Thursday, July 12, 2012

When defending employment cases, chasing attorneys’ fees is a snipe hunt

My summer reading list includes Joel Stein’s Man Made: A Stupid Quest for Masculinity. The book recounts the self-proclaimed effete Stein’s journey to become more masculine in the wake of the birth of his son. In one chapter, Stein spends a weekend with a boy scout troop to learn how to camp. The troop’s hazing includes sending Stein on a snipe hunt. For the uninitiated, a snipe hunt is a practical joke played on inexperienced campers, who are sent to hunt an imaginary bird or animal (the snipe).

Believe it or not, snipe hunts have something to do with defending discrimination cases. Often, I hear this outrage from clients: “I can’t believe we’re being sued for this. I want to counter-sue to collect our attorneys’ fees!” Yes, there are statutes and rules in place that permit a defendant, in certain and extreme circumstances, to collect their attorneys’ fees from the plaintiff. But, there are few cases that will meet this high threshold for recovery. In reality, the likelihood of a judge ordering that a plaintiff-employee pay the defendant-employer’s attorneys’ fees under one of these fee-shifting mechanisms is on par with winning the lottery.

If you want to take any solace from this loser-doesn’t-pay system, consider these words, published yesterday by the 6th Circuit Court of Appeals, in Gibson v. Solideal USA, Inc. [pdf]:

As an initial general proposition, we are not entirely unsympathetic to Solideal’s position. Statutes designed to empower employees in the vindication of their rights may, at times, be used as bases on which a plaintiff asserts claims that are later determined to be without merit. Undeniably, large employers may be forced to incur significant litigation expenses in defending against such claims. However, if this Court were to follow the course now advocated by Solideal, it would effectively hold that a plaintiff who elects to forgo formal discovery and whose claims are unable to withstand summary judgment is responsible for paying all fees and costs the defendant incurred in connection with the litigation. This is a bridge too far.

Litigation is time consuming and expensive. Some cases (such as the one discussed yesterday by Dan Schwartz, at his Connecticut Employment Law Blog) can go on for a decade. We all have principles. We don’t like to pay money to an undeserving plaintiff when we know that we are right. And, when we prove that we are right, we think the plaintiff should pay us for our grief and aggravation. The system, however, is not set up to reward even the most deserving of employers in this way. The sooner employers realize that chasing reimbursement of their attorneys’ fees is a litigation snipe hunt, the sooner they can focus their efforts on the task at hand, concluding the case as quickly and cost-effectively as possible.