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Trial of the Wrongful Termination Case — Jury Selection Generally

Jury selection is probably the most important part of any trial. The outcome of the case may depend as much upon the nature of the people listening to the evidence and deliberating on it as it will depend upon the evidence itself. In Federal Court, jury selection is governed by Federal Rules of Civil Procedure 47. Under FRCP 47(a) the Court may permit the attorneys to examine prospective jurors or may conduct the examination itself. If the Court elects to conduct the voir dire itself, the Court must permit the attorneys to ask follow-up questions as the Court deems proper, or shall itself submit to prospective jurors additional questions of the attorneys as it deems proper. FRCP 47(a); United States v. Corey, 625 F. 2d, 704, 706-08 (5th Cir. 1980).

The principals of jury selection in wrongful termination cases are similar to the principles of voir dire in other tort cases. The exception is wrongful termination cases involving management/executive, high wage earners, and cases in which there is also sexual harassment or discrimination. See S20.10, Jury Selection in Sexual Harassment Cases S22.10, Jury Selection in Discrimination Cases. It is recognized that the purpose of voir dire examination is to probe each prospective juror’s mind for prejudice. Darbin v. Nourse, 664 F. 2d, 1109, 1113 (9th Cir. 1981)

Generally speaking, plaintiff is looking for jurors who are sympathetic to the plight of salaried employees in a society in which job mobility is limited and recognize the inherent dependency of workers on the goodwill of their employers for survival. This type of juror will normally have come from the working classes and will have remained working class into adulthood.

Middle class and white-collar workers may be okay from the plaintiff’s point of view depending upon their political orientation. Philosophically it is simple. Does the potential juror believe that a civil justice system should allow people to come into court to seek redress if they are wrongfully terminated? Republican-type, antigovernment intrusion-type jurors will probably be hostile to the request by a wage earner that a juror correct an employment decision made by management. Managers, small or large business owners, or independent contractors will probably also identify with the defendant in a wrongful termination case. Democrats and jurors that accept government overseeing of the workplace will generally be more open to the idea that workers need access to the court system to protect themselves against management.

Since the lines of jury selection are so clearly drawn in a wrongful termination case with workers generally being good for plaintiff and managers and business owners generally being good for defendant, it is likely that most people with a job and most people who own businesses will be challenged by one side or the other.

Thankfully, from a plaintiff’s point of view, there are more workers than there are managers and business owners, which probably explains in part the high success rate in plaintiffs’ wrongful termination cases versus other types of tort cases.

Further, a potential juror with limited skills, thus limited job flexibility, will be more likely to be empathetic to a plaintiff’s plight in a wrongful termination case than a worker with a great deal of flexibility and job mobility.

However, not all potential jurors will be working. If a non-wager earning juror is on some type of public assistance, then he or she will probably be a good plaintiff juror for all the traditional reasons, plus he or she will be more likely to be accepting of the concept of government intrusion into the workplace. As to the nonworking spouses of workers, there is some risk that this entire class of people will be somewhat insensitive to the plight of workers. However, the spouse of a non-managerial wage earner will be far more likely to be empathetic to the plaintiff’s position than the spouse of a manager or business owner.

Another important class of people to consider are those potential jurors who are retired. Because they have time to sit on juries in long cases, they are probably overly-represented in jury panels in employment cases, which tend to be lengthy, and they must be carefully screened. To some extent, retired people will tend to side with workers or management depending upon whether they were themselves workers or managers when they were employed. However, retired people, almost by definition, have successfully passed through the working phase of their lives. They will either have reached some type of financial stability or obtained government aid which has allowed them to successfully stop working. Even if they were wage-earning employees, retirees may be “being taken care of” by a large company much like the one that plaintiff is suing, and this may cause them to side with the defendant. Further, with older people and retired people, plaintiff runs the risk of jurors who have put up with a lot of abuse from employers throughout their career, and who may have been wrongfully fired at various times, without being able to seek redress. These jurors are potentially dangerous to plaintiff because they successfully “toughed out” the situation, and now are comfortably retired, so why cannot the plaintiff handle the situation?

