This provides an overview of the common elements found in most employment litigation. While each case inevitably highlights unique situations with independent variables, it is helpful to be aware of the pivotal phases that most litigation will follow. The purpose of this brochure is to familiarize you with the essential aspects of litigation, and to provide general advice concerning each stage.
Litigation frequently is expensive and lengthy. It is not uncommon for a case to take 12 to 14 months to get to trial after a complaint is filed, and another 12 to 14 months to work its way through the appeal process. For this reason, litigation needs to be approached knowledgeably and with a thoughtful strategy.
There are essentially five stages to nearly all employment-related litigation: (1) discovery; (2) summary judgment; (3) trial; (4) appeal; and (5) mediation. The stages of discovery, summary judgment, trial and appeal typically proceed in that order. Mediation, however, may occur at any point within this process, and may take place more than once within a single piece of litigation. Despite the distinct stages of this process, most employment litigation proceeds in unpredictable spurts. Each stage involves considerable work with attendant expense, and typically is followed by a period of relative dormancy with reduced expense. Each stage is discussed in more detail below.
Discovery is the initial stage of litigation and principally involves fact-gathering. Each party, particularly the defense, gathers and analyzes the facts relevant to the case. We say “particularly the defense” because the plaintiff ordinarily has already undertaken this step to a degree before filing suit. From the defense standpoint, the fact-gathering process has three basic aspects.
First, through written discovery requests, (e.g., interrogatories, requests for production and requests for admission), each party essentially compels the other to disclose the precise nature of their respective claims, defenses and supporting evidence. Interrogatories are written questions typically asking the opposing party to identify the specific facts and other evidence supporting its position. Requests for production are written questions that ask the opposing party to produce copies of the documents, records and files that relate to the case. Requests for production extend from printed manuals, files, and policies to all electronic data and communication. Requests for admission are written questions that ask the responding party to admit the truth of certain facts or allegations.
Second, defense counsel spends considerable time gathering information from his or her own client. The relevant documents are collected and reviewed, potential witnesses are interviewed, and statements are obtained.
Third, plaintiffs’ counsel and defense counsel gather information from “third parties” who are people and organizations that are not parties to the lawsuit. For example, the defense may subpoena records from the plaintiff’s former employers and/or medical providers, or issue a public records request to a governmental agency.
The discovery phase also involves depositions. Each party has the right to depose the opposing party as well as non-party witnesses. Depositions provide counsel the opportunity to question witnesses and receive testimony under oath before trial. The examinations may be very broad and can take considerable time to prepare for and execute. In each case, we would expect depositions of the plaintiff and the individual defendant(s) to each take at least two full days. Several other relevant witnesses are also typically deposed, including medical experts, current and former employees, and other supervisors.
Depositions typically take place in a conference room in the office of the lawyer who is conducting them. That lawyer, and his or her client, sit on one side of the table. The individual giving testimony, referred to as the deponent, as well as his or her counsel, sit on the other side of the table. A court reporter sits at one end of the table and makes a written record of the examination. The court reporter swears in the witness (i.e., administers a short oath) and the examination begins. A deposition does not emulate the aggressive cross-examinations you frequently see reflected on television and movies or read about in magazines and newspapers. In most instances, the purpose of the deposition is to get the deponent to tell his or her story in as much detail as possible, and to establish the deponent’s story so that any subsequent changes at a later point may be used to impeach his or her credibility. Most depositions take place in a professional and civil, albeit somewhat tense, atmosphere.
To a large degree, the party being deposed controls the conduct of the deposition. Unlike in court, for example, the deponent may consult with counsel during the examination (so long as a question is not pending) and request breaks to prevent fatigue. Unless the parties specifically instruct the court reporter otherwise, every word that is uttered during the examination becomes a permanent part of the record and may potentially be introduced as evidence at trial or in a pretrial motion, such as summary judgment.
Discovery is an expensive aspect of litigation. Drafting and responding to discovery requests, interviewing witnesses, reviewing documents, preparing for and conducting depositions, as well as defending them, are necessary and time consuming. At a deposition, for example, In order to ask meaningful questions and effectively confront a witness on controversial points, counsel needs to be thoroughly knowledgeable of the case. The party that conducts the deposition is required to pay the court reporter’s fee. Further, if a party chooses to order the deposition transcript, that party must pay for it.
