Critical Strategies in Maximizing Damages Awarded At a Jury Trial or at Mediation

Clients are always interested in the value of their case. Why are some cases worth more than others? How do I as a client maximize my recovery at trial or mediation? There are a number of critical points you can do as a client to have the greatest opportunity to maximize your recover in an employment case.

First, you should be aware of all damages that you may be entitled to upon a successful verdict for a wrongful termination case. The major categories are: a) back pay; b) compensatory damages for pain and suffering; and c) punitive damages. Understanding the legal elements to each of these categories can go along way in obtaining a large verdict or settlement.

Back Pay

The basic structure for back pay works as follows. The wrongfully terminated employee is entitled to back pay from his termination date until he or she obtains a job that had the same pay and pay structure as the company from which that employee was wrongfully terminated. For example, let's say that an employee earning $50,000.00 a year was wrongfully terminated on January 1, 2006; was totally unemployed for six months, then obtained a job making $25,000.00. That employee would be entitled to back pay of $25,000 for the first six months of unemployment in which there was no income, then another $12,500 for the following six months of 2006: the difference in what the employee would have been making during that time period less what he or she actually earned. Assuming the employee kept that job, he or she would be entitled to $25,000 a year in back pay until the settlement or trial.

It's important to realize that upon a successful verdict, one of the remedies typically sought is reinstatement into the terminated position. If that remedy is awarded, back pay stops as of the reinstatement date. Many clients are reluctant to return to their former position and it's certainly understandable, given the usual circumstances. As such, the law provides that if circumstances are so adverse for the employee to return to the position, then the court can award, "front pay," meaning it can award the future difference in pay from the terminated position to the position now held by the employee. If that difference in pay is significant enough, it may be well worth it to obtain the services of both a vocational expert and an economist to establish a future sizable front pay claim. However, it is rare that federal courts will allow front pay in lieu of reinstatement.

Don't forget about value of benefits, such as health insurance, retirement plans and the value stock option awards, which many companies offer as employment incentives. That should be included in any back pay analysis.

There are several critical factors which companies are legally entitled to use to offset back pay and clients need to be aware of them. When the company offers unconditional reinstatement as part of a settlement to the claim, back pay stops as of that date.

Also, if the employee engaged in misconduct, for example, he downloaded computer files from the company's server; the defendant can argue that it would have fired the employee for that reason. As such, even if the company became aware of the misconduct following the termination, courts allow the Defendant to use the employee's misconduct as an offset to back pay.

The most common defense to offset back pay is that the terminated employee failed to mitigate his or her damages, by not looking hard enough for a new job. In addition, employees should be careful in passing up new career opportunities even if such opportunities do not have a near identical salary and benefit structure as their prior company.

The best thing clients can do for their cases following a wrongful termination is to create a diary of all attempts made to secure other employment. Be sure the diary includes the name, contact information and dates of contact you made to seek employment at that company. Also, find out everything you can about the companies at which you interview in order to compare salaries and benefits of companies within the same industry. Don't act improperly when leaving a company. Keep in mind of all relevant emails, memos and other documents that your attorney may need in litigating the case, but don't take property to which you're not permitted to have access.