Podcast With Eric Bachman: What to Expect When You Call a Lawyer (Transcript)

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Announcer: Fired from your job? Afraid you might be fired? Are you facing other problems at work? Listen to what the lawyers have to say about it. Here’s your host, Attorney Tom Spiggle.

Tom: Welcome to the “I Got Fired” podcast. I’m the host, Tom Spiggle, with the Spiggle Law Firm, and this is for people who have been fired or are afraid they might be. I am pleased today to have with me on the podcast our guest, Eric Bachman. Eric is a very experienced employment lawyer. He’s had a long career both in the private sector and in public service, and I will turn it over to you, Eric, to let folks know where they can find you and a little bit more about yourself. So, take it away.

Eric: Thanks very much, Tom, and I’m really happy to be here on the podcast with you. So, as you mentioned, I do plaintiff-side employment discrimination and whistleblower retaliation cases. I work with Zuckerman Law. You can find out more about us on www.zuckermanlaw.com. You can also read my blog on glass ceiling discrimination, sexual harassment, and other employment discrimination issues on the Glass Ceiling Discrimination Blog, which is, apologize for the long URL website address, but www.glassceilingdiscriminationlawyer.com. And just really looking forward to this podcast today, Tom.

Tom: Yeah, that’s great. Glad to have you on. And those links we will put in our show notes for those folks who want to check them out. If you could, Eric, just spell out the firm’s URL for those people who might be trying to write it down.

Eric: Certainly. www.zuckermanlaw.com.

Tom: All right, great. Thanks. Well, today we are going to be talking about what to expect when you pick up the phone to call an employment law firm, or any law firm for that matter. On our previous podcasts we have talked about aspects that people who have been fired or are afraid they might be facing it, including how to figure out if you even have a claim, to do your own research, and how to select an attorney or go about doing that if you think you want to call one. What we want to drill down on today is what you can expect when you pick up that phone. I know for a lot of people that come to our firm, and I’m sure this is probably true for yours too, Eric, you find out they had some trepidation about picking up the phone and calling a law firm. They just didn’t know what was going to happen. And I imagine that keeps a lot of people from doing it in the first instance or not doing it as quickly as maybe they should.

So I know both you and I have had experience in various different types of firms, so I just want to talk about that subject alone. And I’m going to let you lead off, Eric, and I know there are a bunch of different ways that this can go down. But let’s say that you have a family member in a state that you don’t practice, let’s say in California, who calls you up and is kind of picking your brain about some of their problems at work. And they’re thinking about calling a lawyer, identified a few firms that you checked out and you think they’re decent firms. Then they’re like, “What happens when I pick up the phone?” What would you tell them?

Eric: That’s a great question, and I couldn’t agree more that I’ve certainly gotten feedback from clients, and just friends and family as well, that, you know, the idea of calling a law firm, having to talk with a lawyer, is sometimes, you know, so either intimidating or just seems like it’s going to be a lot of work, that people really do put that off. And so I think, you know, having this discussion today hopefully is going to put some people’s minds at ease about this, and kind of demystify the process.

You know, I would say in terms of what to expect when they’re calling these law firms, it really does depend on the size of the law firm and how they have structured their intake. For example, at our law firm, all of the time, the intake calls are handled by the attorneys themselves. So when you’re calling our firm and some other firms as well, the first person you’re going to talk to is actually one of the lawyers in the firm. There are other firms that either use a receptionist or a paralegal, so there’s a variety of different folks in different positions that you might be on the phone with.

And I would say probably one of the more important pieces of advice that I would give a friend who’s calling a law firm is to kind of sit down and organize your thoughts for just a couple of minutes. Nothing…it doesn’t need to be anything formal or fancy, but to kind of get your thoughts straightened out so that when you talk to the lawyer or the paralegal or the receptionist, you can give them an idea, you know, within let’s say three minutes or so, of what your case is about, the broad strokes of what you think is happening at work that you’d like to get some legal help on. And then it’s really up to the lawyer or the paralegal to tease out the other information that they need, through follow-up questions, to figure out what, if anything, they can do to help you.

