how employers make juries angry – and pay for it with big verdicts presented by: robert e. bettac...
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HOW EMPLOYERS MAKE JURIES ANGRY – And Pay for it With Big Verdicts
Presented By:
Robert E. BettacOgletree, Deakins, Nash, Smoak & Stewart, P.C.San Antonio Office210.277.3622
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Why Talk About It?
Jury trials are a vanishing breed
But fear of a bad jury verdict
Is the engine that drivesPersonnel actionsCosts of defenseSettlement decisions
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Trial Defined
Examination of evidence and applicable law by a competent tribunal to determine specified charges or claims.
The American Heritage® Dictionary of the English Language, Fourth Edition
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What Trial Really Is
Synonyms: affliction, crucible, ordeal, tribulation
Nouns which denote distress or suffering that severely tests resiliency and character.
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The brass knocker being slammed twice in succession, followed by the bailiff's command to, "All rise!" has tightened more corporate sphincters than any angry shareholders' meeting.
web log of a Texas Plaintiff’s Lawyer
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Why Employment Trials Are Different
Everyone is an expert Company defending its decision
Makes it personal Employer’s position
We Didn’t Do It! If jury finds you did
You not only did itYou lied to them as well
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What Jurors Feel
55% would do what is right, even if it went against the judge’s instructions
45% believe an important function of juries is to send a message to companies
73% believe without agencies like the EEOC, employees would be taken advantage of by employers
62% believe companies have ways to get back at those who complain of harassment
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Making Juries Mad
Lying
Falsification of Evidence
Missing Documents
Tampering With
Witnesses
Trying the Wrong Case
Picking the Wrong
Theme of the Case
Picking the Wrong Jury
Selecting the Wrong
Witnesses
Misbehaving in the
Courtroom
Underestimating the
Power of Bad Facts
Attacking the Plaintiff
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Lying
LIES, LIARS and LYINGTo employeesTo the public In administrative proceedings In depositions In prior casesAnd, at trial
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Falsification of Evidence
Unusual to have evidence created for trial
ProblemsFile BuildersRe-creatorsHole FillersPost Daters
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Missing Evidence
Juries expect documentation For both performance and discipline cases
“Clean” file raises multiple issues
“Missing” document = cover-up? Possible spoliation instruction
Jury can assume document would be
adverse to ‘destroyer’
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Tampering With Witnesses
Unusual to have direct bribes or threats
ProblemsOverzealous managersTalkative HR staffMajor business changes involving witnessesViolating “The Rule”
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Trying the Wrong Case
Not all cases have to be tried
Most are not tried
Be aware of
Bad facts
Bad venues
Bad luck
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Picking the Wrong Theme
Bad employee, punished himself
Good
Plaintiff is a liar
Better be sure you can prove it
“She wanted it” or some similar version
Dangerous
Use a positive theme, if possible
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Picking the Wrong Jury
Where the case is won or lost
Different theories
Select those most like your client
Make sure that you eliminate those
who will kill your case
Use of stereotypes
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Juror Stereotypes
Management typesNot enough of them
Engineers, accountantsPrecisionLike Rules (if you followed them)
Helping professionsTeachersNurses
But always trust your instincts
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Selecting the Wrong Witnesses
Not always a choice Can choose your experts
Make sure they are ‘teachers’ Jurors cannot abide
LiarsArrogance
Applies to much more than just witnesses
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Misbehaving in the Courtroom
Courtroom is really much larger
Appropriate Dress
Reacting to testimony
Rolling eyes, laughing
Not a laughing matter
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“Superior” Behavior
CEO or Other Top Dog
Above all this
Won’t prepare
Angers when challenged
Applies to Your Lawyer As Well
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The Danger of Bad Facts
Focus on facts, not legal defenses
View through eyes of juror
Do not view from employer perspective
Was employee given due process?
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Creating Bad Facts
Aggressive security departments
Making an “example”
Ignoring complaints
Demeaning behavior
Slander after termination
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Creating Bad Facts
“Surprise” enforcement of neglected rule
Ignoring or neglecting valid complaints
Doing incomplete or sloppy investigation
Terminating employees by email, letter or phone
Evicting employees/unnecessary fanfare
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How You Treat the Plaintiff
Avoid harsh attacks
Avoid unnecessary personal attacks
Avoid retaliatory behaviorTiming can be crucial “Not eligible for rehire” problematic
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Trial Strategy
Pre-instruct the jury Empower the plaintiff Demonstrate corporate responsibility Give context to punitive damages
sought? Bifurcate?
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ARROGANCE KILLS
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So Does STUPIDITY
HOW EMPLOYERS MAKE JURIES ANGRY – And Pay for it With Big Verdicts
Presented By:
Robert E. BettacOgletree, Deakins, Nash, Smoak & Stewart, P.C.San Antonio Office210.277.3622