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Five Ways a “Slam-Dunk” or “Smoking- Gun” Case Could Lose (And Probably Would Lose, Without the Right Legal Assistance)
Most individuals have misconceptions about the legal system. These misconceptions are usually quite understandable. Often, they are based on human instincts. (Such instincts work well in many areas of life, but have bad results when applied to legal matters). Other times, legal misconceptions are based on internet information– or based on information considered common knowledge, or thought to come from a valid source– when the information is in fact highly-deficient or completely wrong.
One common misconception involves peoples’ belief in the existence of so-called “slam-dunk” legal cases, i.e. cases that are certain to win. For reasons I describe below, there is no such thing as a slam-dunk case. Every case has at least some risk of losing or having a bad outcome. Many individuals who wrongly believe slam-dunk cases exist further believe their case is a slam-dunk case. Then they often take actions (e.g. make uniformed settlement or severance offers, file uniformed legal complaints, etc.) based on these false beliefs. These actions often lead to bad outcomes.
While there is no such thing as a slam-dunk or surefire-winner case, there is such a thing as a very strong case. Often, the very strong cases are supported by strong law and by strong evidence. The best kind of evidence is so-called “smoking-gun” evidence, such as a document or recording in which the opponent’s wrongdoing is stated or admitted in their own words.
Let’s assume for a moment that an individual (maybe you!) has a very strong case supported by smoking-gun evidence. Does that mean the case will reach a good result? That depends. If you don’t have a lawyer, or don’t know what you’re doing (as is the case with most folks doing something they’re not experienced with), you will likely not have a good outcome, regardless whether you have a smoking-gun case.
Here are five ways a smoking-gun case can lose.
1. You may not make it to the finish line, and your opponent out- endures you.
Legal cases involve a process.
That process takes time. Usually, a lot of time. Most cases that are litigated take at least 1-2 years to resolve. I’ve had a few legal cases that lasted over 5 years, and one that lasted over 10 years, before a resolution was reached. Yes, some legal matters (e.g. certain settlement negotiations and agreements) can be resolved in a short time. “Short” typically meaning, in the legal world, several weeks or months. But those short legal cases are the minority.
Human instinct often skips over the notion of a process. If someone thinks they have a winning case, they may forget (or not know or not think at all about) the associated legal process– and the time, work, emotion and/or money expended during that process– that must be completed before the “win” can happen.
If your opponent is a corporation or wealthy person(s) who are familiar with the process, they will use that to their advantage. Knowing that you must complete a long process before you reach a point where you even could win, they may string things out, to see if you can even make it to that point. To see if they can out-endure you. They may be successful. If you don’t make it to a trial or finish-line, so to speak, it won’t matter how strong your case or smoking-gun proof are. Your case will have fizzled out, with nothing won, before you reached the point where a win (via legal decision) could be possible.
2. Your opponent may outspend you, and you could run out of money (if you don’t have a contingency fee arrangement or attorney who takes on financial risk).
A smoking-gun case could fail to reach the finish line, and thereby fail to win, if the person or plaintiff pursuing the case is paying money out of pocket and runs out of money before the point of the process where a legal decision is made.
This risk can be avoided by finding an attorney who will assume most or all the financial risk. Many lawyers, including myself, represent clients on contingency-fee arrangements or other arrangements where the attorneys (in exchange for a chance to be paid a percentage of money won or paid via a settlement later) assume our clients’ financial risks and they pay zero dollars, or low dollars, out of their pockets.
However, if an individual signs up a lawyer to assist on an hourly-fee basis– and the individual misjudges the hours the legal process will take, or finds over time he has accrued more fees than he can afford– that individual can run out of money and the case can fall flat as a consequence. As another matter, if an individual files a legal complaint on her own, without an attorney, she could be committing herself to a situation where third-party costs would later be needed in the litigation (e.g. costs for depositions, expert witnesses, etc. ultimately needed to take the case to completion and have a chance to win). The individual may have no idea of the types and potential amounts of such third-party costs, or whether she could afford them. Smoking-gun case or not, if potential fee and cost scenarios and risks are not addressed upfront– e.g. via securing a lawyer who works on contingency or financial-risk-sharing arrangement– any case could lose or reach a bad result due to that issue alone.
3. You could be wrong (yes, really!): you could be relying on information, advice or a source that is highly-deficient or completely wrong.
