A Day in the Life of a Plaintiff | Jason Thompson (pt.2)

Jason Thompson joins the second part of a 2-part episode to examine the day in the life of a plaintiff. Justin and Jason go behind the scenes of how Sommers Schwartz serves as an advocate for employees who have fallen victim to unfair workplace practices like unpaid wages. They discuss the details of preparation for depositions and mediations.

(Originally aired Date: April 4/23)

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Episode Transcript

S1 (00:00):
The statements expressed in the following program are those of
the speaker. They do not necessarily represent the views and
opinions of the sponsor, the host and Olas media.

S2 (00:10):
Olas Media.

S1 (00:12):
This is overdue overtime presented by Sommer Schwartz. And now
here's your host, Justin Isaac.

S3 (00:21):
Welcome to Overdue Overtime presented by Sommers Schwartz My name
is Justin Isaac, attorney at Law, and I will be
taking you on a very interesting ride today where we
are talking about a day in the life of someone
who is suing their boss, suing their company. So I
am also joined by Jason Thompson. Jason, thank you very much.

(00:42):
This is our second episode together and we had a
lot of good information in that first episode. I'm really
excited about this one as well.

S4 (00:49):
Good to be here, Justin. I'm looking forward to it
as well.

S3 (00:51):
So you know what? Let's get right into it. A
day in the life of a plaintiff. This is something
that a lot of people don't really think about this
when we think about suing our boss, when we think
about suing our company, when they've done something wrong. There
is so much of a process that comes along with
this that a lot of people don't take into consideration.
And we're going to kind of go through the details

(01:13):
because it might not be for everyone, but it actually
seems like it's a little bit more straightforward than a
lot of people would think. Is that correct?

S4 (01:22):
It certainly is from the lawyer's standpoint. You know, the
the work that we do is is repetitious from that perspective.
It is very straightforward. We're also very familiar with the law.
We're very familiar with the obligations. We're very familiar with
the process. But, you know, ideally, people don't want to
get in multiple lawsuits against their employer or their bosses.

(01:44):
So for a lot of our clients, you know, this
is a very unsettling experience. You're talking about a controversial
dispute with one of the most important people in their lives,
their employer, somebody who's who's responsible financially for for for
their mortgage, their children, all of their bills. Most people

(02:08):
live paycheck to paycheck, as we hear on the news.
And it's astounding how how much control and influence our
employers have over us because of that space they occupy.

S3 (02:20):
So I believe I know the answer to this question, too,
but I'm sure a lot of people are wondering, are
there safeguards in place if you if you have someone
who comes to you and is potentially going to sue
their boss, they're protected, right. They're not there's not going
to be retribution. I know it's usually a private matter,
but I'm sure there's a lot of people thinking like,
I don't want to do that because I don't want
to get fired.

S4 (02:39):
You know, the podcast that we're putting together, we're going
to spend a whole segment on what it's like to
consider suing your employer, you know, the very topic that
you're talking about. And one of the considerations is the
protection that comes with the Fair Labor Standards Act. Several
other civil rights type statutes, whistleblower statutes, carry the same provision,

(03:00):
and it's an anti retaliation provision which essentially says if
somebody comes forward and exercises their rights under the law,
the employer cannot take a retaliatory action like demotion, making
their job harder and certainly termination as a response to that.
And if they do, that's a whole separate violation of

(03:23):
the statute and gives rise to a whole second cause
of action for additional damages.

S3 (03:27):
Yeah, that's what I think a lot of people are
concerned about who just don't know the law. There are
safeguards in place to protect you for things like this.
If there's a violation and your employer retaliates, that could
mean some big, big damages. And it's definitely not something
that they are going to want to do if that
were to be the case. So let's get right into it.

(03:49):
I guess let's talk about this. Where do we start?
How does this start off and are we starting at
the deposition phase or we what can it prep goes
into a deposition before you are sitting down with someone
who has the rights violated.

S4 (04:06):
Yeah. So today what we're going to talk about is
the point in the process where the worker has already
consulted with their lawyer. They've already made the decision that
they have a good case and that they want to
go forward with the case. The lawsuit's already been filed
and a lot of the preliminary work has already been done.

(04:27):
The important step that we're going to focus on today
is called a deposition, and that's a process whereby the
lawyer representing the employer gets basically a full day, up
to seven hours of questions and questioning of the plaintiff.
So that's what we're going to jump into today is
the point in the process where the deposition has been

(04:49):
scheduled and the lawyer and the client start preparing for
that big event.

S3 (04:54):
Okay. So let's let's start off with that. What goes
into the deposition? What are the things that you're looking for?
What kind of things are you trying to prep for?
Are you meeting with your client or is it just
something that the attorneys are working on? How does that
how does that work?

S4 (05:11):
Great question. So in almost every case, we will have
this event come up, and that's standard for these types
of lawsuits. The deposition, like I mentioned a moment ago,
is really a question and answer session. What's strange about
it is and part of the preparation for our clients
is we have to convince them that it's not literally

(05:34):
a conversation. You and I are having a conversation right now.
We can speak freely. We can exchange ideas. It's an
organic process. The conversation can meander left and right. That's
a disaster for a deposition on a lawsuit from a
from a lawyer's perspective. So part of what we're going
to be doing in the preparation with our clients is

(05:56):
reorienting them to what's actually happening. And that is much
more like being interviewed by a detective. You know, if
you ever watched detective shows or police shows, the detective
already knows basically all of the answers to all of
the questions he's asking the suspect. And what what they're
really doing is determining if the suspect is a liar.