When the plaintiff is a manager, executive or high wage earner, the dynamic of jury selection will change, sometimes dramatically. Small or large business owners will still generally be pro-defense jurors, however, jurors who are managers in large companies may be more able to relate to the plight of a fired management plaintiff than a low wage earner who may be unsympathetic to management, and, may be even more unsympathetic to somebody who makes more money in a year than he or she makes in a lifetime.

In cases with management plaintiffs, nonworking spouses may be excellent jurors for the plaintiff. Someone from this class of people will, almost by definition, have somebody like the plaintiff in his or her life who supports him or her and allows her or him not to enter the workplace. A person of this class will be as dependent on the goodwill of the large corporation as will be the management workers themselves. Retired people who have children in management may also be good jurors in this type of case.

PRACTICE TIP: Because an attorney’s ability to question jurors may be severely limited both in terms of scope and time in many courts, it is a good idea for an attorney to, one in pretrial conference urge the Court to allow an attorney as much leeway as possible in terms of questioning other jurors, and, two, attorney must prepare before the trial begins detailed written voir dire questions to submit to the Court in case the Court does not allow the attorney to question the jurors himself or herself. Even in courts that allow attorneys great leeway in questioning jurors, it will still be very helpful for an attorney to have a well-thought out series of questions for the jurors, which can then be expanded if the court allows the voir dire examination to be more conversational.

S21.20 – USE OF FOCUS GROUPS IN PLANNING JURY SELECTION AND TRIAL STRATEGY.

In any significant employment case, including wrongful termination cases, there should be consideration of the use of a jury consultant and focus groups. A mock jury trial in which mock jurors hear both sides of the case and then deliberate may be particularly instructive. Although the type of jurors an attorney will want may be relatively straightforward in a wrongful termination case (See S20.10), the interaction between different types of jurors in deliberation can greatly affect the outcome of the case. How will the workers interact with the nonworkers? What will the effect of one or two managers on a predominantly working class jury be? How will the self-employed people attempt to sell their position in deliberations? These questions can be addressed and sometimes answered by a focus group.

Of particular importance will be the way in which the mock jurors react to the plaintiff. Do they “buy” the plaintiff’s story? What points “sell” the jurors? Are the jurors motivated to help this plaintiff by making a large award? What are the weak points in the plaintiff’s case? The answer to these questions before trial, with the help of a jury consultant may very well define how to try the case or even whether to try the case.

For a more detailed discussion on the retention of jury consultants and use of focus groups, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 218 – 222.

PRACTICE TIP: In courts in which voir dire questioning will be severely limited, it is even more important to work with jury consultants and to conduct focus groups to determine what type of potential jurors will be best for the case. Since the attorney will not be allowed to ask the questions which will reveal a juror’s bias or prejudice, the attorney will have to rely more upon the nonverbal behavior of potential jurors and the inherent biases of certain types of potential jurors. Jury consultants usually are psychologists or sociologists, and will be better trained to assess this information than attorneys.

S21.30 – JURY QUESTIONNAIRES

As in all cases, jury questionnaires may be useful in wrongful termination cases, though they are not as important as they are in sexual harassment cases, See S20.30, and in discrimination cases, See S22.30, in which jurors are likely to have strong points of view on those subjects which they will want to keep secret. Jury questionnaires should be tailored to carefully delineate a potential juror’s work history, reasons for changes in jobs, the work history of other close family members, and whether or not the juror has sought any type of redress in an employment setting.

It is generally within the discretion of the Court to allow attorneys to submit a jury questionnaire during voir dire. See FRCP 47(a); Los Angeles Memorial Coliseum Comm’n v. NFL, No. 78-3523-HP(C.D. Cal. 1982) Aff’d, 726 F. 2d, 1381 (9th Cir. 1982).

PRACTICE TIP: It is generally a good idea to discuss the use of a jury questionnaire with opposing counsel several weeks before the trial. Although the Court may reject use of a questionnaire, a judge will be far more likely to utilize a jury questionnaire if counsel for all parties have stipulated to the use of a questionnaire, and, have actually agreed upon a questionnaire form.