Tom: Yeah. I think that’s great advice. And, you know, with our law firm, if you call us, you know, we use what’s called a call service. They’re called Ruby Receptionists and are actually based out in Portland, Oregon. You know, that’s if you call, that’s who’s going to pick up the phone. We’ve worked with them for years. They’ve got, you know, they know all of our employees, or at least they…I mean, you know, they’ve got a list of us and they know how to direct calls. And what you’ll hear is, what we try to get, we’re always happy to talk to people, and you can talk to a live person if you want.

But like a lot of law firms do, whether it’s on their website or whether they’re having a paralegal screen the calls up front, we use, you know, basically what we call an attorney portal on our website that, you know, a person can enter their information, and that goes straight to the lawyers and lawyer review it. You know, if you call our firm and you talk to Ruby Receptionists, they’ll give you that option, and then they’ll ask if you want to talk to a real person. And if you want to do that then you can, they’ll send you over to one of our receptionists who, you know, that’s what they do is they answer calls, they can answer questions. Because for a lot of folks we find sometimes we have a lot of, as you do at Zuckerman Law, you guys have a great website with a lot of information. And what we try to do is see if we can direct people, because sometimes they have questions they can answer just by, you know, we can direct them to something on our website. You know, if they want to talk to an attorney, the receptionist can takes notes down that way, and then it’s passed along to the attorney for review.

Like I said, there’s a bunch of different ways to do it. It depends on who you’re calling. I guess I would say… Well, let me ask you this. I have my own thoughts on it, but curious to get yours. What would you say if this person came back to you, your family member, and said, “You know what? I had this favorite law firm picked out, and I wasn’t able to talk to an attorney, and I didn’t have the greatest experience on the phone.” What would you say to them?

Eric: I would tell them that frankly, I think I’d want them to try another firm and there can be a lot of reasons that maybe they didn’t have the greatest experience on that particular day. So, you know, I’d certainly want them to give another try with the firm, but to me, first impressions are really important. And if it appears that the firm either doesn’t have enough time to be taking you call or the bandwidth to perhaps handle your case, to me, I would say, “Well, let me give you a couple other firms to consider.” And that way, you know, you shopped around a little bit and you’ve gotten to see what the different firms’ styles are, and you’re not just going with the first person that you happen to get on the phone.

Tom: Yeah, I would actually…I think it makes sense to call a couple of different firms. I’m sort of in two minds about it. You know, I do think that the first impressions, of course, make a great deal of importance, and there is some sense that, you know, the fish does rot from the head down. And it could be because, you know, you had a bad experience on the phone because the phone is not particularly well managed, and that’s going to…you know, maybe the attorney’s great but that’s going to impact your case all the way through.

It could be that they had a fill-in receptionist that day, which was not very good, and that was not indicative of the firm’s quality. And the truth is, it’s sort of hard to know, is my view. And I think it, you know, never hurts to absolutely call the next firm down the list. But maybe call back on another day and, you know, see, you know, give them another shot. And then if you get another bad experience, then maybe it’s indicative. Although I have to say, I mean, I know some pretty good attorneys in this town who, I don’t know, their receptionists are not that friendly. If you can get through their receptionists, you can get to a good attorney.

So really, I would say it’s definitely an indicator that you need to pay attention to, and fortunately for…at times like when you’re…you know, for you and I if we’re looking for a doctor, I mean, who knows, right? You go to some doctors and the doctor is fabulous but their staff are awful. And sometimes the doctor is awful too, it’s just hard to know. I think it is an important indicator to pay attention to.

Eric: I do agree with you that I would not automatically write off the firm. As you said, there could be, you know, a temporary receptionist that day or just somebody who is having a bad day. But, you know, I certainly would say that if that is a pattern that, you know, I wouldn’t recommend for my family member to keep sort of hitting their head against the wall. While they can keep trying back at that first firm that they had a little bit of trouble getting in touch with a lawyer, I would at that point say, “Well, let’s look at a couple other firms.”

Tom: Yeah. No, I think it’s an important indicator and I think that’s right. You might as well, it never hurts to have two or three people that you’re calling anyway. Let me ask you this, just because I know that people that have come to my firm or, you know, friends who I’ve dealt with who have called firms, and they’ll call a firm and they just, whether the receptionist is good or not, the firm just seems a little bit confused about what they want. What would you say if that happened?

Eric: The firm seems confused about, like, the information that they want?

