The HR Professional And The Employment Law Attorney: A Match Made In Heaven? (Part II)

12.2008
Employment Law Reporter, Ervin Cohen & Jessup LLP

If a current or former employee has sued you, speak to your employment lawyer right away. Employment lawsuits are complex, requiring not only knowing the substantive law of your case but also the procedural requirements of your court. These requirements are not waived simply because you are without an attorney. Once a lawsuit has been filed, you have to take certain actions immediately to make sure that your rights are protected—and to preserve evidence that might be used in court. The time limits for taking action are very short—many courts require you to file a formal, legal response to a lawsuit within just a few weeks after being served with it. If you simply ignore the lawsuit and don’t “participate”, a complete judgment can be entered against you in favor of the employee anyway.

However, if you have read Part I of this article, you know that you should not wait until you have been sued to find an employment lawyer. Ideally, you should already know who you would call in that circumstance, because you have someone who knows your business, your objectives, your financial ability to participate in a lawsuit and your needs. Further, although some employers can and do handle these administrative matters on their own, most would greatly benefit from some legal advice on the strength of the  employee’s claim, how to prepare a response to the charge, how to handle an agency investigation and how to present evidence at the hearing. A legal strategy coach may be all that’s needed.

Hiring An Employment Attorney: The WHO

Now that you know why and when you will need the services of an employment attorney, how do you decide who you should hire? Ideally, you will have time to do some initial screening of lawyers, as follows:

  • Look at biographical information, including whatever you can find on websites for the lawyers and their law firms. Do they appear to have expertise in the area you need? Do they have any information on their websites that is helpful to you?
  • Find out if the employment lawyer represents employers or employees, since employment lawyers tend to fall into one of the two categories.
  • Ask other people if they’ve heard of the attorneys and what they think about them.
  • Contact your state bar association or visit their website to find out if the lawyer is in good standing (www.calbar.org).
  • Check out the yellow pages of your telephone directory. Does the lawyer advertise? If so, do you find it compelling? Helpful? Tasteful?
  • Check out the online archives of your local newspaper. Has there been any publicity about the lawyer or the cases that he or she has handled?
  • Consider your broader needs. For example, could you benefit from an attorney who speaks a language other than English? Will you potentially use other legal practice areas in the attorney’s firm?
  • Don’t cross a lawyer off your list merely because he or she didn’t have the time to meet with you on short notice. Good lawyers are in demand and busy, so they may not be able to spend as much time as they would like with prospective clients.
  • Ask about conflicts of interest. Does the lawyer represent any opposing parties?
  • Ask for a copy of a firm brochure and promotional materials that the firm may have. Crosscheck these materials against your other sources and references.
  • Try to have a meeting with the attorney face to face. Find out whether you will have to pay for the initial consultation. At the meeting, ask about employment law experience, specifically in the area that is of interest to you, and other benefits of using that lawyer over others. Don’t be afraid to ask why you should hire him/her as opposed to someone else and listen to the answer.
  • Ask about and determine costs. Hiring an employment lawyer can be expensive. Make sure you question the employment lawyers you meet with regarding their hourly rates. Request an estimate of the fees and costs.

Don’t forget who you are—you’re in human resources. You know people, so trust your instincts! Your employment lawyer should listen to your problems carefully, be knowledgeable and compassionate and put you at ease. If you don’t feel comfortable with that employment lawyer, you will not get the best and highest use from hiring him/her.

Managing The Relationship And Getting The Most From Your Employment Attorney

A. Set Expectations

The key to a successful relationship with your employment attorney is to set expectations and check in periodically that they are being met. Therefore, you should work with an attorney who makes you feel comfortable, who “gets you” and your preferred mode of working, and who is flexible enough to accommodate your needs.

You should set expectations on the following items: when you want the attorney to respond to you (the timing of your issue); whether you want to communicate by phone, email or in person; when will someone other than the attorney you know handle certain work assignments for your company; who the ultimate decision makers are in your company; whether you have a preference for fighting a certain type of claim or settling it out of court; whether you “just want the answer” or you want an explanation for the answer and what other options you have; and any other item you consider important for your attorney to know about.

B. Demand Open And Understandable
Communication

You should never have to be scared or intimidated to call your attorney. A good employment law attorney is both your trusted advisor and your warrior champion! Therefore, you must insist on open and clear communication. In English, not in “legal” terms only. If you don’t understand a piece of advice or a legal strategy, ask. It is part of the employment attorney’s job to educate you as well as to represent you.

C. Know What You’re Paying For

Money is a sore subject and often the sole reason that employers don’t hire attorneys. The subject can be far less onerous when you know what you’re paying for and why. Therefore, consider implementing the following suggestions for making sure you are comfortable with the costs of hiring an employment attorney: ask for a \ fee agreement in writing that specifies how the attorney bills and for what tasks/costs; ask whether you can have a fixed monthly rate for certain recurring services; if you see names on your bill that you don’t know, ask who they are and why they were brought in; ask for estimates of costs for a project (an experienced attorney will have done it before and can give you a reasonable estimate); ask why the actual costs greatly exceeded the estimate, when that occurs; and ask for explanations of the bills if you don’t understand them.

Note that you shouldn’t provide your attorney shorter partial documents because you think it will be less expensive to review. It is essential that your attorney review the entire document that he/ she is looking at to ensure that a matter is being handled lawfully and consistent with your agreed upon strategy.

D. Give Feedback

Finally, let your attorney know what you think of working with him/her, either in general or on a specific case. If you are unhappy, a good attorney will want to know it, without getting defensive, and will want to address the issue with you. Perhaps you are wrong and the matter can be cleared up with an explanation. Perhaps you are right and you end up getting a discount on your bill!

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