney could offer considerable value.

Conclusion

Hopefully, the information above is of help to those of you who have received a probable cause or no probable cause decision from ERD. Again, this information is not legal advice, and cannot replace the informed advice of an attorney who has reviewed your specific circumstances. But I do hope this information demystifies some uncertainties you may have, and gives you a clearer idea of what’s to come, and what are some important things for you to think about following your PC or NPC determination.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin employment lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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My best advice for you is this: research and find one or two employee rights attorneys who strike you as knowledgeable (or are recommended as knowledgeable by a reliable source) and be politely persistent until you get a chance to speak to one of those attorneys.

An employee-caller’s perspective (or at least my understanding of it).

As a first matter, I want to tell you that most employee rights attorneys recognize and care about employee-callers’ perspectives and concerns.  If you are having employment problems, chances are, those problems are serious and genuinely troubling.  It is understandable that you’d want assistance, and want it now.  Often, there are time-sensitive issues, such as severance deadlines or legal deadlines, that you must attend to. 

Yet too often, employees will call many employee rights attorneys, and get few or no call-backs from the attorneys.  Is this ideal customer service?  No way.  Can the attorneys improve the situation?  In many instances, yes.  Can the situation be improved such that you can speak to an attorney immediately, when you do not have an urgent deadline?  Probably not, given the realities and volumes of employees’ concerns and calls.

The employee rights attorneys’ perspective.

I’ll discuss the employee rights attorneys’ perspective- not because I want to make excuses why no one has called you back- but rather so you understand the attorneys’ perspectives (whether they seem real or only perceived), and so you can effectively adjust to those factors and get your call through.

Please know there may be several legitimate reasons why the employee rights attorney you are calling is not able to speak to you promptly.  These may include: (1) high call volume (I personally receive up to 10 calls a day, sometimes more, from prospective clients with employment law issues- if I spoke to each as long as they wanted or needed, many days I would have literally no time to do anything else); (2) existing clients’ needs and legal deadlines must be prioritized over new callers; and/or (3) some other new callers have more time-sensitive or higher-priority issues than yours (e.g. they have a legal document due tomorrow, whereas your meeting with HR is in 3 days).

In my experience, many employee-callers are very understanding and polite when informed about these circumstances affecting employee rights attorneys.

My biggest concern is that the employees who are not aware of these factors may incorrectly assume the attorneys’ lack of response is due to something negative about you, and you may get discouraged and give up on contacting an attorney.  Please do not let this happen- if you are concerned about an employment issue, you should be able to speak to someone.

How you can improve your attorney connection-speed.

Here are steps you can take to improve your chances of talking to an attorney, and getting quality advice sooner rather than later.

• Start early.  Start locating and contacting attorneys right when your problem arises.  Do not wait until the last few days before a legal deadline to try to talk to an attorney for the first time.
• Find one or two employee rights attorneys who strike you as knowledgeable, or who are recommended as knowledgeable by a reliable source, and contact them until you get through.  You should not have to talk at length with, or meet with, an attorney who you are not confident in, just because they were the first available to talk to you.  (I have a post hereabout factors to consider when choosing an attorney).  It is better you choose one to two attorneys who strike you as knowledgeable, and contact those select attorneys until you get through.
• When you call, provide information requested by the attorney’s staff.  Most employee rights attorneys have an “intake” system in which their staff collects information from employee callers, so the attorneys can reduce their call time and handle calls more efficiently.  If you refuse to provide information to the attorney’s staff, that will increase the chances that your call will be de-prioritized or not returned.  (While it is understandable if you have concerns about revealing private information to the law firm’s staff, please note the firm’s staff is obligated, just as the attorney is, to keep your information confidential).
• If you have a deadline or time-sensitive issue, politely inform the firm’s staff about that.  The attorney will want to know about any pressing deadlines or issues, so be sure to mention those issues.
• Listen to, and take into account, what the firm’s staff tells you.  If the staff member tells you that the attorney will contact you within 3 days, for example, wait until after the 3rd day before you call back, unless that can’t be done due to deadlines, etc.  Usually, when a specific timeline is given, the firm will try to (and will) observe it.
• Do not give the attorney documents, unless you are asked.  On some occasions, prospective clients I have never spoken to have sent me unsolicited faxes or emailed documents, or have come to my office unannounced and dropped off documents for me to review.  While I am sure this made sense to the employees and they thought it would expedite the process of having me review their matter, in fact it is a very distracting thing for an attorney to receive unsolicited documents.  (We receive more than enough documents from existing clients!).  Please keep in mind that attorneys- at least the ones I know- prefer to talk to prospective clients first, and get summary information about their issues, before deciding whether to discuss the case in detail or review documents. 
• If you are not called back as soon as you expected, be politely persistent until you get a chance to speak to one of your attorneys of choice.  By “politely persistent,” I don’t mean that you should contact the attorney’s office several times a day.  Rather, you should contact them enough to politely remind them of your interest. 

