Whitney Warner, SPHR, JD, a former HR manager, now lives in what she calls “enemy camp.” She means she’s a plaintiffs’ lawyer, and she presented to an appreciative audience at a recent Society for Human Resource Management conference many secrets from her side of the courtroom. She is a partner in the New Mexico firm of Moody & Warner.

It’s not just about liability. Many employers believe that having a judge or jury rule against them is the worst that can happen, but Warner says it’s not. The really expensive part of a liability verdict is punitive damages for what the jury believes was done to the plaintiff. Late in her talk she gave a compelling example of one way to avoid such penalties. The plaintiff had been treated very badly: A company client had come into the workplace, sexually assaulted the employee, and then left. When she’d finished crying, she complained at length to HR. But the company did nothing. And, sure enough, the client came back, this time stalking the employee all through the building. Again she complained, again nothing was done, and she sued, retaining Warner.

Warner related this tale: “I’m taking testimony from the defendant’s witness, who promptly says, ‘We feel terrible that this happened. [The plaintiff] was a valued employee, and we’re deeply saddened about her experiences on our premises.’ Poof! There went our chances for any punitive damages.” Warner noted further that many employer/defendants are afraid to admit they made mistakes. Remember, she advises, your goal is not to be vindicated (assuming something bad really did happen to the plaintiff), but to reduce or avoid punitive damages.

Document, document, document. Turning to plaintiffs who sue for wrongful discharge, Warner recommended sound practices for employers. “Forget at-will employment,” she urged, “unless there’s an implicit contract, such as an employment agreement or a handbook promise.” In other words, even in a thoroughly at-will employment relationship, don’t refuse to tell any employee why he or she is being fired. If it’s for poor performance, the employee should have received one or more written warnings, and the evaluations conducted within a year or two of the termination should clearly spell out that the individual needs to improve and in what ways.

“All employees believe they’re either fully satisfactory or stars. If you’re firing someone who’s so not a star that the person isn’t even shiny, tell them the truth, over and over again.” An audience member asked, “What if a fired employee wants you to give him the reason in writing?”

“Provide it, and be as specific as possible,” she responded. “If it’s poor performance, give 4 or 5 examples. Saying the person violated company policy is also good, and be cautious: Don’t say the person was fired for sexual harassment—that’s a legal standard. Say instead that the person violated your antiharassment policy. A document stating your legitimate reasons for firing someone is useful to a plaintiff’s attorney, who may then turn down the case.” Warner also warned that waiting until after someone sues to give the reason makes it sound like you just made it up for the courtroom, meaning your real reason might have been discriminatory.

Watch your timing. Managers and supervisors get angry, Warner acknowledges, when an employee even lodges an internal complaint, much less sues. And, their first instinct is often to fire the person. HR needs to get in the middle of every termination, she advises, and ask, “Has this person complained about pay or work conditions in the last 4 months?” If the answer is affirmative, hold off on the termination, lest the person sue for retaliation.

The timing of an employer’s response to a complaint is also crucial: Launch an investigation quickly and discipline a harasser as soon as there’s corroboration of the misconduct. Suppose the person you want to head the investigation is away for a month: Can you wait? “Absolutely not,” says Warner. “Choose or hire someone else.” What if the complainant refuses to name names? Interview all the people in the person’s department and those elsewhere that often interact with him or her. “Ask each one if they’ve seen any behavior that might embarrass or offend someone,” advises Warner.