Show Me the Money! (How soon can you expect to get a recovery in an employment lawsuit?)

First, we never guarantee that any client will get any recovery on their case. Such guarantees are prohibited by the Rules of Professional Conduct that govern lawyers in California. That said, I won't take a case unless I feel confident it is likely to result in a recovery. Hey, I work on contingency, so if I don't get a recovery, I don't get paid.

It is quite common for my clients to have questions and concerns about just when a lawsuit is likely to pay off. Often, they are out of work following a wrongful termination. Sometimes they have had to leave work due to stress disability resulting from workplace harassment or misconduct. So it is natural to wonder when that case will pay off, assuming it does pay off.

Now, there are some lawyers (I will not name names) who focus on getting very fast settlements for clients. They take a case, write a demand letter to the employer, and take what they can get. In my opinion, this approach results in a much lower recovery because the employer does not take the case seriously, and has not had to invest any time or money into it. In my experience, cases settle for more after filing a lawsuit, exchanging evidence, and taking depositions. This process can take months, sometimes years, but you now have a serious case that is more likely to get serious money, not a quick "nuisance value" payoff.

I generally estimate it will take at least nine months to get around to settlement talks following this more serious approach, though each case is different. I do not try to talk settlement early because that gives the impression I am looking for a quick payoff and am not planning to see the case through trial if necessary, and I feel that lowers the value of the case in the eyes of the employer.

Occasionally, an employer will request that we talk settlement earlier in the process, before exchanging evidence or completing depositions. While I feel this means they expect to pay less than they would pay later in the case, sometimes the client would prefer to settle sooner even if it means taking less money. Since it is the client's case, I defer to the client in these matters. If the client wishes to try settling early, I do my best to make sure the employer understands that if we do talk early settlement, it does not mean we will settle for "nuisance value" money. Thus, we do sometimes settle cases earlier in the process; however, generally an early settlement still occurs at least a couple months after we are hired. You cannot expect a lawsuit against an employer to put money in your pocket within a matter of days or weeks. You need patience.

If a case does settle -- and most cases we handle do -- usually the actual payment is due 30 days after the settlement papers are signed and delivered to the employer's attorney. Because it takes months to get a recovery even from a settlement that is "early" in the process, I recommend that my clients do not count on any recovery from their case to pay bills, or in any budgeting, but manage their finances as if the case did not exist. This approach generally allows the client to be more patient and less stressed about the legal process.

If a case does not settle, but we win the case at trial, it generally takes much longer to get a recovery. First, it generally takes over a year to get to trial. After trial, it can take months to get a final judgment, and then the defense can delay a few more months with post-trial motions. Then the defense can appeal which could delay things for over a year. If they lose the appeal, then we can finally collect on the judgment. However, if the employer refuses to voluntarily write a check to pay the judgment, then we have to go through legal collections procedures, which may involve garnishing wages, putting liens on property, locating bank accounts, and other procedures to secure payment. If the employer has financial problems, insufficient assets, or files bankruptcy, it may be impossible to ever collect on the judgment. Clients often have the mistaken notion that when they win at trial, the fight is over and they will get paid soon, but unfortunately that is often not the case.

For clients with financial emergencies, there are companies that provide advances on employment cases. These companies take the risk that, if the case does not result in a recovery, they will not get paid back. In return for that risk, their advances are rather expensive. They will not give advances on every case, they have to believe a recovery is very likely. Because the cost of these advances is quite steep, I strongly recommend that my clients view this option as a last resort. If an advance from such a company is sought, it is generally much less than the possible recovery in the case. So if we have a case where we are believe a settlement is likely and would likely be around $50,000, these companies might only lend $1,000 or $2,000. These are generally not large advances in employment cases.

We address that on a case-by-case basis. First, we make sure the employer understands that if we do talk settlement early, it does not mean we will go away for "nuisance value" money. Second, we see what the client wants to do -- does the client want to try settling early even if it meansand we address with the understanding we are not going away for

any resulting recovery is likely much lower than what you get if you show the employer that they face a serious Constructive discharge is when you quit because the employer's wrongful conduct has made the job intolerable, which is actually viewed as a form of termination, and you can sue for wrongful constructive discharge.)


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