Most people I speak to about the possibility of bringing an employment litigation matter are convinced of two things before we speak. First, that they would prefer to settle their case than to try it. Second, that their employer will also want to settle the case instead of trying it. After a bit of discussion, I interject a third item into the discussion: the employer will not settle your case unless you are willing to agree to confidentiality. The time to discuss this is at the very outset, certainly not after the employee has made social media postings that force an employer to litigate. As a practitioner, I want to know if confidentiality is a dealbreaker, and if so, I want to know why. I’m less inclined to take a case if I don’t think I can satisfy my client’s goals. And settling a case on good terms without giving confidentiality is a big ask. That said, I once had a client who told me at the outset that she would never agree to confidentiality because she intended to write a book about her experience. I decided to represent her, and several years later, she presented me with a book describing her experience and my representation of her! The obvious question is “did her case settle?” I’ll never tell.
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