Also, some thought should be given to the manner in which the questionnaires will be disseminated to the potential jurors and the manner in which the attorneys and the Court can efficiently review the jurors’ completed questionnaires. Keep in mind that for questionnaires to be effective, the attorneys and jury consultants need sufficient time to review the questionnaires before oral questioning of the jury begins. Once a Court agrees to utilize questionnaires, the attorneys should request as much time as possible to review the information in the questionnaires once they are completed.

Also, when utilizing questionnaires, remember that the attorneys must have a plan in place to insure that the filled-out questionnaires can be disseminated to the judge and attorneys as soon as possible after the questionnaires are completed. The most efficient way to achieve this result is to prepare the questionnaire with multiple carbon copies. If an attorney is unable to arrange for carbon copies, then arrangements need to be made for the filled-out questionnaires to be xeroxed immediately upon completion.

S21.40 – SAMPLE VOIR DIRE QUESTIONS

In addition to obtaining a thorough work history of the potential juror and close family members of the juror, the following questions should be considered:

1. What are your feelings about a fired employee who comes into court and asks for money damages as a result of being wrongfully discharged?

2. Do you think people should be able to use the civil court system to handle significant employment disputes?

3. If you felt you were wrongfully terminated, would you bring a lawsuit?

4. If you were fired or laid off, would you be able to easily find other equivalent employment? If so, why? If not, why not?

5. Did you ever have hiring or firing power in your job? If so, please describe.

6. Have you ever felt like you were wrongfully fired from a job? If so, what did you do, if anything, in response?

7. Have you ever felt your spouse was wrongfully fired from a job? If so, what did you do, if anything, in response?

8. What are your feelings about a long-time employee being terminated from a job?

9. Do you think an employer should be able to fire employees anytime they want?

10. Is job security something that is important to you and your family? If so, why? If not, why not?

11. What are your feelings about your job?

12. What are your feelings about your employer?

13. Do you have a progressive discipline system at your place of employment? If so, please describe it.

14. Do you believe that if an employee is to be terminated, that it should be done in a way that is fair to the employee? Do you believe it should be done in a way that leaves the employee with a sense of dignity?

S21.50 – OPENING STATEMENT

Despite the technicalities of the law, most wrongful termination cases will probably turn upon the question of whether or not the employer had a good reason to fire the plaintiff. If the jury believes that the plaintiff was a good, dedicated worker who was fired under pretext, then plaintiff will probably prevail on the technical legal theories such as whether or not there was an implied contract. If the plaintiff was a poor performer, with a poor work history who may not have been guilty of the particular infraction charged by the employer, but probably did other things wrong, then plaintiff will probably lose even if the employer did not follow all the laws and its own internal procedures in discharging the plaintiff.

Therefore, the good performance of the plaintiff should be the focus of the opening statement. The jurors are going to be interested in hearing just what type of worker the plaintiff was. Assuming that the plaintiff was a good performer, then his or her good performance should be accentuated. The facts of the actual termination or the details of the particular infraction the plaintiff allegedly committed will be less important than establishing the plaintiff’s character, and his or her character as a good performer.

Emphasis should be placed on what the job meant to the plaintiff. Did he or she support a family with the job? Did the job mean more than money to the plaintiff? Was it a source of self-esteem, pride, and did it give the plaintiff a feeling of accomplishment?

The defendant should be painted in as negative a light as is feasible under the facts of the case with an emphasis on the unfairness of the defendant’s actions. Why was it unjust that the plaintiff was terminated.

If the employer did not follow its own technical guidelines in firing the plaintiff, explain to the jurors why, following the technicalities of internal guidelines is important. Explain how we all have to operate under rules and regulations or there will be chaos. Just as the plaintiff was expected to follow technical rules like arriving at work at a certain time, the employer is expected to follow its own rules.

By the end of the opening statement, the jurors should be left with the impression that plaintiff was a good performer who was unjustly terminated and that the law allows the plaintiff to come in to civil court to seek redress for this type of wrong.

For a detailed discussion on the preparation of an opening statement, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 230-231.

