Litigating to Win Without Breaking the Bank

California Association of Joint Powers Authorities (CAJPA) Annual Conference

September 17, 2015

Presented by: Suzanne Solomon and Ruth Graf-Urasaki

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How the Stakeholders in Litigation…

• Agency representative• Outside Counsel• City Attorney• JPA• Can work together to make sure litigation is

resolved quickly, in employer’s favor, at lowest possible cost.

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Documentation is Key

• Maintain contemporaneous, thorough documentation of key decisions and conversations – Creates accurate record of what happened

– Difficult for employee to claim that something else happened

– Documents usually more persuasive than witnesses

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Document Retention

• Documents should be retrievable• Electronic Discovery Issues

– Ensure no document destruction upon notice of potential litigation

– Courts will not excuse inattention/lack of expertise

– Employee emails can be very helpful or harmful to litigation

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E-Discovery

• Cost of managing E-Discovery• Use of internal Case Management

Software • Using outside vendor to do first-level

review of e-discovery

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Document Retrieval

• Provide ALL related documents to litigation counsel ASAP

• Assign this responsibility to one person in your agency.

• Update the budget and E-Discovery plan depending on scope of E-discovery

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Initial Case Analysis and Budget

• Case Analysis– Roadmap for litigation

– Based on info available to employer before discovery

– Is the basis for JPA and agency to assign value to case

– Often evolves as case proceeds

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Contents of Initial Case Analysis

• Summary of allegations and facts• Analysis of potential liability on each claim

asserted in lawsuit• Explanation of potential damages• Plan for Discovery • Assessment of forum and of Plaintiff’s

attorney• Options for Proceeding• Budget

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Budget

• Based on initial case analysis• Revised if initial case analysis changes

significantly• Ongoing conversation with client/JPA as

value of case evolves • Helpful tool for JPA/Risk Pool

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Budget

• Consider basing on ABA Litigation Task Codes

• Task Codes divide litigation into segments: Case Assessment, Pre-Trial Pleadings and Motions, Discovery, Trial Preparation and Trial and Appeal

• Task codes standardize billings from all firms

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Budget: Task Codes

• Use to analyze litigation costs to provide benchmarks for different tasks and track other data, such as comparative performance of firms

• Allows easier tracking of fees associated with different tasks throughout the litigation

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Case Analysis and Budget as Project Management Tools

• Identify the scope and objectives of the litigation. Is there buy-in from stakeholders?

• Identify the plan for the litigation, with timelines and milestones, responsible team members and costs

• How will the plan and budget be adapted to changed circumstances?

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Value of an EPL Lawsuit

• Amount of employee’s potential damages• Amount of employee’s attorneys’ fees and

costs• Amount of your employer’s attorney’s fees

and costs

Hypothetical Race Harassment Case

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Case Value Changes Over Time

• Claims dismissed on initial pleadings motion• Employee’s deposition• Depositions of key employer witnesses• Denial of Summary Judgment Motion

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Assessing Cost Effectiveness of Litigation Strategies

What are the potential

benefits of a given strategy?

vs.

What will it cost,

and could it backfire?

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Pleadings Motions – Cost Effectiveness

• PRO: Eliminates causes of action at beginning of case, narrowing issues for summary judgment or trial

• CON: Could merely educate Employee’s counsel about defects in their case

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Discovery Battles – Cost Effectiveness

• PRO: Obtain key evidence, or prevent discovery of damaging evidence

• CON: Expense and delay; runs up Employee’s attorneys’ fees

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Harassment Hypothetical – Deposition of Supervisor Sam

• Supervisor Sam tells agency lawyers during preparation for his deposition that while he did not use the racial slur on the occasion in question, he can’t say he’s never used that word because, when he was growing up, “That’s what we called them.” It is also clear during the preparation meeting that Sam talks a lot and has difficulty just answering the question that was posed.

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Harassment Hypothetical – Deposition of Co-Worker Chris

• While the employer’s attorney is preparing Chris for deposition, Chris appears extremely nervous, takes a long time to respond to questions, and seems like he might be hiding something. It is not clear to the employer’s attorney whether Chris is intentionally hiding something or whether he just has some odd mannerisms.

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Motions for Summary Judgment – Cost Effectiveness

• PRO: Eliminate claims and avoid trial of those claims; eliminate individual defendants; create settlement incentive for Employee

• CON: Very expensive, and runs up Employee’s attorneys’ fees

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Expert Witness Testimony – Cost Effectiveness

• PRO: Assist jury where assistance truly needed, such as medical issues or complicated damages calculations

• CON: Very, very expensive; consumes a lot of attorney time; communications with expert are discoverable; opinions may turn out not to be very helpful

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ADR – Not If, But When

• 97 % of cases settle• Courts will force parties to attempt ADR

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Alternate Dispute Resolution (ADR)

• At key junctures, evaluate whether settlement makes sense– At outset, if liability seems clear– After key depositions– Before moving for summary judgment– After denial of summary judgment– Before beginning trial preparation

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Harassment Hypothetical – Summary Judgment Fails

• Employer moves for summary judgment, but the Judge denies the motion, finding that the conduct does meet the “severe or pervasive” standard. The case is assigned to this same judge for trial.

• Also, Ed gives the employer’s attorney a declaration from a member of the public stating that he witnessed Sam call Ed a racial slur on the day in question.

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Company May Wonder:

Why did we fight up to now if we were just going to later to settle the case?

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Answer:

In order to reduce the ultimate amount of potential liability

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Different Types of ADR

• Mediation• Binding Arbitration• Non-binding Arbitration• Early Neutral Evaluation• Settlement Conference with a Judge

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Benefits of Mediation

• Obtain an experienced neutral’s assessment of your case

• Good faith attempt to resolve case at logical juncture, so no regrets later

• Unreasonable Employee or his/her attorney may be swayed by mediator

• Can involve non-monetary items not available through litigation

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Aspects of a Good Mediator

• Has expertise valued by both parties• Is not just interested in settling every case

to maintain own statistics• Is energetic and will continue working when

mediation day ends

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Harassment Hypothetical –Mediation Failed

• Plaintiff has waived jury trial and wants the judge to be the trier of fact. The judge is the same one who denied summary judgment.

• He also happens to be same race as Plaintiff.– Should employer agree to have judge be trier

of fact?

– How would it affect value of case?

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How You Can Help Attorneys Win at Trial

• Assign a high level agency rep. to attend entire trial

• Governing body/JPA must be updated regularly

• Decision makers should be ready to make major decisions quickly

• Be prepared for win, for loss, and for response to press inquiries

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Thank you!

Suzanne Solomon

Partner | San Francisco Office

415.512.3000 | ssolomon@lcwlegal.com

www.lcwlegal.com/Suzanne-Solomon

Ruth Graf-Urasaki

Litigation Manager | Los Angeles Office

310.981.2000. | rgrafurasaki@lcwlegal.com

www.lcwlegal.com/Ruth-Graf-Urasaki