Employment Law

The Big Picture – Employment Law Litigation Process in State Court

Westfield employment lawyer Fred Shahrooz-Scampato

Today I am going to discuss what it entails to raise workplace claims against an employer in New Jersey State Court. You will see that there is no one answer that applies to all types of claims. Nor can there be any exact gage of how much time a workplace claim will take from start to completion. Nevertheless, the following roadmap provides guidance.

Hiring an Attorney

The first step for an employee considering a claim against his or her employer should start with a visit to an experienced employment law attorney. The attorney’s job is to evaluate the liability and damages aspect of any potential claim. In other words, how likely is it that the employee will win and how much money is the claim likely to be worth? The attorney must also identify the type and number of causes of action that can be brought and included in the papers to be filed with the court.

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State court claims often take more than two years from the date that the complaint is filed until a jury renders a verdict. However, an employee’s claim could potentially be resolved at any point in the process or even before the process even begins.

Pre Trial Negotiations

The first opportunity to resolve a workplace claim would be for the attorney to file a pre-litigation demand letter. This letter is drafted by the attorney before litigation even begins. My letters usually consist of two main sections. 

The first section is to notify the employer of the fact that the employee is raising claims against it and that it is obliged to preserve all documents and tangible items that relate to the employee and her/his claims. In the second section, the attorney presents the relevant facts and law and makes an effort to enter into settlement negotiations.  In the closing portion of the letter, the employer is encouraged to respond to the offer to begin settlement discussions. 

Often a matter will resolve through negotiations or with the help of a neutral mediator skilled in resolving employment matters  It is quite possible a claim will settle in pre-litigation within a few months of the first visit to the attorney.

Pleading Stage

If the matter has not settled in pre-litigation, then the next step is to file an action in State court. The attorney would draft a document that includes the facts, causes of actions and request for damages (e.g. reinstatement of employment or back wages, etc.). This document is called the Complaint. 

The Complaint is filed with the appropriate County Civil Clerk’s Office and the Clerk sends back a copy that has been stamped as filed and received and with the case docket number on it. 

The next step in the process is to serve the Complaint upon the employer. Once this has been achieved, the employer has thirty five days to file a responsive document called an Answer. If the employer fails to file an Answer within the thirty five days, the employee can file for default anddis can potentially obtain a judgment after submitting his or her proofs to the court.

Some employers attempt to dismiss a case, forcing an employee to arbitrate his or her case. A court will decide whether or not the employee has to arbitrate. This is a process in which a neutral will decide case without it being heard by a court or a jury. Employers tend to favor arbitration as a shorter process with more limited discovery. Employees tend to disfavor arbitration because the process deprives a plaintiff of a good deal of discovery (information about the other side’s case, depositions etc) as well as her time honored right to have her case heard before a jury of her peers.

Discovery Stage

Once the Complaints and Answer has been filed, the case’s long discovery period begins. For discrimination, harassment and retaliation cases, discovery in State court continues for at least 470 days. During that time, all parties to the litigation try to obtain as much information as possible as to what the other parties are going to present at trial. The purpose of this discovery period is to learn all there is about your adversary’s case and to make sure there are no surprises at time of trial. Discovery is also very useful in settlement negotiations and often is instrumental to leading to the resolution of the case.

An employee’s attorney will likely serve upon the employer written discovery demands. These demands include written questions called interrogatories, and a request for documents and other tangible evidence. Requests for documents will also include “key word” searches to obtain relevant emails and computer based documents that are in the possession of the employer.

During the first three months of discovery, the court also sends a mediation referral on each employment law case. This presents another opportunity for the settlement of the case. In a mediation referral order, a Judge selects a neutral attorney to hold a proceeding with the parties to the litigation and their attorneys. 

The mediator, through well-established settlement techniques and his or her negotiation skills, tries to facilitate a voluntary resolution of the case. The mediator will discuss the strength and weaknesses of each side’s positions and try to get both sides to fully recognize the risks and costs of litigation in an attempt to get the case settled.  If this process is not successful, then the parties continue on the track to a jury trial.

After written question interrogatories have been answered by both sides and each side has exchanged paper and/or electronic discovery, the next main task in discovery is the taking of depositions. A deposition is a question and answer session under oath. A court reporter is present along with the attorneys to the litigation. The court reporter’s job is to accurately take down each and every word that is being spoken. The court reporter then transcribes these words into a booklet which contains the testimony of a particular witness to the litigation. All significant witnesses to a litigation should be deposed.

