Your Guide to Employment Litigation: Understanding the Path Ahead
Embarking on the journey of employment litigation can be complex and challenging. Our goal is to make this process as clear and manageable as possible. Here's a detailed overview of each stage, ensuring you know what to expect and how to prepare.
Typically, employment litigation begins in one or several regulatory agencies like the Equal Employment Opportunity Commission (EEOC), the Employment Security Commission (ESC), or the Department of Labor (DOL). Nearly all employment discrimination statutes require us to file charges in one or more of these agencies before we can file a lawsuit. We also commonly file claims with the ESC seeking unemployment benefits before filing lawsuits. While claims are pending before these agencies, we are seeking information to help build a legal case. During this time period, the agency is investigating the claim. What happens in these agencies is important because if the agency determines a legal violation occurred, it commonly results in a lawsuit. Conversely, if the agency finds no legal violation took place, this often deters the filing of a lawsuit on an employee's behalf. The review lasts approximately 6-8 months. Please be patient as the review time period is out of our control. and we will let you know as soon as we hear from the agency.
If we elect to file a lawsuit, the first step in the process is the filing of a “Complaint.” Complaints must be filed within specified time limits, often as little as 90 days after you receive a right to sue letter. Once a Complaint is filed, we must serve it on the employer in specified ways and within a certain period of time. An employer properly served must then evaluate how to respond to a Complaint. There are generally two options: (1) An employer can file a motion with the court asking for dismissal of the Complaint; or (2) the employer can file an “Answer.” If the employer elects to answer a Complaint, then the case will proceed to “discovery.” Filing a complaint, service, and a response takes roughly 3-4 months. We will keep you updated on this process.
In discovery, both parties are entitled to serve written questions (known as interrogatories) on the opposing parties. Interrogatories are usually designed to find out what the other side knows, or claims about their case. The parties can also serve their opponents with discovery requests (requests for production) seeking all the documents relevant to the case. Additionally, each party is allowed to question a certain number of people under oath in what is known as a deposition. Each phase of this discovery period involves critical decisions about what each party needs to know in order to prove a case or disprove important factual disputes. Discovery can last roughly 6 months. We will need information from you during this time period, and we will keep you updated as to what we need.
Once discovery is complete, most courts require the parties to engage in mandatory mediation. In this step an impartial mediator seeks to persuade the parties to voluntarily settle their dispute. Mediation is an important stage of a case because it is a time when both sides come together in an effort to compromise and resolve the case. Mediation takes some time to set because we are coordinating schedules several people. We will keep you updated regarding dates. If mediation does not result in a settlement, then the next step in the process of litigation is usually what is known as summary judgment.
Summary judgment is a procedural stage of a civil case in which one or both parties seek to persuade the judge that either some aspect of the case or the entire case does not warrant a trial. Employers usually seek to persuade the judge that the facts about the case are not materially disputed by the employee, and that based on those settled facts the employer did not violate the law. Consequently, the employee's case should be dismissed without trial. If the employer succeeds at summary judgment, the case is either wholly or partially dismissed. If the case is entirely dismissed, the employee has a right to file an appeal with a higher court. If summary judgment fails, then the case will proceed to trial.
The Court will set a trial date, and we will let you know of that date. Trial preparation is critical. Once a case moves to trial, the parties must begin to prepare their best factual and legal case for presentation to either a jury, or in some cases a judge. Typically, in employment litigation, juries evaluate the facts and judges make legal decisions based upon the facts found by the jury. Preparation must be tailored to the allegations made by the employee, the defenses raised by the employer, the facts developed in discovery and the applicable legal standards. In terms of what to expect the day of trial, we will first select a jury. Once a jury is selected, we will argue pretrial motions and then the jury will be sworn in. The judge will direct us (the plaintiff) to present our case. We will call you as a witness, as well as other witnesses, and present our evidence to the jury. The defense will have the opportunity to cross-examine all witnesses. At the conclusion of the plaintiff's case, the defendant has the right to call witnesses and present evidence. We will have the opportunity to cross-examine the defendant's witnesses. Once the defense rests, there is an opportunity for both plaintiff and defendant to ask the judge to enter judgment as a matter of law based on insufficient evidence. If the court grants that motion, the party that loses has a right of appeal. If the judge denies that motion, the court will review proposed jury instructions from the parties, decide which instructions are proper and then instruct the jury on the applicable legal standards. The court will then direct the jury to deliberate and return a verdict. Once a jury completes its deliberations, it renders its verdict. From there, we will figure out the logistics of finishing up your case and closing your file.
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