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Lawsuit or Life? - A wrongful termination case demonstrates how both the utility and the limitations of legal advice operate in the real word of lawyering.

By Jeff Kichaven

A classic bit of business of the Jack Benny Program involved a masked hoodlum accosting the comic and his friends on a city street. "Your money or your life," the hoodlum growled while brandishing his gun. Benny's friends began to reach for their wallets, but Benny, a notorious skinflint, would gaze skyward, frown, give the "master-of-timing" comedy pause and mutter slowly, "Now?let?me?. think."

Lawyers and clients in mediations often react to choices in ways that are, in some respects, analogous to the respective reactions of Jack Benny and his friends. Shall they settle the lawsuit or not? When settlement talk gets serious, lawyer often say, "Let me thing." For many plaintiffs, though, there is no doubt. This divergence of perspectives is no surprise, given the nature of our training as lawyers. While in part, it proves the benefit of having an attorney throughout the litigation process, including mediation; it also demonstrates the limitations of the lawyers' role. An understanding of those bounds can serve as a powerful tool for lawyers who want to focus their efforts appropriately, and provide superior client service as a result.

As lawyers, we are trained to think about lawsuits. Clients' instincts, though, are to look at their lives, think about how their lawsuits fit in with the rest of their lives, and determine how to resolve their lawsuits in ways that enable them to get on with their lives as best they can. This sometimes leads clients to different conclusions than the ones we might reach. The most effective lawyers appreciate that the client's context is different than their own. These lawyers require that clients take legal analysis and advice into account, but then allow their clients to make their own decisions, based on the weighting of priorities that the client is uniquely suited to perform. Understanding both the utility and the limitations of legal advice in this way makes the lawyer more valuable to the client.

A recent wrongful termination case  demonstrates how these dynamics operate in the real world of lawyering.

James Employee had worked at the Solarium for about three years. The Solarium is a retirement and convalescent facility with a local church. James came to the Solarium as a "management trainee" after completing the appropriate training at a local community college. These positions are hard to come by in this small industry, in which everyone seems to know each other, "connections" are key and reputations, if ever lost, are difficult to restore. James is a single man in his early 50s who came to this position after holding several other positions in other industries, and who spent two years in a Catholic seminary earlier in his life.

Wesley Minister, Solarium's chief executive officer, assigned James to investigate a sexual harassment complaint by Rebecca Nurse regarding a patient's conduct towards her. This patient was suffering from early to intermediate stages of dementia; and so the bulk of James' investigation consisted of interviews of Rebecca Nurse.

After a two-hour interview with Rebecca, James saw Helen Assistant, Wesley's executive secretary, who asked how the investigation was going. This conversation took place in the coffee lounge of the Solarium's executive suite and only the two of them were present. In response to Helen's question, James admitted that the interviews with Rebecca "kind of turned me on."

Aghast, Helen immediately ran to report the conversation to Wesley. The next day, James was fired. His investigation was not yet complete, and there was no indication that he had inaccurately or inadequately gathered any of the facts he had been assigned to gather.

James was out of work for about three months, and then found a job that was higher paying, but outside his chosen industry. James believes his long-term career prospects have been injured.

James hired well-known trial lawyer Dennis Gladiator to handle his suit for wrongful termination and related torts, claiming both economic damages and emotional distress. Early in the litigation, James requested production of his personnel file, which the Solarium produced.

At Wesley's deposition, he testified that the most recent performance review form in James' file, which was rather unfavorable was written by Wesley only after James had filed his lawsuit, but was backdated to when James' last performance review actually occurred. Wesley testified---and James denies---that the performance review form accurately recounted what was said during the performance review meeting.

After the deposition, Solarium proposed mediation, which convened during a brief negotiated discovery moratorium.

In the initial joint mediation session, Dennis did an effective job of setting forth the strengths of the claim.

Dennis reinforced for Solarium's counsel and Wesley, that there were indeed two sides to the story, and the risks of continuing litigation.

In a private caucus with James and Dennis, important additional information followed: James had been a psychotherapy patient for years (including therapy for anger management and matters related to sexuality), his therapist's file had been subpoenaed and a thick stack of mostly-illegible handwritten notes had been produced. The therapist's deposition was scheduled for the following week.

When I asked James how he might feel if his therapist was asked to read the illegible notes into the record at deposition, there was a long silence. Dennis allowed this silence to proceed uninterrupted---a difficult task for many lawyers. But allowing this silence was as important as it was difficult. Without the silence, James would not have had the time to summon the courage to make his true interests known. And, without a deeper understanding of the client's true interests, sound advice is tough to give and sound decisions are tough to make.

When James did speak, he was clear and thoughtful. He knew that there was some probability that a jury might award him a six-figure verdict. He also knew that a trial date was at least a year away, that if he won, collecting could take much longer, and that he could lose. But these did not trouble him as much as the humiliation he expected to feel if his therapist were forced to read his notes out loud at the deposition, to say nothing of the anticipated public trial.