I know this is a lot of information, but I sense there are a large number of employees out there who are not connecting with employee rights attorneys (including in some instances myself) as fast as they would like.  Hopefully, the information above will be of some reassurance, and will help you to get in touch with an employee rights attorney and discuss your matter in detail.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

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Employees- are you looking for an employee rights attorney who will unquestioningly take your “slam dunk case” as you call it, who gladly promises to be more “aggressive” than the prior two attorneys you retained, and who nods and agrees that your case may well go to the Supreme Court because you’ll “never settle with those people?”

If you search long enough, and if you bring a big wallet along, you will eventually find the right attorneys to Pump (PAUSE, CLAP) You Up.

And at some point (well short of the Supreme Court or “vindication”) you will realize that you have spent a lot more money on legal fees than you needed to, and you probably WILL “settle with those people” (or, at least you’d BETTER).  And the settlement will be a disappointment to you as compared to what you had believed back when your attorney was vocal about pumping you up, and silent about the multiple risks of deflation.  But at some point you’ll see it’s better to cut your losses than continue to pay Hans and Franz’s membership fee. 

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

In my work as an attorney, I have met with hundreds of new clients (who are, in my job, employees with legal issues concerning their employers). I have been surprised that many clients don’t ask very important questions.

If you retain a new attorney, you should consider asking the questions below. I describe these questions in the context of employment law, the legal area I know best. However, these questions could be asked of any attorney who you retain for any legal matter.

(1) “What experience do you have with my type of legal matter?”

Often, clients don’t ask their new attorney what experience he or she has with the client’s type of matter. This can be a big mistake. An attorney who is inexperienced with a client’s given matter may end up learning the law on the client’s dime, and raise the likelihood of inefficiencies or a bad result.

With that said, if an attorney acknowledges inexperience with your matter, that does not necessarily mean you should not retain him or her. The legal matter at issue may be unusual, or there may be no attorneys nearby who are experts. Also, the attorney may have many several positive attributes that counterbalance his or her inexperience (e.g. have excellent academic and work history, have supervising attorneys with extensive experience who oversee the work, have value-based billing where you only pay for good results, etc.).

So, if your new attorney’s answer to this question is not positive, that does not in and of itself mean the attorney is not a good match.

How the attorney answers tough questions like this is just as important as the content of the answer. Is the attorney forthcoming, and not defensive, about his or her limitations? Does the attorney offer options to address areas of concern (e.g. offer to have another attorney join to assist in areas of inexperience)? The more candid the attorney is with information, the better. The purpose of all these questions is for you to gather important information, good and bad, and make a well-informed decision.

(2) “How long does this type of matter typically take to resolve?”

This question should also be asked more, because new clients often have no idea how long their legal matters may take.

For example, consider an employer who fires an employee, and the employee files a discrimination complaint with the Equal Rights Division (ERD) of the State of Wisconsin. (This is a common type of legal claim in my employment law practice).

Say you are a representative of the employer, and visit your new employer defense attorney. You ask, “How long does an ERD complaint typically take to resolve?”