PRACTICE TIP: The opening statement must be clear and concise. If the jurors cannot follow an attorney’s opening statement, they will not be able to follow the testimony and evidence in the case. Although the attorney is probably very familiar with every detail in the case, the jurors know little or nothing about the case before opening statement. Thus there is a huge information gap which must be filled by the attorney with an effective opening statement which will provide the jurors with a road map to follow the testimony and evidence as they hear it and see it during trial.

S21.60 – ORDER OF WITNESSES

In a wrongful termination case in which there is no claim of harassment, discrimination, or psychological injury, the plaintiff should usually be the first witness. The jurors generally have to meet and care about the plaintiff before they will be ready to listen to the rest of the evidence in the case. (This is in direct contrast to the sexual harassment and discrimination case in which the attorney does not want the jurors to meet the plaintiff until they understand him or her. In these cases it is only by understanding the plaintiff that the jury can care. See S20.60 and S22.60).

After the plaintiff, if there is a particularly bad defendant, that person(s) should be called as the next witness. This testimony should be followed with testimony of co-workers, former co-workers, and former employers (managers within and outside of the company) who will testify to the plaintiff’s good performance and character. Generally speaking, most wrongful termination cases will involve a situation in which the company is pleased with the plaintiff until a new supervisor came along who, for one reason or another, wanted to get rid of the plaintiff. In this type of case, it is essential that the former managers be called early in the case to testify to the plaintiff’s good performance and character.

An economist, vocational expert and any witnesses as to emotional distress, including psychotherapists, should be called towards the end of this case, after liability has been clearly established. In cases in which psychotherapists will testify, consideration should be given to calling the psychotherapist before the plaintiff. See S20.60 and S22.60.

S21.70 – TESTIMONY OF PLAINTIFF’S EXPERT PSYCHOTHERAPISTS

Obviously, in jurisdictions in which plaintiff cannot recover emotional distress damages for wrongful termination alone, See Chapter 3, a psychotherapist should not be called as an expert. In jurisdictions in which emotional damages can be recovered for wrongful termination alone, very careful consideration should be given before calling an expert psychotherapist to testify. See Chapter 3. Since the key issues in the case will be the plaintiff’s character and job performance, calling a psychological expert will generally give the defense ammunition to establish that the plaintiff was not a good performer and sometimes will allow the defense to perform a character assassination. Evidence such as drug use outside of the workplace, which would probably never be admitted in a nonpsychological injury case, may come in on the issue of psychological injury. In addition, for example, the evidence of a plaintiff’s unhappiness in the subject work situation, or, at prior jobs which may be irrelevant in the wrongful termination case, will become relevant if the plaintiff is claiming that he or she has been psychologically injured by the termination.

Further, most people do not need a psychological expert to explain to them why being wrongfully fired is a bad and psychologically damaging event. The only cases in which plaintiff should call a psychological expert are cases in which the plaintiff has developed a psychological disorder beyond what would normally be expected of the consequences of a wrongful termination, and the plaintiff has a very clean life, work, and psychological history. If a psychological expert is called, he or she should generally be called as a witness before plaintiff testifies to explain why the plaintiff was so seriously psychologically disabled by the termination and to explain to the jury that the plaintiff was not such a disordered person before the termination. See S21.60. This is particularly important in a case in which the plaintiff is seriously depressed or anxious as a result of the termination and will not appear like he or she was a good performer at work at the time he or she testifies.

The admission of expert testimony at trial in federal cases is governed by Federal Rules of Evidence SS702-705. Cases which report the utilization of psychological experts at trial include U.S. v. Stinson, 34 M.J. 233 (CMA 1992) and US v. Plenty Arrows, 946 F 2d 62 (8th Cir. 1991).

For a discussion on the preparation of expert witnesses see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 234-238.

S21.80 – TESTIMONY OF PLAINTIFF’S VOCATIONAL EXPERT

Careful consideration should also be given as to whether or not the plaintiff should call a vocational expert. Although the vocational expert can explain to the jurors the difficulty in obtaining new employment, lack of job mobility in our society, and the difficulties in retraining particularly for older workers, the vocational expert will generally have to concede that it is possible, if not likely, that the plaintiff will be able to find alternative employment in the future.

