Evaluating Your Case: Do You Have a Case?

by Don D. Sessions
Employee Rights Attorney
Mission Viejo, California

Originally Published in EQUAL OPPORTUNITY CAREER JOURNAL, March–April 1994

As an employee rights attorney, the most popular question asked of me is, "Do I have a case?"

Most disgruntled present or former employees who believe an injustice has been done have in fact had legal rights violated and do indeed "have a case." The question really is if such violation of rights justifies the time, effort, money and risk necessary to seek legal recourse. In other words, is the case good enough?

Evaluation of a case includes the following:

1. Liability. Employer responsibility for a wrong must be proven. In employment cases, such wrongs usually are (1) broken promises, (2) discrimination, or (3) retaliation for whistle‑blowing or refusal to commit illegal acts. Liability is established through employee handbooks, supervisors’ manuals, written information of employment terms, witnesses, performance appraisal, statistical data, or even one person’s word against another’s. Of course, a case in which there is a 90 percent chance to prove liability is better than one with a 10 percent chance. Comparison with other cases decided by the courts or statutory law clarifies the level of proof required and possible outcomes. Liability is the logical center of any case.

2. Damages. If liability is an appeal to logic or the brain, then damages seek out emotion or the heart. Damages determine the "tears" in a case, and the more tears there are, the better the case. Damages are shown by an employee’s wage loss, humiliation, lost opportunity, psychological trauma, and future impact. Sometimes the full extent of damages is not known for months or years after the wrongful event. A wrongfully terminated employee who finds a better job two months later does not have as convincing damages as one who may never find comparable employment.

3. Collectability. Understanding the employer is absolutely essential to the evaluation of an employee’s case. The employer must be financially stable enough to pay for a judgment if a case is won. It certainly does no good to recover a million‑dollar judgment if the employer is about to go bankrupt.

Unfortunately, most employment claims are not covered by the employer’s insurance. Because of this fact, many employers are more motivated to resolve these types of cases promptly because of the expense of litigation and risk of defeat. The expense of litigation and possible adverse judgment will come directly out of the employer’s own pocket.

Another factor is the attitude or willingness of the employer to resolve the dispute. Even if liability and damages are not substantial, a case may still be promptly resolved because of embarrassing or sensitive facts which could ruin an employer through bad publicity or through government sanctions. This is especially true in cases involving retaliation against an employee because of complaints about or refusal to do illegalities.

4. Conclusion. In reviewing all these factors, the very best case is one with high liability, damages, and collectability. Even if a case is not strong in all three areas, it does not necessarily mean that the case is not a good one. Many attorneys would be very interested in a case with virtually assured liability but questionable damages. Even though the recovery may be small, there will not be much of a fight to get it. If a case has questionable liability but very high damages, again, the case may be a very good one. Even though there may be problems in winning the case, if there is a recovery, it would be so substantial that it is worth the risk.

If any one of the three factors is extremely low, it may destroy the value of the case. The best recommendation for a wronged employee is to have rights immediately evaluated by an attorney who is familiar with these cases before the passage of any statute of limitations deadline so the proper course of action can be determined.

Don D. Sessions, a Mission Viejo attorney, author and law school professor, helps employees enforce their rights. For questions, call (800) 774-7494 or access job-law.com. © Sessions & Kimball LLP.