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Olas Media.
This is overdue overtime presented by Sommer Schwartz. And now here's your host, Justin Isaac.
Welcome to Overdue Overtime presented by Sommers Schwartz My name is Justin Isaac, attorney at Law, and I will be taking you on a very interesting ride today where we are talking about a day in the life of someone who is suing their boss, suing their company. So I am also joined by Jason Thompson. Jason, thank you very much. This is our second episode together and we had a lot of good information in that first episode. I'm really excited about this one as well.
Good to be here, Justin. I'm looking forward to it as well.
So you know what? Let's get right into it. A day in the life of a plaintiff. This is something that a lot of people don't really think about this when we think about suing our boss, when we think about suing our company, when they've done something wrong. There is so much of a process that comes along with this that a lot of people don't take into consideration.
And we're going to kind of go through the details because it might not be for everyone, but it actually seems like it's a little bit more straightforward than a lot of people would think. Is that correct?
It certainly is from the lawyer's standpoint. You know, the the work that we do is is repetitious from that perspective. It is very straightforward. We're also very familiar with the law. We're very familiar with the obligations. We're very familiar with the process. But, you know, ideally, people don't want to get in multiple lawsuits against their employer or their bosses. So for a lot of our clients, you know, this
is a very unsettling experience. You're talking about a controversial dispute with one of the most important people in their lives, their employer, somebody who's who's responsible financially for for for their mortgage, their children, all of their bills. Most people live paycheck to paycheck, as we hear on the news. And it's astounding how how much control and influence our employers have over us because of that space they occupy.
So I believe I know the answer to this question, too, but I'm sure a lot of people are wondering, are there safeguards in place if you if you have someone who comes to you and is potentially going to sue their boss, they're protected, right. They're not there's not going to be retribution. I know it's usually a private matter, but I'm sure there's a lot of people thinking like, I don't want to do that because I don't want to get fired.
You know, the podcast that we're putting together, we're going to spend a whole segment on what it's like to consider suing your employer, you know, the very topic that you're talking about. And one of the considerations is the
protection that comes with the Fair Labor Standards Act. Several other civil rights type statutes, whistleblower statutes, carry the same provision, and it's an anti retaliation provision which essentially says if somebody comes forward and exercises their rights under the law, the employer cannot take a retaliatory action like demotion, making their job harder and certainly termination as a response to that.
And if they do, that's a whole separate violation of the statute and gives rise to a whole second cause of action for additional damages.
Yeah, that's what I think a lot of people are concerned about who just don't know the law. There are safeguards in place to protect you for things like this. If there's a violation and your employer retaliates, that could mean some big, big damages. And it's definitely not something that they are going to want to do if that were to be the case. So let's get right into it. I guess let's talk about this. Where do we start?
How does this start off and are we starting at the deposition phase or we what can it prep goes into a deposition before you are sitting down with someone who has the rights violated.
Yeah. So today what we're going to talk about is the point in the process where the worker has already consulted with their lawyer. They've already made the decision that they have a good case and that they want to go forward with the case. The lawsuit's already been filed and a lot of the preliminary work has already been done.
The important step that we're going to focus on today is called a deposition, and that's a process whereby the lawyer representing the employer gets basically a full day, up to seven hours of questions and questioning of the plaintiff. So that's what we're going to jump into today is the point in the process where the deposition has been scheduled and the lawyer and the client start preparing for that big event.
Okay. So let's let's start off with that. What goes into the deposition? What are the things that you're looking for? What kind of things are you trying to prep for? Are you meeting with your client or is it just something that the attorneys are working on? How does that how does that work?
Great question. So in almost every case, we will have this event come up, and that's standard for these types of lawsuits. The deposition, like I mentioned a moment ago, is really a question and answer session. What's strange about it is and part of the preparation for our clients is we have to convince them that it's not literally a conversation. You and I are having a conversation right now. We can speak freely. We can exchange ideas. It's an
organic process. The conversation can meander left and right. That's a disaster for a deposition on a lawsuit from a from a lawyer's perspective. So part of what we're going to be doing in the preparation with our clients is reorienting them to what's actually happening. And that is much more like being interviewed by a detective. You know, if you ever watched detective shows or police shows, the detective already knows basically all of the answers to all of
the questions he's asking the suspect. And what what they're really doing is determining if the suspect is a liar. And if they are a liar, they probably have something to hide. The defense lawyer does a lot of that same tactics in a deposition. They basically have your full employment file. They know every day you've worked. They know every day you've been absent. They know what your reviews are. They know your rate of pay. They know how many
days you've worked overtime. Yet they'll ask all these questions of the plaintiff, for example, how many days did you work overtime? So what they're really doing is kind of trying to prod and probe and find out where there might be some confusion, some ambiguity, all in an effort to have the plaintiff appear weak, appear unorganized, appear unbelievable, because at the end of this process, if there's not a settlement and we're going to talk about that in
a podcast, well, there's going to be a trial. And trials involve assessing credibility and believability. So, again, part of the preparation is we have to explain to our clients that this is not a conversation, even though it feels like it. And you have to you have you have to understand that when you're being asked questions, you have to listen very carefully. You have to answer just the
question that's being asked. And so in order to be able to actually have a a client do that and do that comfortably, there's probably 2 to 4 hours of preparation minimum before we go into the deposition. And we work with them on all of the key issues that
we can anticipate. We practice question and answer sessions with them, and we make sure that they feel comfortable that, you know, when they go home tonight, they're going to get as good a night's sleep as they can, and the next day they're going to do fine.
