The law isn’t a product, it’s a relationship. Attorneys act as your spokespersons before the court, to put your best story forward. Both sides must communicate clearly to one another to achieve a favorable result. You want a lawyer you feel comfortable with. Someone who responds to you with intelligence and compassion, and who listens to your story. Here are 10 helpful – no, critical – steps you can take to get a lawyer to take your case.
1. Always Use Personal Communication Methods to Contact a Legal Professional
It is important when you contact a law office about your legal concerns that you do so on a private e-mail account, cell phone, home phone and/or computer. Please do not use any company-provided e-mail, phones or computers. You always want to protect your right to attorney-client confidentiality.
2. Know When to Call
Immediately after the discrimination, harassment, or other qualifying incident occurs, you should be reaching out to potential attorneys. All laws have varying timelines requiring action to protect a claim. So waiting around can cause you to have a rough time finding representation, if you’ve let so much time go that your deadline is about to run or, worse, has already done so. If you blow a statute of limitations or other deadline, you will have no case. Period. Attorneys need adequate time to investigate your claim before this happens.
Most employment lawyers offer free consultations on contingency cases, so the call and/or the follow up meeting won’t cost you anything. Plus, the lawyer will likely provide you some free advice as to how to preserve your claim, and, should you need to call him again after your claim has ripened, the lawyer will already be familiar with your case.
You may wish to have a lawyer help you file your EEOC or DFEH complaint, but, if you’ve already filed one on your own, you will want to be sure to have a copy for your lawyer when you are ready to call.
3. If You Were Terminated, Obtain Your Personnel File Ahead of Time
Almost all employment cases revolve in some part, around understanding the contents of your personnel file and how that information will impact your claim. Understanding what your employer may have recorded in their file is critical. Those facts that “may be used against you,” should you move forward with a claim, will need credible responses on the part of your legal team. Providing your prospective attorney your personnel file gives him a chance to cultivate a response to your employer’s reasoning for the actions taken against you. You are entitled to the information in that file, so be sure to ask for it as part of your exit interview, or as you are leaving the office upon being fired. Your employer cannot legally refuse you a copy. If they say they need a few days, follow up according to their timeline. If they do not comply, seek legal help in acquiring it.
4. Know your Company’s Policies on Discrimination & Harassment
For most types of discrimination or sex harassment claims, one is required to follow certain steps prior to filing a complaint in a court of law. There are reporting requirements that must be met prior to the employee filing a claim with the appropriate government agency. These requirements are usually laid out in the company handbook. Read it thoroughly. Understand the rights and protections it gives you, and/or the rights you may have signed away. In order to get from Point A to Point B, you must have done your part by reporting your harassment or discrimination to your employer or your employer’s HR department, allowing them time to cure the bad behavior before filing suit.
5. Be Prepared and Organized During Your Initial Phone Call
Some firms will ask you to participate in an initial screening over the telephone before they will schedule an appointment with an attorney. In this screening you will usually speak to a trained paralegal who will collect from you the basic facts of your claim. If you are well prepared, and are able to articulate your claim properly, and they find you have legal grounds to pursue it, you will likely garner a follow-up appointment with the attorney. Some potential clients feel that if the attorney isn’t willing to speak to them right away, that they are being “brushed off.” If anything, it is the opposite.
No one wants to waste his or her time. That’s just as important for the client as it is for an attorney. If a cursory evaluation shows no laws have been broken, you will have no recourse in a court of law, and don’t need legal representation. Alternatively, should you eventually decide to proceed with filing a lawsuit, it is important to understand that the legal system is a very labor-intensive and interactive process. It requires that you be willing to collaborate with your legal team in order to achieve the desired result.
There will be multiple meetings, phone calls, written discovery, in-person recorded interviews or “depositions” and many other such occasions where your full participation will be critical to the outcome of your case. These initial steps don’t merely serve as a fact-finding mission, but are also an indispensable way to determine if you are a fit with your legal staff. If you are cross and impatient at having to tell your story twice, first to support staff and then to an attorney, you may not wish to be involved in litigation, where you will be asked to repeat your story multiple times more before reaching a conclusion.
Most good lawyers are busy with casework. Those who have time to answer 10-15 cold calls per day are either disorganized or perhaps not very busy. Wouldn’t you want your attorney giving his or her full attention to their active cases? Especially if one of them is to be yours?
6. Prepare a Concise Timeline of Events
Do a little homework before you start calling law firms to discuss your case. It will only serve to frustrate both sides if you cannot describe the facts of your case in an organized and coherent manner. Failing to organize your thoughts might cause you to forget to mention the critical fact that might convince the attorney you have a solid case. The best way to do this is to write it all down, so you don’t get lost when telling your own story. Begin with the most serious offense committed against you, and then jot down your story with a brief history of the timeline of the events that comprise your claims. Create an outline including dates, times and persons to whom policy violations were reported. It should be easy to follow, reading a bit like a daily calendar. Be as detailed as possible. There is no “correct” way to prepare a timeline, other than sorting it by dates. Give as much detail as you can, including the names of persons involved in various discussions and any comments made that might either corroborate your claim or show animus on the part of the employer for your having reported the violations. Include names of any witnesses.
