Like most litigators, those of us who litigate employment claims like to talk about our victories. Why shouldn’t we? A courtroom victory is an exciting experience and often makes for a good story.

But in reality, it’s almost impossible for an employer to come out ahead in employment litigation. Yes, you can obtain a defense verdict – or better yet, prevail at a preliminary stage, like on summary judgment. You can also persuade plaintiffs and their attorneys to settle for an amount you consider cheap. But if you’re representing a business, all you’ve accomplished is reducing what could be a large expense to a more manageable expense.

In theory, prevailing employers can recover attorneys’ fees in statutory discrimination cases or certain wage and hour claims. But in practice, that very rarely happens. It’s no secret that the prevailing plaintiffs get their fees almost automatically and prevailing defendants don’t because the courts don't want to discourage employees from pursuing valid claims.

So at the end of the day – after your big win – your client has taken money that could have been used for growth, compensation, paying down debt, or other business needs and used it to pay legal bills and settlement costs. I understand why we tell clients that they’ve “won.” But the fact is, they were better off before litigation. In other words, once employment litigation begins, the employer has already lost. All you’re doing from that point forward is damage control.

Employers obviously have to defend themselves when they get sued. And it takes considerable skill and knowledge to defend them well. It’s just hard to call it a victory if your client is in a worse position financially than before the dispute began. The goal shouldn’t be winning the litigation, it should be avoiding it in the first place.

In my next post, I’ll share some thoughts about how best to do that. That will also give me an opportunity to respond to this latest post from Earl Phillips at McCarthy Tetrault about how employment law and litigation differ between the U.S. and Canada.