For most cases, my first interactions with new and potential clients comes during the initial employment law consult. Due to COVID-19 precautions, these consultations have been taking place via telephone or Zoom, although I imagine in-person consults will be returning soon. But regardless of the method for communication, these consults are essential for me to be able to evaluate the facts and legal issues that are present in a potential case, as well as to evaluate the potential client as well on a more personal level. Given their importance in this whole legal process, I thought it might be helpful to provide some guidelines on what to expect during a consult, what documents or information to bring, and what exactly I’m looking for during these meetings.
What to Expect During the Employment Law Consult
For most employees I meet with, this consultation will be the first time they have ever spoken with an attorney at all, let alone needed to have an in-depth discussion about a particular part of their life. Most employees have absolutely no idea what to expect or what to wear or what to bring. Some are nervous or anxious, which is perfectly normal.
But basically what a consult entails is a long discussion about the employee’s employment situation. The employee tells me their story, and I use questions to help guide the discussion. Not all terminations are wrongful, and not all harassment is illegal, so I need to ask lots of questions to dig down into the details of what I need to know so that I can determine whether the employee has a viable legal claim or not. If there are documents or media that are relevant to the situation, such as a contract, emails, text messages, written policies, recordings, videos, medical records, or employee handbooks, I will review those as we progress through the employee’s situation. These documents will often become evidence in the case, and I’m evaluating the sufficiency and reliability of the evidence as we go. Sometimes cases will depend solely on the testimony of the employee and other witnesses, without any documents to support the facts, which is fine, but if written evidence is available, then that can make the case that much stronger.
At the end of the consultation, and if I have enough information to make a determination about the case, I will let the employee know my opinion about whether they have a claim. My determination includes an analysis of the liability and the damages. Liability means, in essence, can we prove that the company violated the law in some way and is therefore liable (or responsible) to the employee for any harm that was caused? For example, can we prove that the employee was sexually harassed by a manager in a way that was severe or pervasive and that caused a hostile work environment? If so, then we have to determine how the employee has been damaged, or harmed, by the sexual harassment. (I’ve written previously about what damages may be available in a sexual harassment case, which you can read about here.) If I believe we can prove liability and that there are sufficient damages to justify the length of time and expenses of pursuing a lawsuit, then I will typically offer representation to the employee.
But not every case will meet these requirements. Employment law cases are difficult under the best of circumstances, and the law does not always provide a remedy to every situation. Very often after a consult, I will determine that a case is not likely to succeed and therefore is not worthwhile to spend the time and money to pursue it. I believe it’s important for every potential client to understand that reality, even if it’s not what they were wanting to hear coming into our meeting.
What Should I Bring to the Consult?
As I mentioned above, I will need to evaluate any documents and supporting evidence that the employee has that could be helpful in supporting or proving the claims. If you have emails, text messages, pictures, videos, doctors notes, medical records, or written policies, then you should bring those to the consult. But the most helpful thing you can do before a consult is to organize your documents in a thoughtful and coherent way. Some employees are very organized and have the documents in a folder, tabbed and labeled to the max. Others bring me boxes of loose paper and want me to sift through it. I’ve seen all kinds.
The best advice I can offer on preparing your documents is to make sure that you can locate what you’re looking for while we meet. This will take some preparation time on your part beforehand, but if you will make the effort to pick out the relevant documents, put them in order, and mark them up in some way with tabs or sticky notes, then we will be able to proceed much more efficiently through the facts.
If the matter involves a contract, such as a non-compete agreement or employment contract, then bring a clean copy of that agreement with you. If you allege sexual harassment via email or text message, have those messages ready to view. If it’s an FMLA or disability discrimination issue, then doctor’s notes and medical records will be relevant. If it’s a claim for unpaid wages or unpaid overtime, then paystubs and other payroll records must be reviewed.
What If I Forget to Bring Important Documents? Or What If I’m Not Sure What the Actual Important Documents Are?
For employees who have never gone through a lawsuit before, it’s very common to struggle with figuring out exactly what documents are relevant and important to the case. That’s okay. Very often I will identify a list of documents that I need the client to track down and get back to me after the employment law consult is over so I can fully evaluate the case at that time. I can provide guidance and advice during our meeting, and we can follow up later when you’ve located and provided me with copies of the other documents.
Evaluating the Client / Evaluating the Lawyer
The final component to any consult is an evaluation of the client. If I offer representation in a lawsuit, I will be working alongside the client for potentially up to several years. I will have countless phone calls, email exchanges, and in-person meetings with the client. We will sit for hours together during a deposition and during mediation and during trial. I will have to ask questions that are intensely personal at times, and I have to be able to trust that the client sitting across the table from me is telling me the truth (as best as I can, anyway). Lawsuits are stressful, long, and expensive, and I’m trying to determine whether the client can withstand the pressure of what’s to come. I’m also keeping an eye on how the client interacts with my support staff, such as paralegals and the receptionist. I’ve turned down many cases simply because the client was disrespectful and rude to my co-workers, which I do not tolerate. But this goes both ways. I’m well aware that the client is evaluating me as their potential lawyer as well, so the consultation period works for both of us to meet, size one another up, and jointly decide whether we should continue working together on a case.
Ultimately, we can figure out what we need to know during an employment law consult or after, regardless of how well the employee prepares for the meeting. But if you want to make the most of our time, a little preparation does a long way. So, if you are a South Carolina employee and have an employment situation you would like to discuss, please contact our office to start that process.