The Lovable Litigator: Employment Litigation Truths from the Secret Inner Life of Judges and Juries

The Lovable Litigator

By: Judge Lloyd Zimmerman

“See you in court!”

Those dreaded words by the soon-to-be-ex employee, screamed out with red face and eyes bulging, as the workplace door finally swings behind him (but not quite hard enough, you think), marking the end of years of careful documentation of irritating, boorish, and downright scandalous behavior. Yes, this is the employee you finally fired after the entire office refused to come into work and threatened to go to the newspapers, if he remained another day.

The threat leaves one with a visceral sensation, much like waking up in the morning and facing an early dental appointment for a root canal; for others, the words convey a sinking feeling, a premonition that one is about to enter a labyrinth never to emerge – except poorer, fatigued, and worse for wear. To the trained employment law litigator, or the human resources manager, the words leave one wary: What happens in the “day in court”?

I am here to tell you those secrets. After being inducted nine years ago into the tribe of trial judges, following 21 years litigating employment cases, I learned the secret handshake, acquired the decoder ring, and was exposed to the hitherto secret inner life of judges and juries. Several hundred jury and court trials later, here’s a little advice from one who wears the robe: the good, the bad, and the ugly of what happens in court, on the witness stand, at counsel tables, in the jury box and in the deliberation room.

First of all, it’s not what you think. The typical employment case takes at least a year to wind itself through the court system in anticipation of the first day of trial.

Alas, for the plaintiff’s lawyer, increasingly, the question is: “trial, what trial?” As the published volumes of specialized labor and employment law attest, in most parts of the country, over 90 percent of employment cases never make it to trial. They are dismissed under a procedure known as “summary judgment,” in which judges assess whether the disputed facts are sufficiently “material” to warrant a trial. The employment law world is increasingly marked by summary dismissals. But that’s not much consolation to the employer who has to pay thousands of dollars in legal fees, or even the plaintiff’s lawyer who invests blood, sweat, and tears only to have the case thrown out on its rear.

How to avoid those costs of combat? The studies show that only about five percent of all employees who are angry about an employment decision even take the time to complain internally to the employer, much less file a discrimination charge or lawsuit. What provokes an employee’s threat to “see you in court” rarely requires a fancy degree or three decades of litigation practice to understand. It is behavior that violates the kindergarten rules. Chewing out an employee in a loud temper tantrum. Viewing workplace rules of behavior as no different than at a bar. Court studies show that people remember how they felt long after they remember the words that were spoken and that 80 percent of all meaningful communication is nonverbal.

So sitting down with a problem employee at the get-go, in a polite, classy, quiet way, with specifics, is the way to go.

Conversely, at the root of many a thorny lawsuit is the employer who becomes a raging bull. As a sign I saw posted in a grocery store once read, “Never wrestle with a pig. You both get dirty, and the pig likes it.” Stay calm.

Beyond that truth, it is amazing how many employers manage to fire the problem employee on the Friday before Thanksgiving or Christmas, or in what has become an accustomed workplace ritual, by escorting the employee out of the building in the equivalent of a “perp walk,” holding the box of his or her possessions and bracketed by two security guards.

Juries find this very annoying. They tend not to have law degrees or special human resources training, but they know a bully when they see one. And they know what it feels like to go home after being treated like a door mat, especially after years of dedicated service.

Don’t do it. Make your point with class. Use words suitable for church, or court, so you won’t worry about how they sound if they’re read back to you, as they may be, in a five-day deposition, or someday, at a trial.

Now about that day in court.

A short aside. If you have that day in court, the hard truth is you have already lost. If you’re an employer, it means that you spent thousands of dollars in legal fees getting to that day, along with the time, distraction, and irritation of defending a lawsuit rather than addressing whatever you thought the true reason was you went into business. It means you have handed off a business decision to a jury of six people who don’t really know you. If you’re the employee, it means that you have lived and breathed a lawsuit for years rather than writing that novel, running a marathon, or taking a trip to the place you’ve always wanted to see. You’ve taken all of that emotional energy and focused it on the awful experience, much like a bad marriage, which is what many bad employment relationships resemble.

It’s why practitioners of family law and employment law will tell you that on the emotional Richter scale, the two are often indistinguishable.

What happens on that first day of court – the most amazing thing! Out of years of orderly preparation, you have chaos.

First of all, you’re tired. Of course you’re tired! You’ve been up most of the night, unable to sleep, thinking about this event that has been the focus of your dreams, hopes, and prayers for these many months: The Trial.

If you are a litigant, meaning that no one is paying you to be in the courtroom, you did not sleep the night before. It’s not good if the judge has the same look; a cranky, disheveled looking judge does not bode well. Even if the judge is neither cranky nor disheveled, but remarkably polite and charming, there is this matter of The Large Docket – a fact of life for judges. The fact that your immensely important case, which has taken all of your waking hours, what you think about going to bed, and what you think about waking up, is but one of hundreds of cases on the judge’s docket. Your judge has probably read all of the lengthy trial briefs the night before, and just hope that there have been no late night calls or family emergencies in the judicial household to interfere with the orderly absorption of your legal briefs.

And then there is that feeling, that inevitably worrisome feeling, when the jury that will be yours, that will decide your fate, files into the courtroom, to begin the process of voir dire, or questioning to see if they can be fair and impartial. They have been caged in the jury assembly room, removed from their jobs and their family life, for your case. If you are an employer, the odds are good that they will have had a negative workplace experience; or someone they love, or their best friend, will have recently been fired inhumanely and without just cause. There are no special training requirements to be a juror. You can’t be a judge, and you should be over 18 and generally, not a convicted felon.