In cases in which the plaintiff is relatively young, highly-skilled and well-trained, yet

not re-employed as of the date of the trial, the plaintiff may be better off relying on his or her own testimony regarding job search to indicate the difficulties that he or she has had and will have in the future obtaining employment rather than calling a vocational expert who may have to testify to a large number of jobs still available to the plaintiff. For a discussion on the utilization of vocational experts, see Martin, Determining Economic Damages, SS900-902.

An important consideration in determining whether or not to call a vocational specialist may be the law on mitigation of damages in the particular jurisdiction in which the case is being tried. See Chapter 6. In some jurisdictions, the plaintiff need only mitigate damages by seeking equivalent employment. See S6.20. In these jurisdictions, the testimony of a vocational specialist as to the limited number of equivalent jobs available given the training and experience of plaintiff can be very valuable. In a jurisdiction in which the plaintiff must take any job that is available, see S6.10, the testimony of a vocational specialist will likely backfire, since it will reveal the large number of other jobs available.

If a vocational specialist is called, he or she should testify to the difficulties that an employee will have finding employment once they have been terminated as opposed to being laid off or voluntarily ceasing employment. A vocational specialist can testify that it is far more difficult to find a job when someone does not already have a job and even more difficult still when the plaintiff has the black mark of having been fired. In an appropriate case, the vocational expert can testify to the difficulties which a plaintiff will have finding equivalent employment in his or her advanced age. The issues of the difficulties and expense of retraining can be included in the testimony of vocational expert again, with emphasis on how much more difficult it is to retrain older employees.

In addition, the vocational expert can testify as to the unlikelihood of plaintiff being able to make a truly lateral shift to another company at the same salary. Because workers are rewarded in terms of wages and benefits because of loyalty and length of service to one company, it is difficult for an employee, and in particular a terminated employee, to obtain an equivalent starting salary in another company.

In cases in which a vocational expert is utilized, he or she may be the best witness to talk about the value of fringe benefits the plaintiff lost up to the time of trial and will lose into the future.

For additional considerations in retaining and utilizing vocational specialists in employment cases, see Chapter 14.

The admission of expert testimony at trial in federal cases is governed by Federal Rules of Evidence SS702-705. For more detailed information on economists and employment cases, see Chapter 15. For a discussion on the preparation of expert witnesses see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 234-238.

S21.90 – TESTIMONY OF PLAINTIFF’S ECONOMIST

There are cases in which the plaintiff has a complex pay or earning structure in which the testimony of an economist is essential. This is particularly true in cases of fired executives, who have rights to profit-sharing plans, incentive bonuses, performance bonuses and other factors which are beyond the grasp of ordinary jurors. In those types of cases, the expert must not only describe the plaintiff’s losses, but explain the losses in terms that are clear, simple and understandable by a lay jury. For a general discussion on the use of economists at trial, see Martin, Determining Economic Damages, Chapter 1.

In cases in which the plaintiff is a wager earner, an economist is probably not necessary to explain back pay. However, in most jurisdictions, lost front pay needs to be reduced to present value, which may require the testimony of an economist, Martin, Determining Economic Damages, Chapter 11. The question that an economist needs to answer is how much money will it take in current dollars to reimburse the plaintiff for future income loss. Since the plaintiff will theoretically be able to invest money recovered at the time of trial to compensate for future wage loss, he or she will presumably be able to earn money on investments which, in part, will compensate him or her for future losses. On the other hand, given the likelihood of inflation, it will be plaintiff’s economist’s position that he or she would, even without raises, earn more money for the same job in the future than he or she is earning now. Further, during that same time period, the purchasing power of the dollar will decrease. An economist will determine the loss of future earnings in income by determining a discount rate (i.e., the rate of interest rate over the rate of inflation). Martin, Determining Economic Damages, Chapter 11 and Chapter 12.

Present cash value has been defined as “the present sum of money which, together with investment return therein when invested so as to yield the highest rate of return consistent with reasonable security, will pay the equivalent of lost future benefits at the time, in the amounts, and for the period that you find future benefits would have been received. California Jury Instructions, Civil Eighth Edition (BAJI) 14.70, P. 321.

