February 24, 2015 Articles

Persuasive Techniques for the Defense of Employment Cases

By Portia R. Moore

The number of employment lawsuits has exploded in the last decade. Prior to this, companies often settled employment cases, regardless of merit, simply to avoid the expense and inconvenience of defending a lawsuit. Increasingly, however, companies and upper management are growing less tolerant of allegations of unfair or discriminatory employment practices and are more willing to fight cases that they perceive are meritless, regardless of the costs of defense.

Such cases, however, are almost never "ideal" for an employer—the facts are often messy and unfortunate. So, the million dollar question is: Once a preliminary decision has been made to take a case to trial, how do you, as defense counsel, place your client in the best possible position to receive a favorable verdict? The answer, in large part, is that you must prepare a meaningful story of the case early on, one that goes beyond the banal "I didn't do it" defense and, instead, underscores everything that the company did right. Painting a positive picture of your client's role in the story is essential in explaining to the fact finder what happened from the company's perspective.

Start Developing the Story at the Onset
Early development of a "story of the case," using language that is consistent with the facts and that best describes the events from the company's perspective, allows you to identify, control, and minimizeany negative facts in your case before a plaintiff's attorney can effectively use them to weaken your position. First, you must lay the groundwork for developing the story. Before taking or defending your first deposition in the case—and certainly before taking the plaintiff's deposition—you should therefore:

  1. review all relevant company documents;

  2. review all of the documents produced by the other side; and

  3. speak with all of the critical company witnesses to get their explanation of the events in question.

At this point, having done your research of what the case is about, you can begin developing a persuasive story that explains what happened from your client's perspective. Then "discover" your story. Explain the story to your witnesses and prepare them for deposition with your theme in mind. Serve discovery and depose the plaintiff and plaintiff's witnesses with a goal of getting admissions consistent with your story.

If, through the course of discovery, documents or witnesses present significant problems to your client's position, the goal should be to try to settle the case before a substantial portion of the litigation budget is consumed. Preparing your witnesses with a believable story, however, minimizes the chances of your being forced to pay significantly more than the case is worth. Witnesses will be less likely to make damaging admissions if they know and embrace the story of the case, thereby keeping the costs of settlement contained. If for any reason settlement is not an option, the story of the case you create will become your winning theme of the case.

An Example from Experience
In one case that went to trial, the plaintiff—an African American male—complained that his manager repeatedly used derogatory racial epithets. He raised the issue to management on two occasions. The first time, his complaint generally stated that the manager made inappropriate comments but did not claim that the manager made racially derogatory epithets. A full four months later—after deciding to quit his job and to move out of the area—the plaintiff hired an attorney and complained again to management. This time, his complaint alleged that the manager had made racially derogatory epithets on two occasions. By the time the case proceeded to trial, however, the plaintiff claimed that the manager made derogatory racial epithets on a daily basis.

We immediately obtained and reviewed the company's documents and interviewed critical company witnesses, including the manager, before a single deposition was taken. While our early investigation revealed there were no "smoking gun" documents, there was one damaging fact—the manager admitted to using racially derogatory language and jokes on a few isolated occasions in the workplace. Nevertheless, our investigation also revealed that the company promptly investigated both of the plaintiff's complaints and, after learning about the first complaint, disciplined the manager and his behavior immediately improved. That became our story of the case.

After developing the story of the case, we prepared the manager to follow any admission to making inappropriate comments with the acknowledgment that after being disciplined, he never engaged in the behavior again. We also prepared other defense witnesses to highlight that as soon as they were advised of the offending behavior, the manager was disciplined and his behavior immediately improved. Further, in the depositions of the plaintiff's witnesses, we focused on drawing out information that acknowledged the manager's behavior improved after the plaintiff made his first complaint. These proved to be very helpful admissions at trial.

When all efforts to settle for a reasonable amount failed, and when it became clear that the case was headed to trial, the "story" that we had developed was easily transformed into our "theme" of the case—"[T]his is not a case about a work environment that was so hostile it affected the Plaintiff's ability to work effectively. Rather, this is a case about a teachable moment—where the Plaintiff complained, the company responded, and the manager stopped his behavior."

At trial, we wove our theme into each step of the process—at voir dire, in our opening statement, while questioning the witnesses, and in our closing statement. Perhaps most important to our trial strategy was to describe our theme to the company witnesses. Their behavior toward the plaintiff was always discussed with the jury in the context of our theme—a teachable moment where an employee stopped the offensive behavior. As a result, the defense witnesses were much stronger on the stand because they were able to focus on what they did right, rather than what they might have done better.

Having a consistent and cogent story is a highly effective tool for cross-examination. In this case, the plaintiff introduced at least four former employees who testified that the manager made racially insensitive or derogatory comments at work. The collective testimony was potentially devastating to our case. Again, however, we returned to our theme. When cross-examining each witness, we used a simple dry erase board as a visual aid to specifically identify when any alleged derogatory language was used by the manager—before or after the company's corrective action. The right side of the board—the "after corrective action side"—remained blank throughout the trial and each witnesses' testimony and was still blank at the time of closing argument.

Because we had prepared our story of the case early on, we, as the defense, were able to control the language and characterization of the case. We had discovered and then dealt with the "bad" facts truthfully and in a manner that was believable and persuasive. In this case, which many said was simply "not winnable," we received a complete defense verdict, which was in no small part a product of taking the time to develop a solid story of the case at the onset of the litigation.

The Lesson to Be Learned
The best trial lawyers begin preparing for trial on the very first day a case comes in the door. Do not wait until discovery has closed or you have lost your summary judgment motion. Developing an effective and persuasive story of your case at the outset is the best way to ensure optimal results for your client—whether that is reaching a reasonable settlement or trying the case to a successful conclusion.

Keywords: litigation, minority trial lawyer, employment lawsuits, defense, story of the case, theme, persuasion

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).