Pre-Litigation Activities: 

Developing and Resolving the Case Prior to Filing the Complaint

 By Lee Walker



I.            Introduction


This paper will focus on the development and resolution of a case prior to the initiation of litigation.  How do you develop it?  How do you resolve it?  Before answering these questions, however, I will turn, first, to a detailed discussion as to why it is worthwhile to attempt such a settlement prior to the filing of a complaint.  As I will explain in detail, infra, I believe that, unless you begin with a complete understanding of why it is so sensible to do so, your motivation and ability to successfully develop and resolve a matter in pre-litigation may be significantly impaired.


II.            Reasons why you should attempt to settle the case prior to litigation


To start with some of my professional background, I began my private practice in 1983.  Prior to that, I had worked for four years at the California Department of Fair Employment and Housing or DFEH.  While at that agency, I discovered that I had a knack, and more so than my colleagues, for the resolution of cases, and, often, for the kind of monetary amounts that my colleagues were unable to secure.  Moreover, because of this, I was asked to provide settlement training to my colleagues. 


When I started my firm, it seemed sensible to continue to try and settle matters, including the best or better cases, as long as a resolution of the matter could be secured on reasonable and fair terms.  And, it seemed sensible for many reasons.  Some of these reasons I had learned at the DFEH.  Many of them only became apparent, or especially apparent, once I had my own practice, that is, once I owned my own business.


Firstly, as I learned the hard way, it is a business we operate.  We may not want to see our practice in this manner, particularly since we often see ourselves as doing good and for persons in great need. Yet, the reality is, whatever our motives for doing what we do for a living, we still must pay our bills in order to keep our doors open.  And, if we cannot keep our doors open, we will not be able to do good for anyone, including ourselves!  So, we must make realistic business decisions in our practices, if we want to increase the odds that we will stay afloat, let alone, be profitable, another worthy goal, and something we often do not think enough about. 


I am not saying this has to always be the case.  Many times, we will want to make decisions for other than business reasons.  I believe there is nothing wrong with that, if we consciously understand when we make such decisions, that that is what we are doing, and have factored into the equation the financial impact such a decision will have on our business.


Most importantly, you must remember that, to make a sound business decision, you must take into account the potential risks of litigation, risks that are obvious to any sort of experienced litigator.  Among other things, your judge may turn out to be your worst enemy, or, at a minimum, very problematic, and since the judge wields so much power, even a really good case can be in trouble.  Among other things, the judge may not be intelligent.  The judge may not be willing to do the hard work to understand your factual or legal arguments.  The judge may have a bias, e.g., the judge might be against the expansion of employee rights and may actually have an agenda to decrease employee rights, not only because they tend to be pro-business or pro-employer, but, because they think these matters should not be litigated and that they clog up an already overburdened court system.  These things are predominantly true for those judges appointed by our recent Republican governors, who appointed many judges, given that they were in office for 16 years.  In fact, the judge may even reduce the jury verdict. Worse, the judge may throw out the jury verdict!


Additionally, jurors, though generally sympathetic to the plight of wronged employees, may present problems.  Among other things, they, too, may not be sufficiently intelligent or hard-working, and needless to say, they, too, may have their own biases. 


Moreover, your client may not be able to provide to you what you need from them as a client.  For example, he or she may not be able to help you develop and analyze the case, or he or she may not perform well as a witness.  As we all know, clients are often, if not, usually, highly emotional because of what they have gone through.  This can significantly affect their ability to perform their various functions and sustain that performance over time, over the long haul of litigation. 


But, it may be even more than that.  They may not be capable, otherwise, of performing their client functions.  For example, they may not have the basic intellectual capacity to understand what their case is about and how to perform their roles.  They may also not have the basic capability to be articulate. 


Or, as it may turn out, and I learned this one also the hard way, they may not be credible or sympathetic to a jury.  It is necessary that the clients must have jury appeal. 


Furthermore, the evidence you assumed would be there may not be, and, of course, I am not just talking about documentary evidence.  Among other things, I am talking about all those friendly/supportive witnesses who should be there for your client, but, for many reasons, are not.  First of all, they may be unwilling, because of fear of retaliation, to provide the evidence you need, even when it is the truth and they are being asked to provide it under sworn oath as a deponent!  Secondly, they may just not be very capable witnesses, including for some of the same reasons your client may not be capable as a witness.  And, as for those hostile witnesses, those you thought you could destroy on cross-examination in a deposition, thereby, securing valuable evidence, you may not be able to do so.  They may be more capable than you anticipated, including capable of lying under oath and in a credible manner.


Regarding documentary evidence, it may never have existed or to the degree your client or you anticipated, or it may not exist any more, and it may be impossible to prove that it ever did. 


Simply, the evidence may turn out to be something different, if not quite different, than you expected for the simple reason that the real facts of the case may not turn out to be the facts that your client related to you.  Clients may have lied to you, that is, have consciously/willfully told you an untruth.  More often, I have found that, for many reasons, including emotional reasons, they distort the truth, or they just cannot remember things that accurately.  Unfortunately, despite all of your “due diligence” in the initial consultation process, it may be impossible to discover all of this until you are already in litigation, if not, heavily into the litigation process. My colleagues and I have a wealth of war stories we could relate along these lines.


There is also the danger that the damages may not be there by the end of the trial, or, at least, the level of damages you had anticipated.  Among other things, the client may have mitigated his or her economic damages so well that the eventual recovery for economic losses is significantly less than originally projected.


In addition, there may be factors in your client’s life, unknown to you at the time you took the case, despite your “due diligence” in trying to discover them, that explain your client’s emotional or psychological condition as much as, if not, more so, than his or her employment circumstances.


Also, punitive damages may elude you because you are ultimately unable to meet, as described, infra, the high standard for proving them.


Moreover, somewhere along the way in the litigation, you may lose your tort cause of action or actions, thus, losing that potential tort remedy.  And, of course, if you lose your California Fair Employment and Housing Act (“FEHA”) claim or Title VII claim, you also lose the potential award to the prevailing plaintiff-employee for attorneys’ fees, as discussed, infra.


Or, you may lose everything in a summary judgment motion by the other side. 


And, if you do prevail at the end of trial, the amount of your verdict may not be the kind of through the roof number that grabs the headlines and the kind of number that your client and you were seeking.  Instead, it may correspond more to the verdict statistics that show that the average verdict to be substantial but much less.


Then, even if you prevail, the other side will threaten to appeal to get you to accept an amount in settlement that is less than your verdict.  And, if it does appeal, you could face a conservative appellate panel.


Additionally, you have to factor in the potential risk that employment law is an ever-evolving field.  The law is, literally, developing day by day, and this, of course, can significantly impact your case as it is being litigated, and, in a negative manner, if the decision in another case is adverse to employees.  See, e.g., Cotran v. Rollins Hudig Hall Int’l (1998) 17 Cal. 4th 93, 69 Cal.Rptr. 2d 900; White v. Ultramar, Inc., _____ Cal. 4th _____ (Cal. 8/23/99), 1999 Daily Journal D.A.R. 8693.


