THE OKLAHOMA BAR JOURNAL 24 | AUGUST 2025 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. 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 UNDERPROMISE AND OVERDELIVER 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.
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