A Guide to the Litigation of Employment Cases
Many clients who have never been involved in major litigation - especially a civil rights case in a federal court - are surprised by the complexity of our legal system. Television and movies frequently give the impression that cases move through our legal system and arrive at trial in a brief amount of time, with a minimum of risks or roadblocks along the way. Unfortunately, the opposite is generally true.
This page is designed to lay out the normal progression of litigation of a civil rights employment law case. Your attorney also should discuss all of these matters with you, and you should ask questions for more detail about all of the information contained in this brochure.
The "Charge" of Discrimination
Generally, cases alleging discrimination in employment within the State of Illinois must be brought in a federal court or before an Illinois administrative law body, such as the Illinois Human Rights Commission, Cook County Commission on Human Rights, or City of Chicago Commission on Human Relations, although starting in January 2008, Illinois discrimination cases may also be brought in Illinois state courts. Cases alleging other kinds of wrongful discharge from employment need to be brought in regular state courts, unless they are combined with a discrimination claim and can be added to a federal court lawsuit.
Before anyone files a discrimination lawsuit in a federal court or before any administrative body, he or she must, in most cases, first file a CHARGE with the Equal Employment Opportunity Commission, the Illinois Department of Human Rights, the Cook County Commission on Human Rights, or the City of Chicago Commission on Human Relations. Where you file your charge of discrimination determines the court in which your case will proceed. If you consult an employment lawyer prior to filing any charge, he or she will usually assist you in choosing which path to follow and may even prepare and file the charge of discrimination for you.
Nonetheless, you still must begin most discrimination case by filing a charge with one or more of those agencies. In the case of the EEOC, you must file a charge within 300 days of first learning of a discriminatory event. In the case of the Illinois, Cook County, and City of Chicago agencies, you must file a charge within 180 days of learning of a discriminatory event.
In order to bring a discrimination claim before any of those bodies, you need to go beyond the stage of filing a charge of discrimination and bring a lawsuit. In federal court, it does not matter whether the EEOC has found for you or against you on your charge - you still have the right to proceed to a lawsuit. None of those agencies has the power to force an employer to take any action, without a lawsuit beyond the charge-filing stage. To file a federal suit, you may either wait for the EEOC to make its determination or you may ask for a "RIGHT-TO-SUE LETTER." You have 90 days from the date that the EEOC either finishes its investigation or you receive a "Right-To-Sue Letter" in order to file a federal suit.
If an employment case survives the summary judgment process, chances are good that the employer will offer a decent settlement amount. If the employer does not offer an amount sufficient to induce you to settle the case, the case proceeds to the next stage. The Judge will set a date for filing of the PRE-TRIAL ORDER. The Pre-Trial Order is a very large document, filed by both sides together. You might think of the Pre-Trial Order as the Judge's "road map" to the case. It includes each side's main arguments, lists of witnesses, lists of exhibits, and proposed instructions for the jury.
After the Pre-Trial Order is filed, the Judge will generally make an effort to try to convince the parties to settle the case. He or she will often require each side and their lawyers to come to court for the purpose of discussing settlement, and the Judge will often recommend a settlement amount to the parties. Although the parties need not agree to the Judge's recommendation, federal court judges can be quite persuasive in convincing the parties to compromise their differences before starting a trial.
If settlement again fails, the case will be set for trial. Your attorney will spend days preparing for trial and allowing you to practice your testimony. Your attorney may also incur some additional expenses for graphics for use at trial or subpoenaing witnesses to attend.
On the first morning of a jury trial, the Judge will bring a group of about 40 potential jurors to the courtroom and question them in groups about whether they can be fair. The Judge will give each side a number of "strikes" that they may exercise to remove jurors that they do not want. When eight (usually) jurors are selected, the trial begins. Federal court jury trials in employment cases usually last several days. During trial, the employer can again move to dismiss the case if its lawyer believes that the plaintiff is not adequately proving its case. If those motions are denied, the case is given to the jury to decide who wins and how much to award as damages. Again, the losing party may appeal to the Seventh Circuit Court of Appeals.