(06:18):
And if they are a liar, they probably have something
to hide. The defense lawyer does a lot of that
same tactics in a deposition. They basically have your full
employment file. They know every day you've worked. They know
every day you've been absent. They know what your reviews are.
They know your rate of pay. They know how many
days you've worked overtime. Yet they'll ask all these questions

(06:39):
of the plaintiff, for example, how many days did you
work overtime? So what they're really doing is kind of
trying to prod and probe and find out where there
might be some confusion, some ambiguity, all in an effort
to have the plaintiff appear weak, appear unorganized, appear unbelievable,

(07:00):
because at the end of this process, if there's not
a settlement and we're going to talk about that in
a podcast, well, there's going to be a trial. And
trials involve assessing credibility and believability. So, again, part of
the preparation is we have to explain to our clients
that this is not a conversation, even though it feels

(07:22):
like it. And you have to you have you have
to understand that when you're being asked questions, you have
to listen very carefully. You have to answer just the
question that's being asked. And so in order to be
able to actually have a a client do that and
do that comfortably, there's probably 2 to 4 hours of

(07:43):
preparation minimum before we go into the deposition. And we
work with them on all of the key issues that
we can anticipate. We practice question and answer sessions with them,
and we make sure that they feel comfortable that, you know,
when they go home tonight, they're going to get as
good a night's sleep as they can, and the next

(08:03):
day they're going to do fine.

S3 (08:05):
You know, it's interesting because this is not the type
of field of law that I practice. I don't do
active litigation. And so I'm learning a lot as we go.
But I'm sure a lot of people who are listening
are also learning because this is not something you hear
every day of how the ins and outs of actual
lawsuits work. And if I think that I'm going to

(08:27):
sue my boss, the last thing I'm going to think
about is deposition prep. And you said 2 to 4
hours of deposition prep. I imagine it's really hard for
some people to wrap their heads around how careful they
have to be when they say something. Correct.

S4 (08:43):
It's kind of like for the men, you know, we say, listen,
imagine you came home late and your wife is looking
at you with that eye and she's about to start
asking you questions. Okay. That's the feeling you want. You know,
when you were a little a little child and you
came home an hour and a half late and there
was mom at the doorstep, you know, there's an old

(09:04):
saying in litigation that mothers make the best cross examiners
in the world because they're just natural at it. That's
what they do for for 18 years while they raised
their children. And that's a good a good analogy. But,
you know, other other clients are gung ho, You know,
the motivation to come forward and actually take on your
employer in a lawsuit comes from a lot of mistreatment.

(09:26):
It's not the first card played for most people. And
so they've got, you know, perhaps years of mistreatment built
up and they finally can't take it anymore. And they
give us a call. So sometimes we have to assess
our clients and realize that they're a little bit fired
up and and maybe we need to calm them down.
Other clients are just short of terrified, and sometimes those

(09:50):
people need a whole different hand-holding kind of process.

S3 (09:53):
Yeah, and that definitely makes sense having your your kind
of overzealous client who really wants to get back at
their employer. And then the the kind of nervous a
lot of people are not great with just speaking in
uncomfortable situations so they kind of shut down and that
would make for a pretty difficult deposition, I imagine. So

(10:13):
we need to make sure that they're staying focused, right,
that they're meeting the objectives. And I don't know if
we have time to talk about. But can we talk
a little bit about how it works in the deposition?
Are you there? Are you asking questions of anyone else
or is it just your client being deposed? Are you
able to challenge certain things? How does that work? Yeah, that's.

S4 (10:32):
A that's a great question. And I'm always surprised that
some of my clients don't assume that I'm going to
be there with them and that they're going to be
all alone with some lawyer in a room answering questions. But,
you know, they do. It comes up at least once
a year. So yeah, the way the process works is
the defense lawyer and myself will pick a day. We

(10:53):
work with the client to make sure that they're available. If,
for example, they're still working for the employer, you know,
the employer needs to give them the day off. If
they're an ex employee, we need to make sure that
their current employer can give them the day off. So
everything's scheduled in advance. That's why we have time to prepare.
Everybody's schedule is is packed these days. So it's usually

(11:15):
set out anywhere from 2 to 6 weeks in advance.
We'll do the preparation leading up to that and then
the deposition will start with at least three, if not
four people in the room. They'll be the client, myself
and the defense lawyer. And then there'll be somebody called
the court reporter who is actually transcribing everything that's said.

(11:38):
Sometimes in today's day and age, we use videographers which
are essentially doing the same thing. There may be a
couple additional lawyers helping out. At times it can get
a bit intimidating for the clients to be in a
room with so many people and they're the focus of
the attention. They don't usually, you know, spend that that
that time or occupy that position. And then the questioning begins.

(12:03):
You know, there's generally kind of three areas the questioning
falls into. There's personal background, employment, background, all the stuff
that kind of led up to the event that's at issue.
The second area really has to do with the problem

(12:23):
that we've alleged. If it's working off the clock, if
it's not getting paid overtime, there'll be a whole series
of questions. What did you do for your job? If
your classification is an issue, whether you were an employer
or an independent contractor, the whole second kind of group
of questions about that. And then finally, it usually comes

(12:45):
back to the damages. And and those those tend to
be more record driven in terms of how much you
were claiming to be underpaid and and whether there was
overtime involved or meal breaks missed. Yeah, but those are
kind of the three main areas. And you know we
touched on it earlier each each one of these questions

(13:08):
probably is something the defense lawyer already has the answer to.
Lawyers are professional question asks, you know, you're a very
good podcast host in part because you're a lawyer, you know,
and you think through how words mean certain things. But
as I learned in my life every day with my
children and my wife, non lawyers, real people, they don't

(13:30):
think that way. They talk and they talk and they talk.
And it's much more of an organic flow event. And
with clients, you can't do that. We typically have them
try very hard to answer questions with a yes no
or I don't know. I tell them those are the
three answers I want to hear the most. You're not

(13:52):
going to get away with that for the entire deposition.
When the lawyer says, describe for me the process of
opening the shop and punch it in. That's not a
yes or no question. But the least we can do,
the better the the less information we convey to that
defense lawyer during the deposition, the better. So keeping it
short and sweet is is is a lot of what

(14:15):
we help our clients do. And then lastly, you know,
there's there's a pace to the deposition. Seven hours is
a long, long time to be focused and concentrating on anything.
You know, we make sure during the deposition to generally
take a break at about the 1.5 hour mark. In
our experience, that typically is when people start to lose

(14:37):
their focus. It's also well known to defense lawyers to
be a very good time to start asking the really
dangerous questions and see if they can get a slip
from the plaintiff or an admission of some sort. So,
you know, we also watch our pace. I'm always there
watching my clients. Some are better than others that all
of this stuff, some can manage the stress better than others.

