The decision to sue your current or former employer is not one you should take lightly. Before jumping into such a lawsuit, many have one question at the forefront of their minds: how long does an employment lawsuit take? An employment lawsuit moves in several stages, each of which takes considerable time and demands varying degrees of involvement from yourself and your attorney.
Here is a brief primer on what to expect should you file an employment law claim. Since litigation is complicated, lots of unexpected issues may arise that are too lengthy to discuss in this article. However, in our experience, the following gives you a good general idea of how most lawsuits proceed.
The Beginning: Pleadings, Around 1.5 to 2 months.
Your lawsuit kicks off with the parties filing documents called pleadings. As Plaintiff, your attorney initiates the suit by filing a Complaint in the superior court for the county where you were employed. A Complaint contains a numbered list of factual allegations describing the unlawful conduct you claim was committed against you by your employer. For instance, if you are filing an age discrimination claim, your Complaint might detail how your manager gave your job duties to younger employees, or outright replaced you with someone twenty years your junior. A Complaint also contains numbered Counts, or legal claims, against your employer under the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, or other employment law.
After your attorney files your Complaint, it will take a couple weeks until he or she receives a date-stamped copy back from the superior court. At that point, your attorney will typically hire a process server to formally serve a copy of the Complaint upon your employer.
Under New Jersey law, your employer has thirty-five (35) days from being served your Complaint to respond with an Answer. An Answer is a document which responds to every numbered factual allegation in your Complaint, either admitting the truth of the allegations or denying them. An Answer also contains the employer’s Affirmative Defenses, or legal justifications for why the employer should not be held liable.
The Middle: Discovery, Around 15-17 months or more.
In New Jersey, once your employer files an Answer, the court gives the parties 450 days, or around 15 months, to exchange Discovery. Discovery simply refers to the legal process for discovering evidence that can be used at trial. Your attorney will seek evidence from your employer to prove your claim, while your employer will seek evidence from you to defend against it.
Initially, Discovery begins with the exchange of documentary evidence. The parties exchange Interrogatories, or written questions, which must be answered and certified. Let’s again use the example of an age discrimination claim. Your employer might ask you for a list of co-workers whom you claim witnessed any age bias against you. Conversely, your attorney might ask your employer for the names and ages of all co-workers who were retained while you were selected for termination.
The parties also exchange Document Demands to support their claims/defenses. Employment plaintiffs commonly request documents like personnel files (including performance reviews), or copies of management emails regarding their termination, in order to prove discriminatory conduct. Employers often request the plaintiff’s tax records and copies of job applications the plaintiff submitted after termination, in order to prove that the plaintiff either suffered minimal damages or failed to make efforts to limit his or her damages.
Expect to work closely with your attorney in preparing your answers to Interrogatories, and in gathering and submitting requested documents to your employer.
Later in Discovery, the parties take Depositions. A deposition is an out-of-court proceeding where a witness gives sworn testimony under questioning by an attorney; such proceedings usually occur at the attorney’s office. All testimony is recorded by a court reporter. As an employment Plaintiff, it is almost certain that you will be deposed, as will any key players or decision-makers in your termination. Your attorney will prepare you in advance as to exactly how depositions work and what to expect.
As you might have predicted, the Discovery period can be rife with delays. Requested documents sometimes can’t be located, or witnesses can’t be deposed due to scheduling conflicts. Moreover, Discovery disputes often arise in which one side accuses the other of not responding sufficiently to Document Demands. If not resolved, the aggrieved party files a Motion to Compel, asking the court to order the opposing party to produce the requested information.
All of the foregoing takes time. If your case is relatively straightforward and does not involve much in the way of documents, witnesses, or discovery disputes, you might complete Discovery in under 15 months. But if your case involves extensive documents and witnesses, or if discovery disputes occur, you can expect the parties to request additional time from the court beyond the baseline 15 months.
The End: Summary Judgment, Around 2 Months
After Discovery has ended, an employer has 30 days to file a “dispositive motion” called a Motion for Summary Judgment. Summary Judgment is “dispositive” because, if the judge finds in the employer’s favor, your case is disposed of – in other words, thrown from court and not allowed to move forward.
In Summary Judgment, the employer essentially argues that – based on all the evidence the parties gathered during the Discovery period – there is not enough evidence to support your claim and it must fail. Your attorney will file a response to the employer’s Motion for Summary Judgment called an Opposition. The judge assigned to your case will usually request oral argument, in which the attorneys appear in court to present their respective positions to the judge and answer his or her questions. The judge may issue a decision immediately at the conclusion of oral argument, or he or she may take some days or weeks for consideration. If the judge decides in your favor, you are said to have “survived” summary judgment, and your case is allowed to proceed to trial.
Again, the foregoing takes time. Parties may ask for filing extensions, or a decision may be delayed due to the judge’s crowded docket. Expect the entire process to last around two months, give or take.
Settlement OR Pre-Trial and Trial, Weeks to Months
Usually, if you survive Summary Judgment, it places pressure on the employer to settle your case to avoid additional legal fees, not the mention the risk of losing at trial. For this reason, employers often wait to discuss settlement in earnest only after losing a Motion for Summary Judgment.
At this point, if the parties are willing to entertain a settlement, expect several days or weeks of back-and-forth negotiation between the attorneys until a settlement figure and terms are agreed upon. After this, expect additional weeks for a settlement agreement to be prepared and signed, and for settlement monies to be issued.
However, if the parties aren’t interested in settlement, or if settlement negotiations fail, then your case proceeds to trial. In the Pre-Trial phase, the parties issue subpoenas requiring witnesses to appear in court during trial for testimony. The parties also file pre-trial motions such as Motions in Limine, which seek to bar certain evidence from being presented at trial on the grounds that it is irrelevant, prejudicial, or otherwise inadmissible.
In our experience, most employment trials take around a week. As to when your trial will take place? It’s not always easy to say. Although you will be given a trial date in advance, the parties sometimes request a delay, or adjournment, to accommodate attorney or witness schedules. Just as commonly, the judge might adjourn the trial due to his or her own crowded docket.
By now, you have probably gleaned that an employment lawsuit requires time, patience and stamina. In our practice, most last at least two years from start to resolution. However, contentious lawsuits, where lots of disputes arise and court decisions are appealed, can last considerably longer.
For this reason, if you decide to pursue an employment law claim, you will need to have open and honest discussions with your attorneys about your immediate and long-term financial needs and tolerance for risk. Often, clients have to make a decision between accepting certain money sooner, or holding out in a calculated risk that it will result in a larger settlement or verdict down the road.