You know, it's interesting because this is not the type of field of law that I practice. I don't do active litigation. And so I'm learning a lot as we go. But I'm sure a lot of people who are listening are also learning because this is not something you hear every day of how the ins and outs of actual lawsuits work. And if I think that I'm going to sue my boss, the last thing I'm going to think about is deposition prep. And you said 2 to 4
hours of deposition prep. I imagine it's really hard for some people to wrap their heads around how careful they have to be when they say something. Correct.
It's kind of like for the men, you know, we say, listen, imagine you came home late and your wife is looking at you with that eye and she's about to start asking you questions. Okay. That's the feeling you want. You know, when you were a little a little child and you came home an hour and a half late and there was mom at the doorstep, you know, there's an old saying in litigation that mothers make the best cross examiners
in the world because they're just natural at it. That's what they do for for 18 years while they raised their children. And that's a good a good analogy. But, you know, other other clients are gung ho, You know, the motivation to come forward and actually take on your employer in a lawsuit comes from a lot of mistreatment. It's not the first card played for most people. And so they've got, you know, perhaps years of mistreatment built up and they finally can't take it anymore. And they
give us a call. So sometimes we have to assess our clients and realize that they're a little bit fired up and and maybe we need to calm them down. Other clients are just short of terrified, and sometimes those people need a whole different hand-holding kind of process.
Yeah, and that definitely makes sense having your your kind of overzealous client who really wants to get back at their employer. And then the the kind of nervous a lot of people are not great with just speaking in uncomfortable situations so they kind of shut down and that would make for a pretty difficult deposition, I imagine. So we need to make sure that they're staying focused, right, that they're meeting the objectives. And I don't know if
we have time to talk about. But can we talk a little bit about how it works in the deposition? Are you there? Are you asking questions of anyone else or is it just your client being deposed? Are you able to challenge certain things? How does that work? Yeah, that's.
A that's a great question. And I'm always surprised that some of my clients don't assume that I'm going to be there with them and that they're going to be all alone with some lawyer in a room answering questions. But, you know, they do. It comes up at least once a year. So yeah, the way the process works is the defense lawyer and myself will pick a day. We work with the client to make sure that they're available. If, for example, they're still working for the employer, you know,
the employer needs to give them the day off. If they're an ex employee, we need to make sure that their current employer can give them the day off. So everything's scheduled in advance. That's why we have time to prepare. Everybody's schedule is is packed these days. So it's usually set out anywhere from 2 to 6 weeks in advance. We'll do the preparation leading up to that and then the deposition will start with at least three, if not four people in the room. They'll be the client, myself
and the defense lawyer. And then there'll be somebody called the court reporter who is actually transcribing everything that's said. Sometimes in today's day and age, we use videographers which are essentially doing the same thing. There may be a couple additional lawyers helping out. At times it can get a bit intimidating for the clients to be in a room with so many people and they're the focus of the attention. They don't usually, you know, spend that that
that time or occupy that position. And then the questioning begins. You know, there's generally kind of three areas the questioning falls into. There's personal background, employment, background, all the stuff that kind of led up to the event that's at issue. The second area really has to do with the problem that we've alleged. If it's working off the clock, if it's not getting paid overtime, there'll be a whole series
of questions. What did you do for your job? If your classification is an issue, whether you were an employer or an independent contractor, the whole second kind of group of questions about that. And then finally, it usually comes back to the damages. And and those those tend to be more record driven in terms of how much you were claiming to be underpaid and and whether there was overtime involved or meal breaks missed. Yeah, but those are
kind of the three main areas. And you know we touched on it earlier each each one of these questions probably is something the defense lawyer already has the answer to. Lawyers are professional question asks, you know, you're a very good podcast host in part because you're a lawyer, you know, and you think through how words mean certain things. But as I learned in my life every day with my children and my wife, non lawyers, real people, they don't
think that way. They talk and they talk and they talk. And it's much more of an organic flow event. And with clients, you can't do that. We typically have them try very hard to answer questions with a yes no or I don't know. I tell them those are the three answers I want to hear the most. You're not going to get away with that for the entire deposition. When the lawyer says, describe for me the process of opening the shop and punch it in. That's not a
yes or no question. But the least we can do, the better the the less information we convey to that defense lawyer during the deposition, the better. So keeping it short and sweet is is is a lot of what we help our clients do. And then lastly, you know, there's there's a pace to the deposition. Seven hours is a long, long time to be focused and concentrating on anything. You know, we make sure during the deposition to generally
take a break at about the 1.5 hour mark. In our experience, that typically is when people start to lose their focus. It's also well known to defense lawyers to be a very good time to start asking the really dangerous questions and see if they can get a slip from the plaintiff or an admission of some sort. So, you know, we also watch our pace. I'm always there watching my clients. Some are better than others that all of this stuff, some can manage the stress better than others.
So sometimes if we need a break in a half hour, we'll take a break and a half hour. But that's all the kind of stuff that that we manage as as the attorneys representing the clients.
