Third of three parts
Well, perhaps through ``no fault of your own,'' your dealership has been sued for ``wrongful termination'' by a former employee.
Before you consider locking the doors, turning out all the lights and ruminating in the dark about how this could have ever happened...snap out of it. All is not lost. There are things you can do to either lessen the pain-or make it go away altogether. But you've got to play it smart, not desperate.
In the first article of this three-part series (Tire Business, Oct. 11), we looked at the anatomy of a wrongful termination lawsuit-including its causes and why you need to quickly bring an attorney into the decision-making process. The second part (Tire Business, Oct. 25) covered the investigation process and what to do when the lawsuit actually arrives.
This final article on wrongful termination will examine:
* Alternative dispute resolution;
* The discovery process;
* Whether to settle; and
* The trial, post trial and appeals processes.
Is the Alternative Dispute Resolution (ADR) process for you?
Early on in the case, the court will encourage ADR, which encompasses three forms:
* Arbitration; and
* Summary jury trial.
Let's examine each.
Mediation: During this process, each side presents a quick summary of its case to the mediator. Then each side goes into different rooms, and the mediator listens to their views and tries to point out the weaknesses in each of their arguments.
The mediator goes from one party to the other and tries to bring resolution to the matter by making settlement suggestions to both parties. It is a relatively painless process because if the settlement suggestions do not ``get down to a reasonable level,'' your side does not have to agree to anything.
A word to the wise: Don't go to mediation unless your company or dealership is open to settling. If the other side senses you're not being genuine in the mediation efforts, this will provide a ``fuel on fire'' effect in your relationship with the opposing side.
Arbitration: This process is similar to mediation in that each side gets to present its view of the case to an arbitrator. Like mediation, the arbitrator is chosen from a list and agreed upon by both parties. However, in arbitration the arbitrator makes a decision regarding the case and the decision is final and binding.
Summary jury trial: This is not an option I would recommend using to resolve disputes. I think, at best, it is a way to ``see how a jury could potentially respond to your case.''
During a summary jury trial, both lawyers argue their view of the case in front of a jury for a brief period of time. The jury then makes a quick decision based on the limited information presented. It is not binding and is most often used as a catalyst for settlement discussions.
There are two financial reasons your dealership may want to consider a form of ADR. The first is, all of these options-if they bring the parties to resolution-take less time and money than going to trial.
The second reason to consider ADR is if you know there is a flaw in your case and the opposing side hasn't discovered it yet. Through early intervention with ADR, the plaintiff may never discover the flaw and therefore the dispute could be settled on more favorable financial terms.
What is discovery? In simple terms, it is the process where both the plaintiff and the defendant (your dealership or company) try to obtain information from the opposing side to substantiate their view of the lawsuit.
The discovery and motion deadlines are outlined in the lawsuit schedule. It is best to work toward completing the discovery process in the outlined timeframe.
The several means of discovery include:
Interrogatories: These are formal questions from the opposing side.
These can be pretty lengthy and are often dependent on the length of the complaint. Dealership management can assign the lead human resource person to research and forward the answers to the dealership's attorney. Those answers should be complete. Your lawyer will then determine what will be submitted formally to the opposing side in the form of the interrogatory response.
Document requests: Both sides may ask for any documents from each other that they deem necessary to help in the preparation of their case.
Requests for admission: Each side is asked to admit or deny a fact. This helps to limit the discovery process by quickly determining which facts the opposing side is willing to agree with before the case goes on. Remember, if the other side denies a fact and it is determined to be true, you can go after them for expenses!
Depositions: This is the process in which all the key parties and principals involved in the complaint are questioned under oath. Your attorney should coach employees before they give their depositions.
Depositions can be long and grueling. The longest one I've ever given was 16 hours over a day and a half period-intentionally a bit excessive. The key is to settle in, don't get flustered and, if you have a metabolism like I do, bring plenty of food and drink!
During discovery, what is the company looking for from the employee? Things such as:
* Inconsistent statements;
* Failure to use the provided company complaint procedures; and
* Failure to perform (poor work performance, excessive absence, insubordination, etc.)
Provide information that will help to mitigate potential damages. That could include comments from the plaintiff such as, ``After I lost my job, I spent the summer fishing,'' vs. ``I have looked for a new job every day this summer, and here is the accompanying documentation which supports my efforts.''
Documents and notes
Additionally, the dealership should attempt to gain enough information during the discovery process to try for a ruling of summary judgment.
Basically, summary judgment is when the case is dismissed without a trial. The lawyers for each side argue their logic in front of a judge. Live testimony from witnesses is not used.