Nevertheless, in most cases, this is typically money well spent. Employment litigation frequently turns on the current interpretation of past events. Details are very important, yet often difficult to establish. The plaintiff’s story sometimes seems to evolve over time, changing to fit the particular stage of the case. It is of paramount importance to remove some of the elasticity of the plaintiff’s story as early as possible. Formal discovery, particularly a well-conducted deposition, provides the defendant with that opportunity. Through formal discovery, the defendant is able to pin the plaintiff to a single definitive story that can then be used as the basis for a clear assessment of the case and further creation of the defense.
2. Summary Judgment.
Following discovery, the next major stage in the litigation typically is summary judgment. At the conclusion of discovery, and sometimes prior to that date, either party may move for summary judgment. This is done by filing a detailed brief with the court which explains why the court should dismiss all or some of the opposing party’s claims or defenses, preventing them from proceeding to a trial by jury. Motions for summary judgment are rarely filed by plaintiffs. However, good defense counsel will always try to position a case for potential dismissal on summary judgment.
The logistics of making the motion are as follows: (1) the moving party files its opening brief, along with supporting declarations from witnesses, excerpts from the deposition transcripts of witnesses and other exhibits; (2) the non-moving party files a response brief with supporting declarations, deposition excerpts and other exhibits; and (3) the moving party files a reply brief that addresses the issues raised in the opposing party’s response. In the state superior courts of Washington, after the motion is filed, a hearing typically is held to give the lawyers the opportunity to provide oral argument. In the federal district courts in Washington, a hearing generally must be requested and approved by the court.
There generally are two bases upon which to move for summary judgment. First, the defense may raise a technical legal argument. For example, the defense may argue that a particular claim should not be allowed to go forward because it was not filed in a timely fashion. Second, the motion for summary judgment may challenge the sufficiency of the factual support for one or more of the plaintiff’s claims. For example, the defense might directly attack a sexual harassment claim on the ground that the conduct about which the plaintiff complains simply is not severe or pervasive enough to support a lawsuit, even assuming that it all occurred precisely as the plaintiff describes. In the context of this type of challenge,
Prevailing on summary judgment is difficult as the standard is high. Stated broadly, the judge must assume that the plaintiff’s allegations are true, yet still conclude that they are insufficient to state a claim. The ultimate question for the trial judge is whether, assuming the plaintiff’s allegations are true, a jury could reasonably find in his or her favor. If the answer is no, there is no need for trial, and the claim is dismissed. The judge is not permitted to make any credibility determinations, such as whether a witness’s story appears true.
Summary judgment is also expensive, since it takes considerable time and effort to prepare a persuasive motion. However, assuming there is a reasonable basis for the motion, the associated cost typically is worthwhile. In addition to the possible dismissal of the entire case, the potential benefits of a strong motion include an increased willingness by the opposition to discuss settlement and the elimination of at least significant portions of the case, which in turn makes trial less complex and expensive.
Any claims that survive summary judgment, and are not settled through negotiation, will be decided at the third stage of the litigation, which is trial. Defense counsel typically prepares the case for trial in a very different manner than for summary judgment. At summary judgment, the decision-maker is an experienced, legally trained judge with a thorough knowledge of evidence, rules, and precedence. At trial, the authority is a jury comprised of twelve people (sometimes fewer) with typically little or no understanding of both litigation and the defendant’s business. Further, as noted above, at the summary judgment stage, the judge examines the case (at least theoretically) from a rather sophisticated, sometimes esoteric, angle. While in front of a judge, legal questions are weighted carefully. However, at trial, the opposite generally is true. Technical legal questions often take a back seat to credibility issues and the general issue of whose overall position appears more reasonable. The plaintiff prevails so long as he or she shows that his or her version of events is more probable than not. As a practical matter, this is a lesser standard than the defendant bears in moving for summary judgment. As the foregoing suggests, a well-crafted technical defense, which may effectively persuade a judge, often will have little appeal to a jury. Before the jury, the defense must tell a persuasive story of the entire situation. In this context, the jury’s view of the relative credibility of the parties’ witnesses, an issue judges are generally precluded from addressing on summary judgment, often determines the outcome. Juries’ sensibilities are more unpredictable, as they have a strong propensity to view the evidence from a visceral, commonsense standpoint.