(15:00):
So sometimes if we need a break in a half hour,
we'll take a break and a half hour. But that's
all the kind of stuff that that we manage as
as the attorneys representing the clients.

S3 (15:11):
It's so interesting to think about something like that because
the psychology of fatigue really does really does come into play. Here.
And just to recap. I'm speaking with Jason Thompson of
Sommers Schwartz. And we are talking about a day in
the life of a plaintiff. But the psychology of fatigue
is very interesting. I read a stat somewhere that said

(15:33):
people who are sentenced before noon in a courtroom usually
have like a 20 or 30% higher, I guess, sentencing
or longer sentence than someone who was sentenced afternoon because
the judge has had their lunch. And and we really
don't think about things like that. But it's really important

(15:53):
because once you get to that hour and a half
spot and people are starting to get tired, starting to
get fatigued, they are more likely to answer incorrectly or
maybe not adhere to what we're trying to do, which is,
you know, keeping keeping the goals in sight, you know,
and do all that prep might just go out the window.
If someone is speaking for too long of a time

(16:15):
period in depositions to me are fascinating. I'm sure some
people have seen depositions of, you know, like Donald Trump
back in the day on YouTube or like Lil Wayne
or that Texas attorney. I don't know if you saw this, Jason,
who they literally stopped the deposition to fight each other.
They got in a fight in the room. But those

(16:36):
those videos are just amazing because you would think that
it it's a lot more straightforward, but it is grueling
to go through, you know, a seven hour deposition. And
I imagine it gets pretty hostile and kind of ugly
at some points.

S4 (16:53):
You touched on so many, so many interesting aspects of
the deposition. And it's you know, it's fascinating stuff for
for me, it's one of the more entertaining and exciting
events in the lawsuit, obviously. I also take a lot
of depositions as an attorney. I don't just defend my
client's deposition. And the type of things you just touched

(17:15):
on are real. And it's the closest thing in the
lawsuit to TV lawyering. You know, when we watch TV
law shows, there's so much that is that is not
common and not real. You know, first of all, a
case doesn't wrap up in 30 minutes or an hour. Right.
But the deposition of all the events is actually fairly

(17:37):
well portrayed on what people see with the TV. There's theatrics,
there's intimidation going on. You talked about hostility. You know,
we we often have clients who are deathly afraid of
one particular supervisor. You know, every office has that person. Right.
And lo and behold, that person can come to the

(17:58):
deposition and you say, well, how could that be? Well,
under the court rules, each corporation can have a representative
at the deposition. And that's in addition to the lawyer
defending the company. And so guess what? The smart defense lawyers,
they'll spend time with their their client and they'll find
out who, you know, pushes the plaintiff's button or who

(18:22):
has a particular history with them. And that person, lo
and behold, will be designated. So here you are, 9 a.m.
You show up at the deposition and the first thing
the client gets is a big punch in the mouth,
so to speak, by having to go sit across their
archenemy at work. And, you know, so there's all kinds
of games and stuff that gets played. I've seen them

(18:43):
all The the Texas video you mentioned is hilarious. Absolutely hilarious.

S3 (18:49):
It is. It is definitely something that made the rounds
for years and years. And that that attorney that was
a part of it was very famous for it. Real quick,
before we move on to the next section, I wanted
to ask one quick question. If you are like say
you're suing your employer or suing your boss and you
have one particular person that you're alleging something against, you
just mentioned a second ago that that person can be

(19:10):
the designated representative. Can the plaintiff request that that person
not be allowed to be the representative? What kind of
rights do they have there for intimidation purposes?

S4 (19:21):
Yeah, that that is possible, but it would be an
extremely high burden of proof and it would require a
preliminary ruling from the judge. And it would it would require,
you know, basically an oppression or some type of an
abuse of process finding by the court. I've never had

(19:43):
that happen before. I have had discussions with defense lawyers
when I knew that that could be a possibility. And
I've never had a defense lawyer push push the envelope,
so to speak, if I've requested that such and such
not be at the depth it's always been agreed to. And,

(20:04):
you know, frankly, while we've talked about some theatrics and
stuff that is kind of bush league and at the
end of the day, most lawyers are professionals. Most lawyers
take their job and their obligation to their clients serious.
And if they if they are taking. In a deposition.
They've got a full day planned. They've got a lot
of work to get done. And so I've never had

(20:27):
a lawyer, you know, throw all that out the window
just for some cheap thrills and theatrics.

S3 (20:32):
Yeah, I think, as you mentioned earlier, the portrayal of
how this all goes down, where you have one over-the-top
great attorney who just says the right thing every single
time and catches him in a lie. And then you
have your kind of, you know, jerk attorney who downloaded
their diploma off of Google and doesn't know what they're
doing or is intentionally being, you know, difficult to deal

(20:55):
with and whatnot. But okay, so well, that's depositions. That's
really cleared up a lot of information. Where could we
send people to go to learn more or to get
more information about depositions?

S4 (21:08):
Well, I'm sure there's a bunch of videos that you
mentioned on the Internet, what isn't available on the Internet,
but they are pretty unique situations. And we spend a
lot of time at Sommers Schwartz with our clients preparing them for
the depositions. I know some lawyers at my firm have

(21:28):
old VHS tapes going back in time that the they
give their clients to watch at home before their prep session. And,
you know, there is there is some examples of what
an objection is, how to answer yes and no, how
to how to avoid saying too much. What happens if
there's a surprise? You know, for example, you can't just

(21:51):
walk out of the deposition because a surprise popped up.
You know, you actually have to finish it. Most most
lawyers are very familiar with the rule that if I
ask a question, we don't take a break and you
don't consult with your lawyer until you answer the question.
As soon as you do, we can take a break. So,
you know, we we we do preparation for a reason.

