I am more than 3 years into a case called Kelley vs. Allegiant. The law firm that I own and lead has more than $600,000 of attorney time in the case. I have fronted more than $25,000 in out of pocket case expenses. The trial court – the United States District Court for the Middle District of Florida – forced my client to fly across the country twice: once for her deposition and once for mediation. I paid for that. Meanwhile, that same trial court excused the insurance company adjuster from mediation. And refused to let us depose the then-CEO of Allegiant, who was personally involved in attempting to resolve some racial tensions at Clearwater Airport. Such is the nature of the American legal system.
The case is currently up on appeal in the United States Court of Appeals for the 11th Circuit. I’m paying for that, too. If we win the appeal, we’ll try the case. If we lose the appeal, we’ll petition the Supreme Court.
I could have settled the case more than a year ago. I could have told the client that the deck was clearly stacked against us. The federal trial courts in Florida love granting summary judgment in employment discrimination cases. That I didn’t sign on for the extra work of an appeal. That she should take whatever peanuts Allegiant would have offered her.
Most people think I’m a lunatic. That is false. I am a moral actor in a dysfunctional, immoral, and sometimes nakedly corrupt system. So, naturally, that makes me look insane.
I can give you about seventeen reasons why I do things like this. But first, let’s be clear: I don’t have to do this. I have other business ventures outside of law. And, even within law, there are much easier ways to make much more money. So, clearly, this is not primarily or even secondarily about the money. It’s about people. It’s about justice. It’s about the system being completely dysfunctional and morally bankrupt. And it’s about my lifelong crusade to speak truth to power and hold the powerful accountable.
When I accept a client in one of these cases, this is what it means: It means that I believe their story. It means that I believe they have been wronged. It means that I believe them in spite of whatever lies the company has manufactured about them.
And it means I am making them this deal: I will bring the full weight of our resources and our genius to bare upon those who have abused you and transgressed you. But you have to trust me completely and let me and my team work. Follow my advice. Do not second guess me. Do what we ask you to do. Never lie to me or mislead me. And I will go to bat for you. I will go as long and as far as it takes. Naturally, in making this sort of deal was must be highly selective. You don’t gamble $625,000 on everyone who calls.
The Initial Inquiry Speaks for Itself
In any given week, we get about 150 to 200 inquiries. We used to get even more, but we paused certain paid advertising because we had too many leads to handle. These inquiries run the gamut but primarily consist of employment discrimination, retaliation, hostile work environment, sexual harassment, sexual assault, and whistleblower claims. I have a separate piece about workplace sexual harassment and sexual assault claims. Those are fundamentally different. Today, I am focused on discrimination and retaliation claims.
Of the inquiries that come in each week, probably 100 are discrimination and/or retaliation (based on reporting illegal discrimination). A lawyer sorts these into tiers. Tier 1 is reserved for cases where anyone would basically say: Holy shit. This is a serious case. Tier 2 means there appears to be a meaningful, viable case. Tier 3 is anything generic, overly long, or where the client seems to be an unhinged lunatic (and there are many of those). Tier 3 is low priority and flagged for quick rejection absent immediate receipt of compelling facts or evidence. Here are some common red flags that get inquiries tagged as Tier 3 or, even worse, that trigger auto-rejection:
- Length. A reasonable, sane person should be able to sent a short, plainly-written preliminary inquiry that the specific acts of discrimination and retaliation and seeks help. Unhinged, self-absorbed people tend to send unsolicited novellas. They often submit 10 or 20 pages. They ramble and meander. They catalogue dozens of perceived slights and microaggressions. They talk about their supposed legal claims. Their legal theories. They talk about how much money they want. But they rarely provide specific fact-based examples of discrimination and retaliation.
- Use of AI. Again, a reasonable, sane person should be able to write their own brief statement of what happened and why they need help. Defective people and people without a real case often resort to AI to do this work for them. Each week, we receive dozens of inquiries that are clearly written by Chat GPT. They all contain the same buzzwords. It’s always: I am seeking immediate contingency representation in a fully-documented, high-stakes employment discrimination matter. Or something like that. These go in the trash.
