AUGUST 2025 | 23 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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 goodfaith 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
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