“One
should always play fairly when one has the winning cards.”
– Oscar Wilde
Most
lawyers will tell you that the outcome of your case is based on the facts, the
prevailing law, the relative abilities of the lawyers involved and, not least,
a bit of luck. In straightforward
employment law cases, strategy is often overlooked. It ought not to be.
Generally,
employers are in no hurry to move cases along quickly. They would much prefer to wait and let
the employee’s legal costs accumulate and their frustrations grow. In typical cases, claims can meander
through the court system for years, with inherent pre-trial delays, mandatory
mediations and few, if any, deadlines. Few unemployed can afford to wait for a trial. Fewer can afford to pay for one. What’s more, the legal doctrine of mitigation provides that
once an employee has found another job, any income she earns will be credited
against the amount her former employer owes her. As a result, most employees’ cases do not get better over
time — they are worth less and become harder to settle.
So how do you
win an employment law case? Here
are some of the tips that I’ve gleaned from the workplace trenches:
Address
preliminary issues intelligently. The strategic advantage that specialized counsel offers is to argue a
lawsuit in ways that take the opposing lawyer — and his client — away from their
comfort zone. In a case that I
recently argued, I brought a preliminary motion to compel the judge to grant
summary judgment, which allowed my client to obtain damages long before she
even suffered them. Although the
defendant argued that the case couldn’t be heard, we successfully responded to
the inference that a full trial was required by emphasizing the facts that were
straightforward and downplaying those that were not.
Don’t
make allegations that cannot be supported. Most employment lawsuits are riddled with hyperbole, as a
matter of course. Some lawyers
believe that flashy allegations of bad faith, the intentional infliction of
mental distress and punitive damages add to the value of their clients’
claims. In my experience, the
opposite is usually true. Not only
does the case take longer to settle, it inevitably will cost you more to do
so. As well, given the risk that
the judge will award damages against you for wasting the court’s time, you had
better be prepared to make out your claims – or quickly withdraw them.
Where
possible, proceed as a group. It
becomes much more difficult for an employer to ignore your claim when it is
shared by others. Even two
employees proceeding together will garner greater attention from your
ex-employer, and its lawyer, than if you stood alone. Especially now, with the mass restructuring of Canadian
workplaces well underway, seldom should disgruntled employees be without any
partners.
Choose your lawyer
carefully. There are no rules that
limit lawyers without much experience in employment law from professing that
they practise it on their websites and in the media – and unfortunately they
do. The reality is that there are
few lawyers who exclusively practise employment law. Most just dabble in the area, despite advertising otherwise. But employment law is specialized. Inquire what percentage of the lawyer’s
time is spent solely on employment law matters – and don’t pay for his or her
education.
Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com