In my view, a good answer would be as follows: “At the short end, about two (2) months, if both parties are highly motivated to settle early. If the parties wait for a legal decision at ERD, the complaint could continue one and one-half (1.5) years or more. On the long end, it is possible that the employee will remove the complaint to federal court, in which case the total time, from ERD complaint filing to federal jury trial, could be 3-5 years or more.”

The length and variability of these timelines may surprise someone who is not familiar with ERD and discrimination law proceedings.

It is important to ask your new attorney how long your legal matter may take, because your assumptions may be way off the mark.

(3) “What would be the best-case result for my situation?”

You should ask your new attorney what the best-case result for your legal matter would be. It is important the attorney can quantify a best-case goal, and quantify strategies and means to get you there.

In answering this question about best-case results, your new attorney should address: (1) the lowest value of approximate legal fees and costs you could hope to spend; (2) the lowest financial liabilities/exposure, or the highest financial gains, you could hope for; (3) the extent to which you can reduce other negative factors, such as reducing the amount of time and emotion spent on the matter.

Consider the example above, where an employer hires an attorney to defend an ERD discrimination complaint.

If asked, the new attorney may tell the employer that its best-case scenario for defending a discrimination claim (depending on several circumstances) could be the following: (1) payment of $2,000.00 or less in attorneys fees over the course of 2 months, in attempts to settle/resolve the case early; (2) payment of a modest settlement of $2,000 to $7,500 to the opposing party/employee; and (3) avoiding months to years of emotionally-trying litigation, and avoiding the risk of paying six-figure legal fees and potential liabilities over that time.  (Please note that all of numbers and estimates in this article are completely hypothetical, and that actual costs and liabilities vary substantially among different employment situations, and different law firms’ billing rates).

Say the suing employee is unrealistic in his or her settlement demands, and the attorney advises you are very likely to win a legal decision at ERD. In that event, the attorney may advise that, rather than paying the employee’s high-demand settlement amount (e.g. employee insists on $50,000 settlement when he has only suffered $8,000 in damages), it makes more sense to invest $5,000 in legal fees and have the attorney try to get the ERD to dismiss the case at an early stage. Or, if that fails, it may make more sense (as compared to paying a $50,000 settlement) to invest an additional $10,000 to $15,000 in legal fees it would take to win the ERD hearing.

If you ask your new attorney to define best-case results from the onset of your matter, this will require both the attorney and yourself to discuss goals, and means of efficiently reaching them. In doing this, you will also better understand the risks involved with the legal matter at issue, what matters are and are not in your control, and how timing and legal decisions along the way play a role in what decisions may be best.

(4) “What would be the worst-case results for my situation?”

You should also ask your new attorney (however difficult the answer may be to hear) what the worst-case result for your legal matter would be.

Consider again the example above, where an employer hires an attorney to defend a discrimination complaint. The employer representative then asks the attorney what the worst-case results might be.

The attorney may tell the employer that its worst-case scenario for a discrimination claim (depending on several circumstances) could be the following: (1) payment of six-figure attorneys fees over the course of 5 years or more of litigation, payable whether the case is won or lost; (2) losing a federal jury trail, and having to pay all the fired employee’s lost wages (also possibly six figures), as well as punitive damages and emotional distress damages (also possibly six figures), and having to pay the employee’s legal fees and costs (also possibly six figures); and (3) enduring 5+ years of emotionally-trying litigation, and losing work time due to time and concern spent on the lawsuit.

Of course, the attorney will also likely inform you that such a worst-case result, while theoretically possible, is very rare in the real world.

(5) “What results do you think are most likely for my situation?”

The new attorney should be able to assess how matters like yours are typically resolved. The answer will likely, of course, be somewhere between the best- and worst- case result. The attorney will by no means be able to predict with certainty what will occur, and it may take time (well beyond the initial consultation) for him or her to investigate the facts and law pertaining to your matter, and to give an educated guess as to how things should work out.

With this said, your new attorney should give you some legitimate assessment in response to this question, or give you an explanation as to what further work and time is needed for that assessment to be made. You should stay in consistent communication with your attorney throughout your matter, discussing how the case is progressing, and whether it may be inching closer to the best-case or worst-case end of the spectrum.

(6) “Can I have an itemization of expected costs?”