If you have them, include supporting documents, such as your personnel file, complaints provided to your employer or government agency, medical documents, e-mails and any other documentary evidence that may be in your possession. If your employer has a written harassment policy, be ready to describe what actions, if any, your employer took to correct the harassing behavior after you reported it (Remember your steps; reporting is important)
Try to be succinct, giving a concise breakdown of your claim. Try not to jump from one incident to the next, or digression will defeat you long before you ever get to a courtroom. Emotions can make it difficult, so if you are still raw, give yourself a day or two to work on your timeline. It will help you present yourself in the best light to your prospective counsel, and when the law office asks you for a timeline, you’ll be a step ahead of the game.
7. Be Truthful & Candid, No Matter What
From your initial conversation with a law office, you must be truthful. Provide the information the attorney or his staff asks you for. You’d be surprised, but many people are afraid to give their name or the name of their employer to a prospective attorney. The attorney must have both in order to perform what is called a conflict check. Before they can consider representing you, they must determine that they have not had a prior relationship with any of the participants in your claims to prevent the appearance of bias toward anyone involved. Once they have cleared that hurdle, they will begin to consider your case for potential representation.
The questions you will be asked are designed to get the relevant information quickly and to determine if your situation is something the attorney is capable of, and interested in, taking on as a case. When giving specifics of the events, your timeline will help to let the attorney know you are prepared to participate fully in the litigation process. It serves to impress the attorney with your commitment, as well as enhance your chances of success, because you will demonstrate your understanding of your role in the process.
Remember that all of this information given to the attorney is protected by attorney-client privilege, even though the lawyer has not yet agreed to take your case. Don’t worry that anything you say might get back to your boss. It won’t. That just doesn’t happen.
Do not hide facts that you feel don’t help your case. The truth always comes out in discovery. You will be asked to answer multiple sets of questions under penalty of perjury. You don’t want your lawyer to find out anything for the first time at, say, your deposition. You may have had a good reason for what you did – perhaps your boss forced you to do something against company policy – but if your lawyer doesn’t know in advance, you will very likely have killed your claim by hiding negative information from your own team.
8. Understand How to Relate Your Claims
Harassment claims can be difficult to establish. Attorneys need clear facts. Focus on the reasons why you believe the harassment was motivated by your membership in a protected class. When relating your story, do not include incidents where you were harassed for other, non-discriminatory reasons, such as that time your boss was really rude when you were only five minutes late for work. Bullying is not against the law, unless it occurs because you are in a protected class. Going over personal slights or other irrelevant detail will only muddy the water and make the lawyer less interested in your case. Limit the incidents you describe to those in which you are convinced discrimination was the motive.
9. Think about Your Damages
Prepare a summary of your economic (financial) damages. Bring pay stubs, salary information, anything that shows how this situation is impacting you financially. If you have seen a mental health counselor regarding these incidents, be sure to tell the lawyer. If you have been unable to find a new job, keep track of those efforts, so you can prove your termination caused you loss of “future income.” The attorney needs to know how you were damaged and what you expect to recover. Many clients have unrealistic expectations about their case based on things they’ve seen on television or read online. Every case is different. Proof of events, credibility of witnesses and many other circumstances and variables make each case unique. A good attorney will want to focus on you and the facts of your case, to attempt to build a winning legal strategy.
10. Be Yourself
While you talk, in addition to getting information, the attorney will evaluate you as a witness and client, in areas such as memory, honesty, appearance, attitude, cooperation, communication skills and many other characteristics. In addition to being truthful, be yourself. It may sound trite, but getting along with your attorney is a critical factor in the success of any legal undertaking. Try to relax and communicate clearly, while being honest and direct. You and your attorney must have trust and confidence in each other to give you the best chance to resolve your claim.
✓ Read Company Policies/Handbook
✓ Prepare a Timeline – Document What Happened
✓ Call Early In the Process – Use a Private Personal Device
✓ Be Prepared & Be Truthful
✓ Show the Attorney/s Your Willingness to Participate as a Client
✓ Clearly Explain the Merits of Your Claims
✓ Calculate Your Desired Damages
✓ Be Yourself When You Make Your Pitch
Do not be surprised if the lawyer you speak to agrees that you were treated unfairly, but says that the law provides you with no legal recourse. No attorney will be able to tell you whether you will win a case, even if your evidence is strong. If an attorney takes a pass on a case, it is likely for a good reason: either he doesn’t practice in that area, or she cannot handle the matter within the client’s parameters (cost, timing). Each attorney has a different view of risk and reward, and each will evaluate your case with his or her own human bias as to what they can argue on your behalf, and what might win. If one attorney says “no,” you can and should consult with others. If two or more attorneys tell you the same thing, however, especially about the legal merits of your case, then you should probably believe them.
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117