From the plaintiff’s point of view, if the jury is going to be instructed on present cash value, then it is essential, in a case in which there is a future wage loss, to have an economist testify to the jury about inflation, the rise in the cost of living, and the devaluation of the purchasing power of the dollar over time.

The admission of expert testimony at trial in federal cases is governed by Federal Rules of Evidence SS702-705. For more detailed information on economists and employment cases, see Chapter 15. For a discussion on the preparation of expert witnesses see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 234-238.

S21.100 – TESTIMONY OF LAY WITNESSES

There is probably no case in which the testimony of the plaintiff is as important as in a wrongful termination case in which there is no harassment or discrimination. The ability, character, and performance of the plaintiff at the job in question are the key factors in the case. The attitude and performance of the plaintiff are on trial. It is therefore critical that the plaintiff presents well at trial.

Preparation of the plaintiff before he or she testifies is the key. The plaintiff in almost every case will be angry at the time the case goes to trial. The plaintiff will not only be angry because he or she was fired, but he or she will be angry at the way he was treated at his or her deposition and the way in which his or her character and ability has come under attack during the course of the litigation. This anger must be held in check during the trial, and, especially when the plaintiff testifies.

Although, in a good case, the jurors will understand why the plaintiff is angry, they, like most people, will react poorly to a plaintiff who exhibits a great deal of anger. People do not like other people who are angry and bitter, and they especially do not like giving angry and bitter people a lot of money. Thus, it is all right for a plaintiff to describe his or her anger during the trial, however, as much as possible, he or she should not demonstrate it.

Also, if the plaintiff is severely depressed or agitated by the time of trial, jurors are going to have difficulty imagining a severely depressed, anxious person as a good performer at his or her job. Thus, the testimony of a psychological expert in the right case, See S21.70, and former co-employees or supervisors in every case, see S20.90, need to be presented to make it clear to the jury that the plaintiff was not like this before the termination.

In cases in which emotional distress damages are allowed, see Chapter 3, the plaintiff’s emotional and psychological relationship and attachment to his or her job should be emphasized. What did the job mean, not only financially, but emotionally and psychologically to the plaintiff? How did it feel to be terminated? What did that do to the plaintiff’s self-esteem? This testimony should be presented through the plaintiff, family members and co-workers.

In cases in which the defense is claiming that the plaintiff was fired for cause, the testimony of the plaintiff versus the testimony of plaintiff’s terminating supervisor on the issue of performance will probably be at polar opposites. The jury will be attempting to assess the fairness of the supervisor’s conduct versus the quality of the plaintiff’s performance. Any evidence that the employer acted unfairly to the plaintiff or any other employee should be brought in through co-workers and past and present supervisors. Evidence of the plaintiff’s good performance should, again, come in through former employers, former supervisors at the job at issue and co-employees. Further, plaintiff’s personnel file should be introduced into evidence through the plaintiff or vocational specialist to emphasize plaintiff’s good performance and a lack of discipline over the years. See S21.110.

Even in cases in which co-employees or supervisors are somewhat critical of the plaintiff’s performance over the years, it will be hard for the defendant to justify retaining the plaintiff as an employee for a long period of time and then defend the case by claiming the plaintiff was a poor performer. Therefore, there is generally some good testimony that can come from any co-employee, no matter how adverse, in a case in which a plaintiff is a longtime employee. Further, jurors understand that current employees of the defendant are not in a very good position to testify against the defendant because of fear of losing their jobs or other retaliation, so the hostile portion of their testimony may be discounted.

S21.110 – OTHER EVIDENTIARY CONSIDERATIONS

A number of items of documentary evidence may be utilized to support the plaintiff’s claim. These include job applications, indicating that plaintiff has looked for work since termination, favorable performance reviews, letters of congratulations from the employer, earning records, severance pay, and documentary evidence as to retirement pay may be utilized to establish a basis for damages and liability. Plaintiffs can also utilize personnel manuals, appointment handbooks, and policy statements of the employer. For a discussion of introduction and authentication of documentary evidence, see Domjroff, Federal Trial Evidence, SS901-1103.

