Successfully Litigating Employment Discrimination Claims

Charles R. Bailey, Esquire

Voir Dire

Employment law is about “motivation.” At trial, the theme of your case, voir dire, direct examination, cross

examination, closing argument, and each and every element of your case will focus on motivation.

The jury is instructed that if they find by a preponderance of the evidence that a motivating factor in the employer’s decision to discharge the employee was based upon an impermissible motive, then they may find for the plaintiff. On the other hand, if the jury finds that the employer was motivated to discharge the plaintiff because of a legitimate, non-discriminative motive, they may find for the defendant.

Remember that the impermissible motive need only be “a motivating factor,” not the sole motivating factor.

Voir Dire

Most employment cases are mixed motive types, which places both the plaintiff’s and the employer’s conduct at the workplace under the microscope. Thus, you need to find out what motivates the jury during voir dire.

Voir Dire

The paramount goal of voir dire is to identify those jurors who are, more likely than not, motivated to accept your theory of the case.

Ask questions where a juror may answer affirmatively. Then ask open-ended questions where they can explain their belief.

This line of questioning will have the jurors explaining to other jurors why they believe that a certain attribute, such as attendance, is an important part of the job.

Here, you have not only introduced and laid the ground work for the theme of your case, but you have also identified jurors who are going to work for you.

Voir Dire: Challenges for Cause

Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008) When considering whether to excuse a prospective juror for cause, a trial

court is required to consider the totality of the circumstances and grounds relating to a potential request to excuse a prospective juror, to make a full inquiry to examine those circumstances and to resolve any doubts in favor of excusing the juror.

If a prospective juror makes an inconclusive or vague statement during voir dire reflecting or indicating the possibility of a disqualifying bias or prejudice, further probing into the facts and background related to such bias or prejudice is required.

Once a prospective juror has made a clear statement during voir dire reflecting or indicating the presence of a disqualifying prejudice or bias, the prospective juror is disqualified as a matter of law and cannot be rehabilitated by subsequent questioning, later retractions, or promises to be fair.

Voir Dire: Peremptory Challenges

Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008) citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,

619 S.E.2d 176 (2005) • Whether the interests of two or more plaintiffs or two or more

defendants are antagonistic or hostile for purposes of allowing separate peremptory challenges under Rule 47(b) of the West Virginia Rules of Civil Procedure , the allegations in the complaint, the representation of the plaintiffs or defendants by separate counsel and the filing of separate answers are not enough.

• Rather, the trial court should also consider the stated positions and assertions of counsel and whether the record indicates that the respective interests are antagonistic or hostile.

Voir Dire: Peremptory Challenges

Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008) citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,

619 S.E.2d 176 (2005) • In the case of two or more defendants, the trial court should

consider a number of additional factors including, but not limited to: – (1) whether the defendants are charged with separate acts of

negligence or wrongdoing, – (2) whether the alleged negligence or wrongdoing occurred at

different points of time, – (3) whether negligence, if found against the defendants, is subject to

apportionment, – (4) whether the defendants share a common theory of defense, and – (5) whether cross-claims have been filed.

Voir Dire: Peremptory Challenges

Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)

citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663, 619 S.E.2d 176 (2005)

• To warrant separate peremptory challenges, the plaintiffs or defendants, as proponents, bear the burden of showing that their interests are antagonistic or hostile and that separate peremptory challenges are necessary for a fair trial.

Jury Instructions

To be able to craft effective jury instructions, you need to comprehensively research the issues. You must thoroughly read every case in West Virginia that addresses the particular issues you are trying.

From these cases, you must pick out the legal points that will assist the trier in fact in reaching a conclusion on behalf of your client.

Although you are restricted from “arguing” your case, to be subtly persuasive, you may be creative in fashioning them. One technique is to reiterate a certain point of law through-out the jury instruction. This point will be non-argumentative, but clearly and concisely state the legal point to be made.

Jury Instructions

For instance, the defense should try end the jury instruction as follows: ◦ “If the plaintiff fails to meet each and every element of his/her

case, you may find on behalf of the defendant. The burden of persuasion always remains with the plaintiff and it is her duty to persuade the jury by a preponderance of evidence that a motivating factor in her discipline was because of her gender and not because of legitimate, non-discriminatory reasons.”