Beyond these risks, there is the significant financial risk that you take, particularly because of the large number of hours required to litigate most employment cases. My colleague, Nancy Bornn, has estimated an average of 1500 hours to litigate an employment matter. Based on my experience, her calculation seems accurate.  But, even if it is too high, whatever the correct number is, based on my experience and that of my colleagues, it is still going to be very high.  And, given that ordinarily we take these cases, at a minimum, in part, on contingency, there is frequently more than substantial risk.  Moreover, that risk will be increased the less money you charge, aside from the contingency fee, up front or as the litigation progresses.  It goes without saying that risk will be exponentially increased if you are working for your fees purely on a contingency basis, let alone, if you are also fronting costs and doing that on a contingency basis also. 


Furthermore, because of the time required or the cash investment required for litigating a case, you may not have be able to take in new business and/or effectively work the rest of your docket so that those cases can produce income. These additional financial “ripple effects” cannot be emphasized enough if you are a sole practitioner or small firm, which almost all of us plaintiff employee attorneys are.


Of course, many of the risks just delineated are ones your clients are also subjected to once the decision to litigate is made.  This will include financial risk, for your clients may be investing significant sums of money.  Additionally, they may be risking the award of costs to a prevailing defendant employer.  Cal. Code of Civ. Proc. §§ 1032, 1033.5.


It will also include the large investment of time on their part, which they may not be able to provide if they have started a new job.  It may certainly include the important and serious risk that, until the matter is over, they will not get closure and be able to get on with their lives.  If they lose, they may find it even more difficult emotionally, and, therefore, it could be even more difficult to move on.  There is also the everyday angst caused for them by the day to day activities of litigation.  If they felt that their employer did them in, wait until they experience litigation!  As we all know, litigation can be so unrelated to “truth and justice,” and when the clients experience this reality, it can be quite painful for them, and sometimes, even more so than the original harm to which the employer subjected them! 


In sum, attempting a pre-litigation resolution is a means for the client and the attorney to possibly avoid, should the case settle, the serious systemic or generic risks of litigation for both of you, including, among other things, financial or business risks. 


Also, and very importantly, if, in negotiations, the other side shares its version of the facts, evidence, law or damages to any great degree, it allows your client and you to make an informed decision about whether to settle or litigate this particular matter.  It gives the two of you an opportunity to truly and realistically evaluate the case, assuming the two of you are open to hearing what the other side has to say, which is not always the case. Furthermore, should the matter not settle, and should your client and you decide to litigate, at least, the two of you will better informed about the strengths and weaknesses of the case, and this should enhance your ability to litigate successfully.  And, again, these are additional potential advantages flowing from your attempt to resolve the case.


Naturally, I am not saying never litigate. There are many positive reasons to do so, including reasons that bespeak good business decision making.  For example, good cases sometimes do not settle and are definitely worth litigating.  This is true for many cases I have had, which have not settled in pre-litigation and, as a result, have gone into litigation. And, “truth and justice” may eventually prevail in the litigation.  In fact, as they have for many years, statistics still indicate that, of the employment cases going to a jury, as will be discussed, infra, the vast majority are still going in favor of the plaintiff employee, and the verdict could be very large. 


Further, you may be able to make some good law as you litigate your case, as many in our bar have. And, if you have a big verdict, much less, in an important case, among other things, you can use that win as leverage in settling other matters and for attracting new good cases.  There is also the satisfaction that is generated, on all levels, by winning in an adversarial process, let alone, one that is so intense.  There is the additional satisfaction that is generated by knowing that one of your victories may have generated real change in employer practices, such that employees are now treated more fairly.


However, I am saying is that there are so many sensible reasons for your client and you to attempt pre-litigation settlement, in my mind, it is almost a mandatory step in the processing of a case, given the upside of resolution, if the case can settle on reasonable and fair terms. 


This is especially true, given the lack of downside or significant downside in attempting settlement in a pre-litigation mode, though some colleagues would argue that there can be a downside in such an attempt.  For example, some have argued that, if, you start off the case with a demand letter, you look too weak and too hungry for settlement and that you may appear, therefore, unwilling to litigate.  Well, if you have litigated other matters, and the opposing counsel knows this, that certainly cannot be true.  Plus, leaving aside statute of limitations issues, there is always time to litigate. You always have that option, if the case does not settle on reasonable and fair terms, and any sensible defense attorney understands that.  Further, when you have a strong case, you should be coming, and should be seen as coming, to the other side from a position of strength, not from weakness, and not from a position of being unwilling to litigate.  In addition, there is nothing “weak” about emphasizing resolution, as long as you are demanding a settlement on reasonable and fair terms.  Are we not better attorneys if we can resolve conflict on such terms?  Machismo and conflict do not always make sense and that is certainly true in lawyering.


Other colleagues argue that, if you put too many facts or too much evidence on the table for negotiation purposes, you are giving away too much of your case (“free discovery”) and, therefore, potentially damaging the litigation of the case, if the matter does not settle and litigation ensues.  Well, to some extent, that is correct.  As will be discussed further,  this is a judgment call that can only be made on a case by case basis.  For example, if you believe the employer is not serious about settlement, you should withhold more evidence, above all when you can see that the opposing counsel in more interested in earning its pound of flesh by litigating. At the same time, clearly, you are more likely to secure a settlement, particularly for significant money, if you are persuasive, and strong evidence persuades.  And, if that which will be persuasive is something the other side should know about already or will obtain in discovery, there would certainly be much less reason, if any, to withhold it during this pre-litigation stage.  Furthermore, keep in mind that some employers will believe, or be convinced by their attorney to believe, that only litigation will flesh out the details of the case.  Consequently, if you give them the details in pre-litigation, there should less, if any, need to litigate, at a minimum, for that reason.


Or, some colleagues have argued that, unless you can work up a case and generate solid evidence in discovery, you will not be persuasive in your settlement attempt, let alone, an attempt in which you demand a large amount of money.  That can be true.  It is a reason I recently had to initiate litigation.  But, again, it is also a judgment call that can only be made based on the circumstances of the particular case.  For example, if the odds at securing such evidence are not high, then you should emphasize settlement as opposed to litigation. 


So, now that I have, presumably, convinced you as to why it is so sensible to try and resolve a matter prior to litigation, let us move on to how to do so in a way that is more likely to facilitate a successful settlement.  I will begin with a discussion of attitude, philosophy and commitment.


III.            Attitude/Philosophy/Commitment


Most importantly, as already discussed, supra, you must have a realistic attitude or philosophy. I cannot stress this enough. You must be realistic about litigation.  Machismo is just plain stupid when it does not take into account what risks are inherent in litigation for your client and you. Once you fully appreciate the risks of litigation, you will then understand the benefits of a fair and reasonable settlement in pre-litigation and the benefits of a positive and certain outcome, if that can be achieved.  Most importantly, this understanding will contribute greatly to your motivation and ability to resolve the matter successfully.


