The case of Mallard v. Progressive Choice Ins. Co. beautifully illustrates a point I discuss with all clients who want to make an emotional distress claim, while at the same time illustrating an important SLAPP rule of law.
Sometimes I will get a call from a potential client within minutes after they were fired. They want to sue for wrongful termination and they want to sue NOW!
But 15 minutes after an employee has been fired, what are the damages? When I ask the caller that question, they answer, “I was fired!” Yes, but what are your damages? “I was fired!”
Rather than to go on all day in this fashion, I explain. Damages are something you can put a dollar sign in front of. Being fired is not a damage, although obviously it can CAUSE damages. But 15 minutes after a termination, an ethical attorney should explain that there are no real damages at that point.
If the employee was making, say, $25 an hour, and they were fired two hours before their shift ended, then the damages at that moment they are calling me are $50, at least in terms of lost wages. But let’s carry it out a little. Let’s assume for our hypothetical that the employee had seen the writing on the wall and had already sent out some feelers for a new job before the axe fell. She makes a few calls, and a week later she starts a new job with the same title that pays $30 per hour with better benefits. What are her damages then? Continue reading
I am very selective with the cases I take, and will only represent the side of a case that should win if justice is done. Out of the many cases I turn down every week, I know that most of the rejected clients will continue to call other attorneys until they find an attorney with less stringent standards; an attorney who does not understand defamation law and/or simply does not care about the merits of the case, so long as he is paid. I then envision the horrible train wreck that is waiting at the end of that track.
Today I happened to come across a news story, reporting one of those train wrecks.
The case involved a scorned woman. She worked as a paralegal, and ended up dating her attorney boss. As is often the case when a supervisor dates a subordinate, the situation gets a little sticky when the employee is not doing her job, and the boss must discipline her. In this case, according to testimony at trial, the paralegal made a serious mistake, and after the attorney blasted her over the mistake, she became so belligerent that he sent her home for the day to cool off.
The paralegal would have none of that. She claimed that he had fired her, and sued for sexual harassment and wrongful termination, claiming that he terminated her because she would not continue a sexual relationship with him. He claimed that he never fired her, and that it was he that had broken up with her because she kept telling him he was fat. The attorney counter-sued the paralegal for defamation on the grounds that she was going around telling people that he was a sexual predator.
The result? The jury rejected all of the paralegal’s claims, but awarded the attorney $1.15 million in damages for the defamatory statements. As this is being written, the jury is in chambers, deciding how much to add to that figure for punitive damages.
Lesson to learn? Make sure you can back up your version of the facts before venturing into the legal process, especially if you are contemplating suing an attorney. I never would have taken this case because of the huge holes in the facts. You say you were fired? Can you please produce the termination documents one would normally expect to see in the case of a termination? Had you reported this alleged sexual harassment to anyone prior to the day he sent you home?
[Update] The jury came back and awarded $100,000 in punitive damages. Counsel for the paralegal filed a motion for new trial, with a rather novel theory. Her comments about the attorney being a sexual predator were made to other attorneys. Therefore, her counsel argued, the comments should be protected by the attorney-client privilege. Novel, but I doubt it will fly.