- Dollar Signs and Slam Dunks. Any time an inquiry calls the case a home run or slam dunk, it goes to Tier 3 or auto-reject. Likewise, any time a client leads by telling us that their case is worth $750,000, $1 million, $2 million, etc. — same thing. In plaintiff-side employment cases, there is no such thing as a slam dunk. Especially not in the Deep South. Especially not in Florida. As for case valuation: I will never represent any client who thinks they are capable of weighing all the different variables that go into case valuation.
- Lack of Good Manners. We provide a service that relatively few lawyers provide, especially in Florida. We are willing to file suit, litigate the case aggressively, try the case if necessary, and even pursue an appeal. We are doing people a tremendous service. The least they can do is have basic manners. Anybody who presents as rude, self-important, impatient, or anything else in that direction is an auto-reject. Why? I always say this: Your telling on yourself. If you approach me and my firm in that fashion, I have a pretty good idea why you got fired or had trouble at work. And it has nothing to do with discrimination.
Green Flags: What I Look for in Tier 1 Discrimination & Retaliation Cases
- A Short, Factual Inquiry. This is the best indication that a person has a real case. The person tells us (a) the type of discrimination (e.g. race, age, sex, religion, etc), (b) specific examples of discrimination, (c) if/how they reported the discrimination and (d) specific examples of retaliation. And they do it in a paragraph or two. Let me give you a real example from a recent case. A client contacted the firm and this is basically how his inquiry went:
You see what that does? The client seems reasonable. Polite. Straight-forward. He identifies the type of discrimination, the key discriminatory acts, the reporting, and the retaliation. That sort of client goes immediately to Tier 1.
I was wondering if you could help me with a discrimination case. There was a noose hanging in the break room at my work for 5 or 6 days. I reported it and they didn’t do anything. So I reported it again and said it was making me uncomfortable. They finally took it down. But a couple days later, they started taking me off the schedule. People started saying I shouldn’t have made a big deal about the noose. That I was making trouble. I went to my boss and said I thought was being punished for reporting about the noose. A couple days later, they fired me and said it was because I failed to report for work. But I wasn’t even on the schedule.
As a general rule: The stronger the case, the more clear-cut the discrimination and retaliation, the shorter and simpler the inquiry should be. Even cases with somewhat more complicated fact patterns don’t require more than 2 or 3 paragraphs. We need the basics. If you cannot explain the basic facts of how you were discriminated against and/or retaliated against in 2 or 3 paragraphs, the odds are that either (a) you do not have a viable case or (b) you struggle to communicate and articulate.
- Jurisdiction. We take these cases nationwide. Our headquarters is in Fort Lauderdale and we have multiple attorneys admitted in Florida. So, naturally, we take a lot of Florida cases. But we also have lawyers admitted in other states. At last check, we have lawyers admitted in FL, MO, PA, AL, OK, and MI. But that’s just full-out state admission. We also have lawyers admitted to practice in various federal courts. For instance, we have lawyers admitted in the Northern District of Illinois (which covers Chicago). So we take lots of cases out of Chicago. We have litigated cases in many other states including NY, NJ, CA, TN, and more. We will continue to accept lots of these cases in Florida. But when it comes to cases outside of Florida, I prioritize jurisdictions where the law and the courts are less hostile to employment discrimination claims. In other words: I already have one Deep South jurisdiction (Florida). That’s enough for me. I don’t need more of these cases down in Dixie. Yes, I will take truly egregious cases anywhere — because somebody has to. Otherwise, I am more interested in cases out of Illinois, Michigan, New York, New Jersey, and California.
- Company Size. Very small companies are not covered by many of the relevant laws. And even if they are covered, very small companies pose collectibility risks. I may be charitable, but my firm is not a charity. We will not invest in these cases unless there is some hope of eventually collecting. Unless the defendant is a large, well-known company, potential clients should identify the approximate size of the company in their inquiry.
