A potential client recently assured me she could make me "wealthy" if I would accept her case for discrimination. She was responding to my gentle declination of her case. How do I explain to a potential client that what they see on television or in the movies is not real life? Sure, Erin Brockovich did well in their class action two decades ago because they found "smoking gun" type evidence. But, in the average discrimination case, direct evidence of intent to discriminate is "few and far between."
To show intent, we have to produce evidence of what a person was thinking when they committed the adverse personnel action. How do we get inside someone’s head? We can only rely on the statements by that person. And, these days, most folks know not to say what they are thinking.
The other part of my answer would concern motions for summary judgment and the jury system. Motions for summary judgment end in the dismissal of many decent cases of discrimination, everyday. I wrote about one study that found plaintiffs in discrimination cases have the lowest percentage of success among major lawsuits. The chances of success for disability, race and national origin, sex discrimination and age discrimination and FMLA reprisal range between 9 and 20%. See my post here.
And, the jury system. I appreciate the jury system. In my view, serving on a jury and casting a vote are the two major ways we preserve our democracy. The jury system allows any person the opportunity to enforce community standards. No special training is required. But, truly, many jurors get the result wrong. Many juries do not appreciate what they do and rush through the process. I tell clients that they can throw the dice at Las Vegas or take their matter to a jury. The chances of success are about the same.
So, no, Ms. Potential Client, I do not expect to become wealthy through your case. But, I do appreciate the offer……