Employment Litigation Representation
Amy Ficklin DeBrota represents employees and employers in employment related litigation, primarily in gender discrimination, unpaid overtime and wages and retaliation cases. Due to the time, money and emotional investment involved for everyone concerned, litigation should be a “last resort” for an employee. Ms. DeBrota encourages all employees considering a lawsuit to attempt to work out the dispute with their employer before turning to litigation. One way to do this is through pre-litigation employment dispute mediation. If you would like to mediate a dispute, review the defense of an existing or impending lawsuit, or obtain an evaluation of your potential employment related claim, please complete and submit the appropriate form.
If an employer and employee are unable to reach an agreement about
how to resolve the situation, then the employee is wise to consider
the legal options available. However, the legal merit of a case
is only one consideration. Each potential litigant must decide whether
litigation is the appropriate course for his or her situation, taking
into consideration the following factors:
Legal Merits of the Claim
Because Indiana is an “at
will” employment state, the majority of the time, actions
by employer’s which may seem unfair, unethical or bad business
decisions do not give rise to a viable legal claim for the affected
employee. As compared to other states, employees in Indiana have
fewer legal rights. If an employee does have a potential legal case,
he or she must consider the strength and reliability of the available
evidence. Some witnesses will be reliable and honest, but others
may not want to cooperate or may not testify they way the employee-litigant
expects they will. In any case, there are always some evidentiary
aspects of a case that will be unknown until after the case is filed
and the attorney can issue subpoenas. A potential employee litigant
must determine what level of risk is acceptable. Ultimately, the
evidence in the case will determine its legal
merits and the outcome of the case.
Time Investment and Length of Litigation
Litigation involves a commitment of time, even if an employee-litigant
has a lawyer. There are times when the employee knows the facts
of the case or information about the employer better than anyone
else, so he or she may need to do some work to compile and communicate
that information. Ms. DeBrota requires each client to put together
a comprehensive chronology of the events leading to the legal claim.
The employee will also likely need to provide preliminary responses
to questions and document requests from the employer. In addition,
the employee will likely be deposed, under oath, by the attorney
for the employer. Ms. DeBrota always meets with her clients in order
to prepare them for the deposition. If there are depositions of
other witnesses, the employee will also need to attend them. Finally,
if the case goes to trial, the client will need to meet with Ms.
DeBrota to prepare for the trial and attend the trial itself.
It is difficult to predict how long it will take to resolve an
employment case. On average, it has been Ms. DeBrota’s experience
that employment cases take about one year from start to finish.
Of course, the time span of the case is entirely dependant upon
how far in the legal process the case proceeds. A case which goes
to trial will usually take quite a bit longer than one year. A case
which settles during the EEOC investigation or prior to filing a
complaint will often take less than a year. In any event, an employee
should not expect litigation to be a quick process. Usually, employers
want to let some time pass in order to see whether an employee is
going to stick with the litigation and how much evidence the employee
is able to muster in support of the claim. Naturally, every case
is different. An employee should not count on an employer taking
any particular position with respect to litigation. In addition,
there are many factors which may prolong the litigation process,
but are not within the control of the employee’s attorney.
Emotional Toll and Investment
Litigation is not an emotionally easy process. Employees must relive
events during the course of litigation which are often quite painful
or embarassing. Being deposed or testifying at trial are both very
stressful events. In addition, employers often make statements and
accusations about an employee which can be emotionally hurtful.
Generally speaking, litigation requires courage. An employee contemplating
litigation must consider whether the process will be emotionally
helpful and cathartic or instead damaging and detrimental to the
employee’s efforts to move forward with life. This is usually
determined by one’s personality. Those who feel it is important
to stand up and speak out for themselves or a principle will likely
find litigation a satisfying endeavor, no matter what the outcome.
Those who feel that moving forward and putting unpleasant events
in the past are of paramount importance will not find litigation
satisfying with any result.
An employee must also be realistic about what litigation can achieve.
For example, an employee should not go into litigation expecting
an apology from the employer. That rarely, if ever, happens. However,
an employee who is successful in an employment case can feel satisfied
that the employer is not likely to treat another employee the same
Litigation can be quite expensive. Most attorneys who practice
in this area, including Ms. DeBrota, require clients to pay a flat
fee or retainer when they accept the case and then obtain the remainder
of their compensation on a contingent fee basis (a percentage of
the total recovery.) Some attorneys only accept plaintiff’s
employment cases if they are paid on an hourly fee basis. Very few
experienced attorneys will take an employment case on a purely contingency
basis. No matter which method is used for attorney compensation,
an employee must make a monetary investment in the case. In addition,
clients are usually responsible for litigation expenses, such as
copying and depositions, which can be several thousand dollars.
An employee must give careful consideration to whether litigation
is an overall wise financial decision. Litigation should NOT be
considered a way to solve financial problems. An employee will not
get a windfall, or get rich, from an employment case. Rather, the
objective is to make the employee “whole,” or in the
same position he or she would have been, had the disputed action
(like a termination) had not occurred.
Ultimately, whether to bring litigation is a very personal decision.
The legal merits of the claim are only a small part of the decision.
An employee with a very strong legal claim may nevertheless decide
that other priorities are more important that filing a lawsuit.
Some may want very much to file a lawsuit for personal reasons,
many of which may not be an appropriate basis for a lawsuit. An
employee must weigh what they might gain from litigation against
the potential negative possibilities, in order to determine whether
to proceed with litigation.
"There are risks and costs to action. But they
are far less than the long range risks of comfortable inaction."
John Fitzgerald Kennedy
" The ultimate measure of a man is not where
he stands in moments of comfort and convenience, but where he stands
at times of challenge and controversy."
Dr. Martin Luther King Jr.
The DeBrota Law Firm LLC, an Indianapolis based employment law firm, provides mediation services, consultations and employee or employer litigation representation in central Indiana and throughout the state. Amy Ficklin DeBrota represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of employment contract, discrimination, equal pay, retaliation, whistleblower actions, as well as other types of employment related legal claims under federal and Indiana state law. She has special interest and experience in representing nurses, doctors, veterinarians and other health care professionals with their employment issues. Further, she provides consultations with small and medium sized employers who are interested in avoiding employment based lawsuits. Ms. DeBrota is not only a lawyer. She is also a registered Indiana mediator who is available to travel to or host mediations regarding employment disputes, personal injury claims, and general civil litigation. She has the legal knowledge and years of experience to allow her to effectively communicate with individuals who are experienced with the law, and with those for whom the legal system is unfamiliar, in order to help everyone concerned realize the benefits of an agreed settlement. Ms. DeBrota is a dedicated, effective Indiana employment law attorney and mediator based in Indianapolis, Indiana.