Many well-intended people who are not lawyers with expertise in a given arena (e.g. employment or shareholder litigation) will nonetheless try to solve their own problem in that arena, or will rely on the advice of other sources or persons who do not have expertise in that arena either. This is a huge mistake. It should be obvious, but it is not. Too many people, including smart people, take do-it-yourself approaches to legal matters, or rely on so-called expertise and advice from unqualified persons, and have bad results as a consequence. For example, if you think you have smoking-gun evidence based on an assessment from yourself or from anyone other than a lawyer experienced with your type of matter, you probably do not have a smoking-gun at all. Or you may have a smoking-gun and not even recognize it, because you are focusing on the wrong issues and evidence, halfway down a rabbit hole that you don’t realize is a rabbit hole.
If you want legal advice about a given situation– for example, a dispute involving employment or shareholder laws– do not rely on yourself or on anyone else who does not have expertise and experience with said type of situation, laws and associated litigation. This includes lawyers who do not actively practice in the area or type of matter you need help with, but who are willing to give you advice anyway. This includes your non-lawyer friend or relative who is a high-level professional (e.g. a paralegal, a Human Resources executive, etc.) who thinks their perspective qualifies them to give you advice of value rather than (as is likelier the case) advice that is deficient, wrong and outright harmful. These folks are often well-intended. However, after giving you the minutes or hours of advice they have to give, it is you who will be responsible for the process (which again may take years to complete), and for the consequences you encounter, without having the kind of help you will need.
Please note I practice what I preach. I’m a litigation lawyer who does a great deal of litigation and negotiations in certain areas of law (e.g. employment and shareholder disputes), but if someone contacts me seeking advice about an area of law outside of my practice and expertise, I refer that person to a lawyer who does actively practice and have experience in said area. Just to describe one example, in law school I took some intellectual property (IP) courses for which I received high grades. As a lawyer, I do a lot of litigation, i.e. courtroom work. But if someone approaches me with an IP or IP-litigation matter, I refer them elsewhere without hesitation. If I (despite having a law degree, IP-law education, over a decade of litigation experience, etc.) refer such matters elsewhere because I perceive myself to be insufficiently-qualified, why should you rely on advice from people with far lesser qualifications relative to your matter, especially if the stakes are significant for you?
If you’re relying on deficient or false information, your case — even if objectively a smoking-gun case which would have a great chance to win with a competent lawyer’s assistance– will likely have a poor outcome.
4. Even if your smoking-gun case is effectively pursued (e.g. with the help of an experienced attorney on affordable basis), your opponent could potentially exploit legal loopholes, so at least some risk exists of losing or a poor outcome.
Every case has at least some risk. Even if it is a smoking-gun case with the assistance of a very competent and effective lawyer who represents you on a contingency or affordable arrangement. There is always at least some potential legal loophole or loopholes the opponent could try to exploit, and at least some chance (even if just a small one) the opponent could be successful.
As a threshold example, if a deadline or statute of limitations period had passed for a potential legal claim before the claim was filed in a legal forum, that claim could not be won, regardless how strong or well-supported by evidence it otherwise would have been. For those claims being pursued that do not have any deadline-related problem, there are inevitably other potential loopholes the opponent will at least try to exploit in hopes of getting the case dismissed. For example, in the employment and shareholder law contexts, it is common for the opponent to claim “employment at will” or “business judgment rule” loopholes should cause the case to fail, and try to get a judge to dismiss a given case based on those asserted rationales. While in my experience these particular loopholes (despite being commonly asserted and attempted) are not usually successful for my opponents, they do present at least a minor risk of causing a given case to lose or to have a worse outcome.
The main point here is that even a smoking-gun case for which you are represented by a competent attorney would face at least some risk in the legal system. While the odds of success are higher for an attorney-assisted and well-handled smoking-gun case, there still are odds. No outcome is certain. Risk exists, at least to some degree. Any case could lose or not reach a favorable outcome, it is just a matter of how likely or unlikely that is to happen.
5. Some smoking-gun cases could lose despite winning, e.g. the value of claims won could be less than money, work or value invested.
