Do I Have a Case?
Although most lawyers who handle employment cases charge an initial consultation
fee, I never charge an initial consultation fee because I see it as an opportunity to
evaluate both the potential client and their legal matter.
During the free initial consultation, helpful information is provided to potential
clients but this is not legal advice. What’s the difference between information and
legal advice? Information applies to many types of cases, such as the legal system in
general, how to file a charge with the EEOC, how the unemployment compensation
system works, how to gather evidence in an employment case, etc. (Incidentally, one
piece of information provided to many prospective clients is that quitting your job
can damage an employment law case so they should try to keep working as long as
possible.) Legal advice, on the other hand, involves advising you specifically on the
merits of your particular case, to include your chances for success and how much
your case might be worth. Every legal matter has three elements that must be
coordinated, researched, and evaluated: 1) the facts; 2) the law; and 3) the
application of the law to the facts of your specific situation. Obviously, this analysis
will take much more time than a brief initial consultation. Therefore, as only a
potential client, you should not expect to receive legal advice at the initial
As to legal fees, some employment matters, such as counseling of executives and
professionals on severance packages, non-compete agreements, and negotiations, are
always paid on an hourly basis. Other matters, which appear to be strong and have
the potential for a large recovery, are offered fees on a contingency fee basis. A
contingency fee agreement needs to be in writing and provides for the attorney
receiving a percentage (usually up to forty percent) of the total amount of your
settlement or award. However, it is still up to the client to pay costs and expenses
such as filing fees, costs of court reporters at depositions, expert witness fees, etc.
You should never be reluctant to ask a lawyer about his fees. All employment
lawyers have their own guidelines about taking cases. As a matter of information,
some employment lawyers will take cases on a “blended” or partial contingency
basis where the client pays a reduced hourly rate (often less than half of the
attorney’s regular rate) plus compensation to the lawyer of a reduced contingency
fee which might vary from case-to-case.
Employment cases are difficult to win and very time consuming. Every lawyer has
won cases he thought he would lose and lost cases he though he would win. An
employment lawyer needs to be extremely selective in offering contingency contracts
because if an attorney loses a contingency fee case he is not paid anything for his
time and effort, often extending over a period of several years.
Sometimes a potential client will have a case that has merit but is not strong enough
to offer them a contingency contract. In such cases, they will be offered
representation on an hourly fee basis with a security retainer required prior to
starting work on their case.
Unfortunately, the vast majority of potential employment law clients will not be
offered any legal representation at all. An attorney might provide a potential client
with many reasons for declining representation: a conflict of interest, too many
cases, lack of expertise in or a personal distaste for a certain area of the law, a
serious illness or other personal concerns, the witnesses have credibility issues, the
damages are too small or too speculative, etc. However, usually an attorney declines
representation because it did not appear economical for him to pursue the legal
Finally, even assuming that you are offered legal representation on financial terms
that you find agreeable, you still need to ask yourself if this is the right lawyer for
you. It really does matter which lawyer you choose and you will quickly see why it
is important to pick the right lawyer from the beginning. The following are some
things to consider.
Does the law office just mail you a questionnaire or do they actually provide you
with an attorney to talk with you about your case? Does the lawyer appear to care
about your case or do they seem to be too busy to listen to you? When you meet
with your lawyer, is he easy to talk to and is he listening to what you say or is he
trying to do other things at the same time? Look around his office. Does the office
seem messy, cluttered and disorganized? Does the lawyer appear to be confident
and credible or do they seem arrogant and self-absorbed? Does the lawyer
concentrate their practice in employment law or do they handle many different
areas of the law depending on who walks through their door? Remember, you
might be working very closely with this person for a period of several years so take
your time and choose wisely.