It's so interesting to think about something like that because the psychology of fatigue really does really does come into play. Here. And just to recap. I'm speaking with Jason Thompson of Sommers Schwartz. And we are talking about a day in the life of a plaintiff. But the psychology of fatigue
is very interesting. I read a stat somewhere that said people who are sentenced before noon in a courtroom usually have like a 20 or 30% higher, I guess, sentencing or longer sentence than someone who was sentenced afternoon because the judge has had their lunch. And and we really
don't think about things like that. But it's really important because once you get to that hour and a half spot and people are starting to get tired, starting to get fatigued, they are more likely to answer incorrectly or maybe not adhere to what we're trying to do, which is, you know, keeping keeping the goals in sight, you know, and do all that prep might just go out the window. If someone is speaking for too long of a time
period in depositions to me are fascinating. I'm sure some people have seen depositions of, you know, like Donald Trump back in the day on YouTube or like Lil Wayne or that Texas attorney. I don't know if you saw this, Jason, who they literally stopped the deposition to fight each other. They got in a fight in the room. But those those videos are just amazing because you would think that it it's a lot more straightforward, but it is grueling
to go through, you know, a seven hour deposition. And I imagine it gets pretty hostile and kind of ugly at some points.
You touched on so many, so many interesting aspects of the deposition. And it's you know, it's fascinating stuff for for me, it's one of the more entertaining and exciting events in the lawsuit, obviously. I also take a lot of depositions as an attorney. I don't just defend my client's deposition. And the type of things you just touched on are real. And it's the closest thing in the lawsuit to TV lawyering. You know, when we watch TV law shows, there's so much that is that is not
common and not real. You know, first of all, a case doesn't wrap up in 30 minutes or an hour. Right. But the deposition of all the events is actually fairly well portrayed on what people see with the TV. There's theatrics, there's intimidation going on. You talked about hostility. You know, we we often have clients who are deathly afraid of one particular supervisor. You know, every office has that person. Right. And lo and behold, that person can come to the
deposition and you say, well, how could that be? Well, under the court rules, each corporation can have a representative at the deposition. And that's in addition to the lawyer defending the company. And so guess what? The smart defense lawyers, they'll spend time with their their client and they'll find out who, you know, pushes the plaintiff's button or who has a particular history with them. And that person, lo and behold, will be designated. So here you are, 9 a.m.
You show up at the deposition and the first thing the client gets is a big punch in the mouth, so to speak, by having to go sit across their archenemy at work. And, you know, so there's all kinds of games and stuff that gets played. I've seen them all The the Texas video you mentioned is hilarious. Absolutely hilarious.
It is. It is definitely something that made the rounds for years and years. And that that attorney that was a part of it was very famous for it. Real quick, before we move on to the next section, I wanted to ask one quick question. If you are like say you're suing your employer or suing your boss and you have one particular person that you're alleging something against, you just mentioned a second ago that that person can be
the designated representative. Can the plaintiff request that that person not be allowed to be the representative? What kind of rights do they have there for intimidation purposes?
Yeah, that that is possible, but it would be an extremely high burden of proof and it would require a preliminary ruling from the judge. And it would it would require, you know, basically an oppression or some type of an abuse of process finding by the court. I've never had that happen before. I have had discussions with defense lawyers when I knew that that could be a possibility. And I've never had a defense lawyer push push the envelope, so to speak, if I've requested that such and such
not be at the depth it's always been agreed to. And, you know, frankly, while we've talked about some theatrics and stuff that is kind of bush league and at the end of the day, most lawyers are professionals. Most lawyers take their job and their obligation to their clients serious. And if they if they are taking. In a deposition. They've got a full day planned. They've got a lot
of work to get done. And so I've never had a lawyer, you know, throw all that out the window just for some cheap thrills and theatrics.
Yeah, I think, as you mentioned earlier, the portrayal of how this all goes down, where you have one over-the-top great attorney who just says the right thing every single time and catches him in a lie. And then you have your kind of, you know, jerk attorney who downloaded their diploma off of Google and doesn't know what they're doing or is intentionally being, you know, difficult to deal with and whatnot. But okay, so well, that's depositions. That's
really cleared up a lot of information. Where could we send people to go to learn more or to get more information about depositions?
Well, I'm sure there's a bunch of videos that you mentioned on the Internet, what isn't available on the Internet, but they are pretty unique situations. And we spend a lot of time at Sommers Schwartz with our clients preparing them for the depositions. I know some lawyers at my firm have old VHS tapes going back in time that the they
give their clients to watch at home before their prep session. And, you know, there is there is some examples of what an objection is, how to answer yes and no, how to how to avoid saying too much. What happens if there's a surprise? You know, for example, you can't just walk out of the deposition because a surprise popped up.
You know, you actually have to finish it. Most most lawyers are very familiar with the rule that if I ask a question, we don't take a break and you don't consult with your lawyer until you answer the question. As soon as you do, we can take a break. So, you know, we we we do preparation for a reason. There's just a lot of of of surprises that can come up. And as they say, the antidote to all
that is is preparation. I would say to there are a fair number of common misunderstandings that we we touched on already here today. But it's surprising how many people don't, you know, have a full grasp of of what's actually at stake in the deposition or what their role is. So I'll give you a couple examples. Sure. Some of our clients feel like this is the trial. They feel like they've got a win. This deposition. And I've always been surprised how many people feel that way. On hindsight,
it makes sense. I mean, they are the focus of the attention it is feels like it's all about them. So we go through the whole process of the of the case for filing the lawsuit to the deposition and then ultimately the trial just to demonstrate to them that this is not trial. And the big message and kind of the big misunderstanding is you actually don't even need to win this. You're probably going to walk out of the deposition feeling like you lost. And a lot of
our clients are very surprised when I say that. But once we go through the process and explain to them that it's not a conversation, you don't get to just say what you want, you have to wait and listen to the question being asked. Then they understand the power imbalance. The power is all on the side of the defense lawyer or the lawyer asking the questions in the deposition. It's a very lopsided and unfair situation and it's designed
to be that way. So I assure my clients, look, there'll be depositions that I'll be taking of your supervisor or your coworkers, and they also are going to feel very unfairly treated. Those are lopsided depositions in our favor. So don't feel like you've got to win this case. In fact, if you get done and you feel like you kind of got beat up, that's normal.