Also during discovery, expert reports from each side’s expert witnesses are exchanged.  For example, if the employee has sustained an emotional distress injury due to the unlawful discrimination or harassment, then the employee’s attorney can hire an expert licensed clinical psychologist to appear at trial to explain to the jury the emotional condition of the employee. Other expert witnesses might include an economic expert to discuss how the employee has been economically damaged or an expert in sexual harassment investigations to show that the employer did not conduct an effective and efficient investigation of employee’s internal complaints.

After discovery has ended and before the matter is sent to trial, the employer usually seeks to bring a motion before the court to get the case thrown out. This is called a summary judgment motion. If the employee’s case is a weak one, then the court will likely grant the employer’s request to dismiss the complaint. But if the employee presents a strong enough case with enough facts in dispute, then the court will deny the motion and send the case to trial.

At the conclusion of discovery, the case is sent to be listed for trial. The parties and their attorneys go to court for a pre-trial conference with the judge to discuss the details of the trial and to argue legal points of law that relate to the trial. Around this time, a trial judge will also likely hold a settlement conference. The trial judge will use her or his experience and position of authority to try to get the parties and their attorneys to budge from their respective positions in an effort to resolve the matter. If this conference is unsuccessful, then the matter goes to trial.

Trial Stage

The day has come; it is now most likely two, and maybe three, years from the date that the Complaint was filed. The Assignment Judge assigns the case to a trial judge for a jury trial. The jury is selected and empaneled in a process called voir dire. The judge has already ruled on all important pre-trial evidentiary issues and the trial begins. The employee’s attorney starts with opening statements and then the employer’s attorney follows. 

In opening statements, both sides give the jury a taste of what they expect the witnesses will testify about and what the evidence will show. Each side also weaves into their narrative the theme or themes of their case.The employee’s attorney then calls his or her first witness. The witness is asked open ended questions on direct examination. The witness also authenticates documents and other tangible evidence to be admitted and later presented to the jury during their deliberations. 

After the employee’s attorney is done, the employer’s attorney asks cross examination questions – questions which seek a yes or no answer - of the witness.  This process is repeated for each of the employee’s witnesses. After all of the employee’s witnesses have testified, it is the employer’s turn to present its case.  The employer’s witnesses each testify in the same manner until all of them have testified. 

At the end of the last defense witnesses’ testimony, the defense rests. The next step in the trial process is for the attorneys to make closing arguments. Employer’s attorney goes first and the employee’s attorney goes last. During closing argument each attorney sums up the testimony and evidence that have been presented in the case. The attorneys go back to the themes of their case that they mentioned in their opening statements. They also introduce the jury to some of the legal concepts that they will have to know and understand in reaching their verdict.

The final task before the jury is sent to deliberate is that the judge charges the jury.  In other words, the judge explains to the jury the law that will have to be applied in this particular employment law cases. The jury then deliberates and reaches a final decision on the case. The jury either finds in favor of the employee and awards her/him money or other recovery for damages or finds against the employee.

Post-Trial

If the employee wins a jury verdict, it is likely that the employer’s attorneys will bring a number of motions before the court to overturn this victory. If that is unsuccessful, then the employer may file an appeal. Unfortunately, an appeal will add an additional few more years to the process. Both sides have to submit extensive legal briefs and, at least six months later, appear at oral argument to present their positions to a panel of three appellate judges. As mentioned above, a decision on the appeal usually is reached within a year or two, or maybe more, after the jury verdict.  

 

Whether you are an employer looking for assistance with employment law issues, or an employee who feels unfairly treated, Fred Shahrooz Scampato can provide you with the benefit of his over twenty years experience in employment law. His goal is to prevent workplace problems from becoming costly litigation. He can be reached at Scampato@aol.com, Scampato@njlaborlaw.com or 908-301-9095. Visit his website at www.njlaborlaw.com.
 

The opinions expressed herein are the writer's alone, and do not reflect the opinions of TAPinto.net or anyone who works for TAPinto.net. TAPinto.net is not responsible for the accuracy of any of the information supplied by the writer.

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