In yesterday’s Advisor, we offered tips from attorney Stephen Harris on what to do when threatened with legal action. Today, we’ll look at Harris’s steps after initial fact-finding, plus an introduction to a unique tool to help with all your policy-making needs.
Harris, of the law firm Wiggin & Dana in Hartford, Connecticut, delivered his suggestions at a Society for Human Resource Management (SHRM) Employment Law and Legislative Conference.
8. Develop a Fee Estimate
Once the fact-finding is complete, you should be able to develop a meaningful cost estimate. It should show the anticipated hours required by partners, associates, paralegals, and clerical staff, and should be broken down by case phases.
9. Control Documents
Use to your advantage the fact that you control the vast majority of the documents in the case, Harris suggests. Create good documents in the first place, and then be sure to keep them where you can find them.
10. Consider Motions to Dismiss
Don’t file a motion to dismiss just because you can, says Harris. File when you can get something of value that improves your case. For example, something that will:
- End the case with finality.
- Eliminate a party from the suit.
- Limit exposure or take damages off the table.
- Limit the scope of discovery in a meaningful way.
- Give you better leverage for settlement.
11. Consider Summary Judgment
If you have a good-faith basis, and you can show that there are no “genuine issues of material fact” (i.e., no real disputes), you probably should file for summary judgment. It is your last chance to limit or dispose of claims before the trial. However, Harris points out, it is extremely time-consuming to prepare. Your attorney must examine every fact and all the testimony.
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12. Consider Settlement
You may choose to settle to save money (when you can settle for less than it will cost you to participate in a trial), or to avoid the risk of losing money (when the settlement amount is worth paying to avoid the risk of a potentially huge judgment), or to avoid the debilitating effect of a trial.
Of course, there’s another approach—maybe a smarter approach—to all of this, and that’s prevention: Working to be sure that lawsuits aren’t often filed. The first step in prevention is clear, up-to-date policies that are easy to understand and to follow—policies that clarify rules and procedures so employees know what is expected and what the consequences are when policies are not followed.
Unfortunately, we’ve just seen major changes to FMLA, ADA, military leave, and accommodation rules—the list of new policy requirements seems endless. But you can’t back-burner work on your policies—they’re your only hope for consistent management that avoids lawsuits.
You need policies that are carefully crafted, legally reviewed, and regularly updated. But it’s no light task to write and update the dozens of policies that any organization requires.
Our editors have a suggestion that will help you do it, with a minimum of cost and effort.
Why write your own policies when we’ve already done it for you … at less than $1 each! Inspect BLR’s SmartPolicies at no cost or risk. Find out more.
It’s a remarkable program called SmartPolicies. Its expert authors have already worked through the critical issues on some 100 critical policy topics, prewritten the policies for you, and tested them at thousands of companies over time.
In all, SmartPolicies contains some 350 policies covering those topics, arranged alphabetically from Absenteeism and Blogging to Cell Phone Safety, Voice Mail, and Workers’ Compensation. What’s more, the CD format makes these policies easily customized. Just add your company specifics or use as is.
Just as important, as regulations and court decisions clarify your responsibilities on workplace issues, the policies are updated with new ones (added as needed every quarter) as a standard part of the program.
SmartPolicies is available to HR Daily Advisor subscribers on a 30-day evaluation basis at no cost or risk … even for return postage. If you’d like to have a look at it, go here and we’ll be happy to arrange it.