A. INFORMATION TO BE AWARE OF IN EVALUATING THE EMPLOYMENT-RELATED CLAIM WITHIN THE FIRST 30 DAYS OF RECEIPT OF THE CLAIM
1. NATURE OF THE CLAIM:
• Are the eyewitnesses credible and independent?
• What really happened?
• Documentation issue?
• How sophisticated are/is the insured and employees involved?
• Is this a fact-intensive claim?
o Can the case be positioned for a summary judgment?
o This may affect the value of the claim-it may be if a motion for summary judgment would be successful, it may get plaintiff to discuss settlement early.
o If not, do not waste time, effort and money on a motion for summary judgment because plaintiff’s counsel knows if the motion is a loser.
2. SCOPE OF DAMAGES:
• Is plaintiff a wage earner?
• Back and front pay can be huge, so what are the back and front pay amounts?
• Is the plaintiff is a CEO, President, Vice President, etcetera – if so it may be tough because these people have a harder time getting a job and thus the limited pot of money (low policy limits) is eaten up quickly with high front and back pay claims.
• If someone is making a lot of money, that is definitely a factor to look at in evaluating the claim.
3. NATURE OF CLAIMANT:
• Is the Complainant a serial complainer?
• Usually the employer will know if the plaintiff is a serial complainer.
• Does the claimant complain a lot?
• Usually the jury hates these complainers.
• Do they have a history of claims?
• Ask co-workers regarding lawsuits by the claimant (against this or prior employers).
• Evidence of prior employment lawsuits help lower the value of the claim for mediation purposes.
• Is the plaintiff a low wage earner-smaller back and front pay?
• Low wage earner probably can find employment and, if not, they are probably not looking for work.
• Migratory work pattern?
• On the other hand-good reviews, pay increases, promotions and now adverse action? Why? Jury will pick up on this.
• Often happens with sale of company and new owner does this to the old employees. Raises a red flag.
• Despite the employer’s excuse for termination-the jury will not buy it because you let the employee go because they were a high wage earner and because they had been there a long time. Chances are these people won’t find a comparable job making the damages potentially higher.
4. NATURE OF BAD ACTOR:
WHAT IS YOUR SENSE OF THE PERSON WHO ALLEGEDLY DID THE BAD ACT?
• Do you need to check for your wallet every time you meet the alleged bad actor?
• What is the position in the company of the bad actor?
• Is he the owner, CEO, President, Vice President or manager-this takes on a different tone versus a co-worker or supervisor.
• Are they credible/forthright?
• Are they being evasive?
• How will they come over with the jury?
• Is the bad actor willing to shade the truth or lie?
• The case may be weak/marginal but if the bad actor appears to be or is a liar it drives up the price/value of the claim.
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If you have questions or would like to discuss the implications of this report further, please feel free to contact Ronald L. Wisniewski at Cray Huber Horstman Heil & VanAusdal LLC, 303 West Madison, Suite 2200, Chicago IL 60606; 312-332-8824; firstname.lastname@example.org.