How Employment Lawyers Evaluate Potential Clients and Their Cases

Evaluating the case

1. Lawyer’s evaluation of the case: the client’s employment history chronology

The employment lawyer will ask you to prepare a detailed chronological narrative setting forth the facts and circumstances of your employment, from hiring to termination.

This should include documents relevant to your employment history. These documents should accompany the chronology, and they should be clean, unmarked, and unattached.

The narrative and documents that you provide is an early clue to the lawyer as to how cooperative you will be during the course of the case.

If you are reluctant to prepare the narrative or the narrative is sloppy, missing details and incomplete, then this is an early danger signal to the lawyer.

The lawyer will assume that the work product you produced is indicative of your work product for the employer. Lawyers believe that great clients were most likely great employees, and that clients who have poor work habits probably had poor work habits while employed.

2. Lawyer’s evaluation of the case: questions to consider

The employment lawyer will consider the following types of questions when reviewing your chronological employment history:

  • Did you give your employer years of competent service?
    Do you have a good work record with good evaluations, merit increases, commendations, and bonuses? Or have you been a problem employee since day one, with a long history of mediocre or bad performance reviews and reams of disciplinary action? A good paper trail always impresses a jury; conversely, a bad paper trail is always difficult to explain away or overcome.
  • How were similarly situated employees treated?
    Consistent treatment of similarly situated employees is a crucial and convincing factor in any jury trial. Especially in discrimination cases, inconsistent treatment of similarly situated employees can often make the difference between winning and losing.
  • Were you actually guilty of serious misconduct?
    If so, why did you do it? Are there mitigating circumstances that explain or justify the behavior? Should you have received progressive discipline? If you did not, why not? This factor is related to how similarly situated employees were treated who engaged in the same or similar misconduct.
  • Was the penalty imposed too severe for your action?
    Did the punishment fit the crime? Was the penalty contrary to the past course of conduct of the employer when it comes to disciplinary action?
  • Is there a “cause” finding from a governmental agency?
    An EEOC cause finding can be extremely helpful. Many cases with an EEOC cause finding, settle sooner or later.
  • Do you have skeletons in the closet that will turn off the jury?
    A history of drug or alcohol abuse, domestic violence, prior or repeated terminations from employment for misconduct, or admissible criminal convictions are significant hurdles to overcome that inevitably will be uncovered by defense counsel. This goes back to the preliminary inquiry of whether you will be liked by the jury.
  • Is there after-acquired evidence that will limit damages?
    Does your resume contain accurate and truthful information? Were you accurate and truthful in filling out your job application? Are you lawfully in possession of the documents you have provided to the lawyer? Were any of those documents confidential? Did you use your company computer for improper purposes (e.g., pornography)? Defense counsel will always fish for after-acquired evidence to limit liability or cut off damages.

3. Lawyer’s evaluation of the case: considering how the jury will feel

Much of the evaluation process by the employment lawyer is instinctual. The basic question is: Will the jury feel that the employee was treated fairly or unfairly?

The lawyer’s reaction to that question, coupled with a legal theory to support a claim, will control whether or not the lawyer decides to accept your case.