Employee v. Employer – The Value of Cases Over Time

There’s a common misconception in plaintiffs of employment law cases that their cases increase in value over time. The longer they fight, the more work they put into it – and the more work I put into it – leads them to believe that their case is worth more towards the end than it was in the beginning. For a lot of things in life, that may be true, but not a lawsuit.

That’s because lawsuits are expensive and damages in these cases are not infinite. Sure, there may be some types of damages that are not legally “capped,” front and back pay, attorneys’ fees, etc. But even those damages are not infinite. For front pay, an employee usually gets another job at some point. Not only do they need the job to pay their bills as citizens, but also have a duty to mitigate their damages and try to find work that pays them the same or more as the former employer/defendant. So, in a sense, life and responsibility caps those damages. For attorneys’ fees, though there’s no statutory cap, there are limits to what courts will award as “reasonable” fees. As a lawyer who hasn’t been practicing for 50 years (yet), I am not going to be able to ask for my attorneys’ fees at a rate or $700 an hour. If I tried the court would come behind me and slash the rate to what it deems reasonable. Nor would the court believe that I spent 5,000 hours in the case when where was not a lot of motion practice, only 400 documents produced in the entirety of the litigation, and two depositions. Reality caps those damages too.

Similarly, expenses only increase as the case goes on. As you engage in discovery, serving subpoenas is not free (usually), depositions cost money with court reporters and transcript copies, printing exhibits for depositions have costs, experts have fees to be paid up front. So, that’s the problem. Through a lot of work, you ideally have a better shot at getting a higher level of damages awarded, but that’s not a guarantee, involves risk, and during all that discovery…you may find out that the other side has some darn good defenses as well.

So, when a client asks me to evaluate what their case is worth, it’s an almost impossible question to answer. With all these variables to consider, I can give “best day in court” numbers and then “most likely” numbers. We hopefully settle somewhere near “most likely” and mitigate the risks of getting nothing at trial. All I know is, the value of the case, in reality, decreases over time due to how costly it is to litigate.