- Formal Complaints or Reporting. This is a big one. Yes, we take discrimination cases where the employee did not report the discrimination. We do that when the discrimination is clear and egregious. But as a general rule, cases are much stronger when the employee reported the discrimination to a supervisor, management, or HR. Ideally, the employee reported in writing. When an inquiry mentions that the employee made a formal report or complaint of discrimination, that increases how we rate the case.
- Established Tenure with the Company. A large percentage of inquires involve employees who worked at the defendant company for less than a year. Often less than six months. Sure, these situations can involve very real discrimination and retaliation. But it’s much harder for a company to attack an employee’s performance when that employee was with the company for several years. Longer tenure typically = stronger claims and bigger damages.
The Second Layer Screen: Weeding Out Cases That Don’t Withstand Scrutiny
- Evidence of Retaliation. Remember this: Discrimination and retaliation are separate legal claims. And retaliation is much easier to prove. In fact, you can prove retaliation even if you fail to prove discrimination. And juries at large treat retaliation claims more favorably than they treat discrimination claims. Think about it like this: You report discrimination because you believe you – as a woman – are being paid less than similarly situated male employees. A month later, you get your first discipline in the 6 years you have worked at the company. Two months after that, you’re fired for performance. Was there actually sex-based discrimination? Who knows. Does it matter? Not really. With that sort of timeline, you have a report of discrimination followed by an immediate adverse action. That is textbook retaliation. The retaliation claim is viable regardless of what happens on the underlying discrimination claim. The upshot: Inquires with a possible retaliation claim and a timeline that clearly suggests retaliation are scored higher.
If an initial inquiry appears solid (based on the factors outlined above), it gets placed in Tier 1 or Tier 2. If an initial inquiry appears weak, it goes to Tier 3 or is auto-rejected. We obviously prioritize Tier 1 and Tier 2 cases. We immediately obtain the following documents and information:
- Employment Agreement. This will either contain a forum selection clause, choice of state law, and possibly an arbitration provision. We need to know this information immediately because it impacts and often dictates case valuation. A case that is likely worth $2 million at a jury trial can lose most of its value in arbitration. In arbitration, that same case might only be worth $250,000. Likewise, a case that might be worth $800,000 in New York or California might only be worth $150,000 in Florida.
- Documents & Evidence. I’m not saying a client’s word alone is never enough. Sometimes it can be. But let’s be real. If I am about to invest $500,000+ in a client’s case, I typically need something more than just their story. I need performance reviews. Emails. Text messages. A copy of any internal complaints they made. Anything that helps me prove or substantiate their version of events.
- Witnesses. Ideally, I want at least 1 or 2 witnesses who will back your story. These witnesses must be willing to speak with me or a member of my team. And, ideally, these witnesses must be willing to sign a written declaration that supports your version of events. If you have witnesses who will come forward on your behalf, you need to make that clear immediately. The sooner my team connects with these witnesses and obtains their declarations, the stronger your case becomes.
- Contemporaneous Notes. This one might shock some of you. But you’re own notes can be incredibly compelling evidence. I mean actual, contemporaneous notes that you took while experiencing discrimination and retaliation. This could be a daily log. This could be a diary or journal entry. Let me be clear: I am not talking about some staged crap you put together where you use a bunch of legal jargon. I am not talking about something you compiled with Chat GPT. I am talking about your own genuine, factual notes about what was happening. I have a case right now where a woman was being sexually harassed at work by her boss. She was so distraught over the situation that she would write about it in a journal in the evening when she got home from work. She wrote these entries by hand. She did this every single day. For several months. That is powerful stuff.
Settlement Mills vs. Law Firms that Litigate Discrimination & Retaliation Cases
Especially in Florida and other hostile jurisdictions, the vast majority of plaintiff-side employment lawyers do not actually file lawsuits and litigate cases. I know this because I see it every single day. We constantly receive inquiries from potential clients who had a lawyer but that lawyer was only willing to handle (a) the EEOC process and/or (b) a demand letter.
