I remember, as a first-year lawyer, sitting in the office of one of my senior partners and asking, “How did you get started in this area of the law?” He shook his head, shrugged his shoulders and said, “It just sorta happened.” My internal reaction was, I didn’t want that to be my story. I wanted to make a conscious choice about my area of practice. But despite that inner vow, my entrance into the practice of employment law “just sorta happened.”

As a young lawyer, I started out doing insurance defense work. As the low man on the law firm “totem pole,” I did whatever else drifted down the chain of command. I wrote wills, handled a few divorces, carried my mentor’s briefcase and was given the chore of overseeing 75 small subrogation cases. Then, like a lifesaver tossed to a drowning swimmer, I was asked to help defend three police misconduct civil rights cases. My life and legal practice were energized. I liked this work, and some of those cases involved questions about the employment of police officers. Soon, I was giving advice to cities and police chiefs about training, discipline, termination and commendation of police officers. I found myself practicing a very basic form of employment law, although, at the time, I don’t recall anyone using that term.

A few years thereafter, an employment case was handed down by the Oklahoma Supreme Court. The 1987 opinion of Hinson v. Cameron, authored by Justice Marian Opala, became my springboard to a 30-year career practicing employment and civil rights law. Justice Opala discussed a variety of theories under which an employee might bring a wrongful discharge cause of action in the “at-will” state of Oklahoma. The at-will doctrine held sway in Oklahoma for decades and, technically, still does: All employees without a written contract of employment were considered “at will” and could be fired for good reason, bad reason or no reason. I would later describe this doctrine as Swiss cheese. It was mostly true, just as Swiss cheese is mostly cheese, but both had lots of holes.

The Hinson opinion fascinated me so much that I wrote an Oklahoma Bar Journal article titled “The Wake Of Hinson v. Cameron: Choppy Waters For The Law Of Wrongful Discharge,” and as a result of that article, I was invited to speak at one of the first OBA Law of the Workplace CLEs. I became the organizer and moderator of the annual Law of the Workplace program for the next 25 years. With that exposure, people assumed I knew something about the newly emerging area of employment law (which Justice Opala always reminded me was not the same as “Labor Law”). I received phone calls, referrals and invitations to speak. But inside, I knew how little I knew and felt I was always just one step ahead, like a professor struggling to teach a class for the first time. No one in our growing law firm practiced in this area, so it fell to me to learn and build that practice area. It was an exciting time, and it “just sorta happened.”

I provide this personal history as a backdrop to the lessons I learned in 30-plus years of practicing employment law. I hope the reader finds them practical, applicable and insightful, whether they practice in this area full time or only occasionally. Here are a dozen commandments for handling an employment case.

1) THOU SHALT REMEMBER WRONGFUL DISCHARGE IS LIKE DIVORCE (USUALLY WITHOUT CHILDREN)

Lawyers tend to evaluate cases dispassionately and often fail to account for the emotional aspects of a case. That’s probably not the situation in family law cases, where the emotions are there on the surface, but I found it to be true in employment cases. Early in my career, I simply viewed an employment law case from a legal and logical standpoint. Did the employer fire the employee for unlawful reasons or not? I viewed my role as that of a surgeon: Was the tumor cancerous, and if so, remove it. But employment cases are emotional for some of the same reasons divorce cases are. Think about the similarities:

• In both divorce and employment cases, the parties enter a relationship that is viewed, hopefully, as long-term.
• In both situations, trust and mutual expectations are involved.
• In both situations, a failure of expectations leads to frustration, dissatisfaction and often anger.
• In both situations, a parting of the ways creates consequential problems for both parties.

In many of my cases, I failed to fully grasp the emotionality of the parties. Employers got emotional and reacted by terminating an employee. Employees got emotional and did something that led to termination. People got emotionally involved, and sexual harassment resulted. Zig Ziglar once advised people in sales, “People buy on emotion and justify with facts.” Mr. Ziglar was talking about a commercial transaction, like buying a car, but it is true in employment transactions as well. Employers fire on emotion and post facto justify with facts. Lawyers need to be alert to that. Never underestimate the deep well of emotions involved in employment cases.

