As published in the Harvard Law & Policy Review, Kevin M. Clermont & Stewart J. Schwab observed that from 1979-2006, plaintiffs bringing employment law matters (discrimination, wrongful termination, etc) in federal court won only 15% of the time. When paired with the observation that plaintiffs in non job-related matters won 51% of the time, that 15% figure is stunning. Questions as to why there is such an imbalance in employment law compared to other areas of law have been the focus of many journalists, lawyers and academics. But for attorneys who represent plaintiffs in employment discrimination cases, there is one key factor worth focusing on: properly preparing a case to survive motions for dismissal, particularly summary judgement motions.
The single largest contributor to the difference in win rates stems from the disposition of cases prior to trial by federal judges. When facing motions by employers to have the case dismissed prior to trial, plaintiffs win only 3.59% of the time, while plaintiffs in non-employment related matters are successful against such motions 21.05% of the time. Yet, settlement occurs no more frequently in employment law matters than other types of cases.
Astute employment law defense attorneys are cognizant of these statistics and are also fully aware of the plethora of pretrial maneuvers they can make that can result in dismissal of a plaintiff’s case long before it is even close to trial. It is for this reason that employment law plaintiff’s attorneys should be sure to properly plead their clients’ cases from the beginning, making sure to lay out each and every allegation in more than just broad strokes in the complaint, to carefully choose which legal claims to bring, and to fully investigate which allegations have substantial factual evidence prior to the filing of a lawsuit.
In essence, the burden is upon plaintiffs and the employment law attorneys who represent them to view their cases through the lens of summary judgment at every stage of litigation-- from client intake to their oral arguments in front of judges--as to why a case should see the trial room. While there should certainly be other considerations, such as whether to file in state court instead of federal court and what reforms, if any, should happen at the federal bench to remedy this imbalance, it is nonetheless imperative that victims of employment discrimination and their attorneys understand the situation and work aggressively to build their case and prevent loss before trial.
After properly pleading the case, attorneys must be particularly aggressive in creating a record that will be sufficient to show the judge that there is a legitimate dispute between the parties. In other words, the factual record must clearly demonstrate that reasonable persons could conclude that the employee was treated adversely (such as wrongfully terminated) for illegal reasons. Creating such a record requires that attorneys work with their clients to gather affidavits, declarations, and relevant documentary evidence—including serving documents requests and requests for admission upon the opposing party. Further, deposing multiple witnesses is often crucial for building a sufficient record. Although depositions can be costly, they are often the single best source of evidence sufficient to survive pretrial dismissal.
Throughout the discovery phase, plaintiffs’ attorneys must actively use the information gathered to conduct an ongoing investigation, not only to gather evidence in support of their clients’ legal claims, but also to get a sense of an employer’s defenses and respond to them while they are still able to conduct discovery. All too often it is on this point that plaintiffs lose their case. Attorneys must not rest on their laurels during the discovery phase; they must be actively engaged with the information they obtain and be constantly assessing the likelihood of their client surviving summary judgment with the record before them. This allows the plaintiff’s attorney to grapple with counter evidence that could mean losing a summary judgment motion if not factually and appropriately rebutted.
In short: in light of the bleak outlook for victims of employment law injustices, successful plaintiffs will be those who retain counsel that conducts a significant amount of work prior to trial, so as to ensure that there is a trial (or, at the very least, meaningful settlement negotiations).
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.