Yeah, that makes sense to I think that that's a very interesting thing. Do you have any any stories that you want to share with us about what's actually happened in a deposition? Anything, you know, any quick stories that something really crazy that people would want to hear?
Well, you know, after 30 years of practicing law, I've probably sat through 500 or more depositions. We could have multiple podcasts. Luckily, I haven't had myself filmed like the Texas lawyer and getting into a fight, although I have sat at a deposition where that was threatened, really, you know, most most of the depositions, though, really are not all that terribly entertaining. They involve professional lawyers who are doing their job. These types of cases are not criminal cases.
No one got murdered. These aren't divorce cases that can involve a lot of salacious experiences. At the end of the day, we're talking about something very important, which is being paid fairly and honest day's pay for a honest day's work. But it really does come down to a. Fairly straightforward questions and answers. It's it's it's nothing that would be concerned about if I was a worker. These are cases that really turn on very concrete facts and records.
And there's nothing all that salacious or scary or dramatic that happens to our clients. And so consequently, I don't have a whole lot of great cocktail stories or war stories to be able to to to roll out here today on the podcast.
Well, everyone can find that on on YouTube, I'm sure. But that's there's definitely some good information in what we just talked about, too. So I am speaking with Jason Thompson of Sommers Schwartz, and we're going to put the the website in the show notes, but the website your, your website, I believe is Sommer s pc That's s o mmers pc. Com.
If you have a claim, if you feel like you need to sue your boss or your employer and you need more information, it's definitely time to reach out and and see if you have a viable case because as Jason was mentioning, there's a lot that's going to go into it and there's a lot of prep work and we don't want your rights to be violated. So, you know, after the deposition phase, what's next? What where do we go from there? It doesn't go straight to trial. Right?
I'm and a lot of people think that everything goes to trial. And we talked about this on the last episode, I believe. But I think the stats are about 5% of cases go to trial. Everything else is resolved before trial. So we get the deposition done. We've done all the prep work, we've sat through the seven hours. What's the next step from there?
Okay. So this podcast we're talking about kind of the day in the life of a plaintiff, and we started off with one of the most important events for the plaintiff, which is their deposition. And the next phase would be all of the depositions that I would be taking their coworkers and supervisors and people on the employment side. Typically our clients do not attend those with us. So one of the nice things probably to convey is the 2 or 4 hours of prep for your deposition and your
one day of deposition. That's about it. From this point forward, in terms of the client's involvement, in terms of disruption of their lives, in terms of having to relive this this event from this point forward. The lawyer, myself and my partners are the ones doing all the work. And
we're finding out information by taking depositions ourselves. We might be working with experts who go through all the data and figure out if you had this amount of time what would happen to the ultimate payroll for the defendant. And then ultimately where you want to get to Justin is mediation. That's the next point in the timeline and the next event that I think would would be of interest for kind of this topic of a day in the life of the plaintiff.
Yeah, So and mediation is very, very common. A lot of people don't know exactly how it works, what it means. They just know that, you know, one Soto with the Padres just went into mediation or arbitration and, you know, is mediation and arbitration synonymous? How how does that all work? And who sets up the mediation? What's the process there?
Okay, so why don't we talk about a few legal terms. You mentioned trial. You just mentioned arbitration. And of course, we're going to talk about mediation for purposes of today. So in reverse order or trial is what you see on TV and in movie think everybody realizes that, you know, there's a jury or a judge who sits as the Trier fact. The judge oversees the the calling of witnesses
and taking of evidence. And ultimately, you know, a jury is deliberates applies a lot of the fact and there's a guilty or innocent finding in a criminal case or a money damage award in a civil case. We're not talking about trial today. Arbitration, real quickly, is kind of a substitute for trial. Trials. Take a lot of time. They're extremely disruptive. They're expensive. And so arbitrations, you know, probably 30 years ago, right when I started practicing law
started to become a a common substitute for trial. There's a whole nother podcast we're going to do about trial and arbitrations later. But arbitration is is where you have 1 or 3 typically either ex judges or lawyers, and they will decide the case. It's kind of a mini speedy trial. It can take a half a day or maybe a week. Typically they're done in a day, though, and and it's much less disruptive again. We're not doing
arbitrations today. We're not talking about arbitrations today. So the third item and what we are going to talk about is mediation. And mediation is an effort to try to settle the case. It cannot be forced on anybody. It has to be voluntarily agreed to. And both sides typically discuss who will serve as the mediator. They'll discuss what claims are going to be on the table, maybe all, maybe some. And they'll set a date for the mediation
and a location for the mediation. Small little change post-COVID. Is that a lot of mediations now take place by Zoom. So where we used to fly to distant cities that no longer is prevalent and a lot of these get done on Zoom. And so that's how mediation comes about. And it's a so basically it's a voluntary process. We can talk about all the process involved in that today, but it's a voluntary process with a third party who
tries to facilitate a settlement. Last thing I'll say in this kind of definitional section is the mediator has zero authority to decide the case, whereas an arbitrator decides the case or an arbitration panel.
