How NOT to work with your employment lawyer
By Stuart Rudner and Nadia Zaman
Our goal is to provide our clients with sound advice and zealously advocate on their behalf. Presumably, that is why they retain us. Yet it is often frustrating to discover that our clients inadvertently undermine our ability to do so. In this blog post, we lay out some tips and tricks on how (not) to work with your employment lawyer.
Before meeting with your employment lawyer, you should get your facts straight and organize them in an easy-to-understand fashion. For example, we usually ask individuals to provide us with a one-page summary of the relevant facts and any concerns they have and send it to us prior to the initial consultation. That way, we can review the information in advance so that when we meet, we can dive right into the matter. Whatever the situation, ensure that you explain the background, avoid industry-specific jargon, and make it easy for us to understand. This will save you time and money and allow us to give you the advice you need.
Do not provide us with all relevant documents
You should gather all relevant documents and send them to us in advance of our meeting. Whenever possible, we try to review the documents beforehand, so we can focus our discussion. For example, if your employment was terminated, you should provide us with the termination documents, any contract/offer letter, documents relating to compensation, the reasons for dismissal, etc. If you are seeking advice on whether you have just cause to dismiss an employee, bring their file and all relevant documentation. And to be clear, “documents” include email messages, text messages, handwritten notes, photographs and anything that might be relevant.
Only mention the “relevant” parts of your matter
When speaking with us, tell your story and let us decide what is relevant and what isn’t. Seemingly irrelevant details might actually be very important, one way or the other. If we don’t know about it, we can’t assess how it impacts your case. Put yourself in the shoes of the other side, and consider how they would explain the case and try to refute your allegations.
Similarly, our litigation process is based on avoiding surprises, and every party is required to produce all relevant documents, whether they help or hurt their case. So we need to be aware of all such documents at the outset. Don’t make the mistake of only producing the documents that support your case, or deciding that some information or documents are not relevant. You may be trying to save time and keep your costs down by only giving us the important documents, but in so doing, you might be hurting your case by preventing us from giving you good advice.
Avoid getting into the specifics
While it is helpful to understand the bigger picture, when it comes to law, the devil is most often in the details. It is fine to begin by saying that “this employee could never do his job,” but in order to advise and represent you, we will need to know, specifically, why you say that is so.
Insist that you are right without considering the challenges and risks
Cases are not decided based on “the truth,” because no one other than those that were present when it happened can know exactly what happened. Your boss may have said “I will make your life miserable so you will quit,” but if no one else was there, we need to assess whether we can prove it. Cases are decided based on evidence. Oral evidence is helpful, but human beings tend to be more persuaded by “physical” evidence, such as documents. Think about how, if you were in court, you could prove your case, and the witnesses you will need. Will they be helpful? Do they still work for the employer, and will that prevent them from remembering things as you do? Do you have any objective evidence, such as documentation, to support your position? Remember that the past is in the past; whatever has happened cannot be changed. All you can focus on now is how to address it.
Do not admit to your weaknesses
Yes, we all have weaknesses. The worst thing to do would be to present the facts in a certain way to us, such that your case initially appears to be really strong because as your lawyer, we will then advise you based on the incomplete (and perhaps, incorrect) information you provided. For example, if you were fired for theft, do not vehemently deny that you stole anything but “forget” to mention that you actually did take the item in question, although you thought that it was scrap you could take home. A strategy will be adopted based on what you tell us, and that strategy may not be a good one in light of the reality.
The “bad facts” you hide from us will eventually come out, and we will then have to backtrack, which will add to the time and cost involved, and may harm your case by hurting your credibility.
Refuse to accept our advice
Perhaps you did some online research or spoke with a friend. That’s perfectly understandable. But please remember that you are coming to us for our advice, which will be based on our knowledge and experience. We will not simply tell you what you want to hear. We will provide you with our legal opinion and lay out some options for you to consider. If you are unwilling to listen, and if you are only meeting with us to confirm your opinion and/or tell us what to do and how to do it, you are wasting your money.
For instance, your friend may claim that he got two years of severance after three months of employment, but it is entirely possible that 1) he is exaggerating or 2) there were some seriously extenuating circumstances in his case. If we explain that in all likelihood, you are most likely to get six months if you go to court, do not insist that you will accept no less than a year. And please do not compound the issue by proclaiming that you really want your case wrapped up quickly, and you will not go to court, but that you will still not take less than a year.
Insist on pursuing conflicting goals
We sometimes have clients tell us, effectively, that they want us to get them “as much as we possibly can,” but then add that everything has to be settled within a week. Those two goals are inconsistent; to achieve a good result almost always takes time. You need to honestly assess what is most important to you, and convey that clearly to us so that we can work to achieve your goals.
Insist on a strategy and then change your mind
If you tell us that you will sue your employer unless you get 20 months of termination/severance pay, and then, a few months into the process, you tell us that you do not want to go to court at all and need things “wrapped up” quickly, you will probably not be pleased with the result. At that point, we will have adopted a strategy based on our understanding that your primary goal is to obtain at least 20 months, and that you are willing to go to court and endure the time, cost and stress of doing so, in order to achieve that goal.
If you then tell us that you are not interested in going to court, then we may have to backtrack. As noted above in point six, backtracking will add to the time and cost involved and may harm your case by hurting your credibility. If you know that you are not interested in going to court from the beginning, it is best to let us know right from the start so that we can advise accordingly.
Introduce new facts or claims well into the process (especially when they have no legitimate basis)
If you introduce new facts or claims when we are already well into the process, especially when such facts or claims have no legitimate basis, you will only be wasting your time and money. For example, once we are successful in obtaining a severance offer in the range that you want, if you then suggest that you have a human rights complaint even though you never mentioned any suspicion of discrimination before, we will have to assess the validity of such a claim and determine whether or not to pursue it. We do not encourage frivolous claims, and we will provide our objective opinion based on our years of experience. Our recommendation will take into account not only the law but also the practical realities. If there’s no legitimate basis for such a claim, we will recommend against it. Even if there is a legitimate basis, it will negatively impact the negotiations if we are seen as negotiating in bad faith by adding new demands once a deal was done or almost done.
And, of course, adding new facts at a later stage will mean that our draft letters/pleadings will need substantial revision, at your cost.
Don’t ask questions
If you have a question with respect to your legal matter, the best thing to do is to ask your lawyer. Yes, you may be paying us on an hourly basis and asking questions might mean you have to pay more in the short run. However, you will likely save money in the long run and avoid being frustrated at a later stage of the legal process. When in doubt, just ask. Similarly, if you think of new facts we should be aware of, mention them as early as possible. That being said, try to avoid emailing or calling constantly; instead, gather your thoughts first and communicate them efficiently to save both time and money.
Don’t discuss costs
Most people do not like to talk about money, but it is crucial to do so in order to set expectations, and also to assess your options. One course of action may be likely to result in a $50,000 payment, for example, but if it will cost $40,000, then it might be less attractive than a strategy that is likely to net you $20,000. We believe in conducting a cost-benefit analysis at each stage; unless money is not an issue, then cost will always be a factor. If you discuss costs upfront, and continue to do so as the matter progresses, you can engage in a cost-benefit analysis at each step to determine what the next best course of action would be.
If you are an employee faced with termination of employment, workplace harassment or bullying, or any other employment law issue, we can advise you on your rights and help protect your interests. We can also represent you before the Human Rights Tribunals or civil courts as needed.
Similarly, if you are an employer in need of legal advice relating to employment law, we can help you through the process.
Either way, please help us do our job, which is to advise and represent you.