Whether brought in state or federal court, employment litigation generally includes three phases: pleadings, motion and discovery, and preparation for trial/trial.
The Pleadings Phase:
An employment lawsuit is typically commenced when the plaintiff (usually the employee) files a written complaint with the court -- detailing the legal theories and facts that support the basis of the claim, such as employee discrimination, sexual harassment, a failure to pay overtime wages or any other employment-related causes of action.
The defendant (typically the employer), once properly served a copy of the Complaint, then files a written response (or Answer) to the complaint, often detailing affirmative defenses and challenging the claims within the complaint. The defendant may instead choose, in certain cases, and in lieu of filing an Answer, to challenge the legal bases underlying the Complaint by filing a Demurrer or other noticed Motion. Once these issues are resolved and assuming the court finds that the Complaint has merit, the lawsuit proceeds to the next phase.
Motion and Discovery Phase:
The motion and discovery phase of a lawsuit provides each side with the opportunity to learn more about the opposition's case. This occurs through depositions (see below), document subpoenas, written interrogatories (questions), requests for admissions and other methods. If either side fails to respond or improperly responds to the discovery, a motion can be filed to compel said response. Given the time and complexity involved, the Motion and Discovery Phase of an employment lawsuit can be expensive -- particularly when depositions or expert witnesses are utilized:
Depositions are an effective discovery method which allows either side to question the opposition's witnesses (or independent witnesses) under oath, in the presence of a court reporter. Information obtained in a deposition may be used as evidence at trial and/or to impeach a witness' credibility. It is common to depose the parties involved in the lawsuit and other potential witnesses expected to appear at trial.
Expert witnesses can be designated by either side during this phase of the lawsuit. Depending on the nature of the claim, relevant experts may include an Economist (who can help value the claim), treating doctors or other specialists. A Vocational Rehabilitation Counselor may be utilized to help determine employability of the plaintiff. Additionally, in certain cases, such as those involving harassment or discrimination, it may be necessary to retain a forensic psychiatrist who can attest to any claimed emotional distress of the employee.
Motion For Summary Judgement/ Summary Adjudication
Once discovery is complete or near completion, the employer may file either a Motion for Summary Judgment or a Motion for Summary Adjudication. This is the defendant's attempt to have the case entirely dismissed (or to have certain claims or damages sought in the case dismissed) based upon legal argument and the evidence revealed through discovery. The potential of eliminating the risk of a jury trial can make the pursuit of Summary Judgment/Summary Adjudication a beneficial strategy for employers. However, these motions are typically time-consuming and expensive for both sides -- regardless if you are on the moving or opposing side.
Preparation for Trial and Trial Phase:
Thorough trial preparation is paramount to promoting a favorable outcome of the employment case. Trial preparation includes creating compelling trial exhibits, preparing witnesses for direct and cross examination, preparing strategies to cross examine the opposing side's witnesses and experts, submitting pre-trial motions, and additional preparation efforts.
Many courtrooms have congested trial calendars. Even when the case is set for trial, there is a chance that the date will be adjusted by the judge or by request of opposing counsel. Of course, the setting of a case for trial does not preclude the case from being settled prior to trial.
Freeland Law APC
Attorney Michael M. Freeland has extensive experience representing both employees and employers in California. His thorough case preparation as well as his effective negotiation and courtroom skills have proven beneficial for clients in countless employment litigation cases handled by our firm. Please feel free to contact Mr. Freeland regarding this article or any other employment law matters. (See link below)