Lately, the concept of how much a employment litigation costs has come up time and again — whether in providing budgets to clients, or discussing settlement, or in the context of managing a case.
And the fact is that for employers, defending an employment matter in state or federal court has gotten very expensive. Whether its discovery, or motions, or even trials, there are tasks to perform and issues to track down.
But as I sat in a courtroom this afternoon with several other lawyers who were also there on cases (several of them employment-related) for a status conference, I was reminded once again by another cost of litigation: time.
Many of the cases started several years ago — 2003, 2005, 2006, to name some. Each of them was getting ready towards a possible trial date.
But that date would only be yet another marker on the road to an eventual appeal — in 2011, or 2012.
Think about that: in the time it takes kids to go through high school AND college, your company may be litigating a case.
Needless to say, that’s a long, long time.
For employers, this amount of time presents a daunting challenge: supervisors and witnesses leave your company (or worse, are fired or even deceased); documents that seemed clear at the time, now have lost their context; and no one is quite happy.
Are there any solutions? Some. Arbitration clauses could force many of these matters to a quicker arbitration process. Mediating and trying to settle claims early on can avoid those future costs and if you’re willing to pay a premium, you can avoid the lost time in the future.
But none of these are real solutions. The fact is that even the strongest employment litigation defense still costs money to execute. So litigation avoidance should continue to be on the minds of HR and in-house counsel whenever an issue comes up.
Yes, some matters need to be litigated. But others don’t. Figuring out the difference can ultimately be the difference between a case that gets resolved quickly.
And a case that could last a decade.