What It’s Like Practicing Employment Law

The developments that have occurred in employment-law litigation during the past 20 years have been amazing, and the careers of employment-law litigators have transformed dramatically from what they were a decade ago.
 
Employment law is fast-paced, ever-changing and complex. The constant development of new and far-reaching federal and state employment regulations and case law keeps employment-law litigators on their toes.

 
 Also, the very nature of being a litigator and the changes in the practice of law in this century have affected employment-law litigation.
 
One interesting area of change is the focus on increasing the numbers of women and minorities at law firms. Specifically, with the development of anti-harassment, anti-discrimination and affirmative-action laws, companies now recognize that their organizations must offer diversity in the workplace.
 
An outgrowth of this recognition is the now common expectation by companies that their outside vendors, including outside law firms, reflect diversity in their ranks as well. Many large corporations demand that, as part of initial bids for business, outside counsel provide the numbers of and positions held by women and minorities at the firm.
 
Similarly, many companies require a yearly update on this information to ensure a law firm's commitment to maintaining a diverse work force. For law firms, especially those with an employment practice, it is simply a matter of "practicing what they preach." If the firm provides legal advice on maintaining a diverse work force and not discriminating against women and minorities, then the firm should live by that standard as well.
 
Another catalyst for the increase in women and minority litigators is the nature of lawsuits handled by employment-law litigators: minority and gender-discrimination claims and sexual-harassment claims. From a strategic viewpoint, many companies involved in such litigation want minorities or women on their litigation defense team.
 
The obvious benefit is twofold. First, discrimination and harassment laws are premised on the "reasonable woman" or "reasonable minority" standard. Having minorities and women on a litigation team may help a company gain insight into these types of claims, insight to which the company may not otherwise have access. Second, a diverse litigation team helps to diffuse an often-painted picture by a plaintiff-employee or plaintiff's counsel that a defendant corporation is dominated by white men who have no understanding or knowledge of what minority or female employees deal with in the employment world.
 
In addition to the above, as people enter the new century, more women and minorities are graduating from law school. For example, in 1970 only 10 percent of U.S. law schools' graduating classes was female. Today, women make up almost half.  Likewise, the number of African-American attorneys and people of color has almost doubled between 1983 and 1999.
 
In general, as the applicant pool of women and minorities has increased during the past 10 years, so have the hiring rates for such groups of individuals and the rate at which these groups assume leadership roles in the legal profession.
 
The concepts of part-time, temporary and per diem employment also have had a particular impact on women in the litigation work force. Although every employment market is cyclical, during the past four to five years, high-quality legal talent has been at a premium. As a result, law firms looking for new and innovative ways to retain talented lawyers and to reduce turnover have begun to embrace the concepts of part-time and temporary/per diem employment. These employment arrangements have provided women with the opportunity to continue careers in litigation while raising a family and have had a positive impact on women staying in the profession rather than retiring.
 
High-Tech Litigators
 
Technology has had an enormous effect on the practice of litigation over the past years as well. Start with the basic developments in computer technology, lap-top capabilities, personal data assistants, cell phones and portable printers. All of these gadgets have made litigation a portable business and, in doing so, have allowed litigators to expand from their home-based or small-town local practice to an interstate or nationwide practice.
 
Developments in technological legal research also have impacted employment litigation by providing quick and easy access to the most up-to-date legal authority on this area of the law in jurisdictions across the country on services such as Google Scholar that allow free case law research.
 
Employment litigators can conduct research, draft and finalize briefs, and file pleadings with adversaries and the courts—all from a hotel room hundreds of miles from the office. Publishers have recognized the importance of the Web and, during the past five years, have offered more information sources via the Internet. These Internet publications usually cost the same as or less than bound volumes and, obviously, take up no shelf space. Internet-based legal authority is also easily updated, eliminating the need to purchase paper updates and manually insert them into hard copies of books.
 
Computerizing Depositions
 
The deposition process has also benefited from new technology. Twenty years ago, it was standard practice to assign summer or junior associates the onerous task of reading depositions and drafting deposition summaries, a project that could take days or even weeks to complete. In addition, attorneys had to rely on the judgment of the junior or summer associate to summarize the deposition without missing any key points. Litigators relied heavily on these summaries when drafting briefs, preparing for other depositions and, perhaps most important, when making references during trial.
 
