Successfully Litigating Employment Lawsuits: The Devil Is In The Details
Nov 06, 2017
Last week, I settled a difficult age discrimination case for a substantial six figure number (which must be kept otherwise confidential as to its terms). Even though the lawsuit was brought under New Jersey's anti-discrimination lawsuit, the case was filed in New Jersey federal district court. Why? Because our client worked out of his home office in New Jersey but the company and indiviudals involved in firing him all lived and worked outside of New Jersey thus creating what is known as diversity jurisdiction. This means that the employer could choose to remove/transfer the case to federal court because of a statute passed by Congress in the 18th century. Thus, a decision was made by our firm to file first in federal court since it was going to happen anyway to see what judges would be assigned. It turned out to be a wise choice.
Normally, our firm would like to file and ulimately try employment cases in New Jersey state court because NJ state court judges are not as employer biased in their rulings. Federal judges over the past 30 years tended to be pro-employer in their judicial leanings and federal court procedures are more time consuming in certain instances although that has changed somewhat with Obama nominated judges. There are other reasons as well that New Jersey state courts are preferred when filing employment cases. If the case goes to trial, which only about 1% do, we prefer to call the employer's witnesses during our case and cross-examine them which usually winds up proving 50-60% of the case before our client even begins to testify. We do this to expose the employer's defense as a sham. How do we know this---because we take pre-trial depositions of the employer's witnesses and we know what they are going to say and if they change their testimony, they can be exposed as liars. However, in federal court, this can be difficult because we are not allowed to subpoena out of state witnesses unless they reside within 110 miles of the federal courthouse where the case will be tried. In New Jersey state courts, we can force the employer's out of state employee/witnesses to come to New Jersey by serving on the employer's attorneys what is known as a notice in lieu of subpoena while the federal court does not authorize such a procedure. Thus, in federal court, we would have to read relevant deposition testimony of out of state witnesses or play video-taped testimony (an added expense) to the jury which can be boring and thus jurors would not pay attention to the points that we would like to emphasize. That was one of the problems with the age discrimination case settled last week.
The above discussion is one example of how knowlege of court rules can affect the outcome and/or settlement value of a case. Litigation is like playing chess as it requires thinking many steps ahead. The lawyers at Green Savits pay close attention to court rules in order to maximize the value of a case. If you believe that your employer has treated you illegally, call us at (973) 965-8571 or email us today.