(22:14):
There's just a lot of of of surprises that can
come up. And as they say, the antidote to all
that is is preparation. I would say to there are
a fair number of common misunderstandings that we we touched
on already here today. But it's surprising how many people don't,

(22:34):
you know, have a full grasp of of what's actually
at stake in the deposition or what their role is.
So I'll give you a couple examples. Sure. Some of
our clients feel like this is the trial. They feel
like they've got a win. This deposition. And I've always
been surprised how many people feel that way. On hindsight,

(22:56):
it makes sense. I mean, they are the focus of
the attention it is feels like it's all about them.
So we go through the whole process of the of
the case for filing the lawsuit to the deposition and
then ultimately the trial just to demonstrate to them that
this is not trial. And the big message and kind
of the big misunderstanding is you actually don't even need

(23:17):
to win this. You're probably going to walk out of
the deposition feeling like you lost. And a lot of
our clients are very surprised when I say that. But
once we go through the process and explain to them
that it's not a conversation, you don't get to just
say what you want, you have to wait and listen
to the question being asked. Then they understand the power imbalance.

(23:40):
The power is all on the side of the defense
lawyer or the lawyer asking the questions in the deposition.
It's a very lopsided and unfair situation and it's designed
to be that way. So I assure my clients, look,
there'll be depositions that I'll be taking of your supervisor
or your coworkers, and they also are going to feel

(24:02):
very unfairly treated. Those are lopsided depositions in our favor.
So don't feel like you've got to win this case.
In fact, if you get done and you feel like
you kind of got beat up, that's normal.

S3 (24:14):
Yeah, that makes sense to I think that that's a
very interesting thing. Do you have any any stories that
you want to share with us about what's actually happened
in a deposition? Anything, you know, any quick stories that
something really crazy that people would want to hear?

S4 (24:29):
Well, you know, after 30 years of practicing law, I've
probably sat through 500 or more depositions. We could have
multiple podcasts. Luckily, I haven't had myself filmed like the
Texas lawyer and getting into a fight, although I have
sat at a deposition where that was threatened, really, you know,
most most of the depositions, though, really are not all

(24:52):
that terribly entertaining. They involve professional lawyers who are doing
their job. These types of cases are not criminal cases.
No one got murdered. These aren't divorce cases that can
involve a lot of salacious experiences. At the end of
the day, we're talking about something very important, which is
being paid fairly and honest day's pay for a honest

(25:15):
day's work. But it really does come down to a.
Fairly straightforward questions and answers. It's it's it's nothing that
would be concerned about if I was a worker. These
are cases that really turn on very concrete facts and records.
And there's nothing all that salacious or scary or dramatic

(25:36):
that happens to our clients. And so consequently, I don't
have a whole lot of great cocktail stories or war
stories to be able to to to roll out here
today on the podcast.

S3 (25:46):
Well, everyone can find that on on YouTube, I'm sure.
But that's there's definitely some good information in what we
just talked about, too. So I am speaking with Jason
Thompson of Sommers Schwartz, and we're going to put the the
website in the show notes, but the website your, your website,
I believe is Sommer s pc That's s o mmers pc. Com.

(26:11):
If you have a claim, if you feel like you
need to sue your boss or your employer and you
need more information, it's definitely time to reach out and
and see if you have a viable case because as
Jason was mentioning, there's a lot that's going to go
into it and there's a lot of prep work and
we don't want your rights to be violated. So, you know,

(26:32):
after the deposition phase, what's next? What where do we
go from there? It doesn't go straight to trial. Right?
I'm and a lot of people think that everything goes
to trial. And we talked about this on the last episode,
I believe. But I think the stats are about 5%
of cases go to trial. Everything else is resolved before trial.

(26:53):
So we get the deposition done. We've done all the
prep work, we've sat through the seven hours. What's the
next step from there?

S4 (27:00):
Okay. So this podcast we're talking about kind of the
day in the life of a plaintiff, and we started
off with one of the most important events for the plaintiff,
which is their deposition. And the next phase would be
all of the depositions that I would be taking their
coworkers and supervisors and people on the employment side. Typically

(27:25):
our clients do not attend those with us. So one
of the nice things probably to convey is the 2
or 4 hours of prep for your deposition and your
one day of deposition. That's about it. From this point forward,
in terms of the client's involvement, in terms of disruption
of their lives, in terms of having to relive this
this event from this point forward. The lawyer, myself and

(27:49):
my partners are the ones doing all the work. And
we're finding out information by taking depositions ourselves. We might
be working with experts who go through all the data
and figure out if you had this amount of time
what would happen to the ultimate payroll for the defendant.
And then ultimately where you want to get to Justin

(28:11):
is mediation. That's the next point in the timeline and
the next event that I think would would be of
interest for kind of this topic of a day in
the life of the plaintiff.

S3 (28:22):
Yeah, So and mediation is very, very common. A lot
of people don't know exactly how it works, what it means.
They just know that, you know, one Soto with the
Padres just went into mediation or arbitration and, you know,
is mediation and arbitration synonymous? How how does that all work?

(28:44):
And who sets up the mediation? What's the process there?

S4 (28:49):
Okay, so why don't we talk about a few legal terms.
You mentioned trial. You just mentioned arbitration. And of course,
we're going to talk about mediation for purposes of today.
So in reverse order or trial is what you see
on TV and in movie think everybody realizes that, you know,
there's a jury or a judge who sits as the
Trier fact. The judge oversees the the calling of witnesses

(29:15):
and taking of evidence. And ultimately, you know, a jury
is deliberates applies a lot of the fact and there's
a guilty or innocent finding in a criminal case or
a money damage award in a civil case. We're not
talking about trial today. Arbitration, real quickly, is kind of
a substitute for trial. Trials. Take a lot of time.

(29:36):
They're extremely disruptive. They're expensive. And so arbitrations, you know,
probably 30 years ago, right when I started practicing law
started to become a a common substitute for trial. There's
a whole nother podcast we're going to do about trial
and arbitrations later. But arbitration is is where you have

(29:59):
1 or 3 typically either ex judges or lawyers, and
they will decide the case. It's kind of a mini
speedy trial. It can take a half a day or
maybe a week. Typically they're done in a day, though,
and and it's much less disruptive again. We're not doing

(30:20):
arbitrations today. We're not talking about arbitrations today. So the
third item and what we are going to talk about
is mediation. And mediation is an effort to try to
settle the case. It cannot be forced on anybody. It
has to be voluntarily agreed to. And both sides typically
discuss who will serve as the mediator. They'll discuss what

(30:46):
claims are going to be on the table, maybe all,
maybe some. And they'll set a date for the mediation
and a location for the mediation. Small little change post-COVID.
Is that a lot of mediations now take place by Zoom.
So where we used to fly to distant cities that
no longer is prevalent and a lot of these get

(31:09):
done on Zoom. And so that's how mediation comes about.
And it's a so basically it's a voluntary process. We
can talk about all the process involved in that today,
but it's a voluntary process with a third party who
tries to facilitate a settlement. Last thing I'll say in

(31:29):
this kind of definitional section is the mediator has zero
authority to decide the case, whereas an arbitrator decides the
case or an arbitration panel.

