Published on December 15th, 2015 by Alan L. Sklover
“The trouble with the legal profession is that 98% of its members
give the rest a bad name.”
– Author Unknown
ACTUAL “CASE HISTORY”: For many years, I have spent a large amount of my time working for, with, against, alongside and in connection with other lawyers. Based on those decades of experience, I can attest to the truth of the saying that “Absence makes the heart grow fonder.”
No, of course, lawyers are not all bad people. For example, many are good parents and wonderful contributors to the betterment of humankind. But in their profession, they often tend to have their own special “way” about them.
Here are ten very goofy things I have heard many employment lawyers tell employees that are, to be polite, just plain dumb.
If you consult legal counsel for a problem or opportunity at work, and hear one or more of these things said, my advice to you is “Head for the door.”
LESSON TO LEARN: It is best to take both advice and medicine as little as possible, with your eyes “wide open,” and with an understanding that you must never stop thinking for yourself.
WHAT YOU CAN DO: Here they are:
1. “You are an ‘at will’ employee, so there is nothing we can do.” This is, hands down, simultaneously the most common and the most egregious thing any attorney can tell an employee who believes he or she is aggrieved. There is no problem of any kind that a creative, resourceful, caring lawyer can’t at least try to remedy using knowledge of the law and experience applying it.
If the “You are at will – nothing can be done” statement had a shred of truth to it, then 99.9% of the human population could legally be discriminated against, not get paid, retaliated against for refusing to engage in sex or steal money, made to work in unsafe conditions, etc., etc, etc., all of which obviously is untrue.
All that “at will” means is that at any time either employer or employee can end the relation. It says nothing at all about the hundreds of reasons an employer cannot terminate an employment relation, and the thousands of ways an employer cannot treat an employee. If you hear this from an attorney, quickly bid him or her a quick “Good bye.”
You might want to read my article entitled “At Will Employment – What Exactly Does That Mean?” To do so, just [ click here. ]
2. “Performance Reviews and Performance Improvement Plans are not legal issues, so there is nothing I can do for you.” The real meaning of this utterance is “I don’t really know or understand employment law, and thus am ignorant in this area.” Like any other difficult issue in life, the law can be shaped, fashioned, molded and creatively applied to help you with almost any workplace issue. In fact, employers are increasingly using false and fraudulent performance reports to discriminate, harass, intimidate, coerce, demote and fire employees. There is a lot you can do, using the law on your side, to deal with performance-related dishonesty by employers.
Don’t miss a trick . . . we offer a “141-Point Master Guide and Checklist for Performance Reviews.” It’s got everything you should know, understand and remember. To obtain a copy, just [click here.] Delivered by Email – Instantly!
3. “You should immediately sue.” Expressed differently, this usually means “I, your lawyer, am a thief.” Employees should always strive to see the inside of a Court room as rarely as they see the inside of an operating room, because both can be horribly expensive, and, in their own ways, sort of “deadly.” Unless you are facing a critical and pressing legal deadline, and must, must, must sue, negotiation is the thing to attempt in every way possible before you even think of the word “litigation.”
Incidentally, here’s a little “lawyer secret”: while almost all law schools train lawyers in litigation, perhaps one percent – at most – of lawyers have had any training, education or classes to learn how to negotiate. To my mind, that is entirely backwards. That is one additional reason for lawyers to simply fall back as a “default” to what they know – and what they make the most money on – namely, litigation.
Lawyers who drag clients into court without a very good reason to do so, are, to my mind, committing a near sinful thing, as suing an employer is inevitably expensive and distracting, but quite possibly also damaging to future career prospects.
4. “Only lawyers can understand these things.” Oy, vey!! Hocus pocus!! Man, Oh, Man!! Lawyers are no more intelligent than the rest of the population, but they try to hide that plain fact under tons of obtuse, opaque and complicated words. A really good lawyer can communicate very clearly to any person with a basic education. If your lawyer claims you need law school to understand life, business, or workplace issues, he or she has his butt where his head should be, and is a candidate for replacement at your earliest possible opportunity.
5. “This is definitely a million dollar case.” Your first response to any such utterance should be “Do you mean your my recovery from the lawsuit, or your legal bill?” Your second response should be “Great. Please put that statement into our retainer agreement, so we both understand why it is I agreed to retain your services.”
In employment lawsuits, there are occasional “million dollar cases,” but they are few and far between. Sure, you read about a million dollar employment lawsuit verdict, but you don’t read about the 95% that don’t succeed, and the 5% that recover a rather modest, often less than the legal expense incurred.
