For the most part, regular workers like you do not file lawsuits everyday. As such, the idea of filing a lawsuit can seem daunting. This guide will try to help you understand what will be involved when you hire us so that you can know what you can expect:
Step One: Intake
When you call, we will ask you about why you believe your employer wronged you. Specifically, we will want to know information concerning your employer, what your job duties are, and what happened. It would be a good idea to have your paystub, paycheck, or W-2 when you call - as those materials will have specific employer information we need. We will then ask whatever follow-up questions we may have concerning your account, as well as various other questions to make sure that there aren't any other claims you may have which you don't know about. After asking these questions, we will give you our opinion as to whether you have any legal claims against your employer and what your options are.
There is no charge for this consultation. If you would like to know what information we will need, these quizzes will give you an overview of the things we will be looking for when we speak with you:
Assuming that, after intake, we conclude you have a legal claim against your employer and that private litigation is the most recommended course of action, we will then draft up a retainer agreement. This retainer agreement will set forth the specific scope of the work we will be providing and our rights and responsibilities in doing so. We will then send it to you to review, sign, and return to us for your casefile.
Generally speaking, for everyone's protection, we will not begin work until we have received the retainer agreement. However, depending on the what is alleged, we may need to begin working immediately so as to preserve your legal rights to sue. When that is the case, we will let you know what the emergency is and ask that the retainer agreement be signed and returned as soon as possible.
Step Three: Informal Settlement Talks
Even where an employer is clearly in the wrong, there are many pitfalls with litigation. As you will be able to see from the outline below, generally speaking, settling your claim before filing a lawsuit can be advantageous for everyone, cost-effective, and can get you your money much faster than a fighting the matter out in court. So, once retained, the first thing we will typically do is to send a letter to your employer informing them of your claim and requesting that they negotiate with you for a fair monetary settlement to settle your claim. If your employer agrees to settle, we will negotiate with your employer for an amount that all parties find agreeable and resolve the matter.
Even should settlement talks break down at this initial stage, they will generally continue and change throughout the case as the facts come into view.
Step Four: Filing a Complaint
If your employer does not agree to settle for a fair amount, then we will draft a formal complaint, file it in court and serve it on your employer. This puts your employer on notice that there are claims filed against them and gives them a time limit by which they need to respond.
Step Five: Your Employer's Response
Your employer can respond to your complaint in one of three ways: (a) your employer responds with a document called an "Answer"; (b) your employer moves to have the complaint dismissed from court; or (c) your employer fails to respond at all. Each of these responses have different consequences.
(a) The Answer The Answer is a document which confirms or denies the specific allegations we stated in the complaint. When we receive an Answer, we will start to process of discovery (further explained below).
(b) Motion to Dismiss A Motion to Dismiss is a request by your employer to the court asking that the complaint be thrown out for some legal insufficiency. Basically, your employer would be arguing that even assuming that all of the facts asserted in the complaint were true, the allegations would still not entitle you to any damages. Were your employer to make a Motion to Dismiss, we would go to court on your behalf to argue that they are wrong, and ultimately, it will be the court will decide who is right. If the court decides that the complaint should not be thrown out, your employer will be required to give us an Answer. If the court decides that the complaint should be thrown out, we would need to re-evaluate the allegations in our complaint and re-file with additional information if possible.
(c) Failure to Respond (Default) A failure to respond to the complaint, or a "default", means that your employer did not respond to your claim in a timely fashion. When your employer defaults, we will then ask that the court decide your claims based solely on your assertions. This may require an "inquest", or a hearing in which we would ask you questions in front of a judge describing the facts as you recall them. Since your employer did not respond, your employer would not be contesting your claims and would not be asking you any questions at the inquest. Should your testimony be sufficient, the court will decide the case in your favor and award you what you're owed. You could then begin collection efforts on your employer to get the award you had received (explained further below).
Step Six: Discovery
Discovery is the process by which the facts are determined for use in the case. First, both you and your employer will submit written questions to one another pertaining to the claims being made in the complaint, as well as requests to produce documents or other materials that the parties may have. After all of these documents have been exchanged, the parties will take depositions, during which both you and your employer will have to verbally answer questions concerning the claims under oath.
Step Seven: Summary Judgment
Where parties generally agree on what happened, it may be possible for the court to decide the case without a trial. In such a scenario, the parties will present arguments to the court who will then decide the case. Should the court decide the case in our favor, as well as the amount you are owed, you can then begin collection efforts. Should the court decide the case in your employer's favor, we will then need to assess the decision to see if an appeal is appropriate (explained further below).
Step Eight: Trial
Should the parties dispute significant facts in the case, a trial will be necessary to decide what did or did not happen. This will include both parties being called to testify in court and being questioned by attorneys from both sides. After the facts are laid out in court, either a judge or a jury will make decisions concerning who to believe and will then render a verdict. Generally speaking, a trial is a very expensive and labor-intensive endeavor. As such, it is usually in all parties' benefit to avoid a trial where possible.
Step Nine: Appeal
Where the court, while handling your case, makes a mistake concerning its interpretation of the law, the court's decision may be appealed. An appeal consists of making an argument to an appellate court and demonstrating how and why the lower court's ruling was mistaken. Your employer would also have the ability to respond to our appeal and argue why the lower court's ruling was correct. Were the appellate court to agree with our argument, or find their own reason why the lower court's ruling was incorrect, the appellate court would change the lower court's decision. Generally speaking, appeals are expensive to bring, take a long time, and are difficult to win, but where the court's mistake is particularly egregious or costly to your claim, an appeal may make sense. Should the court decide your case against you, we will certainly go over the reasons the court provides regarding its decision and whether an appeal may be worth the effort.
Step Ten: Collection Efforts
Assuming that you have won your case and been awarded money, you may then begin the process to collect the award from your employer. Usually, if your employer has been involved in this litigation, obtaining your money is not a difficult process, as an employer will generally voluntarily comply with the court order and write you a check in the amount you are due.
However, sometimes, an employer will not (for whatever reason) abide by the court order and you will have to actively go out and collect your award from the employer. This process can include locating and then seizing employer bank accounts and selling off your employer's property. In addition, sometimes an employer will file for bankruptcy rather than pay you what they were ordered to. In such a case, you will have to file a claim in bankruptcy court and compete for your employer's assets with any other creditors your employer may have. In either case, should collections be necessary, we will explain your options to you and what you will need to do to get what you're owed.
The information contained in this website is provided for informational purposes only, and should not be construed as legal advice on any matter.
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