For certain cases, the financial dynamics are such that the value of what is ultimately won could be less than the value of legal work and/or expense invested in the case by the individual and/or their attorney. For example, say a given claim or case has $50,000 in maximum potential money or damages that could be won, or that is “on the table” for that given case, so to speak. Say further, for this example, that the particular type of case would have to be litigated (if pursued to its legal end point) in a given court that is known to take several years to adjudicate cases, and further that this type of case involves very complex legal issues and a high work volume for an attorney. Such a case could accrue, over time, more than $50,000 worth of attorney’s work (whether that work is charged to you as a client via hourly legal fees, or whether that financial risk is accrued by your attorney via contingency- work hours). If such a case has smoking-gun proof and ultimately wins, it could still be a financial loser if the legal award (capped at $50,000) or settlement turns out to be less than the value of legal work or fees for which the client paid or for which a contingency attorney incurred financial risk along the way.
Of course, this type of lose-despite-winning cost dynamic does not apply to many cases. But for those particular cases where this scenario is at issue, the existence of smoking-gun proof does not help. That proof could help the case win, but again the value of the win would be less than the value of work or fees invested. Do you know the long-term cost dynamics that are likely for your case? If you don’t know, that should give you pause, regardless whether you believe yourself to have a smoking-gun case.
The above five factors could cause even a smoking-gun case to lose or have a poor outcome. Before you take action(s) based on any belief you may have a smoking-gun case, please consider consulting with an attorney who is competent and experienced with your type of matter. That attorney may not be me, which is fine, of course. But I hope this article helps in describing why a smoking-gun legal case– assuming a person in fact has one– is not alone sufficient to ensure a good result.
Say your employer told you that your employment is going to end, and you have the “choice” to resign rather than be fired. (Many employers do this in conjunction with presenting a severance agreement that has a “resignation notice” as an exhibit the employee can sign and submit). Understandably, if your employer puts you in this situation, you may view your impending decision in the terms the employer presented: “Should I resign or not?”
This is actually not the question you should decide. At least not at first. There are more important factors to consider before giving the employer an answer (or a signed resignation notice, etc.).
These other factors, and other questions, should first be considered:
- A documented “resignation” could possibly hurt your chance to receive unemployment benefits.
A given State’s unemployment office may consider a resignation to be basis to disqualify a worker from unemployment benefits eligibility. Although a given State may also ask questions to determine if a so-called “resignation” was involuntary and initiated by the employer. A given State may award unemployment benefits for various forced-resignation scenarios. The bottom line is this is something you could learn more about, with respect to your given State and situation, before make the “resignation” decision presented by the employer.
- Would the employer agree to not contest your unemployment benefits, and to (correctly) report to the unemployment office that the ending of your employment was involuntary (whether labeled a forced “resignation” or not)?
This relates to issues above. If an employer agrees, e.g. via a severance agreement, not to contest unemployment and to acknowledge the truth to unemployment authorities that the ending of employment was involuntary, then there may be less risk in agreeing to a forced “resignation”, depending on the State and it unemployment eligibility criteria involved. In my home State of Wisconsin, many such forced-resignation scenarios do qualify for unemployment benefits.
- If you are considering potential legal claims and/or severance negotiations, agreeing to a “resignation” could potentially hurt related legal rights or leverage.
Generally speaking, legal claims under employment law (e.g. a legal complaint alleging a job termination violated discrimination law) are tougher to win if a worker is alleged to have resigned rather than been discharged. Please note that every situation is different, and I have represented workers with forced “resignations” who had very successful litigation and severance outcomes. But documenting a resignation can present a very real risk factor for many workers who have potential legal rights that could be explored in severance negotiations and/or litigation.
- If you did not agree to call your job ending a “resignation”, would the employer disclose the fact you were involuntarily terminated to any new prospective employer(s) you applied to?
Many workers are rightfully concerned that a discharge looks bad on their “record”, and see a resignation as looking better when communicating to a new potential employer, etc. (Of course, having a “resignation” on one’s resume or job application could also conceivably raise an issue with a new employer, if it looks like the resignation occurred with a gap in service, or no new job to go to). One issue of note is that many former employers do not themselves disclose to prospective employers any information about how the former employee’s job ended, whether it was a discharge or resignation, etc. Many employers follow a “neutral reference” policy where they only disclose very limited and neutral job reference information, i.e. the worker’s dates of employment, job title and perhaps pay rate. If your former employer would follow such a neutral reference policy, that information could be helpful in deciding whether to agree to a forced “resignation” or not.