Here is the reality: As a general rule, you will not get reasonable compensation for a real (i.e. Tier 1 or Tier 2) discrimination or retaliation claim unless you file a lawsuit. Even then, most cases require several months of litigation, discovery, and depositions before you can get a meaningful offer.
Given that reality, the settlement mills and settlement mill lawyers routinely sell real cases for a fraction of what they are worth. I can provide countless examples from my own case files just from the past two years.
Example 1: Company offered $30,000 pre-suit. The plaintiff’s lawyer was pressuring them to accept. The plaintiff’s lawyer was not willing to actually file suit and litigate the case. Fast-forward. We took the case, filed suit, and were able to settle the case for more than 10x the pre-suit offer.
Another example: Pre-suit $10,000 offer. Plaintiff’s lawyer was not willing to litigate the case. Same thing happened. We took the case, filed suit, and settled for far more than 10x the pre-suit offer.
This is a very common scenario. Companies and corporate defense lawyers tend to treat all employment discrimination and retaliation cases as bullshit, nuisance value, not real, etc. unless and until you file a lawsuit.
Will we settle discrimination and retaliation cases pre-suit? Rarely. Only if there is real money on the table. That happens in less than 10% of these cases. So, our standard operating procedure is that we are taking the case to litigate the case. Because we actually litigate these cases and invest resources in them, it naturally follows that we have to be far more selective that law firms that are only sending a demand letter. And that is why we only accept about 5% of these cases.
A Final Word About My Mission & Philosophy
I don’t need to do this. I don’t need to litigate these cases or any cases. Years ago, I reached a point where I could retire from litigation and just do consulting and advising. I am widely regarded as an expert on non-compete and trade secret law. I routinely consult with employees, executives, and entrepreneurs on these types of matters. These are complex, high-stakes, multi-million dollar situations. I review a few agreements. I review a factual timeline. Then I send an email with my advice. Maybe I have a follow-up phone call. That’s it. If I stopped spending time on litigation, I would do more consulting. The consulting is very lucrative and has a massive effective hourly rate. It requires no resources or overhead. It is zero stress. Any time I want to, I can quit litigation. I can work 20 hours a week. And I can make way more money than I do now with way less stress.
But the American legal system is dysfunctional. The courts are dysfunctional. Corporate America and their cronies control everything. We have become a corporate welfare state. Many judges are nakedly political actors or nakedly pro-corporate actors. These days, the average person in America barely stands a chance.
And many lawyers are sniveling cowards who are afraid of making enemies. They are afraid of calling out the dysfunction and the corruption. They are afraid of judges seeking retribution against them (and some do). They are afraid of the state bar associations, which routinely trample on freedom of speech. They are afraid of making powerful enemies. And they are – at the end of the day – too worried about making money (or making more money) to take on righteous causes.
That’s the real tell when it comes to lawyers: Are they only about the money? Or are they about something else first? I’m clearly about something else first. I’m about the principle. I’m about the mission. I’m about the arc of history and forcing it to bend toward justice.
But don’t get it twisted: I am coming for all of that corporate money. I am going to take millions from them. I mean, I already have taken millions from them. But that’s not enough. I am going to take hundreds of millions from them. I am going to go so hard at this and file so many cases that I tap the system out. That I force the courts to start applying the law as it is written. I am going to end McDonnell-Douglas. I am going to end the rampant judicial activism in employment discrimination cases. I am going to force the system to work. And working just means this: That the average person in America has a fair chance in court.
Jonathan Pollard is a lawyer and writer and the founder of Pollard PLLC. The Firm has offices in Fort Lauderdale, Florida and St. Louis, Missouri but litigates cases nationwide. Pollard and his firm have repeatedly been recognized by both Super Lawyers and Chambers & Partners. Pollard has been noted for his work in prosecuting high-stakes workplace sexual assault matters and defending complex non-compete and trade secret cases.