You’re surely wondering what your new attorney’s fees will cost, so why not ask?! It has been surprising to me how so many clients ask so few questions about legal fees. It is only fair that you ask the most questions possible, and get the most certainty possible, as to how much your new attorney’s fees will cost. It is an important topic.

The majority of law firms charge fees on an hourly basis. Hourly fees are the traditional method (and a perfectly ethical method) of billing. For their advantages, however, hourly fees have the disadvantage of being uncertain. You may know that your new attorney will bill you $250 per hour, but it’s hard for you to guess exactly how many hours (and fees) your legal matter will take to be resolved.

Thus, it is important to get an estimate of fees from your new attorney on day one.

Again, consider the ERD complaint example above. If you were an employer representative retaining a new employment attorney for ERD defense work, you could request (and expect) a fee estimate/itemization similar to the following:

“Estimates of Legal Fees for Work Prior to ERD’s Initial Decision

- Communications/correspondence with opposing party (including settlement discussions): estimated costs 2 hours x $250 per hour = $500.

- Factual investigation [witness interviews, document review, etc.): estimated costs 6 hours x $250 per hour = $1,500

- Legal Research: estimated costs 2 hours x $250/hour = $500

- Review of ERD complaint, draft response letter: estimated costs 8 hours x $250 per hour = $2,000

- More communications with opposing party: estimated costs 2 hours x $250/hour = $500

- Review ERD’s initial legal determination, whether there is a hearing or not: estimated costs .5 hours x $250 per hour = $125

- Communications with client about options: estimated costs .5 hours x $250 per hour = $125.

Total Estimated Fees for Work Prior to ERD’s Initial Decision

$5250.”

The preceding itemization does several things.

First, it defines a period or phase of legal work-that is, all legal work in the time leading up to an initial legal decision by ERD. Once the ERD makes the decision (whether to dismiss the case, or send it on to a hearing), it is a good point for the attorney and client to reevaluate the matter’s status and costs.

If the ERD decision is favorable for the employer and the employee does not appeal the decision, the case will be dismissed, and legal work and costs will end.

If the ERD decision is unfavorable and a hearing is set up, the attorney should be able to provide you (on day one of your matter) another fee estimate/itemization for that scenario.

If the new attorney is experienced with ERD- and discrimination- proceedings, he or she should be able to give you estimates, on day one, of estimated costs for different “phases” of representation. Such fee itemizations not only provide estimates of what fees may cost, but also give a roadmap of the type of legal work involved, and prompt the parties to think of strategies in light of potential costs and legal developments down the road.

Most attorneys probably will not mind discussing fees or plans in detail. However, from an attorney’s perspective (especially a busy attorney’s) it is helpful that the client ask for such details about fees and plans. Otherwise, it is easy for the attorney to overlook a detailed discussion of fees (after all, you both have lots of other issues to talk about), or to assume the client has prior experience with the legal process and knows the types of fees that may be incurred.

When you retain a new attorney, you should establish communications from day one about legal fees, and all other issues and objectives that are important to you.

(7) “What is your policy on returning calls and emails?”

This question addresses another important issue: communication.

Say you ask your new attorney this question, and his or her response is “I have a policy to return calls within 3 business days.” The response gives you a sense of how busy the attorney may be, and how much the attorney values communication.

The most important thing to gauge from the attorney’s response is his or her views of communication, and how important communication is to the attorney. Attorneys sometimes get frustrated because, from their perspective, clients don’t seem to understand that the attorneys are busy, and cannot be available or respond to all issues immediately. Clients sometimes get frustrated because, from their perspective, their attorneys are not returning calls promptly or within a clearly defined period that the client can rely on (e.g. within 3 business days, per the example above).

Asking this question, and all the questions above, will help you and your new attorney define and discuss many important issues on day one. Such questions-and-answers will help you to see: (1) whether this the right attorney and legal fee arrangement for your matter; (2) what the potential risks and rewards are for your matter; and (3) what options/informed decisions may be made down the road, such that you can achieve the best-case (rather than worst-case) result for your matter.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney. 

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.