Frequently Asked Questions
Matthew J. Ruggles
30+ Years of Employment Litigation Experience
Free Initial Consultation Explained
What is the purpose of a free initial consultation with an employment lawyer?
The free initial consultation is an opportunity to explain the facts of your case and how you were wronged by your employer and what are the potential damages. Typically, the consultation will not provide a legal opinion on your case. The initial consultation is to determine 1) whether you have a claim and 2) if the law firm can help you with the potential case.
How long does a typical free initial consultation with an employment lawyer last?
30 minutes to one hour.
Is the information I share during the free initial consultation confidential?
Yes. Anytime you seek legal advice from a lawyer, the conversation is protected by the attorney/client privilege – even if you don’t have a formal relationship with the lawyer and you do not hire the lawyer.
What documents or information should I bring to the free initial consultation?
Usually, it makes sense to have your last paystubs and W-2. If you have other emails or documents that describe alleged misconduct may be useful to review.
Can I expect to receive legal advice during the free initial consultation?
Yes and no. Yes, we will discuss the law and how it pertains to the facts you present about your potential claim. No, the free consultation will not recommend a course of action for you to independently follow.
The purpose of the free initial consultation is to determine if the law firm can help.
Will the lawyer assess the strength of my employment case during the free initial consultation?
During the free initial consultation, the lawyer will try to identify the major factual issues. Sometimes it is not readily apparent what the facts are within the context of the initial discussion. Yes, the lawyer will try to determine and discuss the potential strengths, but do not expect to receive a “blueprint” of how to proceed ahead with the potential case. No written analysis will be provided during the free consultation.
What questions should I be prepared to answer during the free initial consultation?
Be prepared to discuss how things happened chronically and have a timeline of the events that concludes with your termination or adverse employment action.
Is there any obligation to hire the lawyer who provides a free initial consultation?
No. The free initial consultation never includes an agreement to take any action.
Can I ask about the lawyer’s fees and payment structure during the free initial consultation?
Yes, you absolutely should ask about fees and costs during the free initial consultation.
How does the lawyer typically communicate with clients after the free initial consultation?
Communication through email is standard and preferred. Telephone calls will occur as necessary.
What are the potential outcomes of the free initial consultation?
There are 3 potential outcomes:
First, the lawyer will decline the case and explain the reason.
Second, the lawyer will accept the case and begin working on it.
Third, a decision cannot be made about whether to accept or decline the case until further information is obtained and reviewed such as documents related to the potential claim.
Will the lawyer explain the legal process and potential options during the free initial consultation?
The primary purpose of the free initial consultation is to determine whether the lawyer can help you. If the lawyer agrees to help you, an explanation of the next steps will be provided. You can expect a discussion of the legal process and what to expect.
What are the lawyer’s expectations from me as a client (after the free initial consultation?)
Tell the truth and promptly respond to the lawyer’s questions/requests. If the lawyer emails you, respond to the email within one day. If the lawyer calls you, return the phone as soon as possible. If you need to take a break from work to return the call, the lawyer expects you to take the next available break to return the call. Restricting the time that you can speak with the lawyer to after normal business hours and weekends will generally be unacceptable. Also, you will be expected to remember and track dates on the calendar related to the case.
Will the lawyer provide a clear plan or strategy for handling my employment case during the free initial consultation?
The free initial consultation is to determine if the lawyer can help you. The strategy for the claim is developed after the lawyer has accepted the case and had to review and analyze the details of the case.
Choosing the Right Employment Lawyer
How do I find the best employment lawyer in California?
There is no ranking system for lawyers in California. You should look to see if they attended an accredited law school versus a non- accredited law school. Check to see if they have many years practicing law. Look to see if they have any public record of discipline. You can examine calbar.org to check for disciplinary actions. If you can, find cases that were successfully won or resolved on-line and find the lawyer who won the case and call them. This sort of experience (winning cases) may be very beneficial when selecting a lawyer.
What qualifications and experience should I look for in an employment lawyer?
Experience and knowledge of employment law. If the lawyer does not list employment law as a primary part of their practice on their website then the lawyer is probably not experienced enough to properly represent your case.
Is it important to choose a lawyer who specializes in employment law?
Specializing in employment law is a must when selecting a lawyer to represent you in an employment law case. Try to find a lawyer with a practice that is 100% employment litigation for plaintiffs.
Should I consider the lawyer’s location when selecting one?
Most employment cases are in California state court. The rules are the same throughout California for employment law but the procedures for courts can vary between counties and, in particular, between Southern California and Northen California. Due to this, you want a lawyer who is familiar with the local court system.
If your case ends up in federal court (because you are suing an out of state corporation), you will need a lawyer with federal court experience.
What questions should I ask during an initial consultation with an employment lawyer?
You should investigate the lawyer’s background with cases that are similar to the claim that you want to pursue. Ask the lawyer about their outcomes with the specific case type (harassment or discrimination etc.) that your are attempting to pursue.