S3 (31:41):
So a couple of questions that come right off the
bat before we get into how it all works. Is
there an advantage to going to mediation from a plaintiff
side or is it a disadvantage?

S4 (31:55):
Well, it's it's advantageous to both sides. So let's talk
about it from both perspectives, the plaintiff and the employer.
The advantage is it can reach a a settlement. Settlements
are not where somebody wins and the other party loses.
That's what trial is. And that's often what arbitration is.

(32:18):
There's winners and losers. Settlements are in between. A good
settlement probably is where both sides feel like they lost.
You know, it's a compromise by nature, but everybody gets
to go on with their lives. You know, a lawsuit
is a terribly disruptive event for everybody. It's disruptive for
both sides. And so one of the big advantages of

(32:40):
mediation is it promotes settlement. You know, it is it
is an opportunity for everybody to check that day off
on their calendar, get prepared to address the case, come
into the exercise with an open mind or as open
mind as you can be, assisted by a third party

(33:01):
who can help get past egos, frustrations, misunderstandings, maybe get
past the lawyers who aren't helpful. You never know. And
everybody really gets focused for the day. They're typically a
day long event and gets focused on trying to get
the parties to settle. It saves a lot of money

(33:21):
in the end as well for both sides, mainly the
defense and the lawyers getting paid by the defendant and
the company. That saves them a lot of money. So
there's a lot of advantages to the mediation and it
really has become a common event in just about every
single wage in our case that we file.

S3 (33:42):
So when you're choosing a mediator, I guess you said
they both parties agreed to the mediator. What do you
looking for? Do you have someone that you usually will
go with? Are they national or are they state specific?
How does that all work?

S4 (33:57):
Yes, to all the above. So it's it's a very
unique experience. There's not a one size fits all. Typically,
at Sommers Schwartz , we handle class action cases or collective
action cases that involve many workers. You know, could be hundreds,
tens of thousands. And so the defendants that we end

(34:21):
up suing are typically nationwide, or at least involve several
states worth of workers. So one of the criteria that
we always insist on is that the mediator be well
versed and he or she understands what it takes to
get a class certified, because what happens is during the

(34:42):
mediation process, each side will argue their strong points and
why they should win and the job one of the
jobs of the mediator is to push back. And so
the mediator is not going to just listen to what
I say in the mediation, but they're going to, along
with my client, demonstrate how we could lose the case.

(35:02):
And one of the big ways that we can lose
the case is to not get a class certified. You know,
we could talk about that in a whole nother podcast,
but essentially you've got to convince the judge that there
are many, many people who essentially have the same case
based on the same facts, and we'll use the same evidence.
And if you. And convince the judge of that, then
the judge has the option of certifying that one person's

(35:24):
lawsuit as what's called a class action. And that class
action will then be binding on everybody who fits that
same definition. So if they're all assistant managers, you know,
at the Home Depot store or they're all factory workers
at certain plant for Ford Motor Company, that's that's what
we do. And so we always want a mediator who

(35:47):
understands how a case gets certified and what those arguments
involve so that the defendant, you know, doesn't get to
run right on us and try to convince them that
we're never going to get past that threshold. So that's
that's one of the main criteria. The last criteria is,
is again, kind of subjective, but you want to have

(36:08):
somebody who's got a good understanding of human nature. They're
not calling balls or strikes. They have no authority to
decide the case. You know, they really have to deal
with psychology. They have to be able to read a room.
They have to be able to understand the pace of
the day. And they're trying to cajole everybody into taking

(36:33):
a step forward. You know, if I get this, will
you take a step forward? And then they go the
other room. You know, we're in separate rooms, by the way,
during this whole process, you're not. Oh, really? One courtroom together? Yeah,
you're always you're always in separate rooms. And the mediator
does what's called shuttle diplomacy, or they go back and
forth between the rooms. And so you want somebody who,

(36:55):
you know, has either a lot of experience dealing with
people or has a proven success rate in getting settlements.
Sometimes those are ex judges. Sometimes they're just ex lawyers
that were were successful in their practice and are now
much more interested in working out settlements and are very

(37:15):
good at working with people. There's there's two there's two
different rooms, but there are endless numbers of personalities that
can fill those rooms.

S3 (37:25):
Yeah, and that makes sense. Actually. I never thought about
that because, you know, I think of the movie Wedding
Crashers and Vince Vaughn and Owen Wilson are mediators, I guess,
between two couples who are a couple who's getting divorced
and they're arguing in person and it's highly emotional. But
being in separate rooms, it makes a lot of sense.
I guess you get your steps into which is is great,

(37:46):
but I never really thought of it that way. And
it does make more sense for everyone to be separate.
But I imagine that there's going to be times where
you spend time with this person. Then you take their
kind of request demands, go to the other person and
see if you can meet in the middle on like
each individual issue. So that that makes a lot of
sense when you when you really think about how it

(38:07):
all works out. But just to recap to we are
doing a day in the life of a plaintiff. We're
covering a lot today. You can reach out to Sommers Schwartz
directly Sommer spc.com sommers pc. Com that's going to be
in the show notes and I'm joined by Jason Thompson

(38:28):
once again My name is Justin Isaac and we are
in the middle of talking about mediation and how that
is different, how that is probably a very desirable thing
to get to because what would you say percentage wise,
how many mediations lead to actual settlements?