Simply put, you must firmly commit to the settlement attempt process and to trying to make it work for your client and you. This calls for the same type of professionalism, the same impassioned commitment, persistence, follow-through, focus, skill and use of power or control that you would bring to the litigation process.  Nothing less will do.  You have to tell yourself that you are going to make this settlement attempt work, or that you are going to try and make it work, to the best of your ability, until you know for sure that it will not settle.


And, you must convince your clients of the same.  They, too, must understand the realities of litigation so that they are better able to appreciate the benefits of a reasonable and fair resolution of the matter.  Hopefully, as with you, this understanding and appreciation will generate a commitment on their part to making the settlement attempt work, and they will devote their all to help bring that about, just as they would in trying to making litigation effective and successful.  After all, as described, infra, without the full- fledged participation and cooperation of a client in any attempt at resolution, your efforts to settle the matter, could be greatly impaired.  Consequently, as will also be discussed, infra, client control is necessary just about every step of the way.


IV.            Developing the Case


Construct the basic groundwork for negotiation by developing the case in the form of a demand letter. That letter will contain a detailed discussion of the facts and evidence in the case, the legal claims generated by those facts, the damages suffered by your client, as well as the demand for settlement.


Some or much of this information may have already been developed in the initial consultation process.  In fact, most of us do rather lengthy initial consultations.  Some of us may even have interviewed witnesses or engaged in some legal research in this process.  However, no matter how much effort has been put into the initial consultation, there is always a lot more to do to develop the case for presentation to the other side in a demand letter or in ensuing negotiations.


To start, you need to gather all the facts, and I mean all the facts, as well as all the evidence.  This can be very time consuming, but I know no way around it, for, obviously, without all the facts and evidence, as a minimum, all the facts and evidence you can secure prior to litigation, you cannot do a thorough analysis of the case or a persuasive presentation to the employer or its counsel for settlement purposes. 


Naturally, your client is a primary source for these facts and evidence.  I find it can be helpful to give clients the assignment of writing up all that has happened that might be relevant and to write it up in chronological order.  I have usually had them complete an assignment of this sort for the initial consultation, with relevant documents referenced and discussed, but, most of the time, the write-up needs significant expansion for case development purposes.  Therefore, after they have retained me, I have them do a more complete version for demand letter purposes.  Some clients will not be able to do this well, even though I explain to them that it does not need to be perfect.  It is just a start. They should not get bogged down trying to remember details they cannot recall.  They should not get bogged down trying to come up with pretty, interesting and grammar-perfect and style-perfect sentences and paragraphs.


Then, I will meet with the client to flesh out details, issues and questions, including, but not limited to, those related to detailed and relevant documents, like performance reviews, written warnings or work product.  I may then ask the client to write more.  Additionally, in every interview I do with the client, I will probe and probe and then probe some more.  As we all know, over time, the facts often evolve, especially in litigation.  This is often true for the pre-litigation stage as well, including in interviews with my client.  He or she is often sitting on facts which can be crucial one way or the other to the case in pre-litigation, and these facts will often come out only if you are persistently and relentlessly thorough in your questioning of the client.  As with litigation, it is certainly better to secure these facts as early as possible, and certainly so before you present a demand letter to the employer with a recitation of the facts as your client and you allege them.  Moreover, in the negotiation or resolution stage, you want to be prepared with all the facts and then some.  In this way, you will increase the odds of being persuasive, just as you would in litigation.


Furthermore, if I find that it would be helpful to have more documentary evidence than the client has presented, I will try to have my client secure it through others means.  For example, I may try to get access to or copies of the personnel file, pursuant to Labor Code § 1198.5 and § 432, respectively.  Keep in mind, however, that the definition of personnel file is quite broad.  It includes all documents which were used by the employer to make a disciplinary decision, including, but not limited to, termination. 


It may also be useful to obtain documents from state administrative agencies such as the DFEH, Division of Labor Standards and Enforcement, Employment Development Department, or Workers Compensation Appeals Board, or the federal agency, the Equal Employment Opportunity Commission.  Requests for documents may be made under various statutory provisions, including Gov. Code § 6250, Civ. Code § 1798, et seq., and 5 U.S.C. 552.


Relevant documents will be attached as exhibits to the letter.


I also ask the client to provide me with names of possible witnesses and what they might be able to tell me, and have by and large done so, as discussed, supra, in the initial consultation, where I may also have interviewed the witnesses.  If I have not, or if the client has now come up with additional names, I will interview them at this point. 


However, I am prohibited from interviewing a witness, if contact with the witness would constitute an ex parte contact.  Cal. Rules of Professional Conduct Rule 2-100.  Pursuant to that rule, if I know the party to the dispute is represented by counsel, I am not permitted to contact that party without the consent of that counsel.  “Party” is defined to include:  1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or 2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.  Cal. Rules of Professional Conduct Rule 2-100(B).


Assuming, then, that there is no ex parte contact issue, I will interview the witnesses.  To get them to speak with me, I frequently have the client contact them first to explain that I want to talk with them for the purpose of securing information regarding certain facts. But, it may be quite difficult for the client to convince them to talk with me.  This is mainly so for witnesses who still work for the company and worry about retaliation, but it is also true for ex-employees who also may worry about retaliation.  If I think it will work more effectively for me to call them directly, without the client’s intervention first, then I will do so.


If I am able to talk with them, I will usually do so by phone, although, if it can be arranged, witnesses are preferably interviewed in person.  Ideally, I will be able to secure a sworn statement from them.  That, more often than not, scares them and they refuse to provide one, as they do a signed statement of any sort.  Otherwise, I am extremely thorough in my questioning and probe for every possibly relevant fact.


Once I have all of my basic and important facts and evidence gathered, I begin to draft the factual and evidentiary portion of the demand letter.  I make this portion quite detailed, for I believe it is those substantive details as to the facts and evidence that can, in large part, make the difference in negotiations.  Common sense and many years of experience tell me that, unless I present sufficiently persuasive facts and evidence, negotiations may not be successful, let alone, for the kind of monetary amount I am seeking.


This first draft of the letter is sent to the client for review for everything from basic factual accuracy to typo’s.  Obviously, it is the client’s story.  He or she was there, and I was not.  Therefore, I am very dependent upon the client for his or her factual expertise.  There will generally be many successive drafts, as I go about fleshing out and polishing up the factual and evidentiary presentation, all of which go to the client for review.


Eventually, after many, many hours, I have a final version of, at least, this portion of the letter.  And, I mean many, many hours.  After all, this is the one part of the letter where, clearl, you cannot rely very much, if at all, on some boiler-plate version.  Furthermore, as just stated, I strongly believe a complete and thorough substantive presentation increases the chances for successful resolution, and this would also be true for the other portions of the demand letter, as will be discussed, infra.  Ordinarily, this degree of detailed thoroughness takes a large amount of time.  


On to the next part of the demand letter, the legal analysis of the facts just presented.  Some basic legal analysis of the facts is done in the initial discussion stage, but, now that I have accumulated all of the facts and evidence that I can get prior to litigation, that original analysis may need to be altered.  Hopefully, this complete picture will generate additional causes of action than those generated by the facts presented in the initial consultation, and most hopefully, these will be tort causes of action.