- Whether you decided to label your job-ending a “resignation” or not, how would you best explain the circumstances of your job ending to a new potential employer?
You should envision what you would say to a new potential employer under either scenario, and would of course need to speak truthfully about not only the agreed categorization (i.e. “resignation” vs. discharge), but also speak truthfully about factual circumstances. If you agree with your former employer to take the “resignation” option and to categorize your end of employment as such, you will still probably need to explain related factual circumstances with a new potential employer– which will likely want to know what happened and ask questions accordingly. You would also need an explanation for a new employer if you did not agree to the forced “resignation” option. Before making a decision as to “resignation”, you should visualize each potential scenario and each associated communication with a new prospective employer that would occur.
Before answering an employer’s request to categorize their ending of your employment as a discharge versus forced “resignation” option, you should consider the issues above, as well as any other related issues of importance to you. There is no best-answer that applies universally for all workers in this situation, but considering the issues above– before making your decision– will likely help you arrive at the best decision for you.
Discharged or Offered a Severance? Don’t Drive Down a New Road Before Ensuring it’s the Right Direction
Many employees who are discharged or offered a severance will, understandably, research internet information about what options they may have. For example, it is common for a discharged employee to research internet information about legal complaints, such as discrimination or wage complaints. For workers offered a severance agreement, it is common for them to research internet information about what a “typical” or fair severance payment may be, what leverage may exist to negotiate better terms with the employer, etc.
Many workers then rely on such internet research to take various actions, e.g. they go on to file a discrimination complaint, or try to negotiate better severance terms with their former employer, using the internet information they reviewed.
Once action is taken, the employee has significantly changed his or her situation– for good or for bad.
I liken this to taking a road trip. Once you have driven down a certain road for awhile, you have committed yourself to a journey. If you failed to plan appropriately beforehand, that trip could lead to big problems. For example, if you fail to research or identify how long or how much time the trip would be, you may fail to fuel up your vehicle sufficiently, and could later find yourself stranded on the road. And associated with that unforeseen bad consequence come towing costs, lost time, and other headaches. Alternatively, you may take off on a trip and find yourself in a long drive down a road to nowhere– or, even worse, a road to an unpleasant destination– when other roads (unbeknownst to you) would have been far more promising.
Before you take action with regard to a discharge or severance, consider whether you’re truly going to head down the right road. To determine that, you’d need to have answers to these questions:
- How long will the chosen road/option be and take to complete? How do you know (e.g. have you learned of that option’s timing and proces from a credible source, such as an attorney experienced with that option)?
- What specific good and bad result(s) could occur from taking that road? How do you know?
- What other roads/options exist, and what specific good and bad result(s) could occur from taking those roads? How do you know?
Educating yourself about options is a good thing. Especially if the information is free. That includes talking to an employee rights attorney (yes, like me :)) who offers a free initial evaluation of a discharge or severance matter. But once you take action, you may have committed yourself to processes, consequences and/or costs that you did not initially anticipate.
As an attorney, I get inquiries from workers at many stages of their journey, and I can usually offer at least some help no matter what. But the most effective time for you to capitalize on legal advice is to obtain it before you take action. Too often, I get inquiries from folks who have (again, understandably) traveled far down the wrong road. Sometimes, a detour– and decent trip– is still possible. But rarely does the same degree of potential exist as for those who seek direct legal advice before committing to a given path.
This post is for those evaluating the financial worth of an employment-law related issue. For example, maybe you are reviewing a severance agreement that offers $X, or your employer is offering you a partial payment of $Y toward unpaid wages, e.g. commissions or bonus.
In such financial-evaluation situations, some employees rely on information from the employer that is inaccurate and serves the employer’s financial interests. So they accept the employer’s say-so as the final word, and sign off on what the employer wants without further exploration.
More often, employees will rely on their own assumptions and/or their own internet research, and try to identify a fair value on their own.
Please know this: your own assumptions and research are not your friend. You are far more likely to identify the wrong answers than the right ones.
Before you take action (e.g. before you negotiate an unpaid wage payment or sign a severance agreement) based on your own assumptions or research, consider talking to an employee rights attorney first. Many of us offer a free initial phone call for such matters.
