I talked the other day about a recent book from the University of Chicago Press: Rights on Trial: How Workplace Discrimination Perpetuates Inequality. See my poor post here. The authors went to federal records and interviewed individual plaintiffs to study how well discrimination lawsuits achieve the simple aim of rectifying discrimination in the workplace. The authors included Ellen Berrey, professor of sociology, Robert L. Nelson, research chair in the legal profession and professor of sociology, and Laura Beth Nielsen, professor of sociology. See my prior post here in which I discuss the success rates of plaintiffs in various types of discrimination lawsuit.
The authors also looked at the process of simply finding a lawyer. One in four discrimination claimants do not find a lawyer. Rights, at p. 109. They found that African-American plaintiffs suffer disproportionately when looking for lawyers. Finding a lawyer is important. Without a lawyer, the chances that a case will be dismissed is about 59%. With a lawyer throughout the process, the chances of dismissal are about 12%. Rights, at 112.
The authors note correctly that finding a lawyer who practices employment law is time consuming. Persons who have just lost their jobs are strapped for time as it is. Add to that the possibility that the terminated person has children, perhaps a spouse with a disability, and it becomes almost impossible to find the time necessary time to look for lawyers. Finding employment is paramount, after all.
Some plaintiffs reported they were asked to pay for a lawyer, one was quoted a fee of $500 and one a fee of $2700. Recognizing that the potential plaintiffs did not complete understand the lawyer selection process, the authors interviewed some 20 plaintiff lawyers, ranging from sole practitioners to large firms and pro bono lawyers. The lawyers estimated they accepted less than 10% of the cases that came to their doors. They all generally focused on how a case would “play” to a jury or judge. As I do, these lawyers looked for clients who seemed more serious about their allegations. Rights, at p. 122.
One long-time lawyer reported that he looked for clients who were not “accusatory” or “whiny” doing the first meeting. The importance of the first meeting looms large in the decision of most lawyers regarding whether to accept a case or not. All the lawyers preferred clients who seemed to be prepared for a lawsuit, with documents on hand. Rights, at p. 124. The lawyers generally operated on a contingency basis with some fee paid up front. Some relied on a payment plan from the client. One lawyer mentioned that there needed to be a certain amount of lost pay at stake before he would accept a case. He sought wage earners of at least $36,000 per year before he would consider such a case. Rights, at p. 126.
In the end, the authors found only some 10% of plaintiffs find lawyers. Criteria for a case being accepted included client’s truthfulness, demeanor, and work ethic. Also important was a complicated formula seeking significant amounts of lost pay at stake. Rights, at p. 128. All I can say is “yep.”