Ask when will the lawyer be able to file the lawsuit.
Also, ask who which person at the firm will lead the case. Will it be an associate or paralegal rather than the primary lawyer at the firm?
Also, ask how will you communicate with the law firm during the case. Is the lawyer available for phone calls and can you email the lawyer with questions and concerns while the case is pursued? Ask about the fee arrangement and any exceptions to the fee arrangement.
What are some red flags to watch out for when selecting an employment lawyer?
In is not uncommon for a lawyer to combine personal injury and employment. In this case, try to determine the percentage of the lawyer’s caseload that is employment versus personal injury.
You want someone who is primarily employment law. If you cannot find a lawyer who is primarily employment law to take your case, you may have to consider the possibility that you do not have a good claim. Try to avoid a lawyer who primarily does law other than employment if you are pursuing an employment claim.
How can I verify a lawyer’s credentials and reputation?
Go to LinkedIN or Avvo or Martindale-Hubble. There may be other on-line reviews as well.
Is it necessary to choose a lawyer with experience in my specific employment issue?
Yes, this is always best.
What is the difference between a general practitioner and a specialized employment lawyer?
The scope and practice of law is so broad that there is no general practitioner of law. You always want a lawyer who specializes in the area of law that involves your potential claim.
How can I gauge a lawyer’s commitment to my case and my best interests?
Are you in regular communication with your lawyer? Do you get a once per month update about the status of your case? Are the important calendar events like depositions and trial dates communicated to you? Lack of communication or delay in acting on the case are a sign that your lawyer may not be working to get top value for your claim.
Are there any industry associations or certifications that signify a lawyer’s expertise?
No. Only the State Bar can offer certifications for specialists in a particular area of law. There are no certifications available for employment law from the California State Bar.
How Employment Lawyers Charge for Services
How do employment lawyers usually charge for their services in California?
Most employment lawyers work on a contingency fee basis that includes forwarding costs for the client. In most cases, the client does not pay the lawyer anything and the lawyer pays the “costs” which include the court fees, deposition costs, court reporter feeds, transcript fees and any other expense to prosecute the lawsuit.
When the case settles or is won at trial, then the fee is determined pursuant to the contingency formula. The contingency formula is usually: costs come off the top and this amount is immediately paid to the lawyer. Next, the remainder (net recovery) is split according to the percentages of the contingency agreement. Most lawyers’ agreements allow them to take 25 – 50% of the recovery. It can vary and is negotiable between the lawyer and the client.
What is the difference between hourly rates and contingency fees for employment cases?
An hourly rate case is one where the lawyer records his or her time and bills the client per month. The client will pay the owed balance to the lawyer each month. This is uncommon in employment cases.
A contingency fee case does not include the exchange of any money until the case settles or is won. This is the most common arrangement in employment cases.
Are there any upfront costs associated with hiring an employment lawyer?
In most cases, no. Most cases include a contingency agreement. In contingency agreements, there is no exchange of money until the case settles or there is a court win. Sometimes lawyers ask for a fee to evaluate the case. In this scenario, the client loses the fee even if the lawyer does not take the case (uncommon).
Are there any alternative fee arrangements for those who can’t afford upfront costs?
There are normally no upfront costs.
How can I negotiate or discuss the lawyer’s fees and payment structure?
A contingency agreement is always negotiable in California. Expect that most lawyers will not negotiate their percentage – but you can always ask.
What is a retainer fee, and how does it work with employment lawyers?
It is an upfront fee that the lawyer works against until it is exhausted. The lawyer should give you a monthly statement that provides an accounting of its use. You should assume that the money paid is non-refundable. Ask your lawyer to clarify this arrangement.
Do employment lawyers charge differently for different types of cases?
Yes. The more experienced and effective lawyer probably charges a higher percentage in a contingency agreement. Beware of lawyers who charge an unusually low contingency percentage.
Is there a standard fee structure among employment lawyers in California?
No.
Can I get a written fee agreement outlining all costs and payment terms?
Yes. California requires that the fee agreement be provided to the client in writing.
How are expenses like court filing fees and expert witnesses typically handled?
In a contingency agreement that includes cost forwarding, the plaintiff’s lawyer pays these fees upfront. The lawyer is paid back from the settlement or court win. If the case is lost, the lawyer usually must absorb the costs.
What happens if I can’t afford the lawyer’s fees for my employment case?
Most cases are taken on contingency so this should not be a factor.
Can I request periodic billing statements to track legal expenses?
In most cases, yes. However, when the expenses are forwarded by the lawyer in a contingency agreement, you will not receive an accounting of the expenses until the case settles or is won in court.
Are there any potential hidden costs I should be aware of when hiring an employment lawyer?
