For employers, there are a lot of things within your control. You can control how to discipline an employee and when to take certain steps including termination. You can control how much severance you offer that employee and whether to offer severance at all. 

But there is one thing that employers can’t control that can have a big impact on how an employee’s situation is resolved — who the employee hires as his or her attorney.

That factor is often overlooked by employers who want the matter to be decided purely on the “merits”.  Cases don’t work that way though.

Who the employee hires, can be the difference between resolving issues in a separation agreement amicably or a multi-year armageddon.  It can mean the difference between a battle based on facts and a battle based on emotion.  It can be the difference of spending $2000 or $200,000 in your outside counsel fees.

All based, in part, on the choice of an attorney.

For employers, you may not be able to control who your employee hires, but you can control how you deal with that attorney.   If you’re unfamiliar with him or her, ask around.  Does that attorney have a tendency to take lousy cases and puff them up as if they’ve got a lottery case on his or her hands? Or does the attorney have a reputation for weeding out frivolous cases and mainly taking cases that have some merit to them?

Does the attorney typically take contingency fee cases or does the lawyer require some type of blended rate, thus cutting down on a winner-takes-all mentality?  Does the attorney have a reputation for settling right before trial or a reputation for fairly valuing cases early on?

It is also important to understand whether the case the attorney is bringing is an isolated one or the start of many. Does a message need to be sent to the attorney that you are not easy pickings for nuisance value suits?

Above all else, understand your opposition.  Just like attorneys in general, there are some great plaintiff’s attorneys and some lousy ones.  Some are publicity seekers while some get publicity based on their reputation.  Knowing who you are dealing with can help suggest a path going forward.

Of course, that’s not the only consideration for you to consider: some good attorneys take “bad” cases and some mediocre attorneys stumble onto “good” cases; but for employers, don’t overlook the attorney because I can assure you: that attorney is looking right at you.

  • Could not be more true. Very insightful advice for companies. Who is on the other side, in addition to assigned judge, are two of the most important, and most overlooked, considerations in litigation.

  • Tim Schranck


    As usual, I think your comments are spot-on. It reinforces the need to advise clients of the inherent risks of litigation regardless of the “facts on the ground.” Whenever I get a new lawsuit, the first two things I do (after reading the Complaint) is research on the attorney and on the client (social media being a great source).

    Question: There are lots of competing opportunities out there, but I am of the opinion that if the employer has a mandatory binding arbitration provision in place, that dampens the value of cases for plaintiff’s attorney who hope to argue emotion to a jury rather than law to a (usually) retired judge or employment attorney who actually knows the law.

    Keep up the good work!


  • I love this post. As somebody who hasn’t had a chance to make a reputation one way or another yet, it’s good for me to remember that how my professional choices will effect me in all directions.

  • Frank Walsh

    This advice applies equally to defense firms. Picking the wrong one can be the difference between a reasonable settlement early, or a frivolous defense designed to generate fees.

  • Tom Crane

    Very true. Speaking as a (mostly) plaintiff lawyer, I know some of my colleagues are rather strident, while others are not. True also of defense lawyers. Have to respect lawyers who will offer reasonable amounts on a case prior to motions to dismiss or summary judgment. We have to disagree – to some extent. But, we do not have to disagree disagreeably.