Common defense negotiating tactics

The defense attorney’s initial call to you

After reviewing the demand letter or complaint, either the defendant-employer or the defendant’s counsel will usually call you. This is often critical in setting the stage for future settlement discussions.

The defense attorney will want to make this initial phone call to you for several purposes:

  1. to try to get free discovery (that is, evidence) from you;
  2. to intimidate your side into thinking that your case is frivolous and thus won’t hold up;
  3. to try to find out what your minimum amount for settling the case is; and
  4. to gauge whether you or your attorney are actually prepared to litigate the case.

Here are some common defense tactics and advice on how to avoid falling into the trap:

1. The defense attorney will try to make you bid against yourself. If you have already made your settlement demand to the defendant, the defendant’s attorney will attempt to reduce any potential settlement amount and gauge how seriously you take the case by trying to convince you to bid against yourself. This means that the defendant’s attorney will indicate that the defendant is willing to consider settling, but only if you reduce your original demand before the defendant decides to make a settlement offer. You or the attorney representing you should not bid against yourself, or else you will lose credibility and weakness. The defense will think that your opening demand was meaningless.

2. The defense will try to make you demand a settlement amount before agreeing to go into mediation. Before you or your attorney makes an initial settlement offer, but after you have suggested mediation, the defense attorney might require that you make a demand for a settlement before the defendant even decides whether or not to participate in mediation. While the defense will claim that this is to see if both parties are in the same “ball park,” the real reason is twofold:

  1. First, by obtaining this demand from you, the defense counsel will set a ceiling (or maximum amount) on the settlement range for mediation.
  2. Second, the defense creates a situation in which you might be asked to “bid against yourself” two times in a row: defense may agree to participate in mediation only if you lower your demand (this is the first time you’d bid against yourself), and then because the mediators generally ask you to make the first move, you will have to bid against yourself a second time. If you find yourself in this situation, make sure you tell the mediator of this. A good mediator will insist that under such circumstances, the defense make the first move.

Evaluating your potential economic damages

1. The smallest portion of your damages. Economic damages are usually easier to calculate than other kinds of damages (such as emotional distress, punitive damages, or attorneys’ fees). However, unless you are a senior professional or someone who is arguably entitled to a large amount of stock or stock options, economic damages will always form the smallest portion of your damages.

a. The defense will try to argue that your economic damages are minimal. In almost every settlement discussion or mediation, the defense will try to argue that your economic damages are minimal. The defense will say something like: “What is this case worth? Nothing—because there are no economic damages.” But keep in mind that there can be a difference between the economic damages and the total worth of your claim. Be prepared to immediately refute this statement (if there are in fact significant economic damages) or, if it’s true, concede the point but remind the defense that economic damages are always the smallest component of damages in general, and there have been numerous big verdicts where the economic damages were minimal.

2. Back pay, front pay, & incidentals. Economic damages consist of back and front pay (including benefits) and other incidental expenses.

  • Back pay is the amount of money equal to the wages that you would have earned from the date of discharge from work to the date of the judgment, along with lost fringe benefits such as health insurance, vacation pay, and pension benefits.
  • Front pay is the amount of money equal to the wages (and fringe benefits) that you will lose in the future (that is, from the time of the judgment until the time you are either reinstated in your employment or obtain comparable employment).
  • Incidental damages might include such items as relocation costs or other expenses you incurred as a direct result of the defendant-employer’s unlawful discriminatory conduct.

a. The defense will try to calculate your actual economic damages through expert witnesses or software. The attorneys for both the plaintiff-employee and defendant-employer will sometimes hire expert witnesses to give their opinion on issues related to economic damages. Such an expert might be a labor economist, accountant, or similar person who has the background and skills to quantify economic damages in complex cases. A labor economist may also be able to report on job market conditions in a particular industry. This could help establish the period of time it would reasonably take for you, the plaintiff, to find comparable work in your chosen field or a related field. Another way to calculate economic damages is to use special software.

3. Duty to mitigate. You, the plaintiff, have a duty to mitigate or minimize your damages. That means you have to make a reasonable effort to find another suitable job. If you fail to mitigate your damages, you might get a significantly decreased award of economic damages.

a. The defense will try to force you, the plaintiff, to prove that you have mitigated damages, even though it’s up to the defense to prove that you didn’t mitigate. Too often in mediations, the defense will try to: (1) force you to demonstrate the efforts to which you have gone to mitigate your damages; and (2) identify how much you earned as a result of these mitigation efforts. Although you should feel free to share this information, your attorney should also remind the defense attorney that it is up to the defendant, not the plaintiff, to prove that the plaintiff failed to mitigate, or, if the plaintiff did mitigate, how much the plaintiff earned.

Your attorney may also need to remind the defense that mitigation does not mean that you go into a completely different line of work, accept a demotion, or take a demeaning position. Also, your efforts at mitigation do not necessarily have to be successful; they must show that you made an honest effort to find substantially equivalent work. Your attorney should ask the defense what their evidence is that shows that comparable employment positions were available.

Even though mitigation rarely becomes an issue during settlement discussions, you should still try to keep detailed records regarding your efforts to mitigate. At a minimum, this means that you should keep copies of: (1) the classified sections of any newspapers where you searched for positions; (2) print-outs from web-based searches for jobs; and (3) letters mailed to potential employers (and the employers’ responses). You should also keep a calendar in which you record all your job interviews. Thus, if mitigation does become an issue in settlement negotiations, your attorney will have enough documentation to defeat the defense’s argument that you failed to mitigate.