Some cases just sell themselves. They are such obvious winners and are worth so much money that lawyers are dying to get their hands on them. Unfortunately for you, most workplace discrimination cases are not like this. They rarely settle quickly, they involve a lot of work, they often have very short deadlines and they are difficult to evaluate at the outset. To increase your odds of convincing a lawyer to take your case, you need to eliminate or minimize the downsides inherent in these types of cases. Here are some tips for getting a lawyer to take your case.
The Sooner You Start Looking for a Lawyer, the Easier it Will Be to Find One Willing to Take Your Case
The best time to consult a lawyer about a workplace discrimination case is immediately after the discrimination occurs — whether it be a tangible employment action, such as a termination or demotion, or an incident of harassment. This is due to the fact that many employment discrimination laws have deadlines as short as 180 days in which to file an EEOC complaint regarding the incident. Lawyers are far less likely to want to take your case if it appears that they will not have adequate time to investigate your claim before this deadline.
If the lawyer tells you that you’ve contacted him too soon, such as in harassment cases where you must notify the employer and give it a chance to take corrective action before a claim arises, it is far better than if you had contacted him too late. Most discrimination lawyers offer free consultations, so the call hasn’t cost you anything. Plus, the lawyer can give you some free advice as to how to preserve your claim, and the lawyer will already be familiar with your case should you need to call him again after your claim has ripened.
While it’s always preferable to have a lawyer involved before you file an EEOC complaint, if you’ve already filed one on your own, you may find that lawyers want to see how the investigation turns out before agreeing to represent you. If the EEOC finds that there is probable cause for your discrimination claim, you should have no problem finding a lawyer — provided that you contact one as soon as you receive your Notice of Right to Sue, as this triggers a 90 day deadline for filing a lawsuit. If the EEOC returns a finding of “no cause”, you can still file a lawsuit — but you’ll find that most lawyers will not want to take your case.
A Lawyer is More Likely to Take Your Case if You Are Organized and Prepared During Your Initial Phone Call
One of the most common frustrations among workplace discrimination lawyers is screening cases from potential clients who cannot describe their cases in an organized and coherent manner. It should not take an hour on the phone to relate your case. In describing your case, you should not randomly jump from incident to incident, trying to shoehorn in every possible discriminatory comment by every co-worker.
Organize your thoughts before you call. Write things down, so you don’t get lost when telling your own story. Start with the most serious incident, or in a pure harassment case, the most recent. At a minimum, you should start the conversation with the lawyer by telling him:
- your name (you’d be surprised, but some people are afraid to give this in employment discrimination cases);
- the name of the company you work(ed) for;
- the type of discrimination you claim occurred (race, gender, age, disability, etc.); and
- when the most recent event took place.
Remember that all of this information is protected by attorney-client privilege, even though the lawyer has not yet agreed to take your case. Don’t make the lawyer drag information out of you because you’re afraid it will get back to your boss — it won’t.
Getting a Lawyer to Take Your Case When You’ve Suffered a Tangible Adverse Employment Action
Generally speaking, discrimination cases involving a tangible employment action (firing, demotion, etc.) are more attractive to lawyers than those that don’t, due to the fact that they typically involve concrete economic damages (e.g., lost pay, benefits). If you have such a case, you want to tell the lawyer this very early in the conversation. At a minimum, you should be able to tell the lawyer that you were qualified for the position that was denied or taken away from you and that you were adequately performing your job up until that point. It is very helpful to know the qualifications of the person who was given the position you desired, especially if that person is less qualified than you (and is outside your protected class).
Ideally, you would want to be able to say, for example, “I am black and I applied for a promotion to the position of [whatever]. The employer gave the position to a white employee who is not as qualified as me.” Hopefully, you can then give a nutshell comparison on your qualifications versus the white employee’s, demonstrating why you should have been given the job.
After this initial information has been covered, the lawyer will likely guide you through the rest of interview, trying to determine any other information which would tend to prove a discriminatory motive.
Getting a Lawyer to Take Your Case When You’ve Suffered Harassment
Harassment cases in which you’ve suffered no tangible adverse employment action are often less attractive to lawyers, so you will really want to be prepared before you call a lawyer to discuss such a case. You will need to demonstrate that the harassment you suffered was either severe or pervasive. This article discusses harassment and hostile work environment cases, and I strongly suggest you read it to understand the types of incidents which will support your claim.
If you suffered a single incident of severe harassment, be ready to discuss it in detail, starting with when the incident occurred and whether any inappropriate physical contact (or other threats to your safety or well-being) were involved.
For cases of pervasive harassment, write down as many incidents as you can recall, organized by date and listing the employees involved, before you call the lawyer.
For harassment claims other than quid pro quo sexual harassment (where the motive is obvious), have some good reasons for why you believe the harassment was motivated by your membership in a protected class. When relating your story, do not include incidents where you were harassed for other, non-discriminatory reasons, such as where you had a personality conflict with another employee. This will only muddy the water and make the lawyer less interested in your case. Limit the incidents you describe to those in which you are convinced discrimination was the motive.
If your employer has a written harassment policy, be ready to describe what actions, if any, your employer took to correct the harassing behavior after you reported it (you did report it, right?)
If you have seen a mental health counselor regarding these incidents, be sure to tell the lawyer. While receiving mental health treatment is not required to recover emotional distress damages in a workplace discrimination lawsuit, it is certainly helpful.
How to Get a Lawyer to Take Your Case — Some Final Words of Advice
After you’ve told the lawyer the basic information about your case (why you called him), try to be patient and allow him to guide the interview. Answer his questions directly and don’t go beyond what he asked. He knows what information he needs to evaluate your case. If you start rambling about unrelated issues as he tries to conduct an orderly interview, you will frustrate him and make him less likely to take your case.
Don’t give up just because one or two lawyers reject your case. If, after speaking with a lawyer or two who wasn’t interested, you still believe you have a valid case, keep calling other lawyers. If necessary, file your own EEOC complaint. If you convince the EEOC that there is probable cause for your case, lawyers who initially rejected you might change their minds.