So a couple of questions that come right off the bat before we get into how it all works. Is there an advantage to going to mediation from a plaintiff side or is it a disadvantage?
Well, it's it's advantageous to both sides. So let's talk about it from both perspectives, the plaintiff and the employer. The advantage is it can reach a a settlement. Settlements are not where somebody wins and the other party loses. That's what trial is. And that's often what arbitration is. There's winners and losers. Settlements are in between. A good settlement probably is where both sides feel like they lost. You know, it's a compromise by nature, but everybody gets
to go on with their lives. You know, a lawsuit is a terribly disruptive event for everybody. It's disruptive for both sides. And so one of the big advantages of mediation is it promotes settlement. You know, it is it is an opportunity for everybody to check that day off on their calendar, get prepared to address the case, come into the exercise with an open mind or as open mind as you can be, assisted by a third party who can help get past egos, frustrations, misunderstandings, maybe get
past the lawyers who aren't helpful. You never know. And everybody really gets focused for the day. They're typically a day long event and gets focused on trying to get the parties to settle. It saves a lot of money in the end as well for both sides, mainly the defense and the lawyers getting paid by the defendant and
the company. That saves them a lot of money. So there's a lot of advantages to the mediation and it really has become a common event in just about every single wage in our case that we file.
So when you're choosing a mediator, I guess you said they both parties agreed to the mediator. What do you looking for? Do you have someone that you usually will go with? Are they national or are they state specific? How does that all work?
Yes, to all the above. So it's it's a very unique experience. There's not a one size fits all. Typically, at Sommers Schwartz , we handle class action cases or collective action cases that involve many workers. You know, could be hundreds, tens of thousands. And so the defendants that we end up suing are typically nationwide, or at least involve several
states worth of workers. So one of the criteria that we always insist on is that the mediator be well versed and he or she understands what it takes to get a class certified, because what happens is during the mediation process, each side will argue their strong points and why they should win and the job one of the
jobs of the mediator is to push back. And so the mediator is not going to just listen to what I say in the mediation, but they're going to, along with my client, demonstrate how we could lose the case. And one of the big ways that we can lose
the case is to not get a class certified. You know, we could talk about that in a whole nother podcast, but essentially you've got to convince the judge that there are many, many people who essentially have the same case based on the same facts, and we'll use the same evidence. And if you. And convince the judge of that, then the judge has the option of certifying that one person's lawsuit as what's called a class action. And that class action will then be binding on everybody who fits that
same definition. So if they're all assistant managers, you know, at the Home Depot store or they're all factory workers at certain plant for Ford Motor Company, that's that's what we do. And so we always want a mediator who understands how a case gets certified and what those arguments involve so that the defendant, you know, doesn't get to run right on us and try to convince them that we're never going to get past that threshold. So that's
that's one of the main criteria. The last criteria is, is again, kind of subjective, but you want to have somebody who's got a good understanding of human nature. They're not calling balls or strikes. They have no authority to decide the case. You know, they really have to deal with psychology. They have to be able to read a room. They have to be able to understand the pace of the day. And they're trying to cajole everybody into taking a step forward. You know, if I get this, will
you take a step forward? And then they go the other room. You know, we're in separate rooms, by the way, during this whole process, you're not. Oh, really? One courtroom together? Yeah, you're always you're always in separate rooms. And the mediator does what's called shuttle diplomacy, or they go back and forth between the rooms. And so you want somebody who, you know, has either a lot of experience dealing with people or has a proven success rate in getting settlements.
Sometimes those are ex judges. Sometimes they're just ex lawyers that were were successful in their practice and are now much more interested in working out settlements and are very good at working with people. There's there's two there's two different rooms, but there are endless numbers of personalities that can fill those rooms.
Yeah, and that makes sense. Actually. I never thought about that because, you know, I think of the movie Wedding Crashers and Vince Vaughn and Owen Wilson are mediators, I guess, between two couples who are a couple who's getting divorced and they're arguing in person and it's highly emotional. But being in separate rooms, it makes a lot of sense. I guess you get your steps into which is is great, but I never really thought of it that way. And it does make more sense for everyone to be separate.
But I imagine that there's going to be times where you spend time with this person. Then you take their kind of request demands, go to the other person and see if you can meet in the middle on like each individual issue. So that that makes a lot of sense when you when you really think about how it all works out. But just to recap to we are doing a day in the life of a plaintiff. We're covering a lot today. You can reach out to Sommers Schwartz
directly Sommer spc.com sommers pc. Com that's going to be in the show notes and I'm joined by Jason Thompson once again My name is Justin Isaac and we are in the middle of talking about mediation and how that is different, how that is probably a very desirable thing to get to because what would you say percentage wise, how many mediations lead to actual settlements?