All information is presented with depositions, affidavits, documents and detailed briefs prepared by the attorneys, referencing case law and facts. The judge reviews the information and issues a detailed brief if summary judgment is granted.
Some lawyers would argue there is a good reason for the employer to file a motion for summary judgment in every case. Their point would be that, at the minimum, it forces the plaintiff to lay out his/her case in detail so that even if summary judgment is not granted, the defendant-your dealership-will have a heads up on the plaintiff's case.
Of course, remember that the plaintiff also will have a sneak preview of how you are going to defend the case.
My experience has been that it's worth taking a run for the goal of summary judgment if there is not any fact on which the company and the plaintiff really differ. If the company and the plaintiff agree with the facts but one side thinks the facts create an illegal action and one side doesn't, it is worth filing a motion for summary judgment.
Settling a lawsuit is a highly emotional issue. Your management team may feel like ``we're right! We are going to fight this all the way through the legal system!''
This may be the correct answer because your management doesn't want to send the message to your employees that if they hire an attorney, the company will throw money at a perceived problem to make it go away. However, taking a lawsuit through to trial is an expensive process.
And while this legal process will take your employees away from their productive work, the lawyers' fees easily can reach six figures.
The following topics outline settlement considerations that should be discussed with your attorney:
* Full and complete settlement of all claims;
* Confidentiality considerations;
* Mutual non-disparagement language;
* An agreement to never reapply for employment;
* Payment considerations;
* Workers' compensation claims; and
* Tax considerations.
The key to determining if settlement makes sense for your case is to try and evaluate it as you would any other business decision. Your lawyer should be able to help you with this evaluation.
However, please note: If you decide to ``fight it all the way,'' your lawyer wins regardless of the verdict because of the attorney's fees that have been collected.
Preparing for trial is a long, arduous process. It is intensive, time consuming for employees and, unfortunately, time wasted for the entire organization.
One person in your organization should be assigned to be the main contact regarding the lawsuit. This person could be the internal investigator or just a person who can coordinate employees' schedules with your attorney. The attorney will have to prepare the witnesses and will work to prepare exhibits and a brief for trial.
The company must have one representative at the trial. This person, who will be sitting at the table with the dealership's counsel, should block out up to two weeks of time for the trial. The company rep should have knowledge of the company and the facts surrounding the case and should be ``cool under pressure.''
The company's attorney will lead jury selection and may ask the company representative for an opinion on choosing potential jurors.
The plaintiff's goal is to prove all of the elements of his or her claim to a greater degree than the company-the legal phrase in such a civil suit is to prove his or her claim by a ``preponderance of the evidence.''
The totally frustrating part for companies is that, with discrimination lawsuits, the plaintiff may be able to meet this requirement by presenting a prima facie case. Prima facie means evidence would be presented to establish a fact or the evidence would make it look like a fact. So with employment lawsuits there is no requirement of ``proof beyond a shadow of a doubt'' required.
At trial the plaintiff presents his or her evidence first. The company argues its defense after the plaintiff is done presenting his or her ``side of the story.''
There will be objections and motions throughout the trial. The plaintiff will have the final opportunity to rebut.
Once all of the evidence has been presented, the court will read the jury instructions. The jury will then leave the courtroom and begin its deliberation.
There really is no way to predict how long a jury will deliberate. Additionally, there is no guarantee it will render a verdict.
My experiences have included both a mistrial and a hung jury. Remember, these are all options to consider when you are trying to decide if you should settle the case.
The verdict will be rendered. Verdicts can have high dollar ramifications. If the verdict goes against the company, there are post-trial motions that can be discussed with your attorney.
Additionally, either party can file an appeal within 30 days after the court order is issued. Keep in mind that an appeal will not change the facts of the case. Ask your attorney how your defense would significantly change and why that change could lead to a different outcome.
Before you leap
In all three articles we have reviewed the importance of handling employee issues before they spin out of control and become a lawsuit. We've also covered the process involved with taking a case to trial.
Armed with this knowledge, you can reflect back on that business owner in the first article who met with an employee regarding a significant error and heard from that employee: ``You can't do this to me.... I have an attorney. I know my rights!''
You may still want to ``boot that employee out the door.'' But a much more prudent approach would be to say, ``You need to do whatever you think is right for you. I am just explaining to you what performance we need from you in order to meet our company's requirements.''
That said, my best advice is this: The next call you make should be to your lawyer, not your golfing buddies. It's better to be proactive rather than wait and hope it will all just ``blow over.''
Hesitation can cost you a lot of money.
Mary Miles can be reached via e-mail at [email protected]