If an experienced employee rights attorney reviews an employment-valuation scenario, or starts a research project, he or she has the following advantages that you will not:
– He or she will have at least three years of law school training on the structure of the legal system and legal research methodologies, e.g. knowing the general nature and hierarchy of laws, knowing which research resources are valid and which ones aren’t, etc.
– He or she will have years of work experience with MANY employment laws that may be involved with your situation, AND with those laws as CARRIED OUT in the real world, i.e. “law in action”. For example, many employees who do their own legal research focus on one or two areas of law, when in fact a long list of laws potentially apply. Further, even if you somehow identified the correct (and best) laws or legal forums, how those laws and forums operate in the real world would be outside your experience and knowledge base. For instance, my law school training– and all the research resources I had– did next to nothing to train me for negotiating with an employer or dealing with a particular court, agency or judge. Another example: if straight out of law school I had read a particular government agency’s website that listed all the applicable legal standards and all the good things an employee could win from a legal claim, I wouldn’t have guessed that that same agency dismisses over 75% of employees’ complaints of particular types. Simply put, experience teaches many valuable things that reading a website (even an accurate one) does not.
Only through experience did I learn the approaches that worked and those that didn’t. Whatever laws or approaches your are contemplating have been explored before. Before your put your wheels to the road, so to speak, there is great value in talking to someone who has taken that path (and many related paths) already. So before you take action with an employer that is based on your own assumptions or research, please consider contacting an employee rights attorney and letting that person know your situation and your thoughts. The odds are very high the attorney would mention different considerations, and would recommend a different course of action, than those you are contemplating.
Successful DOL Decision for H-1B Worker/Surgeon With Complaint Against Southern Illinois University School of Medicine
An H-1B worker represented by the attorney-author and his co-counsel was awarded $223,884.27 in unpaid wages, in the decision and order below, by the Office of Administrative Law Judges (OALJ) of the U.S. Department of Labor (DOL).
Our client is a surgeon who formerly worked as an H-1B employee for the Southern Illinois University School of Medicine (SIU School of Medicine), in the job position of Assistant Professor in the Department and Division of General Surgery.
OALJ’s order found that SIU SM underpaid the H-1B worker, and failed to pay her the required actual wage, as compared to wages that SIU SM paid other surgeons in the same department and division who had the same Assistant Professor position.
SIU School of Medicine has refused to pay the unpaid wages, and has appealed the order. The H-1B worker has appealed one issue in the order, and will argue on appeal that she is owed over $200,000 in additional unpaid wages related to “clinical” compensation paid pursuant to compensation terms of SIU School of Medicine and its affiliate SIU Physicians & Surgeons, aka SIU Healthcare. She will present legal arguments that per the employer’s terms and arrangements, the “clinical” compensation was not assured (e.g. sometimes it was not paid or was subject to retroactive deductions, etc.) and it did not fulfill H-1B regulatory criteria necessary for the compensation to count toward required wages.
The attorney-author is actively investigating SIU School of Medicine’s wage practices, not only with regard to their employees who worked as H-1B workers, but also with regard to female workers employed by SIU School of Medicine, regardless whether such female workers were employed as US citizens, as H-1B workers or otherwise.
I would be interested in hearing from physicians or other medical workers who have been employed by SIU School of Medicine anytime during the last seven years and: (1) have been employed as an H-1B worker; or (2) have been a female physician or medical worker of any citizenship or visa status while employed by SIU School of Medicine.
If you wish to discuss any of these matters, please contact attorney Michael Brown at 920-757-2488 or firstname.lastname@example.org.
The referenced DOL decision is below:
Finding an Attorney and the Difference Between an “Employee Rights Attorney”, “Employment Attorney” and “Labor Attorney”
Many workers, understandably (as non-lawyers), misunderstand and misuse the terms “Employee Rights Attorney”, “Employment Attorney” and “Labor Attorney”.
Sometimes, a worker’s misunderstanding doesn’t make a difference. For example, if a worker calls me up and asks if I’m a “Labor Attorney”, then I am able to talk through what his understanding of that term is, see if he is correct, learn about his circumstances and then tell him if I can assist him or, if not, refer him elsewhere. No harm done with such exchanges.
