The Perils of Not Hiring an Employment Law Attorney: Cautionary Tales
We see you rolling your eyes. “Oh, go figure, 2 employment attorneys preaching about the ‘dangers’ of not being represented by an employment law firm. Shiver me timbers!”
Okay, so that last part got a bit pirate-y, but all we ask is that you please hold your presumptions about what we’re going to say here and why, at least until you’ve finished reading this.
Now, BRING ON THE PULPIT!
Prologue
The point of the following cautionary tales is to help people understand that if they have an employment issue, they need an employment lawyer. The attorney that does your contract and acquisitions work? Useless. The attorney that drafted your uncle’s will? Worthless.
We are seeing an increasing number of attorneys who do not have the first clue about employment law stepping into the employment arena. We don’t know if times are tough for some practitioners, so they are taking anything that remotely resembles a case, or if some attorneys are too proud to say that they cannot handle something. Whatever the reason, here’s what we are not ashamed to say: We are employment attorneys, nothing more.
If you need help with a criminal case, don’t look at us.
If you have tax questions, we have no clue (plus our math skills are debatable).
If you’re thinking about getting a divorce, we’re sorry to hear that, but we cannot help you.
We are being honest when we say do not come to us for non-employment matters, and also when we say you should not go to someone else for an employment matter. Yes, this applies to many general practitioners as well. Employment law is an ever-changing, dynamic area of law. That’s why we love it, and that’s why employment law is our ONLY area of practice. Attorneys who spread themselves across multiple disciplines will never be able to give you the same level of representation in an employment matter that the attorneys at Walcheske & Luzi, LLC can.
Chapter 1: For the Individual
Lately we’ve had a lot of individuals come to us for second opinions on their employment law cases.
The reason of they need a second opinion is because they went to a firm they’ve worked with before on a non-employment matter. Or they went with an acquaintance’s recommendation without looking into the firm first to see what it actually does. Not a good place to start.
The result is a completely screwed-up case that is usually too far gone for us to fix. The issues are two-fold:
- The course is already set and a change of course can make matters even worse. Chances are the current attorney has set the arguments for the case in stone. Unknowingly, the arguments are usually wrong or haven’t been done nearly as well as they could have been. If an individual change attorneys, their “story” also changes. This is damaging the individual’s credibility and leaves the defense salivating.
- The Attorney has an attorney’s lien. An attorney’s lien is a lien placed against the case to recover attorney fees. If the individual fires their current attorney to go to a new attorney, the lien follows the case to the new attorney. Before the new attorney can recover any fees out the case, the first attorney’s lien must be satisfied. This means the new attorney faces the proposition of spending hours and hours fixing the case, only to be under-compensated because of the lien.
Cautionary Tale: The Ruined Conviction Record Case
Recently, we met with an individual who by our estimation had a strong conviction record discrimination case. It was apparent the employer had no clue what it was doing and made case-closing admissions. However, the potential client was using an attorney who practiced employment law very infrequently, if at all, even though that was listed under “practice areas” on the firm’s website. The attorney failed to seize every argument available in the case, poorly prepared the arguments he did make, and failed to capitalize on the employer’s admissions. The result was a complete and unfortunate mess of a case.
To make it worse, the company understood it was in trouble and tried to engage the attorney in settlement discussions on multiple occasions. However, they went nowhere because the attorney did not understand what damages were available or how to correctly calculate them. This resulted in an overstated damages estimate that turned off the company and a misled client believing that he was entitled to damages he could never receive.
We truly felt bad for this individual, but the damage had already been done. The good arguments were missed, confusing, poor arguments were made, and in the process the first attorney had racked up a significant amount of attorney fees. This would become an issue due to the attorney’s lien.
Had he come to us first, all of this could have been avoided and his case would have been in great shape. Instead, he had gone with a firm he had used in the past for an unrelated matter and was left to deal with the consequences. This demonstrates the danger of using someone who practices in multiple areas.
Chapter 2: For the Employer
Danger also lies ahead for a company that uses a general business attorney, or any other attorney not devoted to employment law, to represent it in employment matters.
Being in this area of the law, we know who does and who does not practice employment law. Take it from us, we appreciate it when there’s a fellow employment law attorney on the other side of the equation. We know that attorney will:
- Know the law
- Be able to understand the legal issues
- Present relevant arguments
- Although maybe not admittedly, know where we’re coming from
Sadly, this is not the case when the other side is represented by a non-employment law attorney. It is like talking to a tree. You can try to tell a tree what the law is, why the tree is wrong, and how the tree is going to look foolish in the end, but all you’ll get in response are nonsensical creaking sounds. This frustrates the process, makes everything more difficult, unnecessarily increases the parties’ expenses, and never ends well for the other side.
While we handle both sides of the aisle – employers and employees – we’ll use an employer’s attorney who had no clue as an example.
Cautionary Tale: The Overpaid “Employment Law Attorney”
The example involved a high school teacher who worked at a private school. We alleged that the school failed to properly accommodate her disability and fired her based on her disability. The school retained an attorney who did not primarily practice employment law. The first time we spoke with this attorney, he indicated that the school was not interested in fighting the case and wanted to settle. What should have been simple then became incredibly and unnecessarily complicated by the attorney’s invalid arguments during settlement discussions.
First the attorney argued that our client did not have any damages because she could not work. At the time, we had already informed the attorney that our client was able to work and was applying for teaching positions. So……? It turns out the attorney’s argument was based on nonsense and we tried (really, we did) to explain what the law was and how the attorney’s argument was incorrect. We chose to end the discussions because the attorney did not and could not get it.
The attorney then proposed that the parties engage in mediation, during which the attorney claimed that our client now had no case based on the ministerial exception to employment discrimination. Apparently the attorney thought just because our client worked at a private school, the exception applied. Great. The attorney even brought print-outs of two ministerial exception cases, apparently unaware we had just written a blog post about one of them, Cheryl Perich’s case against Hosanna-Tabor Evangelical Lutheran Church. Even better. The mediation ended without a resolution because the attorney whole-heartedly believed he was right (which the attorney wasn’t) and based his client’s settlement position on his lack of knowledge on the law.
While we were finally able to resolve the case about a month later, think about this: the whole time the attorney was making nonsensical “legal arguments,” he was billing his client. The attorney probably billed his client while he researched and tried to come up with those nonsensical arguments as well. In short, the school overpaid the attorney thousands of dollars for subpar representation, simply because it used the firm for its other legal matters and because that attorney did not know what he was doing.
Had the employer used an actual employment law attorney, the attorney would have been in a position to tell the client the strength of the case against it and its likelihood of success (which for the employer was not great). The attorney then could have helped the employer reach a resolution with our client much earlier, ultimately saving it money.
Epilogue
The morals of these cautionary tales are the same: hire an employment law attorney for an employment law matter. If you do not, the dangers and consequences are real.
If you are an individual, it could mean losing the case, increased fees and costs, or a reduced recovery.
If you are an employer, it could mean losing the case, an increased payout on an unworthy case, or overpaying an attorney for subpar representation.
Look, we’re not telling you to come to us (though of course we think you should). We’re just telling you that you need to select the right attorney for the right case. In our context that’s employment law, but we’re sure the same could be said in every other area of the law as well.