Tom: Yeah. I’ll give you an example. So I was dealing with somebody, a friend of a friend in another jurisdiction, and she was still at work and was having a problem at work, and I sort of gave her, you know, my two cents’ worth of how to handle it and how to find firms. And her experience was, was that she called a firm and was like, because she had talked to me, she knew essentially what she needed. And the firm was just like, “What?” Or I guess the receptionist was like, “I don’t quite get what you’re saying.” What do you think about that?

Eric: Yeah, and I think that could be, again, putting myself in the potential client’s shoes and I’m calling up a law firm and they can’t seem to understand or give me any idea of, you know, where I should be heading with this, that would definitely concern me. I think, again, we may be dealing with a temporary receptionist or what’s perhaps more likely, maybe that law firm doesn’t have quite as much experience in that particular area. I mean, employment law and even employment discrimination law, it’s a pretty broad practice area and it’s possible, you know, that they called about a particular law, or particular claim, that that law firm just hasn’t dealt with much. But again, when we’re talking about indicators, that would concern me as well. It wouldn’t cause me to say, “Forget about that firm,” by any means, but I think, you know, to the extent that the friend or family member is calling them up and they reported back to me that response from the firm, I, again, would want them to at least be looking around to [crosstalk 00:12:01].

Tom: Yeah, I think that’s absolutely right. You know, and I’ve had, as I know you guys do, you know, we deal with people both who’ve been fired and those who are still at work. I know you guys do a fair amount of whistleblower cases as one of your areas of focus, and you guys do it quite well. You know, whistleblowers may still be there, you know, may still be at work, but I’ve heard of people calling, and I get this, but calling a firm and they won’t even…it’s not that they’re rude to them but the screening question is, “Have you been fired?” And unless you’ve been fired, you know, they’re not going to patch you through to an attorney. They don’t want to talk to you. You know, I think you and I know why that is.

You know, I think, to your point earlier, some firms, you know, they only want to work with a particular kind of claim. Maybe they don’t do whistleblower claims, and, you know, in most cases you’re not going to have any kind of lost wages which is a big area of damages, of course, in our practice, unless you’ve been fired. I mean, they didn’t know that. You know, they were a bright person but they didn’t know employment law and they’re like, “I don’t understand.” It was discouraging to them and, you know, to your point, I was like, you know, “Well, that’s just…that doesn’t mean you don’t have a claim. It just means that they only are going to take a certain narrow class of employment claim. So call the next firm.”

Eric: Yeah, I think…and that raises a really good point, and we touched on this a little bit, but I think most firms are going to have a checklist, you know, a list of questions, very basic questions that they’re going to want to get the answers to so that they can decide, you know, “Is this a case we consider taking on?” What I think can become problematic with that sometimes though, is this situation you’re talking about, where you have somebody who’s doing intake at the firm who’s wedded to that questionnaire, who only cares about questions on that sheet. And they’re not really listening to the person that’s calling up. And so they’re just checking off the boxes, and if I were the person calling up I’d feel like, “Hey, that person hasn’t really listened to what I’ve said. They’ve just been going down this list of questions that I don’t even really understand why they need to know about this.”

Now the flip side of that is, there probably are going to be questions that the person at the law firm, whether it’s the lawyer or an intake person, that they’re going to ask you as the potential client. And you’ll kind of be scratching your head of, “Why do they need to know this?” But there are certain things that it is important, you know, for them to know, just about, you know, brief background of you, how long you’ve worked there, whether you’ve been subject to discipline, those types of things. That’s just stuff that the lawyer’s going to need to know. But what I think I’m getting at is that it’s important that folks feel like they’re being listened to, and it’s not just like you’re calling up, you know, the complaint department at the IRS and they just want to check off that they’ve spoken to you and gone over the list of 10 questions they’re supposed to go over.

Tom: Yeah. No, I think that’s a great point. You know, it’s one I hadn’t thought about talking about but I think it’s, you’re right. In our field there are certain questions that, if an attorney focuses on employment law, they’re going to be asking you one way or another. And I can see how people get confused. You know, for instance, and you can add on whatever you want, but there are a number, for instance, like one thing we ask them is, “How big is your employer? How many employees are there?”

And, you know, the reason we ask that is, you know, most attorneys, unless you practice employment law, don’t know this, but you’ve got to have 15 or more before you’re covered by at least, you know, Title VII, the big anti-discrimination law, you know, and if you’re raising an issue like a Family Medical Leave issue, you’re not covered unless the employer has 50 or more employees. And these are all technical questions that, you know, I don’t expect people to know when they call but it’s important for the attorney to know in terms of whether or not they can help you, you know.