In appropriate cases, documents such as written reports, sales summaries, and comparative performance evaluations and production compared to non-fired employees may provide good evidence of the plaintiff’s claim. For a discussion of hearsay considerations in Federal Court, see Domjroff, Federal Trial Evidence, SS801-806.

Further, plaintiff will want to introduce evidence of the value of fringe benefits such as health insurance and retirement benefits.

Character evidence will be important in all wrongful termination cases. For a general discussion of character evidence in Federal Court, see Domjroff, Federal Trial Evidence, SS404-405.

Federal Rules of Evidence 608 explains the circumstances when evidence of character and conduct of a witness can be used in Federal Court. For a discussion on the preparation of direct examination and cross-examination of lay witnesses, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 231-234.

PRACTICE TIP: One of the most difficult tasks for trial attorneys, particularly beginning trial attorneys, is to conduct a direct examination of a witness without asking leading questions. Most attorneys develop their skills in terms of examination of witnesses in depositions. Frequently the deponent is an adverse party or an adverse witness who can be cross-examined through the use of leading questions. As a result of the heavy emphasis on cross-examination during depositions, most attorneys are not particularly well-prepared to perform direct examinations of their clients and their lay witnesses at trial. Because attorneys are prohibited from asking leading questions of their lay witnesses, it is essential that the attorney carefully plans the direct examination and prepares his or her witnesses so that the necessary testimony can be admitted at trial to make the attorney’s case. See Federal Rules of Evidence, 611(c) for a discussion on the use of leading questions in federal cases.

Further, attorneys should familiarize themselves with hearsay rules and hearsay exceptions before the trial begins so that hearsay testing can be avoided or admitted hearsay testimony can be avoided or admitted as an exception to the hearsay rule.

S21.120 – CLOSING ARGUMENT

The closing argument should focus on the injustice in the way plaintiff was treated by the defendant. As in opening statement, emphasis should be placed on the character and performance of the plaintiff. In closing, however, there should be greater emphasis on what the plaintiff gave to the company and what the company took from the plaintiff in order to help the company do what companies do, that is, make profit. The company profited by, or at least benefited by plaintiff’s human sweat and labor, and, as a result of that, the plaintiff deserved to be treated fairly and justly.

The plaintiff, to some extent, was dependent upon the goodwill and good faith of the company, and, the company let the plaintiff down by not acting with goodwill and good faith toward plaintiff. The sacrifices which plaintiff made for the company should be emphasized. In other words, a jury needs to understand what the plaintiff gave up to serve the company’s interests.

As much as possible, plaintiff’s attorney should contrast the way in which the plaintiff treated the defendant versus the way that the defendant treated plaintiff. The inhuman way in which the company acted should be contrasted to the very human ways in which the plaintiff performed, even if that at times included human frailties and mistakes. Plaintiff’s attorney should mention that the plaintiff gave more time to the defendant than he or she gave to his or her loved ones. In exchange for that, he or she was paid a living wage, but also, the company owed a duty to the plaintiff to treat him or her fairly.

In the appropriate case, plaintiff’s attorney may want to contrast the way the defendant treated its machines versus the way the defendant treated its human employees. Were the machines given second chances that the employees were not given? When a machine broke down, did the defendant automatically replace it, or did it attempt to fix the problem first? Were old, broken-down machines kept for a longer time at the company than the plaintiff was retained?

As in all employment cases, time should be spent explaining to the jurors the psychological and emotional importance of the workplace to an individual. People’s very identity stems from the workplace. When somebody is asked who they are, they most often respond by stating what they do for a living. American workers spend nearly half their waking lives at the workplace. The workplace provides a major area for individuals to feel productive, worthwhile, and to be able to affirm some sense of competence and skill. For many people, the job provides a primary, if not exclusive, access to interpersonal relationships. When somebody is stripped of their job, they are stripped of much more than their ability to earn a wage. These principles should be included in closing argument.

