The Employment Trial Boom: A Perspective From the Bench and From the Trenches

By Hon. Jeffrey K. Winikow

Hon. Jeffrey K. Winikow served as a Judge on the Los Angeles Superior Court and was a past Chair of the Los Angeles County Bar Association’s Labor & Employment Section. He is currently mediating employment cases throughout California through Winikow Mediation: www.winikowmediation.com. Judge Winikow welcomes comments via email to: jeff@winikowmediation.com.

As the business of employment litigation has changed, so, too, has the frequency of employment trials. One cannot attribute this change merely to case filings or to the influx of lawyers in the field. Indeed, if one examines the most recent DFEH Report to the Legislature, the statistics seem to show that – statewide – the number of DFEH charges has actually declined from 2011 through 2014. Yet, anecdotal evidence suggests that the number of FEHA trials has been steadily increasing during this same period. This article explores how market factors may be driving the employment trial boom.

I have had the opportunity to view employment litigation from just about every seat in the stadium. I have been a defense lawyer; I have been a plaintiff’s lawyer. I have served on the Los Angeles Superior Court, and I am now an employment mediator. I want to share some of my observations, and to stimulate some discussion and debate over the root causes of why we are seeing such a dramatic increase in employment trials over the past ten or fifteen years.