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Plaintiffs Bar Perspective: Outten & Golden's Wayne Outten

Law360

Wayne N. Outten is founding and managing partner of Outten & Golden LLPin New York. His practice focuses exclusively on representing employees. He is co-chairman of the firm’s executives and professionals practice group. Outten’s practice focuses on representing senior employees and professionals in all aspects of employment, including negotiation of employment, compensation, severance, expatriate, and secondment agreements. His notable recoveries include $12 million in a discrimination/retaliation case, $18.9 million in a breach-of-contract case, and $72 million in a compensation case.

Outten's recognitions include “Best Lawyers in America”; Top 100 New York Metro Super Lawyers; Best Lawyer's "Lawyer of the Year 2010" for Labor and Employment Law - NYC and "Lawyer of the Year 2012" for Litigation - Labor and Employment in NYC; Lawdragon's 500 Leading Lawyers in America (2006); Lawdragon's 500 Leading Plaintiff Lawyers in America (2007); and Lawdragon "legend" (2015).

Outten is a founding member and/or leader in many organizations, including National Employment Lawyers Association and its New York affiliate, College of Labor and Employment Lawyers, and ABA Labor and Employment Law Section (chairman, 2015-2016). He has lectured and written extensively on negotiation, mediation and arbitration of employment disputes and on employment and severance agreements.

Q: What's the most rewarding aspect of working as a plaintiffs attorney?

A: The opportunity to use my skills and abilities to help people … that is why I became a lawyer. My practice focuses on representing individual employees with all kinds of employment matters. Clients come to me for help on matters such as negotiating an employment agreement or separation agreement, addressing discrimination, harassment or retaliation at work, or dealing with other workplace problems. My approach is client-centric  understanding the client's wants, needs and interests and figuring out how I can help the client advance those wants, needs and interests. That is personally rewarding; getting paid to do that makes it even better.

Q: What skill do you feel is most important for achieving success as a plaintiffs attorney?

A: Problem-solving skills are most important for me. I consider myself an employee-side counselor before I consider myself a plaintiffs attorney.

Employees come to me with a wide range of workplace problems. Some of those problems can be addressed using legal tools, such as litigation. But such tools, while important and necessary, often are insufficient or ineffective to address employment problems. For example, many employees who experience unfair treatment lack any meaningful legal remedy. Even when a legal remedy might exist, it may be too expensive, risky or protracted to pursue. 

Thus, a "plaintiffs attorney" should be able to use not only the tools of litigation but also the tools of problem-solving. Such tools include listening carefully to understand the client's wants, needs and interests, identifying and developing realistic goals and objectives, ascertaining what leverage the client might have beyond legal claims (e.g., business considerations, personal politics, the psychology of company decision-makers), and developing a plan of action to try to achieve the client's goals and objectives. If those tools do not accomplish the desired result, then appropriate legal proceedings can and should be pursued vigorously.

Q: What advice would you offer to young lawyers interested in practicing as a plaintiffs attorney?

A: Follow your heart ... up to a point. In my view, the ideal is to find a career that you love, while being able to make a decent living. By that standard, representing employees can be an ideal career. Helping people deal with their workplace problems, while sometimes challenging and frustrating, can be very gratifying; and helping protect and advance the interests of working people is personally rewarding.

Unfortunately, some idealistic young lawyers lose sight of the need to run their practices in a business-like manner. Of course, lawyers who chose to represent employees recognize that typically they will not earn as much as their counterparts who represent employers.  Nonetheless, representing employees does not require a vow of poverty, if attention is paid to good business practices (e.g., careful case and client selection, appropriate fee arrangements, finding and retaining good help, delegating to others, and leveraging resources).

At our firm, our credo is "Doing Well While Doing Good ... or Doing Good While Doing Well." That results in a good balance of psychic and financial benefits. And the better job we do running the practice as a business, the better job we can do doing good (e.g., helping more people, doing more pro bono/public interest work, contributing more money to good causes).

Q: What's one trend currently impacting your practice?

A: The importance of written agreements. I spend considerable time helping employees with employment agreements of various types.
Nonunion employees in the United States often lack substantive legal protections in the workplace, unless they have claims under laws that prohibit discrimination based on protected status (e.g., race, gender, disability, sexual orientation) or that prohibit retaliation based on protected conduct (e.g., blowing the whistle on certain illegal conduct). In these circumstances, written agreements represent the best additional source of substantive rights.

Of course, many employees lack the leverage to get formal written agreements. But some employees, particularly executives, have such leverage, particularly when changing jobs. Typical offer letters provide little in the way of enforceable promises. In fact, the offer letters (and related documents) that many employers provide are completely one-sided in favor of the employer (e.g., containing covenants that restrict future employment). 

Employees who have leverage should try to get important promises and expectations on which they are relying set forth clearly and completely in a writing that can be enforced. This requires forthright negotiations and careful drafting and editing. The effort can pay off later when problems arise. For example, an executive who expects to receive certain short-term or long-term cash bonuses or equity grants should try to obtain assurances of payment and vesting if the employer decides to terminate the employment without cause. 

During employment, careful attention to the terms and conditions of documents relating to compensation and benefits can help assure that the employee gets the benefit of the expected bargain; this can be particularly important with respect to commission, bonus and equity arrangements. At the end of the employment relationship, negotiating the terms and conditions of any separation agreement can enhance the economic value of the severance package, reduce uncertainty, and protect the employee's future employment opportunities.

Q: Name a plaintiffs attorney outside your own firm who has impressed you and tell us why.

A: Paul Tobias of Tobias Torchia & Simon in Cincinnati. In the early 1980's, Paul recognized the need for a bar association of and for lawyers who represent employees. Thus, in March 1985, he convened the first meeting of the Plaintiff Employment Lawyers Association, now known as the National Employment Lawyers Association (NELA), dedicated to the interests of employee-side lawyers and their clients. (I was privileged to be one of the members of the original board of NELA.). Paul conceived of and  with the help of NELA's extraordinary Executive Director Teri Chaw starting in 1991  built a network of NELA affiliates around the country. NELA and its affiliates, with more than 4,000 members nationwide, serves as a powerful voice for the interests of employees in the United States.  Paul has been the "spiritual leader" of NELA for more than 32 years.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

(*Prior results do not guarantee a similar outcome.)