Not necessarily. When you are entering into a settlement agreement, take a look at the total accumulated costs so you know how much is coming off the top of the settlement to repay the costs of the case to the lawyer who has forwarded the expenses.
If we lose our case, who pays the costs?
In most contingency agreements, the lawyer will have to absorb the loss.
Is it possible to negotiate a lower fee with an employment lawyer?
It is possible and the fee is always a matter of negotiation between the lawyer and the client but keep in mind that most experienced and effective lawyers will not negotiate the percentage in a contingency agreement.
What factors can affect the overall cost of my employment case, and how can I manage them?
Managing the costs is up to the lawyer. Usually, the biggest costs are depositions, court reporter and videographer fees. A single day of depositions (court reporter, videotaping etc.) can cost thousands of dollars.
How an Employment Lawsuit Works
What is the process of initiating an employment lawsuit against my employer in California?
The process of initiating an employment lawsuit involves the following: 1) investigation and preparation of the complaint, 2) filing the administrative complaint, and 3) filing the lawsuit in court.
First, you must investigate and prepare the complaint against the employer. Second, you must file an administrative complaint with the California Civil Rights Department within 3 years of your termination or adverse employment action. Third, you must receive a Right to Sue Letter (normally your lawyer handles this). Fourth, you can file a lawsuit in state court.
When you file the lawsuit, the other party has 30 days to file a responsive pleading. Once the other party files their responsive pleading, you are now in the discovery process and this discovery process can last for 12 – 18 months.
Once discovery is complete, you have the motion for summary judgement phase and then a trial. The trial date is somewhere between 12-36 months after filing the lawsuit.
What types of employment issues or disputes can be addressed through a lawsuit?
The most common are wrongful termination, harassment, discrimination, retaliation, and improper payment of wages or unpaid wages.
How long does it typically take to resolve an employment lawsuit in California?
Assuming the lawyer acts immediately by issuing discovery and taking deposition, a case can be resolved in 6-18 months from filing a lawsuit. You can expect 2-3 years on average, though.
Will I need to appear in court?
In most cases, the client is not required to appear in court until the trial. However, it is not uncommon for the client to participate in the discovery process – meaning attending and watching depositions or submitting to a deposition themselves if the other side requests it. If you are a plaintiff (meaning you are suing someone), you will almost certainly have to testify in the case before trial in the form of a deposition.
Depositions Explained
What is a deposition in the context of an employment lawsuit in California?
Your testimony in the lawsuit can take multiple forms. The most common forms are deposition testimony and trial testimony. A deposition is a formal interview by the opposing lawyer under oath that is recorded by a court reporter. Your “deposition testimony” is part of your overall testimony in the lawsuit. Your testimony can also be in the form of affidavits (more commonly called “declarations”) that are prepared by the lawyer and signed by the plaintiff.
Why would a deposition be necessary in my employment case?
Each party has the right to take a deposition of the adverse party as well as any relevant witnesses. A deposition is the most effective way to get information from an individual – especially a non-cooperative individual. In almost all cases, the plaintiff undergoes the deposition first.
Who can be deposed in an employment lawsuit, and can I be deposed as the plaintiff?
The plaintiff is almost always deposed by the defendant employer in a lawsuit. Either side can take the deposition of any other witnesses including third party witnesses.
What is the purpose of taking a deposition in an employment lawsuit?
Fundamentally to discover what the other side has to say, and in some cases, to gain admissions from the other side.
How is a deposition different from other forms of testimony, such as in court?
It is not different other than the setting. A deposition typically happens in a private conference room where a judge is not present.
Where do depositions typically take place?
A deposition typically takes place in the office of the lawyer who requested the deposition. If you are the plaintiff, you will almost always be at the office of the defendant’s lawyer. Depositions typically begin at 10:00 a.m. and end at 5:00 p.m.
Can I have my attorney present during my deposition?
Yes, it is required.
What types of questions can be asked during a deposition in an employment lawsuit?
The range of questions is extremely broad. The questions are not limited to relevant questions but can include any questions that might lead to the discovery of relevant evidence.
How can I prepare for my own deposition as the plaintiff in an employment case?
Review your documentation and the documentation provided by the defendant. Create a timeline of events and consult with your lawyer.
Can a deposition be used as evidence in court during the trial phase?
Yes. A party’s deposition can be used for any purpose at trial.
What is the role of a court reporter during a deposition, and how is it recorded?
The court reporter will stenograph a record of the testimony. The stenograph record is considered the official record.
How long does a typical deposition in an employment lawsuit last?
A deposition typically lasts between ½ day (2-4 hours) and multiple days (up to 8 hours per day).
Can depositions help in settling the case before trial, or are they primarily for trial preparation?
Yes, depositions are critical in evaluating your case and very often lead to settlement before a trial.
Can I ask my attorney to review and prepare me for the deposition before the trial?
Yes. Your lawyer can and should prepare you for a deposition.
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