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July 18, 2024

Trying Your First Employment Law Case

Kayla M. Kienzle

Most employment law cases settle. But what about the rare occasion when a case goes to trial? And what if that case is your first trial? If you are a newer lawyer whose case is going to trial, you are likely asking yourself what should I be doing to prepare? What is my role? And how can I best help lead counsel?

I’ve been practicing plaintiffs’ employment law for just over four years, and in the fall of 2023, I had the opportunity to not only try my first case, but to successfully try and prevail on three cases within an eight-week span of time. The first was a two-day unpaid overtime case before an arbitrator; the second was an eight-day federal jury trial involving age, retaliation, and breach of contract claims, along with counterclaims; and the third was another two-day unpaid overtime arbitration. In each matter, when I set out to prep, there was no guide or manual on what I should be doing to assist lead counsel. Now that I’ve had some time to reflect on my experiences, I recognize that even first-time trial lawyers can add significant value to the trial team. My hope is that these tips are helpful to those needing a starting point, regardless of what side you are on, the legal issues present in your case, to whom the case is being tried, and in what forum you are trying the case.

Know the Facts

In a case that has been litigated for years, it is unlikely that you will be the only associate to have worked on it. Another associate may have taken and defended depositions or briefed and argued motions. Before trial, it is your job to get up to speed and know the facts. In employment cases, details matter, and being able to point out the missing link at trial could help win the case. Reviewing summary judgment filings can be a solid starting point to gain a high-level understanding of the case background and the key facts and legal issues. From there, reviewing the deposition transcripts and doing your own deposition summaries will help you become familiar with each of the witnesses and allow you to form your own opinions of them. Is there anyone that you would recommend avoiding calling as a witness? Is there a critical witness? Is there anyone that would be better to call via their deposition rather than in person? These are all decisions that you can weigh in on, and your perspective, which may be more objective as someone new to the case, could help define the trial strategy. Further, it can help you to identify possible witnesses you can prepare and handle at trial. Knowing their testimony is a good way to get that opportunity.

No doubt you will have plenty of documents and discovery to review. Try to review it all if you have time and take notes on what details are important or why the document does not matter. Create a proof chart, identifying the elements of your case (or your opponent’s case, if you are on the defense) along with the facts establishing (or challenging) those elements and the witnesses who will testify to (or against) those facts. This proof chart can be used during trial as well. From there, you can identify if there were any key documents missed on the exhibit list. Know any bad facts so you can assist with strategy on how to handle the evidence that will certainly be introduced by opposing counsel. Once you have the facts gathered, creating a timeline will also help you sort out important details. In certain cases, like retaliation, when something happened can be equally important as what happened.

Become the Expert on Certain Legal Issues

The partner or lead counsel will likely be focused on trial strategy and what it takes to win, including how certain evidence gets admitted. Lead counsel may know what evidence needs to get in, but you can become the expert on the legal basis as to why that evidence should be admitted or excluded. The Federal Rules of Evidence or your state equivalents are your starting point, but there may be certain nuances within those as to why evidence should be kept in or out. Do thorough research to find out. These issues may continue to be litigated at trial, so your expertise on a nuanced area of law could be key. Also, issues will often arise during trial that need to be promptly researched, but lead counsel may not have time to do so. This is your chance to contribute and help shape the trial through your research and analysis.

Gauge the Jury/Courtroom at Trial

Once trial has started, you have a unique opportunity to assess the courtroom, including the jury’s (or judge’s or arbitrator’s) reaction, especially if you are not examining a witness. Lead counsel will be dialed in on the task at hand and may not take stock of everything going on in the courtroom. Was the jury falling asleep during opening statements? That’s your cue to inform lead counsel to ensure your team’s opening is crisp and to the point. Did certain demonstratives fall flat? What were jurors’ reactions to certain testimony? Were there head nods or eye rolls? Take note of these things and let lead counsel know. Depending on the preference of lead counsel, it might even be helpful for you to keep a list of follow-up questions for certain witnesses. Keeping notes on the proof chart will assist lead counsel in keeping track of the evidence that may or may not have been admitted that is critical to meeting all the elements to prove or defend your case.

Similarly, as you are assessing the courtroom, one question to keep in mind is whether your team’s theme is coming across. Ensure that the storyline your side intended to tell is clear. As the second chair or associate, you can assess all the evidence from a more objective or outside point of view. If there is a witness whose point was not made clear, or if there is something that needs to be explained further to the jury, keep note of that so you can tell the rest of your team.

Trials are tricky, even for experienced counsel. During my jury trial, we kept singing Run-D.M.C.’s “It’s Tricky” when a nuanced issue arose and we didn’t necessarily know the answer. As an associate at trial, you can be a valuable contributor when you know the file, have done the research, and aren’t afraid to share your thoughts and observations. Just because something is tricky doesn’t mean it cannot be a lot of fun. And trials are fun.

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Kayla M. Kienzle

Associate, Nichols Kaster, PLLP

Kayla M. Kienzle is an associate attorney at Nichols Kaster, PLLP in Minneapolis, Minnesota. She primarily represents workers seeking unpaid wages in class and collective actions and in arbitration in cases across the country.