The appeal process is the fourth stage in litigation. For present purposes, it may be defined to include two elements: (1) a post-trial motion to the trial judge requesting that he or she overrule the decision of the jury and enter judgment in favor of the other party; and/or (2) an appeal to an appellate court challenging the jury’s conclusions or the judge’s rulings during the trial. Either form of appeal may be filed by any party to the litigation.
Generally, appeals, like summary judgment motions, may be divided into two broad categories. First, a party may challenge a ruling on the ground that it is wrong as a matter of law, i.e., the judge or jury applied an erroneous legal standard or principal of law. Second, a party may challenge the factual support for the ruling. The party may appeal on the ground that there is insufficient factual evidence in the record to support the ruling of the judge or the jury (even though the appropriate law was applied to those facts).
The distinction between these two categories is important because a well-grounded appeal of an issue of law generally is more likely to succeed than an appeal of a factual determination. The appellate courts have little trouble overturning decisions of lower courts based on erroneous interpretations of law, no matter how subtle. After all, that is their primary purpose. On the other hand, they generally are reluctant to overrule the factual determinations of the judge or jury. This reluctance stems from the fact that the appellate courts do not hear the testimony of the witnesses, observe them during their examination, or otherwise have the opportunity to make credibility determinations. Rather, the appellate court’s determination is limited to the written record. On appeal, nothing may be added to the record. No additional testimony may be presented. No additional declarations may be submitted. No additional documents may be introduced into evidence. The appellate court simply reviews the written record as it was made at the trial level and determines whether there is sufficient evidence to support the findings of the trial court or the jury, and whether the correct legal standards were applied to the case.
The appeal process is laborious and protracted. A year or more may pass before the appellate court even looks at the case. For that reason, appeals sometimes are made for reasons other than the merits of the case. For example, some parties appeal in order to try to re-position a case for settlement talks. Many litigants, who have failed at trial, have used the appeal process to leverage the opposition back into negotiating a settlement at an amount below the judgment.
The remaining element of any litigation, i.e. settlement, does not fit neatly into a sequential slot. It transcends the entire process and may be raised at any point in time, or not at all in some jurisdictions. Washington courts require mediation by a prescribed date during the litigation process. That date is set forth in a scheduling order which the court issues after the parties submit a joint status report. The joint status report is a short document, prepared initially by the plaintiff’s counsel, which basically describes the case for the judge, indicates how long the parties believe the trial will take, and highlights any peculiar issues likely to arise in the future. The court uses that information to develop the scheduling order.
Given that it may be done at any time, selecting the appropriate time to mediate requires a strategic approach. Obviously, the answer varies from case to case. In many instances, mediation should be explored sooner rather than later. This certainly is the case if a party’s intent is simply to put an end to the litigation, no matter the price paid. However, the price typically is directly affected by the timing of the mediation. Therefore, careful thought should be given to this issue, lest a pre-mature mediation devolve into nothing more than hours of grandstanding and posturing between the parties.
In cases where very early mediation is not appropriate, it frequently makes sense to postpone the process until the principal depositions are conducted and perhaps even a motion for partial or full summary judgment is pending or has been ruled upon. In our experience, mediation succeeds only when both parties enter it with something to lose, i.e. some recognition that their position is vulnerable. In many cases, the discovery and summary judgment stages must be used to create this recognition. In the early stages of litigation, the plaintiff sometimes has little incentive to come to negotiate and engage in meaningful compromise. At that point, the plaintiff often has significant momentum, which is not conducive to compromise and settlement. For example, the plaintiff typically has retained counsel, filed charges with the Equal Employment Opportunity Commission (EEOC) or another enforcement agency, commenced a lawsuit, and demanded a considerable sum of money to “settle.” The plaintiff feels that he or she has finally “stood up” for him or herself, publicly and aggressively. Significantly, the plaintiff typically also has done so with very little discomfort or expense, first relying on the EEOC and then on independent counsel. Psychologically, the plaintiff may have little reason to consider the type of meaningful compromises necessary to negotiate a settlement.