It is important to recognize the fact that whether or not the law requires it, jurors want answers to various why questions. Why should the plaintiff have not been terminated? Why did the plaintiff deserve to keep his or her job? Why did the defendant have it in for the plaintiff? If the plaintiff was such a good worker, then why did the defendant want to fire him or her? Why has the plaintiff been unable to find another job? Why has the plaintiff not tried harder to find another job? Why can the plaintiff not be re-employed? Obviously, all of these questions should be answered throughout the trial by the testimony of witnesses. However, in closing argument, plaintiff’s attorney must provide an answer to the questions.

PRACTICE TIP: Rhetorical questions are a good way to frame a closing argument. By asking and answering rhetorical questions, the attorney can essentially join the jurors in conversation, and, hopefully influence the conversation which will take place in deliberations. By the end of closing argument, plaintiff’s attorney should have asked and answered every possible why question, and anticipated the defendant’s closing argument and answered questions which defense counsel will raise on argument.

Although plaintiff’s closing argument can be emotional, it is important to appeal to the jurors’ reasoning, and not give the defense attorney an opportunity to mislead the jury into believing that plaintiff’s attorney is attempting to manipulate the jurors through an appeal to emotions.

For a discussion on the preparation of a closing argument generally, see Kolczynski, Preparing for Trial in Federal Court, 2nd Edition, pp. 240-242.

S21.130 – REBUTTAL ARGUMENT

Plaintiff should save his or her best motivational arguments for rebuttal. Hopefully, closing argument has given plaintiff’s attorney the opportunity to convince the jurors of the correctness of plaintiff’s position and the unjustness of the situation. Rebuttal argument is an opportunity for plaintiff’s attorney to motivate the jurors to do something to correct the injustice, first, by awarding actual damages, including compensatory damages and, also, by awarding punitive damages if the evidence and law justifies such damages.

Rebuttal is a time to explain to the jurors their role in society, particularly in a punitive damage case. They have a rare opportunity to correct an injustice and right a wrong. The injustice can be corrected only through the one thing that companies understand, that is, the pocketbook. Corporations have no heart. They exist solely to make money. The only punishment that will matter to them is the punishment which the law dictates that the jury deliver, that is, to award punitive damages to the plaintiff. Small amounts of punitive damages will not help. There needs to be a punitive damage award that the company feels, and the only place where a company can feel is its wallet. So the award must financially hurt the defendant.

Plaintiff should not waste time in rebuttal answering each and every point that the defendant raises in his or her closing argument. Jurors do not keep score cards and a trial is not a debate in which the side that makes the most good points wins. The side that is on the side of right wins, the side that is on the side of wrong loses, and, in a wrongful termination case, the jury cannot correct the misconduct of the defendant by giving the plaintiff his or her job back, but rather, the only way they can correct a misconduct is through a monetary award.

A sample rebuttal may be:

“This plaintiff has had the courage to stand up to this major corporation and take it on. The corporation, first, during plaintiff’s employment and, now, during the litigation and trial, has done everything it can to break the plaintiff down and attempt to send a message to plaintiff and other employees that it is beyond the law and if any fired employee attempts to mess with it, it will strike back with a vengeance. That vengeance will never cease as demonstrated by defense attorney’s closing argument, in which he or she attacked the plaintiff and his or her right to seek legal redress for defendant’s wrongs. It is now the jurors’ opportunity to send a message back to the company and companies like this defendant, which is, that if you are going to profit by the sweat, labor and blood of your human employees, then you have to treat them like human beings, with dignity, respect and fairness. We as a society have determined that corporations have to play by the rules, and there have been rules set up by us and our forefathers to limit the power of corporations. We encourage corporations to produce and succeed and make profit, and we let them do that without caring particularly much about their employees. However, there are limits. We cannot ask the corporation to have a heart, however, we can ask a corporation to be fair and follow rules. As a society we recognize that employees need protection against large corporations. When a corporation gets out of hand, as it did in this case, its misconduct must be corrected and punished just like we punish our kids when they do not follow the rules. This corporation must be told to follow the rules which we have created for it, and treat people with dignity, justice and fairness. The only way to do that is by making a large punitive damage award that will hurt.”

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.

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