General Questions About The Legal Process
How does a lawsuit work?
Most people never imagined they would end up in court against their employer. I know it's a lot to handle. It'll be easier to deal with this difficult situation if you have as much information as possible about the legal process you are now exploring. This is how a typical, sample case plays out (though no two cases are the same, and no one can ever predict how a lawsuit will turn out):
Attorney-Client Relationship Formed: After discussing your case and exploring possible legal remedies, we may agree to enter into into an attorney-client relationship, meaning that I agree to represent you as your attorney in this case.
Demand Letter: I will then learn as much as possible about the details of your situation and write a demand letter to your employer on your behalf, describing what we believe to have been unlawful conduct. In that letter, I will demand that your employer provide you with some type of relief, such as reinstatement to your former position, a money payment, or some other type of action.
The employer will typically respond to this letter, sometimes by hiring an attorney who then writes a response letter.
Negotiation, Mediation: We will then attempt to negotiate a resolution of your case. In some instances we may go to mediation, in which a professional, paid mediator works with both parties to reach a resolution. Up until this point, there is no public record of the case.
Litigation Begins: If mediation is unsuccessful, or if the negotiations never lead to mediation, I may then file a lawsuit on your behalf in state court. The lawsuit will be a matter of public record.
Discovery: In order to establish our legal claims and prepare for trial, it is important for both sides to have all relevant information about the case. Both sides will typically serve each other with formal written questions and demands for documents. We may request to take formal depositions (interviews conducted under oath and with a court reporter present so that an official transcript is created) and the employer will most likely demand to take your deposition as well. This process is called "discovery," because both sides are trying to discover as much as possible about the case. Discovery is a costly and time-consuming process that both sides use strategically to drum up the other side's costs and wear them out. If one side refuses to provide requested information, we may go to court and ask the judge to resolve the dispute. Sometimes, during the discovery process, the parties may decide to go to mediation and try to settle the case before it becomes even more costly.
Discovery Closes, Negotiation: At the end of the discovery process, which closes 30 days before the first day of trial, we'll evaluate the strength of our case and the other side will do the same. Sometimes, at this point, the parties may decide to go to mediation and try to settle the case before it goes to trial, in order to save the high cost of trial or to avoid a possible loss in court.
Trial Preparation, Trial: If the case does not settle, then we will prepare for trial, getting witnesses ready to testify in court before the judge and jury, preparing formal exhibits to enter into evidence, and preparing various legal arguments to be filed with the judge. We will file motions asking the court to keep out or allow certain evidence. For example, if someone has a prior conviction but it has no relevance to the case, we will argue that this information should not be presented to the jury. We will then select the jury, present our case, defend against what the employer puts forward, and get a verdict from the jury. In some cases the parties will settle right before or even in the middle of trial. If we lose at trial, we will consider whether or not there is a basis to appeal the verdict. Successful appeals of jury verdicts are not common, because our legal system respects the decisions of properly selected juries.
Verdict, Settlement: If we win and the jury awards you with money in order to repay you for the damage you have suffered, or if your case settles prior to trial and you receive a money payment from your employer, then we will divide the money according to our agreement. If the case does not settle or we lose at trial, then I do not receive any payment. If we lose, you will be liable to me for the costs that I incurred during the course of the lawsuit,
The details of settlements are typically confidential, meaning that both sides agree not to discuss the outcome of the case except in certain, narrow situations. A jury verdict will be a matter of public record.
What do you charge?
I do not usually charge an hourly fee for my work, though I will often ask for an initial payment to compensate me for my time as things gear up. If we both decide to enter into an attorney-client relationship, we will reach an agreement about what portion of your winnings I will receive at the end of your case. This is called a "contingency fee," because my payment is contingent on the success of your case. In pre-litigation, meaning a lawsuit has not yet been filed and the parties are seeing if they can settle the case privately, I typically ask for 33% of any settlement. For lawsuits, my fee is 40%. In all cases, I deduct what was already offered prior to my appearance, meaning I don’t take a cut of any severance or settlement offer that I didn’t earn for you. Occasionally, I am able to take cases on an hourly basis. My hourly rate is $500 per hour.
WHAT IS YOUR PRELIMINARY CASE FEE?
I charge anywhere from $500 to $1,000 at the outset of a case. I use a sliding scale, meaning that those who are low-wage earners will pay far less than those who earn hundreds of thousands of dollars a year. For extremely low-wage workers, I often do not charge a preliminary fee. I also charge more for cases in which you need me to send a response to the other side very quickly. Because I am available 24/7, I am a great lawyer for situations where you need to respond in a couple hours or the next day. However, that availability and lightning-quick response time comes with a cost, and I need clients to understand that. Yes, I will drop everything and crank out a letter on your behalf at 10pm. But for that extremely unique service, I need to be compensated.
Can you take my case?
My ability to take your case depends on the facts of your individual situation. I take only a select number of cases that are presented to me, so that I can focus my skill and time on cases that I believe have merit. Unfortunately, this means that I cannot take everyone's case, no matter how much I may wish I could. If it turns out that I cannot take your case, either because I am not confident that we could win in court or because I already have other cases that require my attention, I will do my best to refer to you to other attorneys or resources who may be of assistance to you. (Remember, if we do not enter into an attorney-client relationship, then I am not your attorney and I cannot give you legal advice. What I can do is try to point you in the direction of other people who may be able to help.)
Do you represent employees and employers?
I have chosen to only represent employees at this time. I occasionally give advice to employers, but I do not litigate on their behalf or represent employers in negotiations or lawsuits.
Are you permitted to practice law in California?
Yes, I am a fully licensed attorney permitted to practice law in California. I graduated with a law degree from Stanford Law School, passed the bar exam my first time out, and met all the requirements for admittance to the California State Bar, permitting me to represent clients in California. My State Bar number is 267412. You can find out information about me and all other members of the California Bar at www.calbar.ca.gov, using the Attorney Search feature.
Can a client ever fire her lawyer? Can my lawyer fire me?
When you hire a lawyer, you and the lawyer enter into an agreement, which means that both sides have to come to an understanding about how the relationship will proceed. If you decide that you no longer want to be represented by your attorney, it is your right to end the attorney-client relationship. At the same time, if an attorney believes that she cannot continue the attorney-client relationship, she can also choose to end the relationship, so long as the case is not "prejudiced" as a result. (This means that the attorney can't leave you in the lurch the night before your trial is set to begin, for example.) The most common reason that I have seen an attorney drop a client is because the client stops responding to communications or if it discovered that the client lied about critical details of the case. I have also dropped clients who were very disrespectful to me. I will not tolerate rude speech. Yes, emotions will be very high as we fight a case. This is a client’s life, after all! But if a client starts to direct that frustration at me in a rude, disrespectful, or contemptuous way, I will give one warning and then we are done.
I will also assess a potential client based on whether or not they are respecting my time. If a prospective client continually asks for lengthy, repetitive phone calls but does not want to compensate me for that time, the relationship isn’t going to work out. If it could have been a text, it should have been.
