Social Scientists Find that Employment Discrimination Litigation Stinks

The American Bar Association’s Study of Fairness in Employment Discrimination Lawsuits found that the whole process stinks. No one likes it. The study was conducted by three sociologists, Ellen Berry, Steve Hoffman and Laura Beth Nielsen and their findings were published in the Law & Society Review in March, 2012.
The study is based on 100 interviews with plaintiffs, defendants and the employment lawyers involved. The universal view held by all was that the system is unfair, but each side had different reasons.
Plaintiffs thought the process was too expensive and biased towards defendants. Some plaintiffs said the high costs resulted in personal hardships leading to divorce, depression and bankruptcy. Defendants, on the other hand, thought the system was unfair because it allows people to bring bogus suits that they are required to defend.
The authors conclude that “We have a fundamental problem with the legal system. The primary way that the law deals with discrimination at work – litigation – is considered unfair by both parties, and winning in litigation requires considerable financial and legal resources.”
Looking deeper into the study, it is clear that many of the complaints from plaintiff’s were directed at their lawyers. Plaintiffs often did not trust their lawyers and blamed them for not keeping them informed, providing bad advice and some suspected that their own lawyer were in cahoots with the company. What can plaintiff’s employment lawyers do to prevent these feelings from our clients? Here are a few suggestions:
1. Create a More Open Process
The ABA has been saying that poor communication by lawyers to clients is the root of many complaints about lawyers and is to blame for some of the public’s general distrust of the profession. Lawyers are notorious for keeping clients in the dark. The best way to remedy this problem is to open up the entire process so clients can see exactly what is happening with their case. At my firm, we did this by using an online project management system called Basecamp. Each client gets a password and can logon and see their case calendar, deadlines and assignments and every single document that concerns their case. You can organize the documents for easy review. Every time a document is received or created it gets posted to Basecamp and clients get an email notification and can logon to see it. This system keeps client fully informed and they love it. Our clients truly appreciate it and we never get complaints.
2. Ethics in Billing
At my firm, we have banned the hourly fee. Instead, most all of our cases are billed on a contingent fee basis so our interests are aligned with our clients. We take some cases on a flat fee basis where each project is priced in advance so there are no surprises. This billing structure keeps things fair and we rarely ever get complaints about billing. The hourly fee is the real devil in my view because it creates a conflict of interest with clients – the slower you work the more you bill etc. Banning the hourly fee will go a long way towards creating client satisfaction. The best billing system for plaintiff’s employment firms in my view is the contingent fee because it forces lawyers to only take cases that have genuine merit and it aligns the interests of lawyer and client. If a firm is not willing to take a matter on a contingent fee, then the case probably has problems and should not be brought in the first place.

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