For most cases, the legal analysis will be relatively boiler-plate.  However, as stated, supra, employment law is also a highly evolving field of law.  New cases are constantly coming down, and they may have changed the law or firmed it up in a particular manner.  Consequently, as should be obvious, as in litigation, you must be up on all of the relevant developments in the case law and present them accordingly. This would be true, of course, for statutes as well as regulations, including those statutory provisions or regulations that are only in the proposal stage. I may even use commentary on developments in the field, such as those found in the California Employment Law Reporter, to substantiate my analysis of these developments.  I am also more than willing, particularly in this pre-litigation stage, to be creative and cutting edge in my legal analysis.  I may well go beyond the developed law and develop some of my own law, as long as I have some reasonable basis for doing so. In other words, as with other portions of the letter, you want to be as thorough, impassioned and skilled in your presentation as you can be, and, again, certainly no less than you would be if you were in litigation.


The next portion of the demand letter delineates in great detail the damages suffered by my client.  Hopefully, I have no less than one tort cause of action, if not, several, which provide for not just economic damages, but emotional distress and punitive damages as well.  And, hopefully one of these tort claims is an FEHA or Title VII claim which, as explained, infra, also provide for the award of attorneys’ fees.


Starting with economic damages, the ordinary presentation of these is as follows.  To begin with, my client has usually been terminated.  Therefore, I need to calculate my client’s lost compensation, because there has been or will be a period of unemployment, and/or because my client has secured a new position and there is a compensation differential relative to his or her former job. 


Consequently, I must first calculate the value of wages lost.  Sometimes, this becomes complicated, e.g., a calculation of lost bonuses. In this type of situation, I will work with the client in trying to come up with some sort sound methodology for calculation.  For example, if the client has received several bonuses over several years, we will determine if there is a trend or pattern discernible in the numbers, or we might calculate a mean average of the bonuses paid out.  Moreover, if an economist I have used in the past in another case has used a reasonable methodology or analysis for calculation of lost compensation that I can use in this case, I will draw on that.  As in litigation, I will use anything I can that will generate figures that can be supported by sound reasoning and rationale.


The same is true for the benefits my client has lost.  I will always list the individual benefits provided by the employer, and, if I am able to quantify in dollar terms the value of the lost benefits, I will do that also.  Sometimes, the company, itself, will have provided to its employees a quantification of the benefits provided, e.g., as a percentage of salary, and I will always use that when it is available.  Or, again, I might draw on a method of calculation used by an economist in another case.


In certain cases, I have actually retained an economic expert in the pre-litigation stage to calculate the value of the compensation package paid by the ex-employer.  For example, when my client’s lost compensation is crucial to the damages equation, when it is going to be very significant and when it is going to be quite difficult to calculate. This type of situation might arise when my client had been provided by his old employer with stock options, ownership of some other sort, profit sharing and/or when my client worked for some sort of  “start up” business.  I will have the economist prepare a report and include it with the demand letter as an exhibit.


Of course, I have to go through this same type of analysis when my client has obtained a new position and I have to quantify the value of the new compensation package, so that I can compare it to that provided with his or her former position.


I will look at other factors to determine my client’s economic losses.  Among other things, if the client is or will be unemployed, how long might he or she be unemployed before finding a new position?  How employable is the client?  What is the client’s age?  What is the client’s education? Training?  Professional experience?  Does the client work in a healthy industry or is it one that is in decline?  Moreover, how likely is it that the new position will be comparable, including, among other things, opportunities for upward mobility?  The client may be a good resource for answering these questions.  Often, a headhunter will be.


Additionally, if the client’s reputation has been harmed, that certainly will affect his or her ability to secure a position, much less, a comparable one. 


Furthermore, the client will naturally have to be honest in explaining to a prospective employer why he or she is job hunting. The client may certainly have to answer an application question regarding the reason he or she is no longer employed with his or her former employer or explain this in an interview.  If the client is not honest, and it is discovered, it can be grounds for denial of hire, or, if the client has been hired, it can be grounds for termination.  On the other hand, clearly, it may be very difficult to secure a new position, let alone, a comparable one, if the client is honest in the application effort.  It may be very difficult to explain one’s termination in a way that is positive.


And, that is why, when clients have been fired, as will be discussed, infra, I ask that, as part of the settlement remedy or demand, the characterization of their separation be changed to something, hopefully, positive, e.g., voluntary resignation or lay-off.  Presumably, then, clients would be honest in their application efforts, if they indicate that they left their last job for one of these reasons and not because of a firing.


But, even this may not help the client that much.  As I explain in the demand letter, regarding a change to the characterization of voluntary resignation, if one is a long-term employee, much less, close to retirement, and/or one had a high paying or high-level position, how does one explain in credible terms why he or she voluntarily resigned?  Or, how does one easily explain why he or she voluntarily resigned from a job without another job in place? 


As for lay-off, even that may not be very saleable.  It may be difficult for the client to explain why, out of the relevant universe of employees, he or she was selected for lay-off, given his or her longevity, credentials, experience, level of performance, etc. 


Moreover, the world can be a small place, especially in a particular niche in a particular industry, and information is often easily discoverable.  For example, it may be easily found out, or may already be known, that your client did not voluntarily resign or that your client’s position was not eliminated.


I also turn to the real world experience of my client in his or her job hunting efforts to help substantiate the difficulties of finding a position or a comparable position, as well as to verify my client’s reasonable efforts to mitigate his or her damages.  I will discuss the type or types of positions being sought, in which industries and in which geographical areas.  I will delineate the methods being used to job hunt, e.g., newspapers, trade publications, headhunters, networking, “cold calling” or “cold mailing.” 


Furthermore, I will quantify the use of each method.  For example, I will explain that the client looks at newspapers every day, or I will calculate how many “cold mailings” of the client’s resume have been done.  Importantly, I will detail the results of these efforts, e.g.,  how many positions are vacant for which he or she has applied, what the positions are, how much they pay, what responses my client has received in response to his or her application efforts, how many job offers there have been and what they have been. 


In this manner, I have presented with as much persuasive detail as possible the nature of my client’s losses.  Again, I believe it is this level of thoroughness and skillful presentation that will more likely enable you to achieve the settlement you want.


The same is true for the next category of damages detailed in the demand letter, emotional distress damages.  As we all know, our clients frequently come to us having been psychologically harmed.  Typical symptoms include, but are not limited to severe anxiety, depression and anger, and, therefore, for most clients, for health reasons alone, they should be in psychotherapy.  In fact, some may already be so.  This will, hopefully, allow them to get healthier and function better in their personal lives and professional endeavors. 


But, therapy can help in other important ways.  It can allow the client to function better as a client, and it can also be a means by which to substantiate the emotional distress damages claimed by the client.  Consequently, if the client is not already seeing a psychotherapist, I strongly recommend that he or she do so. 