I once had a law firm partner who talked like that to clients in circumstances where I seriously doubted the truth of his prediction. When he would not stop doing so, I forced him to leave the firm, even though I had known him a long time. It’s that simple.
6. “Any lawyer can handle an employment or severance matters.” Sure, and I guess any doctor can handle a heart transplant, too. The only thing that is missing from the picture is experience, and it is experience that provides good judgment, which is what you are hiring an attorney for in the first place.
I would never agree to help people in matters of immigration, patents, medical malpractice or international trade agreements, because I don’t know beans about the law in those areas. Likewise, you should consider the advantages of hiring an experienced employment lawyer to assist you with an employment related issue. There is no substitute for experience in anything you do. None.
7. “Non-compete agreements are enforced by employers taking employees to Court.” A sure sign of an illiterate, novice or desperate attorney. Non-compete agreements are almost always enforced out of Court, by the FEAR in the heart of your next employer, and in your own heart, of a difficult and expensive lawsuit, and fear is the first human instinct.
It is for this reason that the first analysis should always be “How can we make the employer, itself, FEARFUL to proceed to Court?” It is only if negotiations do not succeed that we need to make a technical, legal analysis of what would probably be the outcome of a Court hearing, and how to best prepare and position for that. Resolving a non-compete dispute before Court is always the best path to follow.
Have you received a letter from your former employer’s attorney demanding you “Cease and Desist?” Are you concerned you might receive one? We offer a Model Letter entitled “Response to Attorney’s ‘Cease and Desist’ Letter Alleging Non-Compete Violation.” It shows you “What to Say, and How to Say It.™” To obtain a copy for your adaptation and use, just [click here.] Delivered by Email – Instantly!
Sure, some non-compete issues end up in Court. But very few do. An attorney who is experienced and knowledgeable in the area of non-competition agreements would know that.
Our 185-Point Master Guide & Checklist to Non-Competition Agreements is a perennial favorite. It takes you step-by-step through everything you need to know. To obtain your copy, just [click here.] Delivered by Email – Instantly!
8. Human Resources is the best place to begin a discussion on resolution of a a workplace issue.” No, no, no, no . . . and no. Human Resources personnel are very nice people; but their job is not to seek a fair resolution of difficulties, but rather a resolution that is to the employer’s best advantage. That is not a cynical statement, but a realistic one, based on the fact that their job is to “Manage Human Resources,” like you and me.
Rather, the very best place to commence a discussion of resolving a workplace issue is with a “decision-maker” who can give to Human Resources their “authority” to resolve a problem.
You might want to watch one of our videos, entitled “The Seven Truths about Human Resources,” available for a modest fee. To do so, just [click here.]
9. “Looks good to me,” after reviewing an offer letter or employment agreement.” Said more clearly, “I haven’t the faintest idea what I am doing, so go ahead and sign it. These things usually work out.” Even if an experienced attorney believes an agreement or offer letter “looks good,” he or she should explain it, how it works, its strengths, its weaknesses, and provide recommendations to make it better, stronger and more secure.
There is no perfect agreement. Every agreement represents certain advantages and disadvantages, things to look forward to, and things to look out for. An attorney who says “Looks good to me” is not doing his or her job, most likely because they do not know what they are doing.
10. “Trust me . . . I am a lawyer.” Just don’t leave your wallet on the table, or your brains in your closet. Lawyers are no more and no less honest and/or trustworthy than the rest of the population. However, people often place their lives, careers and fortunes in the hands of attorneys, and attorneys are therefore often in a position to disappoint, or even hurt, their clients, if they are not honest or trustworthy, than most others are. And, too, people tend to look up to lawyers because, well, they are supposed to be on your side.
Sure, your lawyer may be on your side, but he or she, too, has interests that may not be precisely aligned with yours. Perhaps President Reagan said it best, “Trust, but Verify.” I would add “100% trust in your attorney is 90% foolish. Keep your eyes wide open.”
Be careful about the attorney you hire. Use a copy of our Model Letter to Attorney seeking his/her experience, billing and other info. Just [click here.] Delivered by Email – Instantly! Shows you “What to Ask, and How to Ask It.”™
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work and in your career. Negotiation and navigation of work and career issues requires that you think “out of the box,” and avoid risks at every point in your career. Using the legal services of attorneys in regards to your employment is something that is a likely occurrence. Understanding the best ways to do so gives you a distinct advantage in navigating workplace life. Learning the “in’s and out’s” of doing so is what we are here for. Now, my friend, it’s up to you.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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