According to a recent survey of parties to employment lawsuits, neither side believes employment discrimination cases are fair. But, plaintiffs are more likely to feel dissatisfied with their lawyers. The American Bar Foundation, part of the American Bar Association conducted a survey of parties to employment lawsuits. See ABA report. The study is based on a random sample of 1,788 cases and 100 interviews with plaintiffs, defendants and lawyers.
Plaintiffs start out optimistic but are surprised at the high cost of litigation. They experience conflicts with their lawyers and their personal lives are affected. Out of 41 plaintiffs interviewed, 27 believed their lawyers were incompetent or worked against them. 25% thought their lawyers were corrupt. Some complained that their lawyers did not share control of the litigation with them. And, on top of all that, the plaintiffs rarely receive a substantive ruling on the merits of their case.
Many plaintiffs cried during their interviews. Thirteen plaintiffs thought their lawyers displayed integrity and skill, but still thought the lawyers provided bad advice, made mistakes or colluded with the employer. Many plaintiffs mentioned the high costs of litigation. One plaintiff said he lost his million dollar home. He lost his wife and children because he became so difficult to be around. Many mortgaged their homes or took a second job to pay the legal expenses.
Pro se (i.e., they represent themselves) plaintiffs reported confusing procedures and "big 25 cent words." One pro se plaintiff’s case was dismissed when he mistook two court notices for an apparent dismissal. He was given time to re-file his complaint. But, when he failed to do so, his case was dismissed.
On the other hand, defendants complain that anyone, including "problem employees" can bring meritless lawsuits. One defense lawyer commented that he hears managers complain that employees can bring these lawsuits and they do not have any "skin in the game" They do not have to pay anything. The system is not fair, say these managers. The plaintiffs should have to pay something.
Sociologists Ellen Berrey, Steve Hoffman, and Laura Nielsen conducted the study. They found that both sides agree the system is unfair. But, beyond that, the parties’ two experiences differ dramatically. One side, the plaintiff employees, lose their homes and families and face a very expensive process. They end up divorced, depressed and bankrupt. While, the employers do not care for the litigation process either. They do usually have the resources and expertise to keep the costs under control.
Much of these findings resonate with my experience. One time, three plaintiffs cried in my office in a three month time period and two of them were male. It is hard to find employment lawyers for employees. So, many employees end up filing their own lawsuits. Many lawyers "dabble" in employment law. Such lawyers may miss key issues or deadlines. Litigation costs are very high. Each deposition will cost $500 or more. Many employment cases involves 3-4 or even a dozen possible witnesses. Deposing each of them will run into thousands of dollars.
But, the worst part may be that personal injury lawyer ads tend to suggest to non-lawyers that there is a lawyer on every corner. Not so for employment law. In San Antonio, a community of over a million persons, we have perhaps 10 lawyers who represent employees on a regular basis. The EEOC issues their right-to-sue letter leaving 90 days to file a lawsuit. Ninety days is precious little time to find a lawyer for a major lawsuit.
Employment litigation is very emotional. It is not too different than family law cases. Add to the strained nerves, issues with the plaintiff’s own lawyer and the lawsuit can become very emotional.