2) THOU SHALT BE HUMBLE

My friend Nathan Mellor says, “Arrogance divides, but humility unites.” I believe that is generally true. Most lawyers and all trial lawyers are self-confident, which, if unchecked, leads to arrogance. Arrogance will divide the attorney and the jury (and the witnesses). When I was a student at the Syracuse University College of Law, our team won the National Mock Trial Championship. Naturally, we thought we were pretty good. One day during a trial practice scrimmage, our professor, acting as judge, interrupted my presentation and called me to the bench where he scolded, “Priest, you’re young, and you look young, so don’t be a smart ass.” Ouch. But he was right. For quite a few years after that, I did look young, and I tried to heed Professor Lewin’s advice. Even if you think the law is all on your side, even if the other side’s case is a dog, even if opposing counsel seems like a stooge, don’t be arrogant. And make sure your client stays humble, too.

I was trying an age discrimination case in federal court, and my client, the sheriff of a nearby county, was called by the plaintiff as the first witness. The sheriff held the plaintiff’s lawyer in contempt, and once he took the stand, he refused to even look at him. During questioning, the sheriff turned sideways, looked at the jury and hardly looked at the plaintiff’s counsel as he answered questions. The judge took a lunch break after direct examination and called the lawyers to her chambers. Looking at me, she asked, “Is your person with settlement authority here? That was the worst witness I’ve ever seen. You need to settle this case.” I told the judge, “He won’t be the worst witness after you’ve seen the plaintiff.” But during the lunch break, I strongly scolded my client and told him he needed to retake the stand with humility. “You were elected and know how to get votes. You need to get votes on that jury. Show that lawyer respect!” The sheriff did better after lunch, and we eventually won the case. But arrogance could have easily lost it.

3) THOU SHALT DISBELIEVE YOUR OWN CLIENT

I remember working with my senior partner, Ken McKinney, on a case, and he assigned me some fact-gathering. When I reported back to him the facts as I understood them, he asked, “Why do you believe that, Jim?” I replied, “That’s what our client told me.” Mr. McKinney responded, “And you believed him?” I asked why our client would lie to us and explained that we were trying to help him, and he has attorney-client privilege. “Jim, you’re very naive,” he said. Ouch! I’d rather he called me stupid, but he was right. Do not believe everything your client tells you. Always doubt. Always verify. Always disbelieve what your client tells you, unless – and until – you can corroborate the truth.

4) THOU SHALT ALWAYS VISIT THE EMPLOYMENT SITE

There were many times I asked my employer client to send me all the information requested by the other side. They would comply and tell me I now had everything. But I learned early on to physically go to the employer’s office and the site where the employee worked. Invariably, I would find more things I needed. There was always the “official” personnel file, and then there was the “private” file the supervisor kept in their desk. “Oh, yeah, I forgot about that file,” they would say. Physical proximity leads to greater familiarity. When I defended car accident cases, I always visited the scene of the accident and learned to do the same with employment cases.

5) THOU SHALT READ EVERY DOCUMENT IN THE FILE AT LEAST TWICE

I made it my practice to always read every document in the file twice, often three times. It was amazing to me – the deeper into a case I went, the more I saw in documents I had already reviewed. Employment cases tend to be document-intensive. A marginal note I had previously dismissed as insignificant took on more meaning after a few depositions. I learned about a missing document only by reading through all the other documents. A few times, I found out in trial that I missed a seemingly meaningless aspect of a document, only to have it pointed out to me through a witness called by opposing counsel. Ouch. Someone once told me, “There are no geniuses in the courtroom, only drudges in the office.” Not quite true, but close enough. Compulsive preparation is the key to trial success.

6) THOU SHALT FIND AND SING THE THEME SONG AT TRIAL

When you get to the courtroom, you have likely lived with the case for months, if not years. You should know every aspect, but to the jury, it’s all new. They need help seeing the big picture. They need a guide – a template. Your verbal opening statement alone is not enough. You and the jury both need a theme. Like the theme song of a movie that becomes an earworm, you want to provide a scarlet thread that weaves through the case that is easy for the jury to follow.