Now when I talk to people and advise them about this, I think that’s one thing I’ll add to my recitation to them, is “Look, expect these questions.” That doesn’t mean necessarily that the firm is just checking off boxes. I mean, they may be but these are important boxes. It just means that they’re trying to figure out, you know, in what way they might be able to help you. And some of those random questions can dictate that.

Eric: Yeah, absolutely. I mean, just to give you another example of a seemingly random questions is, a lot of firms are going to ask folks, “Hey, have you filed bankruptcy? Are you currently in bankruptcy?” And that might seem like kind of an unusual question to ask but what they’re getting at is if you have, and you have this claim that may be either filed in court or settled out of court, that is most likely going to be considered an asset of the bankruptcy estate. And so that’s important not only for the lawyer to know but for the potential client to know that as well.

So, the seemingly random questions most of the time should have…there’s a purpose to them, but again, getting back to the original jump-off point here, to me it is important how the firm does this. If they give a little explanation of why it is they’re asking it, even if it’s just, you know, a 10-second intro of why they’re asking that, I think that goes a long way to demystifying the whole process.

Tom: Yeah, absolutely. You know, and another thing I would add, and I’d be glad to get your thoughts on this. You know, I…sadly, you know, and I think to prepare people who might be listening to this podcast, it’s rare but it is possible to have a bad, I mean a really bad experience when you call a law firm. It’s rare but, I don’t know about you, I have heard of people, and one person in particular I can think of who ended up being a client of ours, she called, you know, just like most people she didn’t know how to go about finding a lawyer in this field and she was calling a bunch of different people. And she called one and got the lawyer on the phone and, I mean, the way she took it as he effectively berated her and said, you know, she didn’t have a claim, this is ridiculous, you know, she should give it up. I mean, he was some crusty old…you know, he was having a bad day, you know, but thankfully she kept on going. But I could see some people saying, “You know what, like, I guess maybe this is dumb. Maybe I am ridiculous.” Have you ever run across that or have any thoughts on it?

Eric: No, I’ve certainly heard similar accounts from clients who have then come to us. And yeah, look, if I were in their shoes and certainly if I were not a lawyer, and a lawyer tells me I have no claim, that’s going to probably, you know, dissuade me from doing anything further. And that’s why, you know, it’s so important for lawyers, particularly until, you know, the person is signed up as an actual client of the firm, you know, lawyers should not be going around based on very incomplete information they have gotten in a short phone call, telling a person, “Hey, you’ve got no shot at all,” or, “You’ve got no claim at all.” That to me is certainly not a good practice. So I’m going to agree on that.

Tom: Yeah, and I think…so I guess the lesson is, you know, you just pick yourself up, wipe yourself off, and, you know, call a couple more firms.

Eric: Yeah, that’s right. And look, if you hear a similar response from four or five firms, then there might be some truth to that. But yeah, I wouldn’t let one lawyer, you know, who’s maybe having a bad day, you know, put you on the defensive and make you not want to go forward with it.

Tom: Yeah, absolutely. You know, and another thing that I have heard, and I’m sure you have had this experience because you guys do a lot of whistleblower cases and those are…I mean, there’s not a lot of attorneys who deal in that work. You know, but one thing I’ve run across, particularly for really… You know, if you’ve been fired and you’ve got a straightforward discrimination claim, you know, it’s not as easy to find a lawyer but most people who do employment law are going to be able to, if there’s something, they are going to be able to help.

But if you’ve got a tricky Americans with Disabilities Act issue that involves accommodations, if you’ve got a really…you know, again, whistleblower cases can be really, as you know, Eric, very complicated. I mean, it’s not uncommon to have to go down the list quite a ways before you get a law firm, you know, that knows that area. Particularly if you are in, you know, if you are in Washington, D.C., where we are, or in this area, there are a lot of really good firms. But if you are in a secondary market or a small town, you know, and you’re calling your local personal injury attorneys, and God bless them, I’m sure they’re good at what they do, you know, you might get some, “What? What’s… I’m sorry we can’t help you with that.”