Furthermore, I will generally recommend a particular therapist to the client.  Based on other clients’ experience, I know who will provide effective “real” therapy for various employment issues.  Based on my own experience with the therapists, I also know who will provide, if necessary, effective testimony in litigation as the treating therapist.


Otherwise, I will describe in detail in the demand letter what my client is experiencing psychologically because of the harms to which he or she was subjected by the employer.   It goes without saying that I have to be able to relate my client’s psychological condition to tortious actions of the employer, if my client is going to be compensated for these damages.


However, certain facts normally generate emotional distress damages and usually significant damages.  I will point this out in the demand letter.  Such facts would include, but not be limited to, the tortious discharge of a long term employee, the tortious discharge of a highly competent long term employee, serious sexual harassment, discrimination and retaliation for opposition to discrimination.  Moreover, certain medical situations bespeak severe emotional distress damages.  These would include, but not be limited to, a disability status because of stress and a prescription by the client’s health care provider for psychotropic medication.  I will explain how a jury will understand this point and award my client damages accordingly, above all when the client, himself or herself, is sympathetic and credible.


If my client is in therapy, I may talk about his or her condition with the therapist so that I have a better sense of what to put into the letter.  I would want to know what my client is experiencing, what has generated the condition, the course of treatment and the prognosis.  Sometimes, I may actually want to get some sort of statement or report from the therapist to verify the damage claims.  More often than not, I would only do this is when my client’s damage is very serious and I am going into mediation.  However, sometimes, when the injury is that serious, I might have the therapist write a statement or report to include with the demand letter as an exhibit. 


Needless to say, my discussion in the demand letter of the next damage category, punitive damages, can be crucial for bringing about a successful settlement, given the potential exposure to the employer if the case goes forward.  Therefore, as with the other categories of damages, the presentation of these damages must be done in the most expert manner, as, again, it would be in litigation.  At the same time, the standard to be met to prove these damages is fairly high.  Civ. Code § 3294, Weeks v. Baker & McKenzie (1998) 63 Cal.App. 4th 1128, 74 Cal.Rptr. 2d 510, modified on denial of reh’g.


Yet, as with emotional distress damages, certain facts, such as those delineated, supra, generally bespeak, e.g., despicable conduct and conduct a jury will not like.  As a result, as I will explain, the jury will award significant damages, especially when, again, the client is sympathetic and credible.


Furthermore, as stated, supra, pursuant to the FEHA and Title VII, attorneys’ fees are awarded to the prevailing plaintiff-employee.  They can greatly add to the damages claimed by and the remedy available to my client, and, therefore, to the potential exposure to the employer in litigation. Gov. Code § 12965(b), 42 U.S.C. § 2000e-5(k).   And, as I point out, the fees can be calculated on an hourly basis even when the attorney has a contingency arrangement with the client.  See, e.g., Vella v. Hudgins (1984) 151 Cal.App. 3d 515, 198 Cal.Rptr. 725; Blanchard v. Bergeron (1989) 489 U.S. 87, 103 L.Ed. 2d 67, 109 S.Ct. 939.  Additionally, I will also cite in this discussion some recent and significant awards of attorneys’ fees so that the employer will understand, in hard number terms, the potential exposure it faces.


In fact, I will do this regarding the other categories of damages, economic, emotional distress and punitive, providing verdicts in recent cases in these categories that, again, because of their high numbers, should also persuade the employer it potentially faces very significant exposure, if the case does not settle and is litigated.


I also add to these statistics, as described, supra, the very important one of what percentage of employment cases going to the jury end in favor of the plaintiff-employee, since that percentage continues to be a high one, apparently, somewhere around 60%.


Additionally, I will remind the employer that, if my client prevails, he or she will be entitled to recover costs expended in the litigation, as discussed, supra.  Cal. Code of Civ. Proc. §§ 1032, 1033.5.  And, importantly, I will remind the employer of the extremely significant fees and costs it will incur defending the action.


So, now that I have, hopefully, persuaded the employer or the employer’s counsel that they need to think serious and hard about settlement, I then make my demand.  It will contain both monetary and non-monetary items.  The boiler-plate demand for those clients who have been terminated is attached as Exhibit A.  It is not meant to be all-inclusive in terms of what a final settlement would contain.  It does not contain some of the provisions that an employer might want, provisions that are primarily in the employer’s interests and adverse to or potentially adverse to my client’s interests.  Obviously, I will let the employer’s attorney propose these in negotiation as opposed to introducing them myself.


I will start with the monetary demand, almost always, the most sensitive item.  As you know, the process for selecting the proper number is not scientific.  It is a process that involves logical and legal analysis and a process that draws heavily on my experience of 20 years of negotiation.  It is also a gut level process, that is, the number may be generated, in part, from the gut.


Where to start?  Ask yourself whether you have a truly viable tort, for, needless to say, without that, you are limited to economic damages.  Also, determine whether you have a viable FEHA or Title VII claim to understand how much you can emphasize the attorneys’ fees exposure for the employer, although as you can see from the boiler-plate demand, I routinely separate out a demand for attorneys’ fees, as will be explained, infra.


As for economic damages, understandably, these are the easiest to discuss with the employer’s lawyer in the negotiation process, who, in turn, has to present them to and analyze them for the employer.  To start with, some of the amount asked for in economic damages may represent hard numbers or hard losses as compared to so-called speculative numbers.  For example, the client may have already been unemployed for a certain amount of time, thereby generating a certain amount of hard loss.  It is also easily quantifiable.  But, even when you are “speculating” about future economic damages, you are still dealing with numbers that are “hard” in some way, in that, at least, relative to emotional distress damages or punitive damages, they are tangible or bespeak a more “hard” logic. Future economic damages are also not open-ended, or as open-ended, as emotional distress or punitive damages, where, potentially, the sky is the limit, and, therefore, these future economic damages are more “acceptable” to the employer.


However, as I always remind employer’s counsel in negotiations (and mediators in mediation), a tort cause of action provides for a tort remedy, and, therefore, emotional distress damages must be considered in negotiating numbers, as well as punitive damages if they are applicable.  Surely, my client is not going to be short-changed just because these numbers may not be as hard or easy to quantify, and, as described, supra, some facts truly bespeak significant emotional distress or punitive damages.


On the other hand, a number should not be selected that is so high, it will probably stop negotiations from even starting, particularly in this pre-litigation stage where the employer may believe, or be convinced by its attorney to believe, that the case must be litigated for awhile to determine its value as well as your steadfastness.  Yet, it should not be so low, that you are undervaluing the case and/or sending a message that you are too eager to settle.  To translate these rules into exact numbers is not an easy task, but they are still rules with which you should comply if you going to facilitate a successful settlement attempt. 


Of course, clients so often believe that you should always start high, if not, very high, because you are going to have to bargain down from whatever number you start with.  Yes, it is true that you will have to compromise from whatever your initial figure is, but that does not mean that you start at a level that is so unrealistic, negotiations will not even begin.  All it means is you need to build in enough “wiggle room” in your opening offer, so that you can come down in negotiations and still end up a number with which you and your client feel comfortable.