A theme I sometimes used, especially in wrongful discharge cases, was based on the logical fallacy “post hoc ergo propter hoc,” translated to “after this, therefore, because of this.” I tried to convey to the jury that just because one thing happens sequentially after another does not mean the first caused the second. I did not use the Latin lingo, of course, but I tried to convey the concept in everyday terms. The sun comes up in the morning, and then your alarm goes off. The sun did not make your alarm go off. The two things are independent of one another. I did not hit the jury over the head with the theme in opening statement but began to introduce it during voir dire – opening statement – when questioning witnesses and then tied it all together in closing. Look for the big picture theme in the pile of facts and make the case understandable and memorable.

7) THOU SHALT KNOW THE STATUTES AND CASES AND PREPARE EXCELLENT JURY INSTRUCTIONS

When I first started trying cases, I paid attention to the law but viewed jury instructions as mainly the judge’s responsibility. And there were model jury instructions, right? What’s the big deal?

Over the years, I learned that most judges rely on the attorneys to do a good job researching and preparing jury instructions. I also learned most jurors are conscientious about following the instructions – most of the time. Do not rush through instructions. They are the last thing jurors hear before retiring to the deliberation room. And do not try to trick the court by inserting a favorable instruction that is not supported by a good-faith argument in the law. Judges know whose instructions they can trust and whose they can’t.

I suffered an unhappy jury instruction experience defending a wrongful discharge case where the verdict was $40,000 in actual damages and $20,000 in punitive damages. It was the only punitive verdict I ever received, and I could not understand why they awarded punitive damages. I talked to the jury foreperson after to ask for an explanation. “Well, we thought he should get a year’s pay, and the reason he was fired was partly his fault and partly your client’s fault, so we just divided the salary in half.” Obviously, that jury did not pay attention to the instructions, but they were trying to be fair. Perhaps I should have spent more time crafting the punitive damage instruction.

8) THOU SHALT REMEMBER ALL JURORS HAVE BEEN EMPLOYEES, BUT FEW HAVE BEEN EMPLOYERS

This seems almost too obvious to state, but its importance merits emphasis. Most of your jurors have been employees, but very few have been employers. A few may have been supervisors, but the plaintiff will knock those jurors off. You will likely be left with six or 12 people who have never had to discipline or fire someone. Their instinctual bias (which will not be admitted) is in favor of the worker, other things being equal. They don’t care about the longstanding at-will doctrine. They abhor the idea that anyone should lose their job without multiple adequate warnings, in writing, acknowledged as received by the employee, in writing. Most jurors care little about BFOQs (bona fide occupational qualifications). They give not a farthing for “legitimate business reasons” or “undue hardships” of a business. That’s why I preached that documentation of progressive discipline should precede any but the most egregious circumstances for termination. In one termination case, I picked what I thought was a good jury, only to have a juror come in the next day with a “UNION YES” T-shirt. Voir dire didn’t cover message T-shirts.

9) THOU SHALT UNDER-PROMISE AND OVER-DELIVER TO THE JURY

This commandment is true in any trial but doubly true in employment cases. If the lawyer over-promises and under-delivers, they do not come across as credible. Remember, most jurors already suspect lawyers are not honest, so establishing veracity is critical. I used to write down all the promises opposing counsel made in opening statement and would punish them in closing argument for any unfulfilled promises. If you are uncertain how the evidence will lay out or how a witness may testify, leave it a little vague. Better vague than vanquished.

10) THOU SHALT PUT ON CREDIBLE, LIKEABLE WITNESSES

I had a law partner who believed it was extremely important to put on as many “likeable” witnesses as possible, regardless of how much relevant testimony they could offer. He believed likeability was a key factor in winning jury trials, and the more likeable witnesses you had, the more points you scored. I never completely bought into his theory, but I did try to ensure that anyone I put on the stand would be liked by the jury, smile, be humble and could get to the point without meandering testimony. This is especially true for the plaintiff and the defendant who made the decision to terminate or who was accused of wrongful conduct. In the only case I tried where punitive damages were awarded, a juror told me, “We didn’t really like your client.” The truth was, I wasn’t too crazy about him myself and didn’t think he came off credibly on the stand. I should have worked with him more or, perhaps, found someone else at the company to better convey the reasons for termination.

