Litigating to Win Without Breaking the Bank California Association of Joint Powers Authorities (CAJPA) Annual Conference September 17, 2015 Presented by: Suzanne Solomon and Ruth Graf-Urasaki

2 How the Stakeholders in Litigation… Agency representative Outside Counsel City Attorney JPA Can work together to make sure litigation is resolved quickly, in employer’s favor, at lowest possible cost.

3 Documentation is Key Maintain contemporaneous, thorough documentation of key decisions and conversations –Creates accurate record of what happened –Difficult for employee to claim that something else happened –Documents usually more persuasive than witnesses

4 Document Retention Documents should be retrievable Electronic Discovery Issues –Ensure no document destruction upon notice of potential litigation –Courts will not excuse inattention/lack of expertise –Employee s can be very helpful or harmful to litigation

5 E-Discovery Cost of managing E-Discovery Use of internal Case Management Software Using outside vendor to do first-level review of e-discovery

6 Document Retrieval Provide ALL related documents to litigation counsel ASAP Assign this responsibility to one person in your agency. Update the budget and E-Discovery plan depending on scope of E-discovery

7 Initial Case Analysis and Budget Case Analysis –Roadmap for litigation –Based on info available to employer before discovery –Is the basis for JPA and agency to assign value to case –Often evolves as case proceeds

8 Contents of Initial Case Analysis Summary of allegations and facts Analysis of potential liability on each claim asserted in lawsuit Explanation of potential damages Plan for Discovery Assessment of forum and of Plaintiff’s attorney Options for Proceeding Budget

9 Based on initial case analysis Revised if initial case analysis changes significantly Ongoing conversation with client/JPA as value of case evolves Helpful tool for JPA/Risk Pool

10 Budget Consider basing on ABA Litigation Task Codes Task Codes divide litigation into segments: Case Assessment, Pre-Trial Pleadings and Motions, Discovery, Trial Preparation and Trial and Appeal Task codes standardize billings from all firms

11 Budget: Task Codes Use to analyze litigation costs to provide benchmarks for different tasks and track other data, such as comparative performance of firms Allows easier tracking of fees associated with different tasks throughout the litigation

12 Case Analysis and Budget as Project Management Tools Identify the scope and objectives of the litigation. Is there buy-in from stakeholders? Identify the plan for the litigation, with timelines and milestones, responsible team members and costs How will the plan and budget be adapted to changed circumstances?

13 Value of an EPL Lawsuit Amount of employee’s potential damages Amount of employee’s attorneys’ fees and costs Amount of your employer’s attorney’s fees and costs

Hypothetical Race Harassment Case

15 Case Value Changes Over Time Claims dismissed on initial pleadings motion Employee’s deposition Depositions of key employer witnesses Denial of Summary Judgment Motion

16 Assessing Cost Effectiveness of Litigation Strategies What are the potential benefits of a given strategy? vs. What will it cost, and could it backfire?

17 Pleadings Motions – Cost Effectiveness PRO: Eliminates causes of action at beginning of case, narrowing issues for summary judgment or trial CON: Could merely educate Employee’s counsel about defects in their case

18 Discovery Battles – Cost Effectiveness PRO: Obtain key evidence, or prevent discovery of damaging evidence CON: Expense and delay; runs up Employee’s attorneys’ fees

19 Harassment Hypothetical – Deposition of Supervisor Sam Supervisor Sam tells agency lawyers during preparation for his deposition that while he did not use the racial slur on the occasion in question, he can’t say he’s never used that word because, when he was growing up, “That’s what we called them.” It is also clear during the preparation meeting that Sam talks a lot and has difficulty just answering the question that was posed.

20 Harassment Hypothetical – Deposition of Co-Worker Chris While the employer’s attorney is preparing Chris for deposition, Chris appears extremely nervous, takes a long time to respond to questions, and seems like he might be hiding something. It is not clear to the employer’s attorney whether Chris is intentionally hiding something or whether he just has some odd mannerisms.

21 Motions for Summary Judgment – Cost Effectiveness PRO: Eliminate claims and avoid trial of those claims; eliminate individual defendants; create settlement incentive for Employee CON: Very expensive, and runs up Employee’s attorneys’ fees

22 Expert Witness Testimony – Cost Effectiveness PRO: Assist jury where assistance truly needed, such as medical issues or complicated damages calculations CON: Very, very expensive; consumes a lot of attorney time; communications with expert are discoverable; opinions may turn out not to be very helpful

23 ADR – Not If, But When 97 % of cases settle Courts will force parties to attempt ADR

24 Alternate Dispute Resolution (ADR) At key junctures, evaluate whether settlement makes sense –At outset, if liability seems clear –After key depositions –Before moving for summary judgment –After denial of summary judgment –Before beginning trial preparation

25 Harassment Hypothetical – Summary Judgment Fails Employer moves for summary judgment, but the Judge denies the motion, finding that the conduct does meet the “severe or pervasive” standard. The case is assigned to this same judge for trial. Also, Ed gives the employer’s attorney a declaration from a member of the public stating that he witnessed Sam call Ed a racial slur on the day in question.

26 Company May Wonder: Why did we fight up to now if we were just going to later to settle the case?

27 Answer: In order to reduce the ultimate amount of potential liability

28 Different Types of ADR Mediation Binding Arbitration Non-binding Arbitration Early Neutral Evaluation Settlement Conference with a Judge

29 Benefits of Mediation Obtain an experienced neutral’s assessment of your case Good faith attempt to resolve case at logical juncture, so no regrets later Unreasonable Employee or his/her attorney may be swayed by mediator Can involve non-monetary items not available through litigation

30 Aspects of a Good Mediator Has expertise valued by both parties Is not just interested in settling every case to maintain own statistics Is energetic and will continue working when mediation day ends

31 Harassment Hypothetical – Mediation Failed Plaintiff has waived jury trial and wants the judge to be the trier of fact. The judge is the same one who denied summary judgment. He also happens to be same race as Plaintiff. –Should employer agree to have judge be trier of fact? –How would it affect value of case?

32 How You Can Help Attorneys Win at Trial Assign a high level agency rep. to attend entire trial Governing body/JPA must be updated regularly Decision makers should be ready to make major decisions quickly Be prepared for win, for loss, and for response to press inquiries

33 Thank you! Suzanne Solomon Partner | San Francisco Office | Ruth Graf-Urasaki Litigation Manager | Los Angeles Office |