Although parties always want their attorneys to accurately predict how much their case is worth, it is very difficult to do, since it usually depends upon the individual group of jurors hearing that case. Verdicts can vary tremendously from one jury to the next. Generally speaking, in a wrongful discharge case, the jury is permitted to award the difference between the amounts of salary and benefits that the plaintiff would have earned if he or she had not been fired between the date of the firing and the trial, minus all amounts that the plaintiff has earned or could have earned during that time period. In addition, a winning plaintiff may be ordered to be re-hired by the employer.
Clients often ask what are the chances that a jury will award compensatory and/or punitive damages against an employer. Statistics tell us that this happens a relatively small percentage of the time and that, when juries do award such damages, they are usually in cases involving extreme sexual harassment or open racial harassment. Also, if the plaintiff wins, the employer will be required to reimburse the plaintiff's attorney fees and expenses in bringing the case.
The most common question heard by plaintiff's employment lawyers is whether the lawyer will accept a case on a CONTINGENCY basis. That is, will the attorney take the case without charging the client, but rather take their fee (usually one-third or 40%) from the amounts recovered if the plaintiff wins? Most plaintiffs' employment lawyers do take some cases on a contingency basis, but those are the strongest of cases where the attorney is convinced that monetary damages will likely be high. Even under a contingency arrangement, however, the client remains responsible for paying the expenses of litigation, as discussed above, such as court reporter fees.
Thus, a typical employment case will cost the client @$5000 even on a contingency basis. If a decision is made to hire an EXPERT WITNESS - - such as an economist to testify to the value of pension or benefit losses, or a therapist to testify to emotional distress - - it is possible for the client to spend several thousand additional dollars to retain and pay the expert witness.
The most common fee arrangement (at least in the Chicago area) is a modified contingency agreement. That is, the lawyer takes one-third of the proceeds if the case settles, or 40% once trial begins, and charges the client a RETAINER and an hourly rate. Then, if the plaintiff wins at trial or the case settles, the attorney takes one-third or 40% of the proceeds, but credits back to the client all amounts paid as of that date. If the plaintiff does not win, the attorney keeps all amounts paid as legal fees to date.
Typical retainers in the Chicago area for employment cases range from $1000 to $10,000 and hourly rates (generally speaking) from $75.00 to $200.00 per hour or more. For example, if you pay a $5000 retainer (which is most common), and an hourly rate of $125.00, the retainer covers the first 40 hours of work on the case. After that, you will receive monthly bills for the work done in that month.
How many hours of work does an employment case typically require? If it settles just before trial begins (a common settlement time) it usually takes about 200-250 hours of time. If it goes through a trial, it usually takes about 300-350 hours of time. Thus, a lawyer charging you $125 per hour has charged you @$25,000 to get to the eve of trial and @ $37,500 to handle the case through trial.
Because employment cases, especially in a federal court, are much more labor intensive than personal injury cases. For example, a typical personal injury lawyer might have 200-300 open cases at one time. A typical plaintiff's employment lawyer can handle only about 25-35 cases at one time. Employment lawyers usually work in federal court where deadlines are much shorter, and employment cases tend to be much more "unique" than personal injury cases, where the law is well-settled, requiring lengthier depositions, individualized written discovery and briefs, etc.
What risks do you take in bringing an employment lawsuit? Probably the biggest is the risk that you will spend large amounts of money on legal fees and expenses, only to have the case dismissed on summary judgment, or lose at trial. In that case, you have spent a tremendous amount of money and gain no recovery.
In addition, you run the risk that - if you lose your case on summary judgment or a trial - the employer may demand that you pay its expenses of the suit - the amounts it has spent on court reporters, subpoenas, travel, expert witnesses, etc. And, if the Judge determines that your case was "frivolous" - i.e. had no reasonable chances of success - you may be required to reimburse the employer for its legal expenses, which can be enormous. Reimbursement of legal fees is, however, extremely rare in employment cases. Your biggest risk is that you will be forced to pay the expenses of the employer.
Obviously, bringing an employment case carries a number of risks. Nonetheless, the courts can provide tremendous results for victims of employment discrimination or wrongful discharge in appropriate cases. Your best source of information about whether you have a viable case and how valuable it might be is an experienced plaintiff's employment lawyer.
Please note: Statements contained within this Web site consist of generalizations
to which exceptions may exist depending upon the details of a
particular situation. As such, information on this Web site should not
be regarded as legal advice, and is not a substitute for a consultation
with an experienced employment lawyer.
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