How to Start a Case and What to Expect

1) The firm begins each case with the prospective client consultation, which can occur over the telephone or in the office. When a prospective client contacts our office, they will immediately speak with an attorney. Through the use of electronic communications (fax and email), the firm works with each individual to develop the factual backbone of each case. Each prospective client is required to prepare, in advance of the consultation, a written confidential statement about their case. This document will be used to create a sworn affidavit the client will later sign. Each prospective client is also required to provide copies of all documents in their possession, such as emails, medical documentation (disability case), company policy statements, employment contracts etc.

2) Once the information is reviewed, the firm will decide whether or not to accept the case and send out a written retainer agreement. The firm cannot represent the client until the firm receives a signed retainer agreement.

3) After the firm accepts a case, the real work begins on the case. A complete review is performed on all of the factual information provided by the client. The firm then conducts an extensive review of the case law to determine the available legal arguments in favor of the client and the possible defenses that may be asserted by the employer. Each case is an evolving set of facts and legal issues. The aforementioned review continues throughout the duration of the case.

4) Upon completion of the initial factual and legal review of each case, the client is presented with various options to choose from. The firm maintains a policy of instructing each prospective and new client to avoid litigation if possible. The firm makes every effort to work with opposing corporation counsel and outside counsel to negotiate a prompt resolution before a lawsuit is filed. Prior to any initial discussion of settlement, the firm delivers a legal position statement, along with exhibits, to opposing counsel. This lengthy memorandum attempts to display the factual and legal arguments to the defendant employer. This is the first impression our clients provide in each case.

5) If negotiations begin, the firm will typically have an initial case discussion with opposing counsel. Here, the two parties establish what the settlement range. Each subsequent discussion will exchange the numerous counter offers, until a final verbal agreement has been reached. The parties will then exchange a proposed written settlement agreement. The negotiation is concluded upon signing a written settlement agreement. Once settled, the case is concluded and neither party can file suit on the case.

6) WHEN NEGOTIATIONS FAIL: When negotiations fail because the parties are too far apart in their respective financial demands, litigation is commenced. In discrimination cases, this means filing an administrative charge of employment discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and the state or city (New York City) fair employment practices agency. Once the administrative agency has concluded its findings, the client must request and receive a Notice of Right to Sue or similar document. The next step is to file suit in federal court. In disability benefit cases, this means a filing an administrative appeal with the plan administrator/insurance company. Once a final decision is rendered by the plan administrator/insurer, the client will then file a lawsuit in federal court. In Wage and Hour cases, the client will be required to file a notice of violation to the Department of Labor, in order to perfect a retaliation claim. If a termination has already occurred, the client will file a lawsuit in federal court, because no administrative filing is required.

7. LITIGATION IN FEDERAL COURT: Litigation encompasses the filing of a federal complaint (lawsuit), the discovery phase and motion practice.
The entire process is designed to exchange documents and testimony between the parties, and then present such evidence to the court for review. At the conclusion of the discovery phase, the court will be presented with legal arguments from both parties as to whether the case should/should not go before a jury. (Note: there is no right a jury trial in disability benefit cases.) The court will render a decision whether a trial will occur in the case. If the case moves to a jury trial, the court will force the parties to discuss settlement. This occurs for two very important reasons. First, the court wants to avoid the time and expense of trial. Second, the court believes one side has weak or less persuasive legal arguments. If the parties do not settle, the case is decided by the jury. Upon conclusion of trial, each party can file an appeal to the Court of Appeals. When a decision is rendered by the Court of Appeals, the case is either concluded or remanded to the District Court for a rehearing or retrial. In the rarest of cases, a client has a right to file a petition for review with the United States Supreme Court. However, such petitions are almost always denied. If denied, the case is concluded. If the petition is granted, the client has the chance to influence an issue of national importance.

For More information, please contact Mark Carey at (203) 255-4150 or mcarey@capclaw.com.