When an employer takes the initiative to sue first, there is the possibility of gaining significant advantages. These could include the ability to choose the venue, forum and timing. In regard to the nature of the claim, there could have the option of filing in federal court other than state court, or the positions could be reversed. With the federal filing, it’s possible that a more favorable federal circuit could be available.
At first, the employer/plaintiff will define the issues therefore driving the pre-trial agenda. When an employee/defendant raises issues through counter-claims or defenses, they must firstly respond to the employer’s charges.
The employer/plaintiff will also be able to devise a strategy in advance of filing suit by anticipating the defenses and counterclaims by the employee as well as preparing motion papers, requests for discovery and developing responses.
If the case goes to trial, greater control will be at the hands of the employer/plaintiff over proceedings. Not only will the employer/plaintiff be given their opening statement before the employee and closing statement after the employee, the employer/plaintiff will be called to present their case witnesses first. This schedule of events may allow the employer/plaintiff to cross-examine the employee before he/she has the chance to frame their story from their own perspective.