Persuasive Litigator

Treat Your Terminations as "For Cause" (Even When They're "At Will")

By Dr. Ken Broda-Bahm: 

Here is a piece of advice that works not only as a trial message, but also as a strategy for avoiding trials in the first place: When someone loses their job, make sure it is for reasons that meet the legal tests, even when those tests aren't legally required. For in-house attorneys or HR personnel, that can mean functionally treating employees as "for cause" even when they might be "at will."

When an employer faces the need to let an employee go, and the threat of litigation in response is either real or implied, it is only natural for the company to want to wrap itself in cleanest available defense. On that score, it is helpful to the company that the vast majority of American employees are "at will" employees, meaning that the relationship may be ended by either party for any reason, as long as that reason isn't illegal. That last caveat, however, provides quite a bit of wiggle room for a former employee/plaintiff to argue, for example, that a termination was discriminatory, violated an express or implied contract, or ran afoul of an implied covenant of good faith and fair dealing. That means that in practice, juries, judges, and arbitrators will generally take a close look at the equities of the result. But the role of fairness isn't always simple. In this post, I take a look at some of the factors that affect that perception of fairness, including the seven tests of just cause.  

Close Your Case By Walking Through the Decision and Verdict Form (Another Note on the John Edwards Trial)

By Dr. Ken Broda-Bahm: 

Your opening is a story, I've written before, about what happened and about what kind of case this is. The closing is a different story, not about what happened, but what is about to happen: deliberations and a verdict, hopefully in your favor. It makes little sense to go all the way to closing arguments and then tell the jurors the story of what happened as if they are just putting it together for the first time. Instead, closing arguments should transcend the now-familiar story to focus on impending deliberations and walk jurors through the specifics of the verdicts they're about to render. 

But that isn't what happened at the close of the trial of John Edwards, the two-time presidential candidate and general two-timer. Instead, based on transcripts of the arguments, both the government and the Defense appeared to end the case much as it began, with a dramatic recounting of what happened. As this blog goes to press, the jury is now entering its fifth day of deliberations, and that may be a sign that they could have used a little more direction at the conclusion of the case. It brings to mind what I like most about high-profile cases: the opportunity for high-profile lessons. In this post, I'll be taking one more look at the John Edwards trial (probably the last...unless the verdict is really interesting) and drawing out some lessons on the unique function of structure in a closing argument.

Persuasive Litigator's Bicentennial: The Top Ten of the Second Hundred

By Dr. Ken Broda-Bahm: 

Ah, it seems like only yesterday that this blog was taking its first toddling steps under its prior name, Litigation Postscript. Now passing the 200 mark on posts, this ABA Journal Blawg 100 Honoree is still dedicated to content that is timely, useful, and supported by research. And it is still focused on providing concise and concrete recommendations to litigators in every post. Since it is time for a retrospective, I face the same quandary that musicians do when putting out compilation albums: Do I go with "Greatest Hits..." and let the market decide, or do I go with "Best of..." and make my own choices? In the case of Persuasive Litigator's second hundred posts, there isn't a conflict. Those that made the top ten based on Google Analytics are also some of my favorite posts from the past year. 

The posts appear in order below, but the makeup of the list says something about readers' interests. For one thing, it isn't just the jury anymore, if it ever was. In our four-part series on oral arguments to the court, fully three are in the top ten (#1, #3, and #10), and the fourth is #12. In addition, our own original research is a strong driver of readership, with our visual persuasion study coming in at #2. Technology articles are also strong, with two video reviews of jury selection software making the top ten, at #7 and #8. Finally, a couple of recent favorites (#6 and #9) made the list, including one from just last week, despite having had little time to run up the numbers. So, before I go any further in sounding like Casey Kasem, here are the top ten from the past hundred: 

Turn in a Powerful Deposition, Doctor Defendant

By Dr. Ken Broda-Bahm: 

The Hippocratic oath also applies to doctors caught in the litigation process. In deposition, the rule is "first, do no harm" to your case. No one wins their own case in deposition. But a medical defendant might end up losing it by falling prey to some common mistakes. Depositions are taken in order to shape an adversary's case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor. There is a good psychological reason for that: It is more comfortable to believe that those we entrust with our health and our lives know what they're doing. When plaintiffs are able to overcome this strong motivation to believe in the doctor, it is often because the doctor conveyed something in deposition or trial that unwittingly served to help the plaintiff. 

For example, feeling the emotional insult of a malpractice case, the physician may come across as defensive, arrogant, or uncaring. Taking too much care to avoid error, the doctor might seem reluctant to say anything and, as a result, appear unhelpful and uncommunicative. Ultimately, jurors are looking to see someone they would trust as their own doctor. If they instead see someone who is uncertain, irritated, or frazzled - a fish out of water - they come to distrust the doctor's level of competence and care. That loss of credibility helps make a plaintiff's case by allowing jurors to set aside their default trust for doctors in order to say that in this case, or against this doctor, the patient actually has a valid claim. In this post, I'll provide a brief overview of ten areas where doctor defendants can adhere to a "do no harm" strategy during depositions. 

Don't Discount a Motivated Minority

By Dr. Ken Broda-Bahm: 

Lessons for litigation sometimes come from unlikely sources. Take the recent explosion of attention to the issue of marriage equality for gays and lesbians, ignited by the President's recent statement of personal support. His evolution of opinion follows an important milestone in public support: The proportion of Americans who agree that same-sex marriages should be recognized by law has now edged barely into the majority. That has led to discussions all over the country. In one such discussion, Fox Host Shepard Smith reminded Rush Limbaugh of the public's level of support for gay marriage, and the radio host snapped in response, "Where has the issue won an election? What state? Tell me where it's happened."

Good question, Rush. (How often does that happen?) So, why would a majority view still fail to win elections? One reason might be that the attitude has only recently crested into a majority, and is of course far from that in many states. But another likely reason has to do with differences in motivation. While gays and lesbians are understandably passionate about the issue, there are probably many heterosexual supporters who agree in principle while being less emphatic or personally involved. Many see it as a critical issue of civil rights, but those who simply have a "why not" attitude aren't marching in the streets. Gay marriage opponents on the other hand believe that they're conserving the bedrock of their culture and faith. Even when in the numerical minority, they may have the ability to outorganize, outspend, and outvote those who are working for marriage rights. As Thomas Leeper writes in a recent Psychology Today article, "the high intensity of a minority’s opinions easily mask the low intensity, but overwhelmingly moderate opinions of most Americans on this issue." The same principle applies in all persuasive contexts including litigation. If you focus only on attitudinal leaning and ignore motivation, you're missing a big part of the picture. This post takes a look at the role of the motivated minority as it applies to legal persuasion.