If you are an employee awaiting your day in court, don’t rest easy. Juries are instant experts in workplace behavior. They know the person who spends all day gossiping on the phone or surfing the Internet, adding their undone job to another person’s workload. They know about office favoritism. They are experts. They don’t need an expert, even if you’ve hired someone for thousands of dollars to explain with twenty dollar words or concepts what every juror intuitively knows.

And juries tend to award money as if it was coming out of their own pocket. Yes. They’re often cheap, or at least frugal. They make flow charts and decision trees about the evidence and the law. They view the law from the judge as gospel. No one gets rich in a jury trial unless the employer or its attorney manages to inflame the jury. At one time, the largest sexual harassment jury verdict in the country came after defense counsel gave the jury the finger, while demonstrating what he claimed the plaintiff did to the supervisor on her last day of work, after enduring years of sexual harassment. Just hope that your lawyer doesn’t inflame the jury with a too-cute show of the finger.

Lest we forget: So yes, you’re nervous, anxious, and upset about trial, but You Have a Lawyer. A highly trained skilled professional adept in the ways of the courtroom.

Maybe. Or Maybe Not. The most surprising fact about many civil lawyers in trial is that they have spent years getting to trial without having a good clue about how to actually try a case. It’s a fact. What do people talk about in employment law seminars? They talk about the one case somewhere in the country that went to a jury verdict, and they analyze it to death. And that one case becomes the bluebook value of what that sort of claim is worth, or not.

The good, the bad, and the ugly of what happens at trial with lawyers is this: They spit toward the jury box during their opening statement. They use big lawyer words that make the jury think the lawyer is talking down to them, or is too busy to use plain English. Lawyers sometimes well up with tears – juries will tell you in the post mortem – it’s embarrassing. They forget to dress right. They let their shirt flap hang over their pants, their tie is hopelessly loud or clashing, or their hair is a distraction. Tsk, you say, juries don’t focus on those things. Trust me: they watch you like a hawk. Everything. You. Do.

And then there is you, the client. Your lawyer is perfect. She does none of those bad things. She is poised, eloquent, a gifted communicator. She never uses a $20 word when a 25 cent word will do. She’s like your favorite neighbor talking to you over the fence. The good host telling a good story when you’re a guest at dinner.

So what happens when your lawyer is up making the world’s best argument for you. You sit there, in front of the jury, and show by your body language that you know your lawyer is putting on a good show, but it ain’t all true. Or just as bad, the opposing lawyer is dicing up your case in closing argument, and you look like you believe her.

It’s true. After years of preparation, it comes to this: No one thinks of how you should look when the opposing lawyer is making the final pitch before the jury goes back to deliberate. If you look sad and dejected, it screams out: you’re guilty. You have no case. Or if you’re the lawyer, do you sit next to your client like you like him, and believe in him, or do you sit like he has a contagious virus?

The bottom line for lawyers is this: explain your case before the day in court to a neighbor, over the fence. Don’t tell it to an associate who depends on you for a promotion. They will always tell you how brilliant you are. Talk to the jury. Maintain eye contact. Don’t guess who the foreperson will be. You’ll be wrong. Don’t assume you’ll be calm, relaxed, or well-dressed. You’ll be exhausted and disheveled. Look in the mirror before you go into court and say to yourself: you’re not much to look at. Lose the arrogance and cockiness. If you’re tired, tell the jury – you didn’t get much sleep last night. You lost your suit on the way to the airport. Be genuine. Juries love a human being.

And if it’s a judge you face, don’t assume that judges love a boring presentation, any more than a jury does. Don’t put the fact-finder into a coma on the first day of trial. Be funny. Be charming. Be real. If you can’t be any of those things, be yourself. Don’t oversell your case. Judges know that lawyers who have neither facts nor law make up for it with volume. It doesn’t work.

It’s okay to be short, to be brief, and to remember that the two sweetest words in the English language, other than “I’m done,” the words that convey a sense of peace, contentment, and happiness, are “In closing.” And then make sure that you really are closing. Juries will fold their notepad with that happy feeling upon hearing those words. You don’t want to let them down. Your word is your bond.

If you’re the one headed for court because you’ve either sued or been sued, remember that it really isn’t a lottery. You won’t hit the jackpot. The folklore is wrong. If you get a runaway jury verdict, it might feel good, if you’re the plaintiff, for the minutes, days, months, or years until it’s reversed on appeal. If you’re the employer and the jury rules in your favor, that moral vindication will pale after you open the bill from your lawyer.

Court is a funny, scary, amazing place where people spend two years prior to trial saying the answer is yes, and then on the stand, when you least expect it, say the answer is no. People laugh when they mean to cry. Lawyers spend all night practicing their lines and stand up and tell the jury that their client’s name is Smith when it’s really Jones.

The American system the world has come to know for the resolution of disputes, going back to the time of ancient Greece, is better, most days, than resolving the disagreement in a duel, or determining truth by who lasts longer on the rack. But a kind word in the face of a disagreement, taking the time to listen, to be respectful, to walk in the other person’s shoes, can save a lot of angst. It might save you from spending your retirement years on a hobby called litigation, when you would rather be living out your dream of the Peace Corps, or playing in a rock band.

And I’ll end on a note of what might seem like heresy. Litigators connote the image of pit bulls. But the best litigators are kind, warm, thoughtful people, who are good listeners, likable, and maybe even lovable (lovable litigator: oxymoron you say!) Most cases settle. Take the time to know your opposing lawyer, to know about her family, her dog, her dog’s name, her successes, her favorite sport: 98 percent of the time, your case will settle unless you really annoy the opposing lawyer or her client, where they make it their goal to exact revenge for bad litigation behavior.

See you in court!