Moreover, as I explain to clients, if they begin with too high a number, negotiations may still begin, but they will begin with such a minimal response from the other side, negotiations may go nowhere. 


Or, the other side makes a minimal response and couples it with the statement that negotiations can continue in a meaningful way, only if your client makes a significant reduction in his or her figure.  Yet, your client is not going to feel good about that, for the compromise will appear to be one-sided.  Plus, it may create a certain amount of downward momentum on your side, should further negotiations ensue, towards lower and lower numbers, where it appears you are chasing a settlement.


Alternatively, in response to your client’s initial figure, the other side may say that, because your client’s figure is so out of line with reality, the only way to get them to respond at all with any sort of counter-offer is for your client to come up with a lower, if not, substantially lower figure.  Now, your client is being asked to bid against himself or herself, again, something no one wants to or should want to do, and, again, once your client does that, it may create a downward momentum on your side towards lower and lower numbers with the appearance that your client are chasing settlement.


So, as it difficult as it may be to get your client to agree to a sensible starting place, the effort must be put in, or the negotiations may be in trouble from the start. 


And, it is in this area, the monetary demand, that you may find it rather difficult to achieve client control.  Yet, as described, supra, client control is a necessary ingredient in the entire settlement attempt process and not just on this point.  Without effective client control, the chances for a successful resolution of the matter will be decreased, and, possibly, greatly decreased, just as in litigation, where, if there is not effective client control, your ability to litigate will be impaired, if not, seriously impaired.


To begin with, it is necessary, as I have already explained, supra, to get clients to understand the risks of litigation and the benefits of a reasonable and fair resolution.  Without that understanding, there could be very little motivation on their part to make this attempt at settlement work and do the hard work that is required.  Furthermore, it is necessary to get them to be reasonable in how to analyze their particular case. They must understand that claims will only be generated when the actions of the employer are wrongful and not just unfair!  They must understand which facts generate what claims.  They must understand what evidence will prove those facts and, therefore, those claims. They must understand that only certain causes of action compensate them for emotional distress damages or punitive damages.  And, they must not only understand these things, they must accept them.


Needless to say, I do not expect them to understand and accept these things as well as I do, but, if they do not possess some reasonable degree of understanding and acceptance of these things, it could seriously impair your ability to do what you have to do.   Without their full-fledged participation and cooperation, you may be impaired in your ability to develop a proper legal analysis of the case, a proper presentation of the case, a proper substantive evaluation of the case, both strengths and weaknesses, and a proper valuation of the monetary worth of the case for settlement purposes, all of which are necessary for the demand letter and ensuing negotiations, as will be discussed further, infra.


But, it may not be possible to achieve the degree of client control necessary, including at the demand letter stage.  As detailed, supra, a client may be experiencing difficult and painful emotions, which could easily get in the way of such a rational and realistic understanding and acceptance. For example, a client may be too angry to be reasonable.  He or she may also be too distrustful. Additionally, it may be difficult to gain client control, because you are too burnt out by the client or just too burnt out, in general, not an uncommon state in our profession and particular practice!  Consequently, you may not have the capability or the motivation to try and try hard to secure control over the client.  And, all of these dynamics may worsen in the negotiation or resolution stage, as will be described, infra.

However, there are ways out of this dilemma or maybe even ways to prevent it from occurring in the first place.  Among other things, if you have shown the client that you care, that you will advocate in an impassioned manner, that you will work hard and that you will perform at a highly competent level, the client is more likely to defer to your control.

If you have a second attorney in your office or an outside colleague you can associate in, who can also work on the matter, maybe, by having two of you making the arguments to the client, you can be more persuasive.  (Certainly, having a second attorney has many other advantages in this pre-litigation process, and these will be explained, infra, as I discuss further the development and resolution stages.)

Additionally, if you can draw on a person in the client’s life who has influence over the client and would have the motivation to try and try hard to make the client rational, use that person.  I am talking particularly about a spouse, a partner, a significant other, a psychotherapist or other health care provider.  I have found that using one or more of these persons can be extremely effective.  For example, spouses, partners and significant others are often concerned about the client’s obsession with his or her matter and refusal to move on with his or her life, as well as what such dynamics are doing to their relationship.  Often, they just cannot take it anymore.  And, since they are not the client, they may be in a more objective position to understand what is the sensible thing to do.  This is not always true, and sometimes one of these persons is as invested as the client, if not, more so, and as emotional about the situation as the client, if not, more so.  They also may not be sufficiently bright and/or may be too controlling.  You have to make the call as to when to use them in a specific matter.  On the other hand, psychotherapists and other health care providers are almost always safe bets.

When you are too burnt out to gain client control, this is where a second attorney from your office or the outside counsel can help more than ever, even as early as the demand letter stage, given that you are unable or unwilling to carry the entire load.  I have often turned to this method to achieve client control.  I believe nothing less is owed to the client.  The client, if he or she can be convinced to do so, should be making decisions in his or her best interests, and you may need to go this extra step, including bringing in a counsel from the outside, to get your client to do so, when you are unable or unwilling to perform this function.

I will now discuss other monetary or money-related items for the demand.  Generally, I will list as a separate item a demand for a contribution to attorneys’ fees.   I do this because I believe that, by doing so, I may increase the overall settlement amount, since, again, employers are very often more open to hearing about hard damages and the hard logic behind your demand figures.  For the same reasons, I will often, where appropriate, ask for payment of my client’s medical expenses, including, but not necessarily limited to, the cost of psychotherapy, and for the payment of COBRA premiums.  But, many employers do not care for any sort of breakout of the damage elements, for they are willing to pay only a certain amount of dollars, whatever the breakout.  For those employers, these separate listings will not pay off.

As for the non-monetary items listed in the boiler-plate demand, these should be self explanatory, and I would like to move on to what I hope will be some helpful miscellaneous points and suggestions for the demand letter that I have not yet covered or discussed in enough detail.

First, I think it is important to state in the letter, where you can, what evidence you hope to or expect to secure in litigation, if the case goes forward into litigation.  This is especially important to emphasize in connection with the evidence that may be discoverable to prove that which will generate punitive damages.

Where you can appropriately cite, either explicitly or implicitly, the dirty linen that will come out if the case goes forward into litigation, that may increase your chances for a good settlement.  This is particularly true in public policy cases, given the allegation of illegal behavior by the company, if not, serious illegal behavior, which might also result in a government audit of the company if exposed.  In fact, use any dirty linen you have as long as it is relevant.  Otherwise, it smacks of extortion and that could cause a backlash on the part of the company, which might drive it away from the negotiation table.  It might result in certain circumstances in a threat by the employer to counter-claim for extortion.

This raises the whole issue of the threat of publicity.  After many years of experience, I have found that almost any halfway competent defense counsel and intelligent employer will know when there is the chance for publicity if the case is litigated, and what damage such publicity will cause to the employer.  Consequently, ordinarily, you do not have to expressly discuss it in the demand letter.  Furthermore, if you are going to mention it, given its sensitivity, you may want to do so not in writing, but in follow-up verbal discussions with the opposing counsel, or, as discussed, infra, if it goes into mediation, with the mediator, who can use it as he or she sees fit.  Otherwise, to expressly reference it, much less, in writing, it could be seen as rubbing the company’s nose in it and cause the kind of backlash that will disinterest the employer in resolution. 

