How employers have major advantages in our legal system

While some plaintiffs understand that the legal system is a game they have to play once they sue, plaintiffs have far less control and receive much less support from their attorneys compared to employers.

There’s a huge asymmetry of power. According to Rights on Trial, there are major differences in:

Frequency of playing the game. Defense attorneys are repeat players and can devise systems to minimize legal risk. Plaintiffs are one-shotters who have to rely on others for strategy. Defense attorneys represent organizations with which they either have ongoing, long-standing relationships or with whom they are trying to cultivate one. (Legal defense funds and a specialized plaintiffs bar may help level the playing field somewhat.)

Power in number of team members and financial resources. Most defendant organizations seem to have more attorneys, a legal risk budget, and discounted legal fees for their preferred provider relationships. Representation is a given, and money shapes legal strategies (whether or not to pursue claims versus settling and implementing policies and practices to minimize liability). Meanwhile, plaintiffs have to use limited personal resources. Money is often a barrier to obtaining and keeping representation.

Quality of lawyer/client relationships. Defense lawyers have high status. Their clients — employers — call the shots. Employers report feeling in control and work closely with outside counsel, who play a minor role by giving advice and reinforcing such decisions as documenting employee underperformance, while HR departments as part of management play the major role, doing business the way they wanted. Counsel collaborate in a shared commitment to advance employers’ larger business interests, such as disposing costly cases or destroying the business plan of plaintiff lawyers who sue repeatedly by taking them to trial, winning, and making it public. Plaintiff lawyers typically have lower status. Plaintiffs heavily rely on them for knowledge and decision-making. Plaintiffs’ main concerns about their lawyers are self-serving interests, commitment, expertise, emotional connection, communication, competence, close relationship with defense counsel, and honesty. In other words, they generally have negative views of them in (yet another) asymmetrical power imbalance with them where they suffer more emotional and psychological harm. Yet some plaintiff lawyers describe plaintiffs as confused, defiant, and unrealistic, expecting results from unfair but not illegal treatment since most states have at-will employment and can terminate an employee for any reason or no reason at all so long as the reason is not illegal. Some learn clients have not told the truth about some aspects of their claim. Mistrust can increase tension. Others consider clients know-it-alls, harming their cases in court. Plaintiff lawyers must also manage clients’ emotional needs and understanding, often rendering them anywhere from insensitive to caring by clients.

Expectations. Plaintiff lawyers reported needing to also manage expectations, including explaining that with settlements, employers guarantee payment (even if only for legal fees) but make no admission of guilt. Plaintiff lawyers frame issues, educate clients, offer advice, and lay down subtle ultimatums. (Some do put critical decisions on plaintiffs, letting them have their day in court or laying out options. Some who strongly influence or dictate decisions miscalculate.)


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