3 octobre, 2007 08:46
A GC Trial Primer: 10 Rules to Remember
Michael P. Maslanka
October 3, 2007
At some point in a general counsel's career, this formula inevitably will kick in: denied summary judgment + failed mediation = looming trial date
Rule No. 1: Always be litigating (ABL). With apologies to the film "Glengarry Glen Ross," remember to ABL. Trial preparation begins before a plaintiff files suit. A company's response to an Equal Employment Opportunity Commission charge stakes out its position on a discrimination claim: Make it accurate, or get blistered at trial on inconsistent positions. Before submission it's a good idea to have the corporate counsel or the human resources manager -- someone who's once-removed from the now-disputed decision -- read, review and approve the response, and to have the line managers for whom there was no degree of separation read it.
ABL is pro-active. Got a harassment complaint but can't resolve credibility? Don't just say to the complaining employee, "Come tell us of any more problems." Instead actively check up, popping by to say, "How is everything going? Any other concerns?"
Rule No. 2: Don't try a case by accident. You can stumble into love but not into a trial. The decision to try a case must be deliberate. Before giving the green light, a general counsel must ask herself, "Have we really weighed the pros and cons of trying the case? Is it worth one more shot to try to settle?" Does the company truly want to commit the time of its managers and the expenditure of its Do-Re-Mi to defend the suit? Regardless of the outcome, asking these questions is worthwhile.
Rule No. 3: Remember, case first, lawyer last. A few years ago, I lost a beauty contest, literally. The client wanted something it correctly perceived I could not deliver. "Mike, we picked a lawyer with a swoon factor. I can just see the women on the jury being putty in his hands."
Well, a trial is not a reality dating show. Jurors look to see if the lawyer is professional and to the point. That's about all we need to do in the courtroom. In some ways, lawyers are the least important people there. This truth applies to companies that decide an African-American juror will be more predisposed to an African-American lawyer in a race case, or a female juror to a female lawyer in a sexual harassment case.
No, jurors relate to what the employer did; whether the employee had knowledge and control in her employment situation (did she have knowledge of her job failings and was she empowered to correct them?); whether the employer exercised basic fairness; and whether the employer crafts a story that already is consistent with a juror's pre-existing beliefs.
Rule No. 4: Jurors are pre-wired. Speaking of such beliefs, cognitive theory teaches us that jurors make up their minds before they ever walk into a courtroom. Pre-existing beliefs are carved (literally) into our brains.
For example, jurors already believe that employers smack down employees who complain and rock the boat. A juror's brain thus lights up like Times Square in a retaliation case. How to counter? Find a pre-existing belief system that helps an employer. Tell jurors that employees sometimes complain not to help others or raise legitimate concerns but to feather their own nests.
Changing the frame works as well. Say an employee is passed over for a job he wants; later he claims the employer didn't choose him because he has a disability. At the outset, an employer could frame the issue by saying that this is a case about disappointment, not discrimination. During the opening statement, give jurors a framework (not a rebuttal), and they will work to fill it.
Rule No. 5: Look for your enemies, not your friends. GCs sometimes ask, "What kind of juror do we want?" That's not the right question. It's not who they want, it's who they don't want. A lawyer wants to find out who is angry -- who is not just going to find the company liable, but who is going to pop the company on damages.
Try this: Ask a sliding scale of questions such as, "Who here thinks a company retaliates against an employee who complains?" Then invite potential jurors to answer by saying that they strongly agree, agree, disagree or strongly disagree. This technique flushes out the angry. Strike them; what's left is your jury.
Rule No. 6: Get to the point. When you have that jury in the box and get up for opening statement, get to the point -- no hemming, no hawing, no throat clearing. Getting to the point means telling the company's story, not rebutting the other side's story. Trust me, it happens. In working on an appeal for a case I did not try, I was reading the transcript. There was a blistering opening by the employee's lawyer. The defense lawyer got up and tried to rebut, point-by-point, his opponent's opening. Guess what? This opening just reinforced the employee's story. Instead, present an alternate reality. Whatever the employer does, do not pile on with witnesses. Don't put two witnesses on the stand to testify about the same thing.
Rule No. 7: Realize the power of a question. The most powerful technique in a closing argument is asking a question. It allows the jury to arrive, on its own, where the lawyer wants it to go. Do not lecture. The 18th-century English writer Samuel Johnson was right: It is always better to remind than to lecture.
Ask jurors what's more likely -- that Joe Manager sat down and consciously decided to terminate because of the employee's sex or that _____ (fill in the blank with the reason)? This tactic is flexible and can be mixed and matched in a variety of ways. Or try this: "Why would so and so manager do XYZ? Does that make sense?" Rhetorical questions funnel the attention of a juror and get him thinking on his own.
Finally, say this: "When you get back in the jury room, a fellow juror may ask, "Gee, what about such-and-such testimony? Wasn't that important?' Let me suggest to you what I think the answer might be." The company's friends on the jury will be listening attentively. Arm them.
Rule No. 8: Talk about damages. Sometimes a company can have a "functional" win -- a loss on liability, but minimum damages. So talk about damages this way: "The employee's lawyer spent a lot of time talking about damages, and while I generally don't like to cover the issue, I would be remiss if I didn't cover it in my closing." Not talking about them will be noticed.
Rule No. 9: Don't be afraid of the judge. Judges are just people. Most are hard-working and decent; a few are lazy and scoundrels. When a litigant finds himself saying, "If we object, the judge will be mad at us, so let's not object," he needs to stop and think. If the judge is the real deal, she knows she is paid to make decisions. If she is not, she is going to dislike an objecting lawyer in any event. Remember that there is a reason for the court of appeals.
Rule No. 10: Whatever happens, happens. Isn't that the truth? I have won trials I thought I would lose and lost trials I thought I would win. As the Leonard Cohen song says, "That's how it goes/Everybody knows."
Here is how it goes: The trial roulette ball sometimes drops in a slot with an obnoxious employee and an even more obnoxious lawyer. Don't focus on revenge. Keep your eyes, as the spiritual goes, on the prize, and remember what Michael Corleone said in "The Godfather": "It's just business, Sonny."
Michael P. Maslanka is the managing partner of Ford & Harrison in Dallas. His e-mail address is mmaslanka@fordharrison.com. He is board certified in labor and employment law by the Texas Board of Legal Specialization. He writes the Texas Employment Law Letter.