After more silence, James surprised us: "But my therapist tells me that I should do a better job of standing up for my rights and what I believe in, and not give up all the time without a fight. Maybe I should carry thisthing through to trial just to stand up for myself. Do you think my therapist would tell me that's what I need to do?"

Neither Dennis nor I knew quite what to say. Whoever spoke next might be treading on thin professional ice, depending on the nature of the answer. Dennis' quick glance at me indicated that I respond first, and I tried to answer in a way that properly took account of Dennis' interests, as well as those of James.

After I noted that I wasn't a therapist and didn't know what his therapist would say, I asked him what it really meant to "stand up for what you believe in" and asked him to evaluate the potential benefits and detriments of settlement versus a trial.

James then asked whether a settlement might include a "letter of apology" that he could show to prospective employers in the convalescent home field, in conjunction with the disclosure that he had been terminated from his position at Solarium. If he had such a letter, he might be able to resume his career in his field of choice. After another long pause, he leaned forward and said, "Maybe we should think harder about settlement."

James was weighing the choice between his lawsuit and his life. He said that, under any circumstances, he would want money as part of a settlement. But the size of his demand would in influenced by the Solarium's willingness to write an apology. I acknowledged agreement with his logic, at least insofar as he felt that a monetary settlement or judgment would not help him resume his career in his chosen field.

Dennis expressed the caution that, in order for a "letter of apology" to be acceptable to the Solarium, it would probably include equivocal rather than straightforward language and therefore be less than totally acceptable to James. He also correctly advised that, even with an unequivocal letter of apology, James' job prospects were speculative and that money, whether received by settlement or judgment, was concrete. James and Dennis then authorized me to end the caucus and speak to Wesley and his lawyer regarding the subject of an apology as part of a settlement and to determine, if possible, the amount of a monetary settlement that might be possible that day.

In caucus with the defense side, the Solarium's counsel authorized me to disclose to James and Dennis that (1) some type of written apology might be possible, (2) the Solarium had no insurance in connection with this claim, and (3) the most Solarium would pay to settle that day was an amount in the range of "low to mid five figures."

Upon receiving this information at the next caucus, James said he was eager to draft a proposed letter of apology, take what money he could get and get on with his life. However, Dennis was concerned that James was willing to forfeit additional money for an enhanced, but speculative, chance to get his dream job back, and he repeated his strong conviction that, with the backdated records, there was a good chance of winning a "big verdict" at trial.

Dennis then asked James whether he and I might speak outside of James' presence. This is a legitimate request for an advocate to make in mediation , and James responded with comfort. In the hallway, Dennis reminded me of another employment case that he had brought to me to mediate earlier in the year. It had been a strong case and Dennis felt that this case was even stronger. He was concerned about the justice of settling the case for less than his previous client had obtained.

In some sense, I agreed with Dennis and I told him so. Yet, I pointed out that even if James had a stronger case, other factors, such as his background of therapy, demonstrated the benefits of settlement.

The question was not whether Dennis' legal advice was wrong. Rather, the question was whether this sound legal advice was the sum total of the information relevant to James' decisions regarding whether he should proceed with litigation. As, in virtually every case, while the legal advice is necessary, rarely is it sufficient.

When plaintiffs decide whether to proceed with litigation, they take into account a host of considerations in addition to the strengths and weaknesses of the legal claims and defenses. Attitude toward "risk of losing" and fear of disclosure of embarrassing facts are often on the list. Each person's attitudes on these and other potentially relevant factors are by definition subjective. It is part of a lawyer's job to help the client identify, explore and evaluate these issues. But the job of making the ultimate decision belongs to the client.

It is not an abandonment of the lawyer's responsibility to allow clients to make these decisions. Clients make important decision about their lives and careers all the time without the assistance of counsel. In litigation, too, clients' abilities and rights to make their own decisions for themselves based on their own priorities should generally be respected. If the lawyer has helped make the client aware of the costs and benefits of continued litigation and then allowed the client to decide for him or herself, then that lawyer had done his or her job to an exquisite degree.

James and Dennis decided to continue negotiations. In short order we negotiated the apology letter and a mid five-figure monetary settlement.

James was not totally satisfied, but he agreed that the settlement was better than the alternative. Critically, if the litigation had proceeded, think how much worse off James likely would have fared! The therapist's deposition would have proceeded, with potentially disastrous consequences for James' emotional state. A judgment---of whatever size---would not have been forthcoming for years, and could not possibly have included the apology that was so important for James to save face and get on with this life. James admired the vigor and commitment that Dennis brought to the representation and appreciated the fact that Dennis defined the limits to the utility of "legal advice" and let James decide how to proceed, once fully informed, based on his own interests, needs and values.

Originally published in the Verdicts & Settlements section of the Los Angeles Daily Journal, February 5, 1999. ©Copyright 1999, Daily Journal Corporation, reprinted with permission.

Jeff Kichaven, A Professional Corporation
Suite 3000, 555 West Fifth Street
Los Angeles, California 90013-1010
310-721-5785; 213-996-8475 fax; email

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