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.
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;
The foregoing are no more suggestive of what should be done in any particular case then are the boiler plate responses normally taken today by large corporate and labor and employment law firms. What distinguishes our approach is that we consider a broad range of innovative and nontraditional responses before acting and then act only in a manner that is driven by the goal of minimizing the defendant’s total resolution and defense costs, not by our fees or the objective of securing victory at any cost..
Under cost effective employment litigation, each action taken in response to claim is undertaken only if its anticipated benefit to overall bottom line justifies its costs. All work that is performed is done with the objective of ending the litigation in the employer’s favor at the least cost of defense plus resolution. Motions and depositions are not undertaken unless the impact they are likely to have on the litigation justifies their expense. Legal research on tangential issues or issues we assess to be reasonably clear is not performed . Where research is undertaken, it is limited by the task and issue at hand. Discovery tools and methods are customized in view of the overall objectives and litigation strategy. Settlement and adr techniques are aggressively pursued from the outset. Numerous other cost saving techniques are used throughout the processing of the matter to control the total litigation costs. These include extensive use of paralegals, video depositions, faxes, e-mail and fax transmission. The costs we incur are passed along without enhancement. Attorney travel time is not billed.
The concept was originated by employment litigator Adam J. Conti who derived it by combining his extensive experience in representing public sector plaintiffs in employment litigation with tens years’ background in managing litigation, his MBA degree and his fascination with legal practice automation. Since employment litigation plaintiffs almost invariably lack the financial resources to prosecute claims on an hourly basis, successful plaintiffs’ attorneys recognize that the economic viability of a contingency practice depends on volume and handling cases with a high degree of efficiency. They are forced to act in a cost effective manner to survive economically. Extensive experience representing plaintiffs also aids in recognition of the factors that actually determine the outcomes well as the amount of recovery in most employment cases. By concentrating on those areas, employment litigation can be handled with hourly time expenditures that range from one half to one third the time typically accrued by defense counsel. Since professional attorney time is expended on the basis of the results to be achieved in view of the unique circumstances of each case, and not the economic interests of defense counsel or to maximize the chances of prevailing, cases can be handled from a far more economically efficient basis. In essence, cost efficient employment litigation is nothing more than applying basic business efficiency to litigation management.
The same results cannot be achieved by merely the hiring a plaintiffs law firm to defend an employment related claim. This is because different considerations drive defense strategy than do plaintiffs’ interests. It also is essential to objectively appreciate how the forum will likely view and assess defense claims, arguments and strategies. The client environment is dramatically different between defense and plaintiff claims. Your counsel must appreciate the business objectives of the employer, as well as how the corporate hierarchy and the organizational functions. A plaintiffs’ firm which is inexperienced in defending employment claims typically lacks the background, knowledge and perception to identify the facts, issues and strategies likely to control the outcome of the dispute. This is why defense firms are generally ineffective in prosecuting plaintiff’s claims and when they are, they almost never recover the full fees expended on the matter. An attorney needs deep experience on both sides of the employment relationship, and the ability to objectively assess the underlying factual situation, to be able to select which techniques and strategies are transferable to the other side, and more importantly which are not.
It is precisely because of the unique and extensive experience of our employment litigators that Adam J. Conti LLC can offer cost effective employment litigation. Our attorneys have collectively extensive defense experience as well as experience in government regulatory capacities. In addition we also have the experience representing plaintiffs that is needed to make the concept work successfully. Our firm also has an extensive research and pleading bank, thereby ensure that professional time devoted to the representation will be kept to a minimum. Furthermore, these resources also ensure that the time actually expended on pleading preparation and legal research will have a maximum potential impact on the outcome of the case.
Alternative dispute resolution is a core component of cost effective employment litigation. It is actively pursued at all stages of the litigation in efforts to achieve an acceptable end to the dispute as early as possible. A bonus result is that it frequently produces a better and more permanent resolution of the true underlying problem than an adjudicated determination. Even where ADR does not resolve the claim, it serves to lower the claimant’s expectations and paves the way for a mutually agreeable settlement at a later stage.
Cost effective litigation is performed under the tight supervisory control of our senior employment law litigators. Each has extensive trial experience; several have also worked for government regulatory agencies in the labor and employment field. In addition, Adam Conti, who originated this concept, and who has extensive experience representing plaintiffs in employment litigation in the public sector, will personally monitor and control the representation.
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 at the current standard rate of $285 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.
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 us to secure additional information or to employ this innovative solution to growing problems of excessive litigation costs and high employment claim judgments.