S4 (38:43):
Oh, the vast majority. You know, again, if you've if
you've selected your case properly, which which we like to
think we do, if you've properly worked up the case,
meaning you've completed all the depositions that we talked about
earlier and you've exchanged all the documents and you've consulted
with your experts, your economists, and you have a good

(39:04):
understanding of of what a trial would look like. And thirdly,
you've selected a mediator who is skilled and he or
she's experienced in all of the right areas. You know,
the table's kind of set. Justin, for success. You know,
it takes a dance partner, right? So, you know, on

(39:27):
the plaintiff's side, you can't walk in and expect you're
going to get 99% of your damages or 95%. You know,
a case has defenses and there's there's always a chance
you can lose. On the other hand, as an employer,
you know, they can't walk in expecting to pay a
dollar or $10. You know, they have to understand and

(39:50):
be and be open to the concept that they could lose.
If all those things come together, then then you should
be able to settle the case. And I would say
that we probably are successful in our mediations 90% of
the time. Now that might seem kind of high, but
that would account for cases that for whatever reason the

(40:12):
judges have already kicked out and we've lost, um, that
would account for cases that we might settle. For mediation.
I mean, some are just easy cases and they just
need to be kind of processed. So by the time
you get those off of the table, I think we're
probably close to about 90% success in our mediations.

S3 (40:31):
Yeah, that's a I imagine that it's advantageous to everyone,
you know, because lawyers are very expensive. We want to
expedite the process. No one likes going through trial. It's stressful.
It's terrible. And and mediation is ideal when you have
a situation where you can kind of wrap things up
pretty quickly. It sounds like, you know, in the negotiation

(40:53):
process between the two rooms, it's probably a day like
similar to a deposition where it's long and it's stressful.
But if you both have both parties who are kind
of like, all right, I can budge here and I
can budge there, it almost feels like when you go
to mediation, everything is common sense at that point, like,
let's just get through this. Let's not be emotional. Let's,

(41:17):
you know, resolve our issue and kind of go our
separate ways. But do you have in the mediation, do
you have your clients with you and do you do
if they are with you, are they I'm assuming they're
with you because you have to ask them if they're
willing to concede on certain things. But it's not the
same prep as a deposition because you're not in the
same room.

S4 (41:36):
Yeah, it's it's it's always important for us to have
our clients either with us physically or reachable by phone.
Because what what typically happens is we get to the
point where there's some type of a compromise to be made.
You know, it could be that some of the claims
are going to be dismissed and not paid. Others are
going to be paid. You know, it could be that

(41:58):
some states are going to get paid more because they
have better laws than others. It could be that the
time period shrinks, you know, instead of three years of wages,
it's going to be a year and a half. These
are all examples of compromise. And so when we're representing
a group of workers, you know, a class and a

(42:20):
class action, we don't just have one client to address.
We don't just speak with one client or take direction
from one client. Our responsibility is to the entirety of
the class. So the client is there, either physically or
at least by telephone, to serve a couple purposes. Number one,

(42:42):
nobody knows the facts better than the actual client. They
worked at the shop or in the industry. They understand
who is on the other side of the case. They
have the best factual experience available. And so they often
help spot, you know, areas that perhaps the mediator isn't
catching or, um, misstatements that the defendants have made that

(43:09):
for some reason still haven't come up during the case.
And so they're very helpful that way. The other way
that they're helpful is they are kind of the sounding
board for what's a fair compromise. You know, the law
doesn't just let the lawyer settle these cases. If we
get to the point where we think that's a fair
compromise and that in our learned opinion, the settlement should

(43:32):
go forward and should be reached, we express that to
the clients, but ultimately they get a say and they
get to say, you know what, this isn't fair. This
isn't enough. Maybe we don't settle that day. Maybe the
mediation goes on to another day. But ultimately, the judge
is going to want to know from both of us,
from the lawyer, the class action lawyer, which is me

(43:55):
and from the class representative, the plaintiff, what their view is.
And then ultimately he or she, the judge has the
final say on whether or not that settlement is going
to be approved. They all need to have court approval. So,
you know, we need to be able to tell the
judge at the end of the process that the client
was involved, how they were involved. The client usually fills

(44:19):
out a declaration, a written set of statements as to
as to what they did as the representative, that they
oversaw the case. They monitored the case. They were kept
advised of the of the progress. They had their questions answered,
whether they attended deposition, whether they attended the mediation, and

(44:40):
ultimately that they understand this is the settlement X, Y
and Z and that they approve it. So, you know,
it's a it's an important role and it's an important
time for somebody who has an important role during that mediation.

S3 (44:54):
And I guess that leads me to the next kind
of question, because we started off talking about depositions. We're
talking about mediation at this point, and we're kind of
getting towards the end of a quote unquote, a day
in the life of a plaintiff. We've had those first
two kind of parts of their case. And the final

(45:15):
part of the case after you get through mediation, say mediation.
Is successful. You kind of alluded to that the judge
has to really sign off on everything the the plaintiff
has to or the class representative. If we have a
class certified in a class action lawsuit, the judge is
going to you mentioned that the judge would speak to

(45:36):
the attorney you, but also the class representative to make
sure that this is exactly what they want, that their
rights are met and and that they've done everything in
the best interest of the class, I would assume. Has
there ever been a time. Sorry, I know I like
these specific examples. Has there ever been a time where
you went through the whole mediation process, you had everything

(45:58):
agreed to, and then the class representative kind of changed
their mind the next time they spoke to the judge
when it came to the concluding process. Has that ever happened?

S4 (46:07):
Yes. And it's never a good day.

S3 (46:10):
No, it doesn't sound like it would be.