On the plaintiff side, remember, no one likes a whiner. Better for your plaintiff to be stoic than stricken. I had a great plaintiff once who frustrated me with his testimony on the stand. Prior to trial, we had gone over the anxiety and worry he had suffered as a result of his termination, and it was significant. But when he got on the stand, he turned stoic, saying, “Well, you have to play the cards you’re dealt, and I tried to move on.” I knew that was a gross minimization of what he had been through. It worked out better, though, because I put on his wife, who told the true picture of how often he was up at night, worrying about how they were going to pay their daughter’s college bills. Coming from the wife was even better than if the plaintiff himself had said it, and the jury loved his understated style.

11) THOU SHALT KEEP YOUR TRIAL DESK NEAT AND YOUR PRESENTATION CRISP

I was a dedicated disciple of Professor Irving Younger’s Trial Techniques and listened to or read anything he said or wrote. He advocated for keeping your trial table neat and organized – no stray papers or messy files. He said it conveys a message to the jury: “I’m completely in control and in command of this case.” Professor Younger also promoted crisp and simple questioning. Instead of “motor vehicle,” use the word “car.” Instead of “preceding,” use “before.” Substitute “after” for the word “subsequent.” Avoid jargon, legalese like “prima facie case,” and explain things as you would to an intelligent eighth grader. Most of my past juries would also implore you to get to the point and not repeat questions for emphasis. One juror asked me, “Do lawyers think we’re stupid? They keep repeating the same things.” When my 8-year-old daughter came to watch me try a case, she later asked, “Daddy, why can’t lawyers ask plain questions?” I told her I would try to do better the next day. Think guerrilla warfare. Get in, get out. Put your witnesses on roller skates and move crisply through your case without rushing but without dawdling. The jury will pick up on what you’re doing (and so will the judge), and it will win points.

12) THOU SHALT LOOK TO YOUR CLIENT’S BEST INTEREST IN SETTLEMENT

Settlement is an option, not a sign of weakness. Negotiations are often infected with bravado and bluster, but remember, the case is not about you. From the first client interview, you should discuss settlement as a likely possibility and encourage your client to be thinking about it. Some clients may view this kind of talk as a lack of confidence in yourself or their case, so you will need to explain that 95% of all cases never go to trial, and most settle at some point. But most settlements happen only after a lot of emotional toil and intrusive discovery. Talk about probable timelines, including the possibility of appeal. I used to tell my clients, “Your case will take longer than you want, will cost you more than you can estimate and, in the end, will probably leave you feeling less satisfied than you want to feel.” I always tried to prepare clients for a worst-case scenario. Under-sell and over-deliver applies here, too.

I was involved in a sexual harassment employment case where my client was the ex-wife of her boss. Her claim was that he was trying to take advantage of their former relationship by hugging and fondling her at work. The settlement conference in federal court seemed to be getting nowhere until the judge suggested that an apology be included with the financial settlement. I responded that it would have to be a genuine apology and not some “I’m sorry you felt hurt” kind. The judge assured me it would be sincere. My client had been as hard as flint until that point, but her face, surprisingly, softened at the prospect of a genuine apology. When the judge returned with the written apology, I was surprised. It really was a sincere, abject apology, and it was the key to getting the case settled. The apology did nothing for my contingent fee, but it meant the world to my client. So be creative in thinking about what truly matters to your client (on both sides) and consider nonmonetary elements as well as dollars.

POSTLUDE

Remember the original Ten Commandments? After receiving them from God, Moses threw down the stone tablets and broke them when he came down from Mount Sinai and found the nation sinning. You’ll probably break some – or all – of these commandments. You won’t die as a result, but you’ll find your results in employment cases are improved by following them. Want good results? Follow the commandments! Don’t let your case, or your career, just sorta happen.

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ABOUT THE AUTHOR

Jim T. Priest is a retired trial lawyer and nonprofit leader who now volunteers for the Oklahoma Innocence Project and serves as a mediator/arbitrator for Dispute Resolution Consultants. He can be reached at jim@sage-counsel.com.