But, that does not mean I will not threaten, if the case goes forward, to make it a cause célèbre, otherwise, and that I will threaten to do in writing.  For example, if I feel this case could make a significant impact on the law or on a pattern or practice of employers, I will inform the employer of this in the demand letter.  I will explain how I have already approached appropriate organizations or individuals, e.g., civil rights groups, public interest law firms, employment lawyer organizations, colleagues, elected officials and discussed the matter with them.  And, where I can, I will cite the support they have offered.  However, I will assure the employer that, in discussing the case with these organizations or individuals, I have not expressly identified the company  or provided other information that would enable the company to identified.

I also believe that the passion and investment that you will have displayed through these efforts to make an impact should convince the employer you take this matter very seriously and are willing to invest in it, including for the long haul.  This should give a company concern, if not, deep concern, and certainly so where you, let alone, these organizations and individuals, have been effectively involved with impact cases in the past.

In addition, it can be quite helpful, as pointed out, supra, to have two attorneys on the matter and signing the letter.  Among other things, as already described, supra, this could allow more easily for client control.  But, it can accomplish many more objectives.  It allows for a second analysis of the case, a second opportunity to understand what the case is about and its potential strengths and weaknesses and a second opinion on the value of the case for settlement in the pre-litigation stage.   All of these things may have become necessary, in particular if you have become somewhat less than objective and too impassioned  about the matter.

However, you could also accomplish these objectives by just consulting with a colleague on the matter and running it by him or her, as opposed to having that person actually become a co-counsel. I do this rather often, including with colleagues outside my office, for, often, if not, most of the time, a second opinion at the demand letter stage truly adds to my understanding of the case and how to value it. 

Furthermore, by having a second attorney on the matter as co-counsel, it may also positively impress the other side.  After all, it will now see how much resources are going to be invested in the case and what they will be up against.  Hopefully, they will also assume that this level of resources is being invested because the case is worth it.

And, if you have dealt with this employer and its in-house counsel before, and dealt with them in a way that you feel was positive, including as to settlement, it could be helpful to have that same counsel on your new matter.  Therefore, I will contact the in-house counsel before I send the letter to see if it can be arranged to have that person assigned to this matter.  I will then address the letter to that in-house counsel.  This has paid off for me with more than one employer.

Of course, it is necessary to place a deadline for the response by the employer.  I routinely give them l5 working days, if, for no other reason, my demand letters can be so lengthy that there is a lot to investigate and respond to, if the employer plans to make a good faith effort to resolve the matter.  However, if a statute of limitations date is approaching, I will propose a tolling stipulation, which can extend the statute for a civil filing but not for an administrative one like the DFEH. Gov. Code § 12960.  Typically, it is not a problem getting the other side to agree to such a stipulation, for it is obviously in its interests also.

When I know that this is going to be a difficult employer or counsel to convince that the case is good and that I will litigate if necessary, I will also consider enclosing a draft of the civil complaint I plan to file if negotiations fail.  Sometimes, depending on the circumstances, I will transmit such a draft during the negotiations to convince the other side of the worthiness of the case and my commitment to it.  Other times, the defense counsel will suggest this in order to get his or her client to focus on the matter.

One last suggestion. In many cases, I will send the employer some sort of letter before I send the demand letter, and I will do so for many reasons.  The letter will announce my representation of the client and will inform the employer that we will be trying to settle the matter, if that can be done on reasonable and fair terms.  It will further describe how, for purposes of facilitating such a resolution, I will be sending a demand letter that will recite the facts, evidence, legal claims, damages and demand for settlement. It will also state that, if a resolution of the matter is not reached, the case will be litigated.  Clients really like this kind of letter.  It makes them feel, as opposed to the victim status they might have experienced prior to retaining me, that they are now standing up to the employer and fighting back, and most of all, with an attorney, and that the company will now have concern about what it did to the client. 

Moreover, this letter could serve other purposes.  For example, as discussed, supra, I may use it to request access to or a copy of the personnel file.  Or, my client may be concerned about bad references, and so I will warn the employer about the claims that could be generated by these references.

Otherwise, that is it.  That is the demand letter process.  As you can see, I devote a lot of attention to this front-end of the negotiation process.  I devote many, many hours and generate many, many pages.  The average letter takes approximately 30 to 40 hours to produce.  It may take less time.  It can certainly take more, particularly when there are numerous transactions and details, as well as detailed relevant documents that need to be analyzed, such as performance reviews, written disciplinary actions or work product.  It is not unusual for the letter to run at least 10-20 pages.  It could run more, again, based on the amount of data. 

It also takes numerous hours, since I want it to be a highly professional effort.  As stated, supra, I want to put out the best quality product I can, if I am going to increase the chances for successful negotiations.  I need to do the best substantive job I can, just as I would need to do in litigation to bring about the best result possible. 

Yet, a quality demand letter does more than just make the best substantive presentation possible to the employer and its attorney.  It presents an image of you as a first-class professional, who is not only competent, but willing to do the hard work.   It also says you believe in and are committed to this case.  Certainly, all of these things may help in the pre-litigation process. 

In addition, this is your presentation, pure and undiluted, without any interpretation or analysis by the employer or its counsel.  And, it is in writing.  Consequently, if someone in the company is interested in hearing your unadulterated version of the matter, they have a place to go to.  Moreover, this may be the first and last time you will be able to communicate directly to the company.  So, these are additional reasons for making it the best product possible. 

I will turn now to resolution.

V.            Resolving the Case

Much of the wisdom I have shared to this point is wisdom that can also be applied to the resolution or negotiation stage of the process.  Again, I would start with the most basic of the guiding principles elaborated, supra.  Litigation must be approached realistically.  It carries with it many substantial risks for your client and you.  Once you understand this, you will then motivated to give the settlement process your all, just as you would give everything you have to the litigation process.  Without this level of commitment, investment and professionalism, this attempt at resolution is less likely to be successful. 

In practical terms, this means many things for the resolution stage.  To start with, you persist in your efforts to settle the matter.  You do not give up easily if negotiations are going nowhere.  You do not go with only your anger and frustration.  You can always litigate.  You are in this pre-litigation process because you are trying to avoid litigation if that can be done.  If it cannot be, fine, but you are going to, in any case, try and try hard.  I have found that some colleagues in some situations are just waiting for the excuse to stop negotiating so they can begin litigating.  For those persons, clearly, it is rather unlikely that settlement will happen.

Furthermore, I think some attorneys believe that they need the formal and legally binding structure of litigation to achieve the level of control over the defendant to achieve what they want.  However, as we have all learned, though the rules of litigation offer some degree of control, they do not provide total control.  More importantly, you can create, or have the potential to create, your own process in the pre-litigation stage.  You have that power or potential power.  I have already discussed how I structure the development of the case process. 