S4 (46:12):
No, it's not a good day. You know, imagine you're two,
three years into a into a lawsuit in the time
you've put forward, You know, from both parties perspective, some
from the class representative client's perspective. It's a bad day
from the lawyers who have who have worked for free
for 2 or 3 years. We don't get paid. We

(46:32):
work on a contingent fee, like all plaintiff lawyers. And
we've probably put in anywhere from, you know, 20 to
$100,000 of our own money to fund the lawsuit. It's
not a good day, but that's the system. And it's
it's much like many things in our government in America,
it's a checks and balance kind of system. So, you know,

(46:55):
what ends up happening is if we walk out of
the mediation, you know, there's a couple of ways that
can end. Either there's no deal and everybody goes back
to litigation and maybe has a second mediation at some point.
There's an individual settlement for just the class representative or
there's a group settlement, you know, either a collective or
a class settlement. So let's assume for purposes of your

(47:19):
question that we end the day at the mediation with
one of those group settlements where it's either it's going to,
you know, include a lot of people either as a
what's called a rule 23 class action or a 216,
B collective action. And we can talk about the slight
but important differences between those two. So we go home and,

(47:40):
you know, sometimes there's buyer's remorse. You've heard that phrase before.
Someone buys something and they later go, okay, I don't
I don't think they should have done that. Well, you know,
if the client has that, they usually let us know.
And so we'll we'll engage in some conversations with them,
kind of remind them about all the problems of the case,
you know, and why we compromised. And usually that works

(48:04):
because again, if you've set the table properly before the mediation,
you've done the preparation, everybody is prepared to compromise. And
you have good lawyers and you and you've taken the
enough depositions, you are set up for success. And if
success happens, it probably happened for a good reason. You
didn't just stumble into it, you didn't just have a

(48:26):
bad day. So sometimes we just have to remind the
class rep or the client, look, this is this is
what we did. Remember at noon, this happened. And then
remember at 3:00 this happened and what we did and
and they usually, you know, kind of come back to
that place in their mind where they were when the
settlement took place, but not always. Right. So in in

(48:49):
in some instances, they don't agree. So what happens in
under the federal law is the group settlement, if you will,
requires each person to opt in. So they actually have
to exercise their right once they hear about the settlement
to to actually opt into it. There's a variety of

(49:09):
ways they can do that and times they can do
that in the case. But at the end of the day,
they essentially have to exercise and voice their their right
to join the settlement. The Rule 23 class actions come
under state law and they're exactly the opposite. So under
Rule 23, if you don't do anything, you're automatically in

(49:31):
to the end of the case and into any settlement,
you're included there. If you want to be excluded, you
have to send in a form and it's called an
opt out form, and you have to exclude yourself by
a certain deadline if you do not want to be
part of the case or do not want to be
part of the settlement. So in your instance, if we

(49:51):
had a mediation that resulted in a settlement and it
was a Rule 23 class action type settlement under state law,
then notice would go out to everybody and everybody would
have their chance to opt out or be bound by it.
So if the class representative decides it's not a good settlement,
we have to decide are we going to go forward

(50:13):
and recommend it to the judge, despite the class representing. Natives. Objection.
And be able to say to the judge, look, we
have a disagreement. Our obligation is to the larger group.
Here's the 10 or 15 reasons why we believe it
is a good settlement. The class representative now disagrees. And
here they are. And they can say their their piece.

(50:34):
And ultimately, the judge, again, has the ultimate authority to
decide whether to accept that settlement or not. And they
can accept it even over the objection of the class representative.
And it can go forward. Now, we may have to
get a substitute class rep at some point to, you know,
kind of dot the I's and cross the T's. But
they they can accept it at the same time. Maybe

(50:56):
the judge sides with the class representative and says, you know,
I don't like this settlement. Um, you have not explained
to me why it only goes back one year instead
of two years. What's the answer to that? They may
have a lot of questions. You know, you haven't explained
to me, Mr. Thompson, why it only includes part of

(51:17):
the bootup process for the computers, but not the checking
of the email at a later date in time. I
don't understand. And they ultimately believe that we have not
settled what's called a fair and reasonable settlement. Then they'll
deny it. Interesting.

S3 (51:34):
And that brings up a lot more. I know that
there's a lot of details that comes into the finishing
of this case, and a lot of people probably wouldn't
think about this. You know, when you're in the day
in the life of a plaintiff, you know, you you're
kind of setting the table for everything to what to
expect as far as, say, that the settlement is successful. Right.

(51:55):
And now we have a 10 million judgment or something
like that for all this huge class. How do the
payments work? Does the person who was the class representative,
do they get a little bit more? What's that process
usually like and how long does it.

S4 (52:12):
Take part of the settlement? It's called a motion. That's
where you submit the settlement in writing and you request
the judge to to decide if it's fair and reasonable.
You have to also explain to the judge how the
settlement monies are going to be distributed. It may be
that they're distributed based on how many work weeks a

(52:32):
person has. So if Justin has 30 work weeks during
the class period and Jason has ten, I you should
be getting probably three times as much money as I am. Right?
So if it's based on a work week, sometimes it's
broken down in more detail. Sometimes there's some amount of
money for hours worked under 40, whereas there might be

(52:55):
additional funds. If you worked over 40 to account for overtime.
There may be different aspects of the job and we
may decide that some aspects are really bad cases, but
we're going to get those people some money. Whereas other
aspects of the job were really, really good, strong cases
and those people should get the bulk of the settlement dollars.

(53:16):
So that whole process is part of the mediation we
talked about. It's part of the settlement agreement. It's not
just everybody gets 50 bucks. You know, they're a lot
more complicated than that. But we have to explain that
to the judge as part of that approval process. And
then what typically happens is the defendant will write a check.

(53:36):
You know, that check will go to pay for all
of the funding available to the workers. It will pay
for the attorney's fees because we haven't been paid along
the way and it'll pay for any of the court
approved costs that that have been expended. So once that's done,
we typically hire a third party called a claims administrator.

(54:02):
These are companies that do settlements and run these settlements
and administer the settlements all the time. It's their full
time job and they'll get a copy of the settlement agreement.
They'll meet with the lawyers on the telephone or in
person to go through those criteria that we just talked
about so that they understand how many people fit in.
Group one, group two group three. There may even be

(54:26):
a claim form, some type of a question and answer
form that goes out to every class member that they
have to sign and maybe provide some information. You know,
did you ever have to boot up your computer prior
to your shift? Yes or no? Those claim forms will
then come back and the settlement administrator will read them

(54:47):
and decide what group you fall into. There could be
some discussion about that. But at the end of the day,
when that process is done, then the money that's available
for the settlement will be allocated to each person based
on their claim form or based on their criteria. And
essentially checks then go out to all of the workers

(55:09):
based on that. So your question was, would the name
plaintiff perhaps get some additional funds? Yeah. So typically that.
Does happen, but it is completely discretionary to the judge.
There is no flat out right to demand additional payment
for the plaintiff. But most judges in class actions today

(55:33):
in America do make an additional award amount for the
named plaintiff as a reflection of two things. One, having
the courage to step forward and sign their name to
the lawsuit. That's a courageous thing to do. You face
perhaps perhaps blackballing at work or being shunned at the

(55:53):
community events. That's that's something that the courts understand is
necessary in order for these laws to be enforced. They
don't just self execute. Someone actually has to file that
lawsuit and actually win. And then of course, the second
piece is how much time they've spent. You know, did
they just talk to the lawyer for a half hour?