However, sometimes workers block themselves out of good options, attorney-wise, by their misunderstandings of the above terminology, which affects who they seek out (or don’t) in the first place. And not all attorneys will explain key differences between attorney types, or make referrals– heck, sometimes I don’t, e.g. due to time constraints if someone calls me on a hectic day.
So I’ll describe here the differences between the above terms concerning work laws and lawyers.
In the big picture, workers’ and employers’ legal rights are covered by the global category “Employment and Labor Law” or similar phrases that include both “employment” and “labor”.
“Labor Law”, or a “Labor Attorney”, deal with work laws involving unions. The vast majority of workers in the U.S. are not in a union and as such do not need a labor attorney. Yet many workers hold the belief (understandably, based on the practical similarity between “labor” and “employment”) that a “labor lawyer” and “employment lawyer” are the same thing. They are not.
Bottom line thus far: if you want legal help with a work situation and you are not a union worker, then you should avoid searching Google for, or contacting, a “labor lawyer”. You may head down the wrong path, needlessly limit your options, or get feedback from an attorney who specializes in work disputes of a different kind than yours.
Workers who are not in a union (i.e. most of you) should seek out an “Employee Rights Attorney” as a starting point for help with your work disputes. Lawyers who refer to themselves as “employee rights” attorneys generally focus most or all their legal practice on representing workers (not employers) and generally are able to help non-union workers (i.e. most workers) with most types of work disputes.
Nearly all employee rights attorneys I know actively represent a broad range of workers, spanning from entry-level workers to top-level workers in large organizations. I personally have handled minimum-wage cases representing entry-level hourly workers, and complex litigation representing top-level executives, physicians and so on. So the “employee” in employee-rights is itself a broad term. But it does not involve a focus on representing employers. Unfortunately, many of the attorneys who focus on representing employers are not identified (in ads, bios, etc.) with titles like “Employer Defense Attorney”, “Employer Compliance Attorney,” and such. More often, I see employer-side-attorneys labeled with broader and vaguer terminology like “Employment Attorney”.
The term “Employment Attorney”– should you see it on a Google search, in the Yellow Pages, an attorney’s bio, etc.– could encompass employer-representation and/or employee-rights representation. It’s really not telling you specifically which “side” of employment disputes, i.e. employer or employee side, that the attorney typically represents. It’s true that a given attorney who identifies as an “Employment Attorney” is likely knowledgeable about a broad range of non-union work laws and disputes.
However, in my observation, most attorneys identified as “employment attorneys” spend all or the vast majority of their practices representing employers, and at most dabble here and there representing employees as a minority of their caseloads. “Employee-rights attorneys”, in contrast, spend all or most of their employment law practice representing employees.
So, why should you care? Employment law is employment law, right? Yes, but there are two “sides” in an employment law dispute, and which side an attorney focuses on assisting– and has experience and successes with– can make a big difference if you are a worker seeking help with your interests.
There are different skill sets involved in employer-representation and employee-rights representation. A typical attorney who self-identifies as an “employee rights” attorney will usually have much more experience (as compared to the typical attorney identified as an “employment attorney” or an “employer defense” attorney) with : (1) representing workers on a contingency-fee basis (where no fee is paid unless the case wins or settles) and offering risk-sharing fee arrangements generally; (2) playing offense, so to speak– analyzing, identifying and prosecuting specific legal violations (whereas employer-side attorneys tend to have more experience in broader-stroke compliance/ employer-training matters, and reactive work in litigation that responds to claims they are presented); and (3) identifying with the “little guy” who has been harmed by a larger opponent, often having well-tested strategies that have worked while representing individuals against large organizations and wind up with good case results. These are all reasons a given “employee rights” attorney is typically better-suited to represent workers than an attorney who self-identifies differently.
In conclusion, if you are seeking legal representation for an employment dispute– and you are doing so in your individual (non-organization) capacity — I recommend you start you search by seeking an “employee rights attorney”. And no, it doesn’t have to be me:) Whatever employee rights attorneys you identify, you can then of course review their websites, biographies, etc. to get a stronger sense of their typical legal work areas and results. Also, you can see if a given attorney has received ratings or reviews from clients, or from colleague attorneys, on sites like Avvo.com or SuperLawyers.com. If you take this approach, the odds are much better the first (or second) attorney you contact will be well-suited to help you.
I hope this information is of help and clarifies any confusion based on attorney labels you encounter when trying to find help for your concerns.