Ugh… We Didn’t Think About It – Cognitive Dissonance in Litigation | Denton
Litigation is tough, complicated and always surprising. It can be very difficult for an organization to plan for the business problems that litigation brings. But no matter how many times you’ve dealt with litigation – explaining issues to a front-line supervisor who’s been named as a party, to board members, or others – some things seem to take the companies by surprise every time. These are all issues worth discussing with your manager, board, and other stakeholders to ensure you are prepared for some of the most shocking moments of cognitive dissonance we will encounter in litigation.
1. Truth is stable, but perception is fluid
Many people involved in litigation, whether as witnesses or parties, believe that once the truth is told, the issues will be resolved, because truth is, of course, a stable concept. However, what you discover during the litigation process is that the perception is completely fluid.
An employee may perceive your inquiry about how their child, mother, son or dog is doing as intrusive or inappropriate when you hear it exclusively as a simple “how are you?” While participants are still encouraged to tell the truth, we all see the truth slightly differently and it is the job of the complainant and their attorney to present the circumstances in a way that supports their case. This can be a particularly difficult concept when working on various issues with decision makers or perhaps the next step in the food chain, where you are justifying certain decisions that have been made. Objective truth is important and the more documentation you have to back up what happened and why, the better off you are as a defendant, but perceptual belief and emotion always come into play, especially in cases of labor law.
2. Strategy and your behavior are important
Litigation is not a game (unless you possibly think of gladiatorial pits), but the principles of gamification can apply. An analogy would be the video game Epic Mickey, a beautifully illustrated game produced by Disney in 2010. Epic Mickey has a “morality system” where the way you make alliances and how you behave – politeness and following the rules against destruction gameplay – changes the course of the game and alters your game options. While everything leads to the same basic results, how you behave can change how you get there. While total destruction may be compelling, sometimes cooperating with opposing counsel may be in the best interest of your litigation to achieve your desired outcome. The litigants who assist you throughout the process will take into consideration the venue, the court, the individual judge and the expectations of that judge or court. For example, you may hear a lawyer say, “The judge expects us to call the opposing lawyer before…”. it’s all part of the strategy to reach your end goal. Individual decisions matter in litigation. Whether this decision is made with your defense attorney regarding the production of documents or the granting of an extension or the decisions you make during an investigation or other process.
3. Disputes have many layers
Especially in the field of employment, there are many administrative and other layers that employers are not always prepared for. For an employee who has a grievance such as discrimination on the basis of race, age or disability, these should generally be filed with a local human rights commission, human rights commission state-based civilians or EEOC. It may end with the agency, or it may continue in state or federal court.
Each commission has its own independent rules, requirements and processes to navigate. The culture of that commission or administrative body, as well as the culture of the tribunal, can guide strategy in your approach to litigation. Cultivation varies from state to state and within different regions, including the EEOC. These are all issues that need to be considered, but when discussing these issues with someone who doesn’t have a lot of litigation experience, it can be complicated. Explain the multiple levels, how each level works, appeal processes, witnesses, experts, etc. It’s worth going through them step by step to make sure people are comfortable with the process.
4. Call your insurance company
Many employment law disputes are covered by Employment Practices Liability Insurance (EPLI), but many EPLI policies require early notification to the insurance company in order to fully utilize all coverage. Employers may not want to tell their insurance provider because they think the claim will be resolved quickly, at minimal cost, or the claim is simply unfounded and will go away. This is certainly a business risk that an employer could choose to take, but before making this decision you should carefully consider your policies, the nature of your coverage, any exceptions and whether or not you receive certain benefits as a result. early notification cases. . Don’t skip the insurance coverage assessment because you think a case is going to go away. Cases that you think will go away sometimes persist and can be quite expensive.
5. Allegations of retaliation do not require the original allegation of discrimination to have been valid
One of the things that may surprise people involved in litigation is that retaliation claims are self-contained. If someone has made an allegation that they have been discriminated against, even if that allegation is found to be invalid, the subsequent allegation of retaliation can still stand. If someone complains of discrimination and you demote or fire them later, especially near the complaint, it’s likely that a commission will assess this very carefully for a possible retaliatory claim. Retaliation is the most frequently filed claim in the United States because it relates to other claims. Whether you have a disability claim or a sex claim, you will likely have a retaliatory component as well. You should be careful and evaluate these issues with your defense attorney to ensure that you are making decisions that best support the defense of all claims.
6. Discovery can be broad, intrusive and brutal
The opposing attorney usually asks for a lot of information and the request doesn’t always make sense or maybe you don’t think it applies to the case at hand. It is a long, expensive and sometimes very difficult process. While there are ways to limit certain types of discovery requests that are excessive or, in some cases, downright ridiculous, this is also a process that should be managed through litigation.
If lawyers cannot agree on what should and should not be produced, it requires court intervention. The court then assesses which documents are or are not required and in many cases the courts err on the side of over-inclusion in order to avoid either party claiming that they have been denied documents. relevant information.
Of great importance, long before you see a dispute, are your document retention policies, how files and data are stored, whether they are secure or not, whether they are accessible and stable or no and the fact that you have put a dispute hold in place. In other words, once you knew there might be a claim, you didn’t destroy anything. These are all critical factors that will help manage discovery.
7. Disputes take a long time
It doesn’t matter if the truth seems obvious. It doesn’t matter if the claim has no merit or if your attorney was quick and did everything they’re supposed to. Litigation is a bit like playing tennis. One side kicks the ball over the net, then you have to wait for the other side to send it back before the process can continue. Sometimes you have to wait for the referee to make a call. It’s very difficult to force the plaintiff to make a claim, to engage in mediation, or to do any of the kinds of things that might help bring about a resolution early in a dispute. While an employer’s defense attorney can compel discovery responses and other things, there are things they simply cannot do in litigation. Even if all deadlines are met, disputes can take a long time to go through the process and your counsel or others who are part of the litigation planning process should be aware of any deadlines that are likely to apply.
8. Transfer of fees
Many labor law cases settle, at least in part, because of fee transfer issues. In the United States, if you are defending certain employment law claims such as race, age, or sexual harassment, and the other side wins the lawsuit, the laws allow costs to be shifted. In other words, if they receive even small sums, the plaintiff’s lawyer can demand fees and the defense must pay them. Plaintiff’s counsel certainly take this into account when making claims in litigation and when making demands to settle any form of litigation. Insurance companies also take this into account. Your planning group should therefore be aware of the potential issue of fee shifting in order to plan appropriately.
While the issues discussed above sometimes seem the same as those faced by every other business, each dispute is unique. But there are consistent scenarios you need to plan for well before a dispute occurs, including:
- Documentation retention policies and storage plans
- Training for supervisors
- Checks and balances with respect to discipline and dismissal
Having these steps in place helps you achieve or demonstrate this objective truth in litigation. Although a lot of litigation seems counterintuitive, being prepared helps you resolve these types of issues.