Oh, the vast majority. You know, again, if you've if you've selected your case properly, which which we like to think we do, if you've properly worked up the case, meaning you've completed all the depositions that we talked about earlier and you've exchanged all the documents and you've consulted with your experts, your economists, and you have a good understanding of of what a trial would look like. And thirdly, you've selected a mediator who is skilled and he or
she's experienced in all of the right areas. You know, the table's kind of set. Justin, for success. You know, it takes a dance partner, right? So, you know, on the plaintiff's side, you can't walk in and expect you're going to get 99% of your damages or 95%. You know, a case has defenses and there's there's always a chance you can lose. On the other hand, as an employer, you know, they can't walk in expecting to pay a
dollar or $10. You know, they have to understand and be and be open to the concept that they could lose. If all those things come together, then then you should be able to settle the case. And I would say that we probably are successful in our mediations 90% of the time. Now that might seem kind of high, but that would account for cases that for whatever reason the judges have already kicked out and we've lost, um, that would account for cases that we might settle. For mediation.
I mean, some are just easy cases and they just need to be kind of processed. So by the time you get those off of the table, I think we're probably close to about 90% success in our mediations.
Yeah, that's a I imagine that it's advantageous to everyone, you know, because lawyers are very expensive. We want to expedite the process. No one likes going through trial. It's stressful. It's terrible. And and mediation is ideal when you have a situation where you can kind of wrap things up pretty quickly. It sounds like, you know, in the negotiation process between the two rooms, it's probably a day like similar to a deposition where it's long and it's stressful.
But if you both have both parties who are kind of like, all right, I can budge here and I can budge there, it almost feels like when you go to mediation, everything is common sense at that point, like, let's just get through this. Let's not be emotional. Let's, you know, resolve our issue and kind of go our
separate ways. But do you have in the mediation, do you have your clients with you and do you do if they are with you, are they I'm assuming they're with you because you have to ask them if they're willing to concede on certain things. But it's not the same prep as a deposition because you're not in the same room.
Yeah, it's it's it's always important for us to have our clients either with us physically or reachable by phone. Because what what typically happens is we get to the point where there's some type of a compromise to be made. You know, it could be that some of the claims are going to be dismissed and not paid. Others are going to be paid. You know, it could be that some states are going to get paid more because they
have better laws than others. It could be that the time period shrinks, you know, instead of three years of wages, it's going to be a year and a half. These are all examples of compromise. And so when we're representing a group of workers, you know, a class and a class action, we don't just have one client to address. We don't just speak with one client or take direction from one client. Our responsibility is to the entirety of the class. So the client is there, either physically or
at least by telephone, to serve a couple purposes. Number one, nobody knows the facts better than the actual client. They worked at the shop or in the industry. They understand who is on the other side of the case. They have the best factual experience available. And so they often help spot, you know, areas that perhaps the mediator isn't catching or, um, misstatements that the defendants have made that for some reason still haven't come up during the case.
And so they're very helpful that way. The other way that they're helpful is they are kind of the sounding board for what's a fair compromise. You know, the law doesn't just let the lawyer settle these cases. If we get to the point where we think that's a fair compromise and that in our learned opinion, the settlement should go forward and should be reached, we express that to the clients, but ultimately they get a say and they get to say, you know what, this isn't fair. This
isn't enough. Maybe we don't settle that day. Maybe the mediation goes on to another day. But ultimately, the judge is going to want to know from both of us, from the lawyer, the class action lawyer, which is me and from the class representative, the plaintiff, what their view is. And then ultimately he or she, the judge has the final say on whether or not that settlement is going
to be approved. They all need to have court approval. So, you know, we need to be able to tell the judge at the end of the process that the client was involved, how they were involved. The client usually fills out a declaration, a written set of statements as to as to what they did as the representative, that they oversaw the case. They monitored the case. They were kept
advised of the of the progress. They had their questions answered, whether they attended deposition, whether they attended the mediation, and ultimately that they understand this is the settlement X, Y and Z and that they approve it. So, you know, it's a it's an important role and it's an important time for somebody who has an important role during that mediation.
And I guess that leads me to the next kind of question, because we started off talking about depositions. We're talking about mediation at this point, and we're kind of getting towards the end of a quote unquote, a day in the life of a plaintiff. We've had those first two kind of parts of their case. And the final part of the case after you get through mediation, say mediation. Is successful. You kind of alluded to that the judge has to really sign off on everything the the plaintiff
has to or the class representative. If we have a class certified in a class action lawsuit, the judge is going to you mentioned that the judge would speak to the attorney you, but also the class representative to make sure that this is exactly what they want, that their rights are met and and that they've done everything in the best interest of the class, I would assume. Has there ever been a time. Sorry, I know I like
these specific examples. Has there ever been a time where you went through the whole mediation process, you had everything agreed to, and then the class representative kind of changed their mind the next time they spoke to the judge when it came to the concluding process. Has that ever happened?
Yes. And it's never a good day.
No, it doesn't sound like it would be.
No, it's not a good day. You know, imagine you're two, three years into a into a lawsuit in the time you've put forward, You know, from both parties perspective, some from the class representative client's perspective. It's a bad day from the lawyers who have who have worked for free for 2 or 3 years. We don't get paid. We work on a contingent fee, like all plaintiff lawyers. And we've probably put in anywhere from, you know, 20 to $100,000 of our own money to fund the lawsuit. It's
not a good day, but that's the system. And it's it's much like many things in our government in America, it's a checks and balance kind of system. So, you know, what ends up happening is if we walk out of the mediation, you know, there's a couple of ways that can end. Either there's no deal and everybody goes back to litigation and maybe has a second mediation at some point.
