Litigation is something that most organizations would rather avoid, but unfortunately, it is sometimes inevitable. That’s why it’s crucial to have a system in place to assist with pre-litigation and discovery needs, and that’s where HR departments come in. In this article, we’ll cover the four basic stages of the litigation process: pre-suit investigation and pleadings stage, discovery, trial or settlement, and post-trial enforcement or appeal. We’ll also dive into HR’s role during each stage, including best practices for responding to a summons and complaint, obtaining information during the pleadings stage, and even settlement negotiations.
Importance of HR Departments Having Systems in Place for Pre-Litigation and Discovery Needs
Litigation is a daunting prospect for any organization, as it can have various reasons that range from discrimination claims to labor disputes and contract breaches. However, all these reasons have one thing in common, which is the immense amount of preparation and resources required to defend against them. This is where HR departments come in. To better assist their organizations, HR departments should develop processes to prepare for legal proceedings. This includes putting policies in place and implementing procedures for record-keeping and communication.
Understanding the four basic stages of the litigation process
1. Pre-suit investigation and pleading stage
The first stage of litigation is the pre-suit investigation and pleadings stage. During this stage, the plaintiff’s legal team conducts an investigation to determine whether the potential defendants have a case to answer. Then, both parties file formal pleadings which state their basic claims and defenses.
2. Discovery
During the discovery stage, the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial takes place. This stage is often the most time-consuming and expensive part of litigation, but it is also necessary. Discovery helps both sides understand the strength of their case and the evidence supporting it.
3. Trial or Settlement?
The third stage of litigation is the trial or settlement stage. Typically, only a small percentage of cases go to trial, as most are settled out of court. Settlement can be a quicker and more cost-effective solution than proceeding to trial, although it requires careful negotiation and compromise. If a trial occurs, the legal teams will present their respective cases to a judge or jury.
4. Post-trial enforcement or appeal
The final stage, post-trial enforcement or appeal, involves the enforcement of the judge’s or jury’s verdict, should there be one. If either party is unhappy with the decision, they may appeal it.
Responding to a Summons and Complaint
If your organization is served with a summons and a complaint, you need to act quickly. These documents begin the litigation process and initiate legal proceedings against your company. Here are the first steps you should take:
1. Contact your Employment Practices Liability Insurance (EPLI) carrier and put them on notice of the claim.
2. Contact your organization’s legal counsel.
3. Determine the deadline for responsive pleadings with counsel.
4. Determine if there is an applicable arbitration agreement.
HR’s Role During the Pleadings Stage
During the pleading stage, HR should work closely with the organization’s inside or outside legal team to obtain the necessary information for admitting or denying each of the allegations. HR should also gather relevant documents related to the employees such as their personnel files and implement litigation holds (which is a term used to describe preserving evidence).
Issuing a scheduling order
Soon after the parties have filed their pleadings, the court will issue a scheduling order with a list of deadlines, including dates for discovery, depositions, dispositive motions, and trial dates. It’s important to take note of these dates and work with your legal team to prepare accordingly.
Discovery process
Discovery can be one of the most complex and vital stages of the litigation process. HR professionals need to be aware of their role in discovery as they may be involved in all aspects of litigation, including settlement or trial. The process can involve collecting and reviewing documents, working with witnesses, preparing expert reports, and participating in depositions.
Settlement or Trial
Settlement or trial is the most direct way to resolve a dispute. If you decide to settle, HR should work with the legal team to ensure that the negotiated terms are clear, legally sound, and adequately protect the organization’s interests. If the case proceeds to trial, HR should be prepared to provide support to the legal team in preparing witnesses and ensuring that HR-related evidence is available for presentation at the trial.
Maintaining pre-litigation policies
Finally, HR professionals should work closely with legal counsel to help maintain pre-litigation policies. This includes implementing best practices, such as providing training to employees and regularly reviewing policies to ensure they align with current practices and legal regulations.
In conclusion, litigation is a complex and multifaceted process that requires careful preparation, attention to detail, and collaboration between HR departments and legal teams. Understanding the four basic stages of litigation and the essential role of HR can help your organization navigate legal disputes successfully. By taking proactive measures in advance, you can better equip your organization and protect its interests should situations arise requiring litigation.
