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Guide to the Litigation of Employment Cases

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Richard J. Gonzalez
Employment Lawyer

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.

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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.

Years ago - before such agencies as the EEOC and the Illinois Department of Human Rights were bombarded with charges of discrimination - those agencies played a more central role in trying to resolve claims of discrimination in the workplace. Often, the EEOC itself would accept an individual's case and provide free legal representation. Today, it is rare when those agencies agree to represent an individual employee in a lawsuit. In the case of the EEOC, their backlog might result in cases waiting a number of years even before an investigator is assigned.

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.

The Lawsuit

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.

These are the typical stages of a federal lawsuit:

  • The Plaintiff files a COMPLAINT, setting out the facts and legal theories on which the case is based.
  • The Defendant files either an ANSWER to the Complaint, or files a MOTION TO DISMISS, arguing that the case fails to complain about something, which the law recognizes.
  • If the Defendant files a Motion to Dismiss, the Court must first rule in Plaintiff's favor for the case to progress any further. If the Defendant files an Answer, the Court sets up a schedule for PRE-TRIAL DISCOVERY.
  • Pre-trial discovery means that the parties are given a period of time in which to try to develop evidence to support their cases. Three-to-five months is a typical discovery period in federal lawsuits. During pre-trial discovery, each party may require the other to answer written INTERROGATORIES - which require a party to answer written questions under oath. Each party may also require the other party to produce all documents, which might help a party prove its case. In addition, each party may take a DEPOSITION of every potential witness who might have knowledge about something relevant to the case.
  • Depositions are usually the most costly and longest part of pre-trial discovery. A deposition means that each party may require anyone they choose to come to the attorney's office and answer questions under oath about what they know about the case. The party taking the deposition must hire a qualified, licensed court reporter to attend the deposition and transcribe everything said. Generally, that party must then purchase the transcript of the deposition from the court reporter. Court reporters charge both for attending the deposition and for the transcript. A transcript of a full-day deposition generally costs about $1000. Thus, if the party takes five depositions in a case, he or she will generally spend about $5000 for court reporters. An attorney is not permitted to pay that expense - or any expense of litigation - on behalf of a client. Depositions in federal court employment cases usually last most of one day, but can sometimes last 2-3 days each.
  • After pre-trial discovery is completed, the employer will usually make a motion for SUMMARY JUDGMENT. Summary judgment is an increasingly common method of disposing of federal lawsuits, especially since federal judges have very heavy caseloads. You might think of summary judgment as trying the case on paper. Each side will set out in writing its arguments, along with excerpts from the deposition transcripts, interrogatory answers, and documents produced during discovery in an attempt to persuade the Court of their position. If the employer's motion for summary judgment is denied, the case will be set for trial. If it is granted, the case is over and the only remedy is to file an APPEAL to a higher court. In recent years, a higher and higher percentage of cases are being dismissed on summary judgment, where the Court believes that no reasonable group of jurors could decide the case in favor of the employee, so there is no need for a trial. Some employment lawyers explain summary judgment like this: Our case must pass an "exam" before it will be allowed to go on to the next stage- a trial. If our case fails the "exam", it will end without even a trial and the only remedy is the expensive and slow route of an appeal to the Seventh Circuit Court of Appeals, one step below the U.S. Supreme Court.


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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