The Problem

Today employees are asserting legal claims against their employers with unprecedented frequency. These claims seek greater damages and cost more to defend than ever before. Numerous diverse factors have combined to contribute to this trend:

  • judicial creation of new causes of action
  • new and expanded legislation at the federal, state and local levels
  • availability of increased remedies for employment related claims
  • an escalation in the amounts juries award as damages
  • greater recourse to jury trials
  • an unprecedented level of work force diversity
  • a new level of awareness of individual employee rights by workers of all levels
  • widespread employer downswing
  • a far tougher and more highly competitive economic environment.

These factors have also increased the potential liability associated with workplace claims, as well as the likelihood that such claims will be found meritorious.

At the same time employers at all levels are faced with a pressing need to control costs and minimize uncertainty.

The traditional corporate response has been to refer defense of employment claim to outside counsel who, billing by the hour, nearly always responded with a comprehensive, highly litigious strategy. All too frequently, the result has been very large defense bills, which usually are followed by payment of substantial settlements to plaintiffs as trial finally approaches. Alternatively, if the claim was devoid of merit and the employer fortunate, summary judgment in the employer’s favor ended the litigation. In that case, the employer still bear substantial litigation expenses.

Some companies have experimented with increased handling of employment cases directly by in-house counsel. These attorneys often lack the litigation expertise and practical intimate knowledge of each jurisdiction’s operation to properly assess and efficiently handle the matter. Besides, because of competing responsibilities, they often cannot devote the time needed to effectively handle the litigation. Other employers have tried retaining smaller or general practice law firms and in some cases counsel from the plaintiff’s employment law bar. These approaches are dangerous because these attorneys typically lack the experience, resources and managerial perspective needed to prevail in employment litigation.

The end result is that today corporations are faced with the dilemma of having to take more aggressive employment actions against their employees to remain competitive, only to incur increased defense costs and in some cases astronomical liability when these decisions are legally challenged.

An innovative and effective approach is needed to resolve this dilemma. Cost Effective Employment Litigation has been developed to fill this need.

The Concept

Cost effective employment litigation is a comprehensive approach to evaluating and managing workplace claims and employment-related litigation. It is based upon four core premises:

Each claim should be thoroughly analyzed and evaluated in terms of probability of success, employer exposure and costs of defense when it first arises.

An overall response, ultimate objective and unified strategy designed to achieve that objective should then be formulated based on the initial assessment of risk, liability exposure and the total costs of responding to the claim at issue

Each act taken in response to the claim should be undertaken only if it contributes to the ultimate objective and then in the most cost effective manner.

Aggressive pursuit of settlement, including use of alternative dispute resolution techniques, should be employed early, frequently and continuously.

Cost effective employment litigation differs from traditional employment defense litigation in that it is driven, not by the next step in the lawsuit, or by the defense counsel’s income objectives, but by the strength and value of the claim and the most efficient manner to resolve it. Each claim is analyzed individually, with a strong and objective emphasis on the facts. Only after the factual basis of the claim has been determined and assessed is a responsive strategy is formulated. The response is driven by cost. Each step is individually tailored to the particular claim at issue, and based squarely on the potential exposure and total costs of defending that claim.

Some examples of particular approaches which may be warranted in some cases are:

  • Taking a Plaintiff’s deposition, without any prior written discovery, at the outset of the discovery period followed by a succinct motion for summary judgment;
  • Not removing a Title VII claim filed in state court to federal court;
  • Proposing immediate arbitration or mediation of a claim;
  • Increased use of Offers of Judgment;
  • Extensive use of informal discovery as an alternative to formal discovery;
  • Abbreviated depositions and video depositions without immediately transcribed transcripts;
  • Requesting a settlement or status conference with the court to compel plaintiff’s participation in adr before commencement of discovery;
  • Meeting frivolous claims with a minimum level of defensive work;
  • Filing counterclaims against employment discrimination plaintiffs;
  • Limited or no legal research on fact based claims;

Fees and Costs

We offer two varieties of fees: hourly and fixed fee basis.

Hourly Basis

Cost Effective Employment Litigation can be done on the traditional hourly basis. Effective January 1, 2024, Adam’s standard hourly rate is $650, the rate for associate attorneys is $545 and the paralegal billing rate is $175. These rates are likely to increase in the future. At the current standard rate of $650 per hour for Adam’s time with comparable rates for other attorneys and legal assistants in the firm. To emphasize cost savings, this fees includes all incidental ordinary expenses normally tacked onto to fees by law firms, such as telephone, photocopying, fax, and on line legal research charges. This enables us to choose the most cost effective means of communication without regard to income concerns. Extraordinary expenses such as travel cost, expert witness fees, deposition transcripts, consultants charges and the like are billed to clients on a direct cost basis. We charge a significantly reduced rate for attorney travel time, unless productive work is also performed during the travel.

We estimate that the costs of defense expended on an hourly basis should be less than half of what a client would pay to a megafirm to handle the same matter. It should also result in a significant reduction over the fees that would be charged by a large labor and employment law firm handling the same representation in the traditional manner. It should also provide a better and earlier resolution.

Fixed Rates

We also will handle cost effective litigation engagements on a fixed fee basis. The actual fee will be negotiated with the client based upon our initial assessment of the facts and claim involved, the amount of professional time and resources we estimate for the representation, and the ultimate objective of the litigation. We can also negotiate staged fixed fees for various components of the representation such as discovery, summary judgment, trial or appeal.ide a better and earlier resolution.

The Risks

Cost efficient employment litigation is not appropriate for all cases. If the issue in the litigation is of crucial importance to the organization, if the amounts at issue are so large as to impact upon the employer’s continued viability or if the legal issues are novel or unprecedented, a more traditional approach to representation is probably warranted. Also in exchange for the cost savings, we ask that we be accorded considerable latitude and independence to manage the litigation and make strategy decisions. It will not work if in-house counsel or operational personnel seek to second guess our procedural decisions or intervene at each step. We pledge, however, both that you will be kept fully apprised of all actions taken on the representation and that you will remain in full control of the ultimate outcome.

Also, please keep in mind that since the purpose of Cost Efficient Employment Litigation is to reduce your costs, there are some risks involved in its use. For example, it always remains possible that litigating a matter through judgment may ultimately completely vindicate the employer of any liability and result in escape from paying anything to plaintiff. Cost Effective Employment Litigation differs from traditional representation because it is not intended to achieve this result, rather it is designed to end the litigation and resolve the matters to the employer’s satisfaction as economically as possible. It is intended for employers who are too busy or too efficient to expend their resources securing vindication or seeking revenge.

Please contact Adam J. Conti to secure additional information or to employ this innovative solution to growing problems of excessive litigation costs and high employment claim judgments.