Christopher J. McKinney, a Texas employment law attorney, recently wrote about the costs of employment litigation. In his excellent article, he discusses the reasons employment litigation has become too expensive. I agree with all of his points, especially his thoughts on dispositive motions.
All employee rights attorneys face the specter of motions for summary judgment in almost every case. Almost every motion for summary judgment I have faced are clearly billing opportunities. Rarely are there no genuine issues of material fact. What I’ve noticed is sometimes defense counsel will fight over producing obviously discoverable evidence. Why would a smart defense attorney fight the production of evidence if it helped his or her client’s case?
A smart defense attorney with a solid defense that can show a court there are no genuine issues of material fact would be even a smarter defense attorney if he or she would simply show the poor plaintiff’s lawyer the strength of defendant’s case very early in the litigation process. Then a smart plaintiff’s attorney would likely dismiss the case with a waiver of costs agreement or with perhaps a small settlement.
That rarely happens.
What is more typical are demurrers, boilerplate discovery objections, subpoenas to previous employers and ridiculous multi-day depositions that drone on and on and on followed by the MSJ which almost always fails.
I’m wondering if and when employers are going to wise-up to what is often a shakedown by their attorneys under the guise of being aggressive.
Now I’m not blind and I’ve read many appellate decisions from plaintiffs appealing a summary judgment where I came away wondering, “What the hell was that plaintiff’s attorney thinking?” Some plaintiff’s attorneys seem to lack the ability to look at a case with common sense, but I see that more on the defense side.
Many plaintiffs are willing to settle meritorious cases for much less early in the litigation process for several reasons, even when the plaintiff has a very strong case. For example, settling early saves money. The parties do not spend themselves into corners preventing settlement later on. Plus, there is an emotional benefit to settling early and moving on.
But what I rarely see defense counsel considering is the harm to the employer when the employer’s employees testify under oath about their deficient investigation, targeting employees, etc…
And I really agree with McKinney’s suggestion of eliminating MSJ’s in employment litigation and that binding arbitration is not the answer.