(56:13):
And three years later, there's a check? Or did they
actually have to spend time explaining the job, explaining the
steps that were necessary, explaining the documents? Did they sit
for a deposition? Did they prepare for mediation and they
attend mediation. The more that we can demonstrate that the
class representative actually did to assist the case, the more

(56:33):
likely it is that the court will award that additional
payment that you referenced.

S3 (56:38):
And if I were to get a check, say I
was part of a class action, am I paying taxes
like I normally would on wages?

S4 (56:46):
Absolutely. Absolutely. These are wage and hour lawsuits. And in America,
there's only two things, right, that are certain, death and taxes.
And so wages are taxed. We have two options on
how to characterize the payment. On an earlier podcast, we
talked about how the law provides for liquidated damages or

(57:09):
double your damages. So half of the damages are arguably
penalties that aren't wages. And most tax experts would tell
you that that's not taxable. So we typically divide, say,
your $2,000 check, your settlement check as half wages and
half penalty, and then you would get a W9 for

(57:30):
your your wage portion of that and it is taxable.
At the same time, the employer has to pay withholding
on these as well. So there's a withholding provision whereby
the employer would contribute that part of the of the
taxable amount owed on the settlement as well.

S3 (57:50):
Wow. There's just so much that goes into this. It's
it's crazy. Like the fact that we started at the
beginning of this podcast talking about depositions and then mediation
and now settlement. I feel I feel like I'm ready
to go through with the lawsuit. I'm just joking, of course.
But it's really interesting because no one really gets this
kind of breakdown. No one thinks about the details of

(58:13):
if I'm going to sue my boss, if I'm going
to sue my employer. All these things go into it
on the attorneys side, on the plaintiff side, you know,
a day in the life of a plaintiff, it could
be very, very stressful. It's not just a day, that's
for sure. It's we probably should have named it a
week or a month in the life of a plaintiff
because it's such a lengthy process that has so many

(58:35):
checks and balances to make sure that there's a lot
at stake here. We want to make sure everyone is
not having the rights violated and through the whole process
of the court process to of not having their their
rights violated as well. So this has been a this
has been an eye opening episode for me. It's really interesting.
And thank you, Jason, for everything. We really appreciate all

(58:58):
the information. I have so many more questions. I just
know that we're going to have so many more episodes
to talk about them. I have to kind of hold
them back right now.

S4 (59:05):
Well, I'm glad you came up with this topic, Justin,
and everyone should know it was your idea. And when
you came up with that title, I immediately had the
same reaction that you just voiced, which it's not a day.
But then as I thought about it more, the plaintiff
involvement in these lawsuits is really a series of days.
And kind of what we talked about today in an

(59:26):
earlier podcast are those days, those those specific events. You know,
the deposition is a day, the mediation is a day. So,
you know, the topic is fantastic. I think breaking it
down into bite sized days is not only something that's manageable,
but it actually fits. And most of our clients find

(59:47):
at the end of this process, even if it does
take two solid years, really was worth it. It was
not that terribly inconvenient. They were, of course, well represented.
Mean We take very good care of our clients. They're
very important to us. And at the end of the day,
as I said, these laws are not self-executing. You know,
the only thing that stands between an employer, a company

(01:00:11):
that's trying to steal wages from their employees and accountability
is a is a worker who says. I'm standing up
for this. I'm going to go forward and blow the whistle,
if you will. And we really are doing the the
final work to hold these employers accountable and make sure
that people are paid for every hour that they work.

(01:00:33):
And we can't do it without clients. If the client
isn't isn't feeling comfortable and understanding the process and willing
to come forward, then there is no accountability. And every
business that I've ever been associated with, anybody I've ever
talked to that runs businesses will tell you that one
of the largest costs is labor. And so there's a

(01:00:54):
natural incentive to to cheat that maybe cut corners or
just outright steal from the workers. And and that's why
this law was was passed back in 1938 and why
it's still alive today.

S3 (01:01:08):
And that's why you guys are here, to make sure
that those laws are enforced. So if someone is listening
to what we just talked about or has heard anything
that really piques their interest about maybe needing to bring
a suit against their boss, their employer, where would they
go to find you?

S4 (01:01:24):
So our website is easy to get a hold of.
It's w w w dot summers s o mers p c.com.
And we have a bunch of information. We have videos,
we have past cases, of course, bios from all of
the lawyers and anybody who wants to go to summers

(01:01:45):
PC should be able to find out more than than
they ever wanted to about waging our lawsuits and how
they work.

S3 (01:01:52):
I think a lot of people will probably want to
know more, which is why we're going to keep doing
these podcasts about in episodes about this information, because there's
just a lot that goes into it that people don't
even think about. And and you guys have Facebook, Twitter, LinkedIn,
YouTube and the variations of that. I'm sure they can
they can find that on your website. We'll also put

(01:02:13):
all of that information in the show notes, too, so
you can just, you know, hopefully go directly to those
social networks to get a hold of you guys and
get more good information. Absolutely. So thank you, everyone, for
joining us. My name is Justin Isaac. Once again, this
is overdue Over time. Presented by Summer Shorts, I've been
joined by Jason Thompson, where we have talked about a

(01:02:34):
day in the life of a plaintiff. Thank you, everyone,
for listening. We appreciate it. And we'll see you next time.

S5 (01:02:45):
If you have comments, questions and show ideas, visit Sommers PC.
Com overdue Overtime is produced at the IVC Media Lab
in San Diego, California. Your host is Justin Isaac. Jessica
Garcia serves as general manager, while Elia Ramos is the
creative director. Lina Alvarez assists with production and Chad Peace

(01:03:05):
as president and founding partner. This has been a presentation
of Sommers Schwartz on the Olas media network.

S2 (01:03:16):
Olas Media.