Robin Shea — who writes the Employment and Labor Insider – wrote a great post this morning that I thought was worth sharing. She entitled it “Ten Things an Employment Lawyer Never Wants to Hear.” (Go read it now, I’ll wait.)

From an employee-side attorney, this particular one stuck out (along with Robin’s commentary.)

  • “My employer will never let this go to court.” Oh, yes, he will. In a cocaine heartbeat. No employer will permit itself to be blackmailed (unless the employer is Herman Cain). Employers know that if they give in to one, there will be a line from now to Saint Swithin’s Day of unhappy employees with hands like first basemen’s mitts that are out.

(I’m not sure what a cocaine heartbeat truly is but it seems spot on.)

From an employer-side, this is one that I don’t like to hear:

  • “How does the employee know the rule? Trust me. He knows.” I love this one. In defense of the employer, it’s probably true more often than not. However, you will never be able to get the employee to admit that he knew it if the rule isn’t in writing. And if you don’t have it in writing, you won’t be able to defend yourself if the employee “forgets” what he “knew.”

The ironic part of the post is that at a bar association event earlier this week, several of us were casually discussing this exact point.  So here are some other things that employment lawyers don’t want to hear:

  • (Employee side) “I have a million dollar case.” In all likelihood, no you don’t. And having unrealistic expectations before you even meet with the attorney is the surest sign that there will be problems managing expectations in the future.
  • (Employer side) – “Well, yes, I considered her absences from work when I fired her, but it’s not like she’s disabled.   She can still work. ”  The law has been changing in significant ways the last few years; if you aren’t familiar with laws such as ADAAA, GINA, and Paid Sick Leave, now’s the time to find out about them.
  • (Employee side) – So what if I’ve been fired for insubordination before?! They got rid of me because I’m a woman!” It’ll be much harder for a jury to believe the employee’s argument that she wasn’t insubordinate here if the employer can show that the employee was insubordinate to prior employers too.  Facts like these aren’t fatal to a lawsuit, but it can sure put it on life support pretty quickly.
  • (Employer side)  – “We are never going to settle this case.” Actually, these words can be music to the ears of a litigator when the client has the financial resources and litigation experience to support this type of decision. But more often than not, the employer who believes they will never settle has not been involved with litigation before.  Why? Because lawsuits are expensive to defend against (even the frivolous ones).  Employers who indicate that they will never settle, and who do not understand the cost of litigation, will be unhappy campers down the road when they have spent tens of thousands litigating a case that could have settled early on for $7500.

So, I open it up to you blog reader.  Any thing that Robin or I am missing from these lists?

Hear No Evil...
  • Attorney X.

    From the employee side: “You have no idea how evil these people are.” (Now I understand why they fired you. Evil is always code for run away!), “They always settle, they’re scared!” (Settle for what?), and my all time favorite isn’t a something heard, but something seen. If the client’s documents are a) wrinkled, stained, and possibly a bit smelly AND b) contain numerous highlights and notes made in a fierce bold capital letters, again, run away!

  • Anonymous

    (ER-side): “…but I already fired him.” – I recommend getting advice before taking action.

    (ER-side): “We can create whatever documentation you need.” (after the above statement) – Post-action documentation is not going to help very much.

    (EE-Side): “no, I wasn’t discriminated against… it was a hostile work environment.” – Sorry EEs, hostile work environment is (almost always) based on discrimination.

    (EE-side): “wrongful discharge” – followed by any of 1,000,000 things that do not constitute wrongful discharge.

  • My personal favorite from the employee side: “I’ve been to 4 other lawyers and they all say I have a very strong case but they were just too busy to take it on right now.”

  • Charlie

    Nice article. I have heard these things said a thousand times both by employers and employees and the crow that is often later eaten is never a tasty dish.

  • Mary Kelly

    From the employee side- “When can we meet? I have eight boxes of documents you’ll need to look at”. In most cases, if an employee has that many documents that he or she thinks are critical– they have no idea what it important and the case will eat up hundreds of hours of your time!

    • Anonymous

      Great one!