Meet the Enemy – In the spirit of “to know them is to avoid them,” HRE invites you to meet some of the most highly regarded and successful employment-law plaintiffs’ attorneys

August 1, 2007

When it comes to plaintiffs’ attorneys and the way they operate, HR has a lot to learn.

At least that’s the opinion of some of the nation’s top plaintiffs’ attorneys. And what you don’t know about them could hurt you.

Such as:  

* Those e-mails you’re getting from a disgruntled manager? They may very well have been written by a lawyer lurking in the background, a lawyer you have no idea has even been hired.  

* That investigation you’re doing of alleged discrimination by your boss — the person who decides your bonus? You can bet that if the case goes to trial, the plaintiffs’ attorney is going to focus on that angle, and tear your credibility to ribbons.

* Those proposed layoffs you’ve been making recommendations about? If your recommendations don’t get followed, a plaintiffs’ attorney could jump on that. And if you’re not making any recommendations at all? The attorney is going to ask, “Where was HR?”

Following the premise that to understand a threat is the best way to avoid it, we asked a number of prominent plaintiffs’ attorneys to reveal some of their strategies and tactics to our readers. Surprisingly, they didn’t mind giving away a few of their secrets because — and this may come as an additional surprise — they say they want to avoid lawsuits as much as you do. Their clients have a wide range of complaints against companies, including alleged discrimination, wrongful termination and pay violations.

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Wayne N. Outten, managing partner of the New York firm Outten and Golden, occasionally speaks to groups of HR executives, including at conferences hosted by the Society for Human Resource Management, and presents his “Top 10 Ways to Avoid Getting Sued.” (Outten’s entire “Top 10” list is on

No. 1? “Be nice to plaintiffs’ lawyers,” says Outten, who is also on Lawdragon’s top 10 list.

“I’m serious,” he says. “When you get a call or a letter from a plaintiffs’ lawyer, consider it an opportunity for communication and problem-solving.”

But, he adds, “too many HR people don’t do that. They get very defensive and they stonewall. They say, ‘We’re right, you’re wrong, there’s nothing to talk about, go away — and anyway, your client’s a terrible employee, and it’s surprising he didn’t get fired before this,’ ” he says.

Outten’s high-profile cases include winning $12 million for a female executive who sued Morgan Stanley for sex bias, and $18 million for two Wall Street bankers who claim they were denied compensation by Deutsche Bank.

But he says most HR executives don’t realize how rarely employee complaints become lawsuits. He says his firm is one of the largest in the country that exclusively represents employees, and fewer than 5 percent of its clients actually go to court.

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A lawsuit can mean an employee will have to testify, which no one really likes to do, and to put his or her friends in the middle of a nasty dispute, which can be even worse. This all takes a heavy toll, which his clients will take pains to avoid.

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Many HR people, the attorneys say, simply don’t believe this. Perhaps they’ve received too many outrageous, overreaching demands. Perhaps they’ve had a particularly bad experience with a hostile plaintiffs’ attorney.

But what HR may not realize, say attorneys interviewed for this story, is that the better plaintiffs’ attorneys go to great lengths to avoid lawsuits, including doing much of their work behind the scenes. “With 50 percent of the clients I represent,” says Outten, “the company never knows I’m there.”

Outten, staying out of sight, coaches clients on how to resolve their disputes. He helps draft responses to performance evaluations and helps craft e-mail exchanges with HR managers.

“It’s not more effective for a manager to know that an employee has a lawyer behind him,” he says. “Once I appear, it changes the dynamics. Things get stilted. My client can talk to people I couldn’t.”

He’ll also coach his clients on how to find allies. “We look for the combination of the best two attributes — the power to help you and the disposition to help you, regardless of title,” Outten says.

The person may like my client, they may be friends,” he says. “We figure out how to get those people to help.”

Outten and his clients will also psychoanalyze the politics and personalities of the bosses and others involved in the case. They’ll ask, for example, “Does the person perceive himself as fair, and does he want other people to perceive him as fair?”

Then, he says, they’ll figure out how to push the person’s ‘fairness button’ — how to persuade him or her to do the right thing. Sometimes, the legal issues will never even be mentioned.

Last year, for example, Outten represented a woman who was the head of HR at a major company — someone who had been on the opposite side of the table from him in previous cases. During a major reorganization, the woman had been asked by the CEO and top management to fire a number of people. Now, she was being forced out of the company herself, with very little in the way of severance.

Outten kept out of sight, but coached her to appeal to her bosses’ sense of fairness. She reminded them that she did what they told her to do, says Outten. “It was a tough and unpleasant job, and they owed her.”

It worked. The woman left the company with “a very attractive severance package,” says Outten.

The plaintiffs’ attorneys are aware that, in recent years, HR has sought to be more closely aligned with top management — to actually be a part of it. And the attorneys are divided over whether that leads to more employee lawsuits.