Representing the employer in an employment case is extremely interesting, very challenging and unlike roles traditionally adopted in other types of litigation.
But the first step in becoming a successful employment defense lawyer is to forget most of what you have already learned about strategy and tactics applied in the other areas of law. If you keep the following five things in mind defending an employment case, you will be ahead of the learning curve.
1. Employment cases truly are unique
Employment law cases are classic little guy versus big guy. Many other cases pit business against business, or individual against individual. Even those involving individuals against corporations don’t have the personal issues of fairness, self-esteem and self-worth present in employment cases. The cases also can touch on explosive societal issues such as sexual harassment or discrimination.
The biggest difference is the jurors, and judge, all have been employees. More than any other case type, the decision makers initially identify with the plaintiff. They bring their own life experience to the jury box, and virtually 100 percent of all jurors have common traits: Each has had a dispute of some magnitude with an employer. And each knows someone who has been treated unfairly by an employer.
Jurors start employment trials believing, consciously or subconsciously, the plaintiff probably has been mistreated. The defense lawyer already has one strike against them before the first witness testifies. If you forget you are defending an employment case, strikes two and three will follow in quick order.
Finally, although the law technically puts the burden of proof on the employee-plaintiff, in reality, the employer must justify its decisions or lose the case.
2. Fairness is the key issue in defense of employment cases
In other areas of litigation, cases turn on a wide variety of issues, perhaps technical, financial or legal in nature. Employment cases routinely turn on a single issue: Does the jury think the employee was treated fairly? If the jury answers “yes,” the employer is in pretty good shape. If “no,” the employer is well on its way to an adverse verdict. The concept of fairness must be preeminent in the development of any successful defense. The defense lawyer must prepare for questions the jury will ask:
Did the employer tell its employee what was expected? Were performance or conduct standards clearly communicated?
Was the employee told he wasn’t meeting performance or conduct standards?
Was the employee given an opportunity to change performance or conduct before any adverse action?
In misconduct cases, had the employee been warned before? Were similar cases treated alike? What is the employer’s history of discipline on similar misconduct?
Did the employee have a chance to tell his side of the story before action was taken? Did the employer consider what the employee said before the decision was made?
Do the employee’s co-workers think the action was fair?
How was the decision about the adverse employment action communicated?
Was the employee treated with respect throughout the process?
A jury might disagree with an employer’s decision, but often will still side with the defense if the employee was treated fairly during the process.
3. Avoid the trap inherent in preparing cases only for summary judgment
Motions for summary judgment are more important tools in employment cases than in other litigation. During the discovery process, defense lawyers in employment cases tend to concentrate on preparing for a successful summary judgment motion. There is serious danger in this approach. Summary judgment motions are dry, somewhat bloodless, technical and legal arguments. Employment trials are entirely different, and focus on the overall perception of fairness.
Defense lawyers respond to discovery, take depositions, prepare declarations or otherwise litigate cases aimed toward a strong summary judgment motion. Upon the motion failing, the realization sets in that deposition testimony, statements of position, declarations and answers to discovery aimed at summary judgment often can be harmful when put before a jury. When preparing for summary judgment only, certain defense lawyers don’t ask the trial-focused questions, for fear they might get an answer that will prevent summary judgment. Preparation devoted only to a summary judgment strategy ignores the issue of fairness so important to the ultimate trier of fact.
When defending an employment case, always consider two approaches: a strong summary judgment motion and a trial on the merits. If you ignore either one, you won’t succeed.
4. Prepare your case to be personal and focused on the key issue of fairness
You have to convince the jury that employment law cases are about people. Acme Corp. didn’t decide to do something; a human being acting as a supervisor or manager made a decision. Successful defenses are built on allowing the jury to know the decision-maker, understand the circumstances that existed and see the decision could well have been made without violating anyone’s legal rights.
Many employment lawsuits involve ugly allegations of racism, bias, sexual harassment and worse. A normal reaction by the employer is anger. An employment defense lawyer can’t allow anger in the courtroom. Juries don’t trust angry people to make calm, rational decisions. Moreover, anger in the courtroom often backfires. Plaintiffs want juries to do something dramatic and take action. Employers essentially want juries to conclude that there is no wrong to be righted. Angry people don’t preserve the status quo.
In the end, defense lawyers want the jury to conclude that it needn’t do anything. Perhaps the employer and employee didn’t get along, perhaps communication between them could have been better, perhaps the employer could have managed its business differently, and perhaps the jury would have made a different decision regarding the employee. But the key is that the employee was treated fairly and with respect.
5. Successful employment defense lawyers must be trusted by the judge or jury
Successful defense depends on a jury concluding an employer is reasonable. The defense lawyer will be the employer’s link to the jury, and its primary representative. If the jury trusts the defense lawyer, the client starts out ahead. If the jury thinks the lawyer is a jerk, the client is in trouble.
How can you get the jury to trust you? Jurors like people who are civil and respectful. Consider your own preferences: Do you like calm, polite people? Or rude, sarcastic people? Jurors react in the same way. They don’t like bullies, arrogance or tricky lawyers.
The goal of an employment defense lawyer is to present the case simply and clearly. To do so, a trial lawyer must deal with facts fairly and accurately; present the employer’s story without anger or emotion; be fair; and be respectful of everyone, especially the employee.
Employment law cases can be highly emotional, involving serious charges of personal misconduct or illegal activity.
A defense lawyer’s primary obligation is to provide a calm, reasoned approach to the case, and to bear in mind that whether the employee was treated fairly is the key element of the defense. By keeping fairness in the forefront, the defense lawyer avoids the common mistake of focusing too much on possible summary judgment, and ignoring trial preparation until it is too late.
The defense lawyer must also keep in mind that he is the point person for the employer. The defense lawyer’s honesty, sense of fairness and professionalism will automatically affect the jury’s view of the employer. So the defense lawyer must be what the jury wants to see in the employer: a calm and rational person with a lack of anger toward the employee, a desire to allow the jury to see all the facts and a confidence that the jury will reach the right conclusion.
Tim Murphy, a trial lawyer for more than 40 years, is the managing partner of the San Francisco office of Fisher & Phillips, a national law firm that limits its practice to representing management in labor and employment matters. He can be reached at email@example.com.