By Andrew H. Friedman

Excerpted from Litigating Employment Discrimination Cases

Occasionally, a prospective client’s case may not be ripe for litigation. For example, the prospective client may be encountering comments of a sexual nature at the workplace which have not quite risen to the level of sexual harassment (e.g., the comments, though escalating, are not yet sufficiently severe or pervasive to create a hostile working environment). Similarly, a prospective client with a disability that has not been disclosed to the employer may desire to sue because his employer has failed to make a reasonable accommodation. Neither of these cases is ripe for litigation. In these situations, you should not necessarily reject the case and tell the prospective client to come back when the case ripens. Rather, you should consider accepting the case with the understanding that, at least initially, you are only going to help shape the case.

Goals in Shaping Case

The goal in shaping the case is four-fold:

  • To provide the employer with an opportunity to take remedial action to correct the unlawful conduct;
  • To satisfy any prerequisites regarding the prospective client’s need to place the employer on notice as to the unlawful conduct prior to filing suit; and
  • To “set up” the employer and create additional claims in the event the employer is unwilling to comply with it legal obligations. (For example, a complaint letter inevitably allows the prospective client to assert a retaliation claim, as most employers simply cannot stop themselves from taking adverse employment actions against employees who complain.)
  • To ensure the involvement of the highest-level officials of the company such that the prospective client will not only be able to involve these officials in discovery and trial but also to maximize the availability of punitive damages.

Caution:

Shaping the case may result in employee’s termination

You must make clear to the prospective client that your advice and the actions taken in shaping the case may lead to the termination of her employment. Out of an abundance of caution, some attorneys specifically insert into their engagement letters language clearly advising the prospective client of this possibility:

Although we may provide you with our opinion regarding your employment situation, we cannot guaranty or promise any particular result. Indeed, it is possible that as a result of our advice, your employer will terminate your employment or take some other adverse employment action against you. You acknowledge that we have not made any promises or guarantees about the outcome and that any opinion offered by us in the future will not constitute a promise or guarantee.

Five-Part Process

1.   Complaint Letter

Shaping the case is normally accomplished in a three-part process. First, and most importantly, help the prospective client prepare a letter (e.g., an internal complaint) that explains the unlawful conduct to either the employer’s president or, in some cases, to the Director of Human Resources. The purpose of the letter is to give the employer the opportunity to correct the unlawful employment practice.

Explain both the applicable law and the purpose of the complaint letter to the prospective client, and then ask him to draft the letter. You should then revise the letter to ensure that it sufficiently places the employer on notice as to the unlawful employment practices, and that it does not contain any irrelevant or potentially harmful statements by the prospective client. In revising the letter, review any employer documents, policies, or employee handbooks to ensure that you comply with any employer complaint procedures. Finally, have the prospective client review the complaint letter to ensure that it is completely accurate and that he understands it.

Practice Pointer:

Prospective client must understand every word in letter

It is critical that the prospective client understand not only the complaint letter as a whole, but also each individual word within the letter. One of the most embarrassing and potentially damaging situations can occur in deposition or at trial when the client is forced to admit that he does not know the meaning of certain words or sentences in his own letter. Similarly, the attorney should take the time necessary to explain why the letter is being sent. This will avoid the humiliation that would occur when the prospective client testifies, in response to the question why he sent the letter, “because my attorney told me to.”

Practice Pointer:

Keep client’s “voice” in letter

Although it might be more efficient for you to draft the initial complaint letter, the process outlined above ensures that the prospective client’s “voice” is maintained in the letter. This is important because the letter will almost certainly become a critical piece of evidence in the case. If the letter looks like it was written by an attorney, it may lose some impact and, in the worst case, anger a jury which believes the letter was written solely to “set up” the lawsuit.

2.   Employee Notes

The second part of shaping the case requires the prospective client to keep detailed notes regarding the unlawful conduct and how it affects the prospective client’s emotional well-being, as well as his ability to complete assigned job duties. Instruct the prospective client that these notes are create for your review and will be protected from discovery by the attorney-client privilege. At a minimum, the notes will be useful in preparing both the prospective client for deposition and trial and for responding to written discovery requests. Occasionally, if the notes are well written and helpful, the attorney-client privilege can be waived, and the notes can be used as evidence to show that the prospective client contemporaneously documented the incidents.

3.   Witness Creation

The third phase of shaping the case may require witness creation. That is, if the potential client has not told anyone about the discrimination/harassment, counsel and the potential client should discuss whether the prospective client should begin telling carefully selected individuals about it so that there will be witnesses who were contemporaneously told by the potential client about the discrimination/harassment. While reality demonstrates that many plaintiffs are simply too embarrassed/humiliated/scared to contemporaneously tell others about the harassment/discrimination to which they are being subjected, defendants and their counsel (and some judges and jurors) tend not to believe a plaintiff who has not contemporaneously informed others about the unlawful conduct. Hence, it may be important to create witnesses.

4.   “Perfect” Employee

The fourth phase of shaping the case requires the prospective client to be the “perfect” employee pending the resolution of his claim. This means, among other things, that the prospective client timely report to work each day, perform all of his job duties in an excellent manner, politely and professionally communicate with the employer and all of its representative and otherwise fully comply with all of the employer’s policies. This also means cautioning the employee that the workplace may well become significantly more hostile than it was prior to the submission of the employee’s letter, and that acting the part of the “perfect” employee will take substantial efforts.

5.   Mental Health Care Help

The fifth phase of shaping the case requires counsel and the potential client to determine whether the prospective client should be treating with a mental health care professional. As with witnesses, reality demonstrates that many plaintiffs do not seek care from mental health professionals regarding the harassment/discrimination to which they are being subjected. This is probably because of expense and/or the perceived stigma that is still associated with seeing someone for mental issues. Defendants and their counsel (and some judges and jurors) tend to believe that a plaintiff who has not sought help from a mental health care professional has not actually suffered any emotional distress. You should inform the prospective client that you are not a mental health care professional but that it would be helpful to his or her case if he or she were being treated by a mental health care professional. Since most defense counsel attempt to determine how and why the plaintiff began treatment with a mental health care professional, it is important that the plaintiff be able to truthfully say that the treatment began for some reason other than the suggestion of counsel. Typically, the best way to accomplish this is to have the plaintiff see his or her physician and inform the doctor about the unlawful discrimination/harassment and the symptoms that it is causing. Most doctors will then refer the plaintiff to a mental health care professional. This way, the plaintiff can truthfully say that he or she was referred to the mental health care professional by his or her doctor.


Andrew H. Friedman has litigated virtually every type of employment case (on behalf of management, individual defendants, and plaintiffs) in the California state and federal courts. Mr. Friedman has also represented both employers and employees in administrative matters pending with numerous governmental agencies, including the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. He is the author of Litigating Employment Discrimination Cases, from which this article is excerpted.