And so this woman, thankfully, you know, she just kept going until finally she got somebody who could help her with that, with an ADA claim. But I think that’s one thing important for people to know, is that there are other kinds of practice areas, there are not that many employment lawyers. And even within employment law, there may be very few lawyers who specialize in your area, like if you got a big, you know, Family Medical Leave issue or if you got a, you know, potentially a class action issue or, like with you guys, whistleblower. I mean, I’m sure you have heard people with similar stories.

Eric: So one of the things that I think comes up a fair amount with me and I’m sure it does in your practice as well, is that if my firm is not able to take on the case for a potential client, and we’ll, of course, communicate that to them and let them know we can’t, but oftentimes what I hear back, and a very understandable request is from that person, “Well, can you at least tell me should I even bother? Is there enough there?” And I think it’s important for folks to know that, you know, generally a lawyer is not going to be able to be in a position to tell you whether you either definitely have a case, definitely don’t have a case, based on the limited information that we’re getting in an intake call. That’s going to be, you know, more of a legal advice, a legal decision that the lawyer’s going to need more.

So I know that can lead to frustration among people and if were I in their shoes, I would feel that way too. But the last thing I think any lawyer wants to do is tell a person, “Hey, you’ve got no claim here,” when in fact, you know, if they knew all of the available evidence, it might be they actually had quite a good claim but they just didn’t know all about it.

Tom: No, that’s a great point. I mean, I know…personally I have had, you know, people come in for a consult with us and, you know, one of the purposes of a consult is, and this obviously happens on the phone too, is determine whether or not they have a matter we can help them with. And sometimes it’s not until the last 5 minutes that details come out, you know, the first 55 minutes I’m talking to her and I’m like, “You know, I’m just not hearing anything here.” And then some detail will come up and I’m like, “Oh, now that you have said that, that’s a completely different issue.”

So I think that’s a great point. And if you are, particularly if you are on the phone with a law firm, rather with whoever screened the case, whether it’s a paralegal or the actual attorney, they are only making a determination as to whether or not they think you have something that’s worth taking to the next step with that firm. But you’re absolutely right, and we tell people this, we’re like, “Hey, look, you know, we reviewed this and we don’t see anything there, but that doesn’t mean there isn’t something there, and here are some other…” And we send them to, you know, we refer them to MWELA or NELA if they’re not in our area. And all of this will be in the show notes too. And we say, “Look, our feelings won’t be hurt and you probably should call some other folks because somebody might have a different viewpoint.”

But it’s an excellent point. Just because somebody, you know, a particular firm doesn’t think you have a matter that they can follow up on does not mean that you don’t have a case. But the point that you made was a good one too. If you’ve talked to five law firms and they’ve all given you the same answer, then at some point, you know, you may be zeroing in on the legal conclusion about your case. But I wouldn’t stop at one or perhaps not even two.

Eric: Yep. No, I agree. You got to be persistent with these claims, particularly where it’s a little bit of a unique claim, whether it’s a different statute than those law firms would handle or there’s just a very unusual set of facts.

Tom: Yeah, absolutely. And I think to finalize our thinking about it, point for me is that, you know, most lawyers, when we’re trying to talk to people who perhaps have some trepidation about picking up the phone, and maybe rightly so given some of what we said and some bad experiences that folks have had, but for the most part, most lawyers, most law firms, they want to help you, even if they’re not going to take your case. And I think you can be, on average, you can expect that you’re going to get polite people on the other end who are doing their best to get you to the right place. So for anybody out there who’s, you know, maybe a little hesitant about picking up that phone, I’ll say just go for it. You know, the worst you get is, you know, “We can’t help you,” and then you try someone else. And if you have a bad experience, it’s probably them and not you.

Eric: Right. And I think you’re right. I think it’s the exception to the rule if there’s sort of rude behavior when you contact a law firm. I have got to believe based on my experience of what I’ve seen that most law firms, you know, want to treat folks who call them with respect, hear what they have to say, and see if there’s any way they can help them.

Tom: Yeah. Couldn’t have said it better myself. All right, Eric. Well, if you don’t have anything else, we will sign off here.

Eric: No, that’s all. And thanks again for having me on today. I’ve really enjoyed it.

Tom: All right. Great. Thanks, Eric.

Announcer: Thanks for listening to the “I Got Fired” podcast. Visit our website, stigglelaw.com to catch up on all our episodes and take advantage of all the links and resources to help you if you’ve been fired. It’s all there for you at stigglelaw.com.