Today, it is standard practice for court reporters to provide a fully indexed deposition transcript, a copy of the transcript on disk and a copy in "minuscript" form—i.e., four pages of transcript condensed onto one page. All of these tools have eliminated the time and cost associated with drafting deposition summaries and lessened concerns over omitted information associated with a subjectively created deposition summary. The index, in particular, increases the efficiency and ease of locating particular transcript passages when needed.
 
In addition, many court reporters now offer programs that allow attorneys to view transcripts of deposition questions and testimony "live" on their own lap-top computers during the deposition. The ability to see testimony in print in real time allows litigators, among other things, to see whether a witness is answering a question or being evasive, to home in on a particular statement made by the witness and to recognize when follow-up questioning is necessary. These programs also allow the litigator to search, cut and paste deposition text.
 
Litigators are not the only legal professionals to have benefited from the technological developments of the past decade. During the past few years, both state and federal courts have begun to develop policies and implement rules that embrace electronic filings, that accept telefaxed documents as proper service under the court rules, and that permit the posting of case information (including tentative or final rulings on motion practice and the basic status of everything that has been filed in the case) via the Internet.
 
Likewise, many courts now make available on the Internet their local court rules and filing procedures and information. Some even provide forms for attorneys to download and use. Various jurisdictions, recognizing the large amount of paper generated by litigation, also have amended their file-retention policies to allow for maintenance of court files on CD-ROM or microfiche format and the destruction of hard copies.
 
Becoming Insurance-Savvy
 
The inception of insurance coverage has also changed employment litigation practice. Litigating a run-of-the-mill, one-count employment complaint can cost a client thousands of dollars even before trial. More complex cases, with multiple defendants or claims, can cost hundreds of thousands of dollars before reaching trial. Trials themselves cost thousands of dollars, depending on the case. In addition to litigation costs and damages, a losing defendant may also be on the hook for the employee's attorney fees under state and federal anti-harassment and anti-discrimination statutes (Statutes that provide for attorney fees include the Americans With Disabilities Act, 42 U.S.C.S. 12101 et seq.; Age Discrimination in Employment Act, 29 U.S.C. 621.)
 
Many employers have looked for alternative ways to manage and reduce such costs. Among them is the development of employment practices liability insurance (EPLI). EPLI policies provide coverage to employers for defense costs and liability for all types of employment-based lawsuits, from sexual harassment to wrongful termination to a plethora of discrimination claims.
 
In addition to EPLI coverage, directors and officers liability insurance (D&O) policies now play a larger role in employment cases because employees often name their managers and supervisors as individual defendants in lawsuits.
 
The increasing participation of insurance carriers in this area of the law has had an enormous impact on employment litigators, particularly those who do employment defense work. Most insurance policies put limits on how much time may be spent on research, how many attorneys may be assigned to a case, the maximum hourly rate that may be billed and the types of case-management tasks—such as general file maintenance within the firm—that must be undertaken by paralegals or that will not be paid for by the insurance company.
 
To practice under these restrictions and still turn a profit, employment litigators have had to become more proficient at staffing and handling cases. This includes developing strategic models for approaching a set of circumstances; drafting standard forms for handling the "typical" employment case; and staffing cases with junior and mid-level associates whose hourly rates are more in line with the rates paid by insurance carriers.
 
The use of arbitration and mediation in employment litigation has also grown rapidly during the past 10 years. Again, employers and defense counsel in particular have begun to look to arbitration and mediation as alternatives to litigation. Whether an employer may require an employee to agree to mandatory arbitration to resolve all employment-related disputes has been hotly disputed during the past decade.
 
As a result of the increasing numbers of employment law cases flooding the dockets of both federal and state courts, many jurisdictions have implemented pilot mediation programs for employment law cases. Under these programs, mediation can be ordered by the judge overseeing the case or jointly agreed to by the parties.
 
Mediation can be an excellent tool for employment litigators because it allows an independent third party to assess the strengths and weaknesses of both sides in the case. Cases concerning wrongful termination, discrimination or harassment are often fueled by emotion on one or both sides, and emotion can prevent a case that otherwise should settle from being resolved. Mediation allows the parties to be heard (sometimes before a retired judge sitting as mediator) and to address the emotions they have been carrying with them through the case. Once this is done, a mediator often can facilitate settlement.