But, you also have the power to propose to the other side how to structure the negotiation process.  Ordinarily, I propose that the attorneys conduct traditional bilateral negotiations, trading back and forth their views of the case and proposals and counter-proposals for settlement.  However, negotiations do not have to be done this way, especially when that method is not working.  You have the power to propose a change in the process, if you feel such a change will make a difference in bringing about resolution of the matter.  So, if traditional bilateral negotiations between the attorneys are not working, propose something different.

For example, if the attorneys have not met in person to negotiate, I always suggest that.  Face to face negotiations can be so much more effective, and defense counsel will usually be receptive to the idea. 

Or, if your client is able and willing, propose that both sides meet, attorneys and clients, to discuss the matter.  I suggest this process in particular when I trust that clients will perform well, when I trust that they have the capability and knowledge to do an effective job, including a willingness to let me control what they do.  As a result, their performance could be highly persuasive, for they could come off as, among other things, intelligent, articulate, sympathetic and credible.  They could demonstrate strong jury appeal. 

What I do and say in such a meeting could also be quite persuasive.  Consequently, if we can have this opportunity to talk directly to the other side, it could make a difference.  I  also will suggest this when I feel that the other side may provide information in this process that will enable my client and me to better understand how to analyze and evaluate the case.

Which brings us to another process alternative, mediation, which has these same advantages and then some.  A large subject like mediation needs its own separate presentation.  However, I do want to make some points about this alternative process for negotiation in the pre-litigation stage. 

As a rule, I do not propose this process until traditional bilateral negotiations have not worked and for several reasons.  Traditional bilateral negotiations may work, and if they do, time and money will have been saved by both sides.  Further, the settlement will occur earlier than if everyone has to wait for a convenient date for the mediation for all those who will be attending, including the busy mediator who may not have much time available for a long time.  I also think that, in some situations, proposing mediation at the start of the process can make you look too eager for settlement, at least, this is what I used to think.  Based on some recent experience, I am not certain this is so, and so I am re-thinking my position.  In fact, when I am asking for a rather high amount of money for settlement, I will sometimes suggest mediation from the start.  In addition, I will suggest it, when I know I am having problems with client control and can use the services of an effective mediator to convince the client to do the sensible thing.  And, it is in the negotiation or resolution stage that client control often becomes more difficult to achieve, since, among other reasons, you are talking about money and having the client let go of the conflict, something that may be very difficult for them to do.

I also believe, and strongly believe, that mediation is almost always successful.  And, the statistics back me up.  Almost all of the popular mediators have a success rate that runs, at a minimum, from 80-90%, which is the success rate I have enjoyed with mediation.  Therefore, for me, it is an attractive alternative.  And, this is so even when both sides are far apart.  In many such situations, I have seen skilled mediators bring the parties to resolution, though, for this to happen, both sides must be willing to listen.

Additionally, most defense counsel know the advantages of going into mediation, and some of them will propose it to me, including at the start of the negotiations.  Consequently, generally, you typically do not have to do much of a sell on the process to them.

Nor, customarily, do you need to do much of a sell to your client.  I have found clients have trusted my judgment that this is a sensible process choice.  One point that is most persuasive with them is the fact that the mediation will allow them to have some sort of day in court, and that this, in turn, may more easily allow for closure on their part.  They are also are convinced by the rational and realistic argument that, given that there is very little downside to the process, and given that there is so much upside, they should be willing to try it. 

Once mediation has been agreed to, you must prepare for it.  You must take the process seriously and invest the necessary time, energy and competence, just as you would in litigation.  Prepare yourself well.  Prepare your client well, not just on substantive matters but on the process as well, just as you would do for a deposition.

Make your opening statement as persuasive as you can.  The same for your client’s presentation in the joint caucus.  Show the client off, and show yourself off.  Show them what a jury will see. In part, you and the client are there to be judged, so do everything you can to generate a highly positive judgment by the employer, its counsel and the mediator.

If appropriate, as elaborated, supra, use a report by an economist or health care provider to bolster your presentation, and, if appropriate, consider having the economist present to make a presentation in the joint caucus, or the health care provider, particularly, the treating psychotherapist to do the same.

In the private caucus, your client and you must be very persuasive with the mediator.  If you have prepared well, and your client has done the same, this should happen. 

It is also in the private caucus where you can be the most frank about the use of dirty linen and publicity.  Let the mediator figure out how to best communicate such information to the other side, so that it helps toward resolution and does not create a backlash against settlement.

In addition, in both the joint and private caucuses, I will emphasize how this case could be an impact case, how I will enlist the aid of others in making it so and how, therefore, the case could become a cause célèbre.

Again, there is much more that I could share regarding how to make mediation successful, but that is another subject, and large subject, and needs a separate presentation entirely.

Furthermore, whatever process you use to try and achieve settlement, keep in mind some other basic points.  In the resolution or negotiation stage, a second attorney on the case, as a co-counsel or consultant, can be most helpful, and certainly so in mediation which is so demanding.  As with the demand letter, among other things, this person can be the cooler head, and, as a result, maybe see more easily the way around obstacles to successful resolution.  As described, supra, this person could also provide, and, maybe, more objectively provide, all kinds of second opinions, including as to the strengths and weaknesses of the case and the value of the case, principally once you have received the employer’s version of the case in these negotiations.  I am always helped in some manner, if not, a significant manner, by hearing what another counsel, whom I respect, has to tell me about the case and the negotiations, as long as I am willing to listen.  This input could also add to your ability to get the client to do that which is in his or her best interests, something which becomes more difficult, I often find, at the negotiation stage. 

Additionally, whatever process is employed for negotiation, as described at length, supra, drawing on a persuasive person in the client’s life may enable the client to engage in rational and realistic analysis and make sensible choices as a result.

Moreover, do not make crazy arguments in negotiation. Bad arguments hurt good arguments, for they take away from your credibility.  And, where it is appropriate to concede points, and that, obviously, depends on the circumstances, do so.  You will gain credibility and respect for doing so with the other side, and that will help you gain acceptance of your better arguments.

Lastly, before you even begin negotiations, research the employer.  Find out about other claims against the company.  Talk to colleagues to find out what their experiences have been with the employer.  Do the same for the opposing counsel, once you know who that will be.  This information should allow you to be more skilled in the resolution process.  You may even want to give the opposing counsel “references” on you, so that he or she can check you out as to many things, including, but not limited to, your competence and good judgment.

VI.            Summary

I hope that many of the points I have shared with you will enable you to be successful or more successful in your pre-litigation attempts at settlement.  Some or all of them may be familiar to you, since most, if not, all, are common knowledge.  In fact, you may already use some or all of them in structuring and implementing the pre-litigation process.  Be that as it may, these are the points I have drawn on over the years to increase my chances for successful resolution of cases at this stage.  And, given the success I have ultimately generated in many cases, I believe these points may be able to help you achieve, or more easily achieve, your settlement goals and those of your client.  Good luck.