There's an individual settlement for just the class representative or there's a group settlement, you know, either a collective or a class settlement. So let's assume for purposes of your question that we end the day at the mediation with one of those group settlements where it's either it's going to, you know, include a lot of people either as a what's called a rule 23 class action or a 216, B collective action. And we can talk about the slight
but important differences between those two. So we go home and, you know, sometimes there's buyer's remorse. You've heard that phrase before. Someone buys something and they later go, okay, I don't I don't think they should have done that. Well, you know, if the client has that, they usually let us know. And so we'll we'll engage in some conversations with them, kind of remind them about all the problems of the case,
you know, and why we compromised. And usually that works because again, if you've set the table properly before the mediation, you've done the preparation, everybody is prepared to compromise. And you have good lawyers and you and you've taken the enough depositions, you are set up for success. And if success happens, it probably happened for a good reason. You didn't just stumble into it, you didn't just have a
bad day. So sometimes we just have to remind the class rep or the client, look, this is this is what we did. Remember at noon, this happened. And then remember at 3:00 this happened and what we did and and they usually, you know, kind of come back to that place in their mind where they were when the settlement took place, but not always. Right. So in in in some instances, they don't agree. So what happens in under the federal law is the group settlement, if you will,
requires each person to opt in. So they actually have to exercise their right once they hear about the settlement to to actually opt into it. There's a variety of ways they can do that and times they can do that in the case. But at the end of the day, they essentially have to exercise and voice their their right to join the settlement. The Rule 23 class actions come
under state law and they're exactly the opposite. So under Rule 23, if you don't do anything, you're automatically in to the end of the case and into any settlement, you're included there. If you want to be excluded, you have to send in a form and it's called an opt out form, and you have to exclude yourself by a certain deadline if you do not want to be part of the case or do not want to be
part of the settlement. So in your instance, if we had a mediation that resulted in a settlement and it was a Rule 23 class action type settlement under state law, then notice would go out to everybody and everybody would have their chance to opt out or be bound by it. So if the class representative decides it's not a good settlement, we have to decide are we going to go forward and recommend it to the judge, despite the class representing. Natives. Objection.
And be able to say to the judge, look, we have a disagreement. Our obligation is to the larger group. Here's the 10 or 15 reasons why we believe it is a good settlement. The class representative now disagrees. And here they are. And they can say their their piece. And ultimately, the judge, again, has the ultimate authority to decide whether to accept that settlement or not. And they can accept it even over the objection of the class representative.
And it can go forward. Now, we may have to get a substitute class rep at some point to, you know, kind of dot the I's and cross the T's. But they they can accept it at the same time. Maybe the judge sides with the class representative and says, you know, I don't like this settlement. Um, you have not explained to me why it only goes back one year instead of two years. What's the answer to that? They may
have a lot of questions. You know, you haven't explained to me, Mr. Thompson, why it only includes part of the bootup process for the computers, but not the checking of the email at a later date in time. I don't understand. And they ultimately believe that we have not settled what's called a fair and reasonable settlement. Then they'll deny it. Interesting.
And that brings up a lot more. I know that there's a lot of details that comes into the finishing of this case, and a lot of people probably wouldn't think about this. You know, when you're in the day in the life of a plaintiff, you know, you you're kind of setting the table for everything to what to expect as far as, say, that the settlement is successful. Right. And now we have a 10 million judgment or something like that for all this huge class. How do the
payments work? Does the person who was the class representative, do they get a little bit more? What's that process usually like and how long does it.
Take part of the settlement? It's called a motion. That's where you submit the settlement in writing and you request the judge to to decide if it's fair and reasonable. You have to also explain to the judge how the settlement monies are going to be distributed. It may be that they're distributed based on how many work weeks a person has. So if Justin has 30 work weeks during the class period and Jason has ten, I you should be getting probably three times as much money as I am. Right?
So if it's based on a work week, sometimes it's broken down in more detail. Sometimes there's some amount of money for hours worked under 40, whereas there might be additional funds. If you worked over 40 to account for overtime. There may be different aspects of the job and we may decide that some aspects are really bad cases, but
we're going to get those people some money. Whereas other aspects of the job were really, really good, strong cases and those people should get the bulk of the settlement dollars. So that whole process is part of the mediation we talked about. It's part of the settlement agreement. It's not just everybody gets 50 bucks. You know, they're a lot more complicated than that. But we have to explain that
to the judge as part of that approval process. And then what typically happens is the defendant will write a check. You know, that check will go to pay for all of the funding available to the workers. It will pay for the attorney's fees because we haven't been paid along the way and it'll pay for any of the court approved costs that that have been expended. So once that's done, we typically hire a third party called a claims administrator.
These are companies that do settlements and run these settlements and administer the settlements all the time. It's their full time job and they'll get a copy of the settlement agreement. They'll meet with the lawyers on the telephone or in person to go through those criteria that we just talked about so that they understand how many people fit in.
Group one, group two group three. There may even be a claim form, some type of a question and answer form that goes out to every class member that they have to sign and maybe provide some information. You know, did you ever have to boot up your computer prior to your shift? Yes or no? Those claim forms will then come back and the settlement administrator will read them and decide what group you fall into. There could be
some discussion about that. But at the end of the day, when that process is done, then the money that's available for the settlement will be allocated to each person based on their claim form or based on their criteria. And essentially checks then go out to all of the workers based on that. So your question was, would the name plaintiff perhaps get some additional funds? Yeah. So typically that. Does happen, but it is completely discretionary to the judge.
