Festivus For The Rest Of Us (Employment Lawyers): An Airing Of Negotiation-Related Grievances

I am a moderate fan of Seinfeld. (Read: don't ask me to join your Seinfeld trivia team.)

One of my favourite episodes is the one featuring Festivus, a holiday concocted by George's dad. It is a protest against the commercialism of the other December holidays, with alternative decorations (an aluminum pole), food (meatloaf), and, most importantly, traditions. Mr. Costanza introduces the main tradition, the "airing of grievances", by yelling "I got a lotta problems with you people, and now you're going to hear about it!", then sharing the many ways that his dinner companions have disappointed him.

Mr. Costanza's words ring in my ears often when I am negotiating severance packages on behalf of my employer clients. I am frustrated on an ever more frequent basis by the lack of preparedness and reasonableness of some employee-side counsel.

So, I got a lotta problems, and now they're going to hear (i.e. read) about 'em:

• Do. The. Math. It boggles my mind when counsel have not prepared (or won't share) a breakdown of their position, let alone their input numbers so we can do some off-the-top-of-our-heads math together. Know your client's salary. Know their past bonuses. Know what other categories of dollars you're asking the company to consider and why. If you don't know why you're asking for something, how can my client even consider it?

• A Compromise ≠ Your Best Day in Court. As an extension of the above plea for math, why do some lawyers make demands that are better than their client's best day in court? How often are these offers accepted? How often do these offers endear the parties to one another? Making performative, inflated initial offers does nothing but set unrealistic expectations of employees who don't know better. Every additional round of negotiation can cause parties to become entrenched. So "compromising" from an unrealistic first offer to a slightly more (but still not) reasonable second offer just means everyone has wasted time, costs, and goodwill. Cut to the chase (or at least start within spitting distance of it).
• No, General Damages Aren't Automatic. General damages compensate plaintiffs for non-economic losses, including pain and suffering, emotional distress, and discrimination. In court, a plaintiff must reach certain evidentiary thresholds to obtain an award, so the frequency of these awards is low and the amounts are rarely material. But since these damages are not taxable, they are especially attractive for high income earners (for whom a dollar of income is heavily taxed) and people with garnishment and EI repayment obligations (since these amounts are not considered income). General damages are a frequent ask of plaintiff-side lawyers who are trying to maximize their clients' net take-home payment and who may themselves have higher contingency payouts as a result. Such damages are rarely appropriate, yet demands for them have become rote and can be a sticking point for many negotiations. If you're going to ask for general damages, have a general idea of why they are warranted and prepare your client for the likelihood that they won't get them.
• Know Your Client's Pain Points. Every severance negotiation is unique. Most matters are settled by way of money, but non-monetary items can be just as important to the parties. Benefit continuation, reference letters, apologies, goodbye parties – settlements can hinge on the tiniest details. I often ask about these points up front, and am surprised by the number of lawyers who haven't canvassed any non-financial points with their employee clients. Addressing these matters early can defuse tensions that hinder settlement.
• Track Your Offers. Recently, multiple opposing counsel have made escalating offers on behalf of their employee clients. When I pointed out that they were moving away from a potential deal than towards it, some admitted that they had simply forgotten their last offer. Some stumbled and blamed their clients. And others boldly claimed that their escalating offer was intentional and warranted, as though that was persuasive to me or my client. In each of these instances, it was clear that opposing counsel had not kept notes of their past offers and were not engaging in reasonable practices on behalf of their clients. It resulted in additional costs to our respective clients and loss of credibility between counsel.

Not all plaintiff-side lawyers need to hear my grievances. Many are collaborative, proactive, and forthright. However, for those whose practice prioritizes volume over tailored advocacy, I ask that you reflect on the above grievances (which I am sure are shared by many in the employment law bar) and how a new approach could lead to more constructive outcomes for your clients.

Now, let's move onto the feats of strength.

Footnote

1 I know that I've seen a Festivus-related employment law post or blog before. I couldn't find it when preparing this blog, so I can't give credit to the original grump for the idea. Whomever you are, kudos.

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