◦ Note: The burden of persuasion never shifts to the defendant, but in a mixed motive case, the burden of proof may shift to the defendant if the plaintiff creates a prima facie case of discrimination, then it is incumbent upon the plaintiff to present legitimate, non-discriminatory reasons for the adverse action. Then, the plaintiff may rebut this evidence by showing that the proffered reasons for the conduct are pre-textual.

Jury Instructions

In most cases, especially in employment cases, there are at least three instructions that should be emphasized to the jury.

Whether you represent plaintiff or defendant, make sure the jury understands what a preponderance of the evidence is. ◦ Plaintiffs often use the preponderance of evidence to

their advantage by comparing it to beyond a reasonable doubt.

◦ Conversely, defendants relay to the jury that the preponderance of the evidence is more than 50/50. It must be more likely than not.

Jury Instructions

Read the standard jury charge of the court very carefully because the jury charge may not be entirely accurate or it may not comport with your theme of the case. Judges usually are receptive to changes you want to make to the jury charge, as long as you can support it with case law.

Make sure your jury instructions are supported by case law. Cite specific West Virginia authority for your case and applicable federal authority. The Supreme Court of Appeals of West Virginia has ruled that while federal authority is not always binding, it does carry weight.

Opening Statement

• Your opening statement should be about motivation. While you should exercise caution regarding arguing the law at the opening statement stage, you need to lay the foundation for how the jury is going to be instructed.

• Who? What? When? Where? How? These questions should be your mantra. Why people act and what motivates them.

Closing Argument

• Remember that you must always show the jury how the facts, when applied to the law, lead to the inescapable conclusion that the jury should find on behalf of your client.

• Show the jury the instructions

• List the facts when tied to the jury instruction that will lead the jury to know to rule in your client’s favor.

Closing Argument: “Motivation”

Defense: Tell the jury that the employer made a mistake and should have acted sooner and been more honest. However, your client is a professional salesman who has always been confident that he could motivate people to excel and he simply could not face the fact that he could not rehabilitate his employee. While he was motivated for her to succeed, she was motivated to use her charm, skill and talents not to the betterment of the company, but for her own self interest.

Closing Argument: “Motivation”

• Plaintiff: emphasize that the facts show that the employee was motivated to succeed but that race, gender or age motivated the employer to treat her differently.

• A plaintiff must constantly remind the jury that you need not prove that the sole motivating factor was the protected class or conduct, but was a motivating factor.

Compelling Case Theme

• In employment cases, it is imperative that you know the law. The law directs and focuses you on the theme of the case.

• Develop your theme immediately, be prepared to modify your theme.

• An over-arching theme contains a main plot and many subplots.

Compelling Case Theme: Your Client’s Motives

• The plaintiff must convince the jury that the complaint against the employer was motivated by a true legal wrong not the simple frustrations of the job.

• The defendant needs to show that the employer was motivated to help the employee succeed, but for legitimate reasons, an adverse action had to be taken irrespective of the plaintiff’s protected class.

Direct and Cross Examination

• Remember that in direct and cross examination every question will be designed to convey the theme of your case to the jury.

• You must involve and direct your client in developing testimony that will motivate the jury to understand the client’s position and ultimately return a verdict in his or her favor.

Strategies

• For both sides, embracing the truth and not running from the problems is a winning strategy. The trick is to find it, recognize it, and turn it to your advantage.

• Both sides should figure out what aspect of the human condition applies to their client and will appeal to the jury. 34 DEC Trial 20

Mock Trial: Direct and Cross Examination of Expert Witness

72 Mich. B.J. 1046

• Mock trials are useful because it targets and evaluates the critical issues; identifies appropriate juror profiles; exposes litigation risks; and enhances overall case strategy.

• Utilize the opponent’s expert deposition testimony and read relevant parts of the testimony for the mock jury.

• The bottom line in evaluating the expert: were they persuasive?

Lowering the bar A man was chosen for jury duty who very much wanted to be

dismissed from serving. He tried every excuse he could think of but none of them worked. On the day of the trial he decided to give it one more shot. As the trial was about to begin he asked if he could approach the bench.

“Your Honor,” he said, ” I must be excused from this trial

because I am prejudiced against the defendant. I took one look at the man in his blue suit with those beady eyes and that dishonest face and I said ‘He’s a crook! He’s guilty, guilty, guilty!’ So your Honor, I can not possibly stay on this jury!”

With a tired annoyance, the judge replied, “Get back in the

jury box. That man is his lawyer.”