There is no flat out right to demand additional payment for the plaintiff. But most judges in class actions today in America do make an additional award amount for the named plaintiff as a reflection of two things. One, having the courage to step forward and sign their name to the lawsuit. That's a courageous thing to do. You face perhaps perhaps blackballing at work or being shunned at the community events. That's that's something that the courts understand is
necessary in order for these laws to be enforced. They don't just self execute. Someone actually has to file that lawsuit and actually win. And then of course, the second piece is how much time they've spent. You know, did they just talk to the lawyer for a half hour? And three years later, there's a check? Or did they actually have to spend time explaining the job, explaining the steps that were necessary, explaining the documents? Did they sit
for a deposition? Did they prepare for mediation and they attend mediation. The more that we can demonstrate that the class representative actually did to assist the case, the more likely it is that the court will award that additional payment that you referenced.
And if I were to get a check, say I was part of a class action, am I paying taxes like I normally would on wages?
Absolutely. Absolutely. These are wage and hour lawsuits. And in America, there's only two things, right, that are certain, death and taxes. And so wages are taxed. We have two options on how to characterize the payment. On an earlier podcast, we talked about how the law provides for liquidated damages or double your damages. So half of the damages are arguably penalties that aren't wages. And most tax experts would tell
you that that's not taxable. So we typically divide, say, your $2,000 check, your settlement check as half wages and half penalty, and then you would get a W9 for your your wage portion of that and it is taxable. At the same time, the employer has to pay withholding on these as well. So there's a withholding provision whereby the employer would contribute that part of the of the taxable amount owed on the settlement as well.
Wow. There's just so much that goes into this. It's it's crazy. Like the fact that we started at the beginning of this podcast talking about depositions and then mediation and now settlement. I feel I feel like I'm ready to go through with the lawsuit. I'm just joking, of course. But it's really interesting because no one really gets this kind of breakdown. No one thinks about the details of if I'm going to sue my boss, if I'm going
to sue my employer. All these things go into it on the attorneys side, on the plaintiff side, you know, a day in the life of a plaintiff, it could be very, very stressful. It's not just a day, that's for sure. It's we probably should have named it a week or a month in the life of a plaintiff because it's such a lengthy process that has so many checks and balances to make sure that there's a lot
at stake here. We want to make sure everyone is not having the rights violated and through the whole process of the court process to of not having their their rights violated as well. So this has been a this has been an eye opening episode for me. It's really interesting. And thank you, Jason, for everything. We really appreciate all the information. I have so many more questions. I just know that we're going to have so many more episodes
to talk about them. I have to kind of hold them back right now.
Well, I'm glad you came up with this topic, Justin, and everyone should know it was your idea. And when you came up with that title, I immediately had the same reaction that you just voiced, which it's not a day. But then as I thought about it more, the plaintiff involvement in these lawsuits is really a series of days. And kind of what we talked about today in an earlier podcast are those days, those those specific events. You know, the deposition is a day, the mediation is a day. So,
you know, the topic is fantastic. I think breaking it down into bite sized days is not only something that's manageable, but it actually fits. And most of our clients find at the end of this process, even if it does take two solid years, really was worth it. It was not that terribly inconvenient. They were, of course, well represented. Mean We take very good care of our clients. They're very important to us. And at the end of the day,
as I said, these laws are not self-executing. You know, the only thing that stands between an employer, a company that's trying to steal wages from their employees and accountability is a is a worker who says. I'm standing up for this. I'm going to go forward and blow the whistle, if you will. And we really are doing the the final work to hold these employers accountable and make sure that people are paid for every hour that they work.
And we can't do it without clients. If the client isn't isn't feeling comfortable and understanding the process and willing to come forward, then there is no accountability. And every business that I've ever been associated with, anybody I've ever talked to that runs businesses will tell you that one of the largest costs is labor. And so there's a natural incentive to to cheat that maybe cut corners or
just outright steal from the workers. And and that's why this law was was passed back in 1938 and why it's still alive today.
And that's why you guys are here, to make sure that those laws are enforced. So if someone is listening to what we just talked about or has heard anything that really piques their interest about maybe needing to bring a suit against their boss, their employer, where would they go to find you?
So our website is easy to get a hold of. It's w w w dot summers s o mers p c.com. And we have a bunch of information. We have videos, we have past cases, of course, bios from all of the lawyers and anybody who wants to go to summers PC should be able to find out more than than they ever wanted to about waging our lawsuits and how they work.
I think a lot of people will probably want to know more, which is why we're going to keep doing these podcasts about in episodes about this information, because there's just a lot that goes into it that people don't even think about. And and you guys have Facebook, Twitter, LinkedIn, YouTube and the variations of that. I'm sure they can
they can find that on your website. We'll also put all of that information in the show notes, too, so you can just, you know, hopefully go directly to those social networks to get a hold of you guys and get more good information. Absolutely. So thank you, everyone, for joining us. My name is Justin Isaac. Once again, this is overdue Over time. Presented by Summer Shorts, I've been joined by Jason Thompson, where we have talked about a day in the life of a plaintiff. Thank you, everyone,
for listening. We appreciate it. And we'll see you next time.
If you have comments, questions and show ideas, visit Sommers PC. Com overdue Overtime is produced at the IVC Media Lab in San Diego, California. Your host is Justin Isaac. Jessica Garcia serves as general manager, while Elia Ramos is the creative director. Lina Alvarez assists with production and Chad Peace as president and founding partner. This has been a presentation of Sommers Schwartz on the Olas media network.
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