Work Matters

Come and take it: Lessons of the battle of Gonzales

One of the great things about being a Texas lawyer is that, in communicating with out-of-state clients, you can use stories from Texas's colorful history to illustrate a legal point. Let me tell you the story and then make the point. It is Oct. 2, 1835. Hostilities are underway between Mexico and its Texian colony. The Mexican army had given a cannon to the citizens of Gonzales to help fight off Comanche raids. Thinking it a good idea to get the cannon back, Colonel Domingo de Ugartechea, the commander of all Mexican troops in Texas, sends his soldiers to retrieve it, commanded by Lt. Francisco de Castaneda. The townspeople tell the soldiers they will have their answer. The army waits. On the horizon, this is what de Castaneda and his troops see: a white flag with a cannon painted blue and the words "Come and Take It." There is a battle, and the Mexican troops withdraw. Now the lesson. In a mediation, when the other side makes a ridiculous offer, the client gets upset (no matter how much you prepare him for it). I could tell the client that the offer is too high, that the mediator will work toward resolution, that we will fight this suit and so on. What would a client hear? Blah, blah, blah. Or I could tell the client the story of the battle. Stories are more powerful than facts.

The three things not to do in voir dire

1. Don't talk about yourself. No one cares if you have kids, are married or named your dog something cute. Just because people may like you does not mean they will vote for you.
2. Don't insult members of the jury pool. True story: I saw a lawyer ask potential juror, "There will be complex scientific testimony in this case. Do you think you can understand it?"
3. Don't decide to reject a juror based on surface attributes. True story: One potential juror was a 60-year-old female engineer; my key witness and corporate representative was a 60-year-old female ad executive. The engineer made the jury and voted against us (she was in the minority, 10-2). Why? The case involved the importance of being precise. That mattered a lot more to the engineer than being in the same cohort as my corporate rep.

Three things to do in voir dire

1. Look for your enemies, not your friends.Voir dire is not about finding those who like you, but those who hate you. Hate and anger are more powerful emotions than love and like.
2. Follow the trail. If a key question strikes a chord in one potential juror, ask others in the pool: "Who agrees?" Raise your hand as you do so, as it prompts others to respond.
3. Start at the end, not the beginning. In questioning a juror who you may want to strike, ask "If you are selected and serve on the jury, do you think your feelings on XYZ will pop up in deliberations?" as opposed to asking, "Do you think  you may favor the plaintiff, even by a little, before hearing any evidence?"

Bonus question for plaintiffs lawyers to ask prospective jurors: “Do you feel employers nowadays discriminate in subtle, nonobvious ways, as opposed to do doing so in the open?" or "Does anyone expect the employer in this case to confess that it discriminated?"

Watch what you say

Hatmaker v. Memorial Medical Center is an interesting case out of the 7th U.S. Circuit Court of Appeals. It poses this question: Can an employee be terminated for what she says in the course of an investigation into a potentially sexually hostile work environment? The court sketches out the facts: Janet Hatmaker worked as a part-time chaplain at Memorial Medical Center. She did not like the guy who was appointed head chaplain and said so in an e-mail to the company's chief human resources officer. She wrote:" On a personal level, in several conversations I have had with him he quickly referenced his 2 divorces, and his distrust/discomfort with women; however, his obvious attraction to/fear of women raises many questions for me about whether he has addressed or been addressed by this significant issue in his Clinical Pastoral Education. . . . I can't help but wonder if his lack of self knowledge in regard to women and intimacy/partnership is part of his provisional acceptance into this professional organization." So much for Christian charity among the chaplains. Two fateful decisions were then made. She wrote in the e-mail that she was sending it to the CEO and a member of the board. The HR honcho then decided to investigate to see if there was a sexually hostile work environment. Hatmaker was interviewed and kept harping on these quibbles; the employer decided that she had a preoccupation with superficial characteristics and could not work with the head chaplain. She was fired. She sued. The trial court tossed the case on summary judgment, and the 7th Circuit on Aug. 30 said it was right to do so. While acknowledging that it is unlawful to fire someone for participating in an investigation of employment discrimination, the 7th Circuit wrote, "But participation doesn't insulate an employee from being discharged for conduct that, if it occurred outside an investigation, would warrant termination." The 7th Circuit noted that other courts hold otherwise: "They think that even defamatory and malicious accusations made in the course of an EEOC investigation cannot be a lawful ground for discipline." The court notes that none of Hatmaker's statements to the HR honcho and another person suggested sex discrimination, "so they didn't begin to trigger the retaliation provisions of Title VII. They were complaints about an awkward boss who the plaintiff thought might become a problem in the future. Her emails do not accuse him of discrimination and her deposition states that she was just trying to head off the possible future emergence of a hostile work environment."

Court interprets the ADA Amendments Act

On Aug. 31, the U.S. District Court for the Northern District of Indiana became the first federal district court to interpret the ADA Amendments Act of 2008 (ADAAA), which took effect on Jan. 1, 2009. The issue as framed in the court's opinion in Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Health Care: Is an employee with Stage 3 renal cancer, albeit in remission, disabled under the ADAAA? The court summarizes the employer's argument: “Not surprisingly, [the employer] argues that [the plaintiff] did not have a physical impairment which substantially limited any major life activity. . . . his cancer was in remission, he returned to work [after treatment] without restrictions, he carried out his regular job duties. . . ." The court continues, writing that the employer argues "that it 'highly doubts that Congress intended all cancer survivors in remission, with no medical evidence of active disease, to be considered disabled as a matter of law for the rest of their lives.' ” Nice try, but the court held that Congress was clear in the ADAAA that employees with an illness in remission are disabled under the law. Period. I agree. The main issue now will not be whether the employee is disabled under the ADAAA but whether the employee is otherwise qualified for the job and can perform it with or without reasonable accommodation.

What lawyers can learn from Saint Paul

St. Paul was trying to knock sense into the heads of some bickering converts:"The good that I would, I do not; but the evil I would not, that I do" (Romans 7:9). Or, as I prefer, "Though I know the good, I do not do the good." I see this in employment law.The employer has a chance to do the right thing — which is also the smart thing — but doesn't. Imagine a good plaintiff's lawyer playing out the string with a jury in a sexual harassment case: "Yes, the employer knew it should have stopped the harassment. It had so many opportunities and so many way to do so, but the managers didn't. For whatever reason, as St. Paul wrote, they knew the right but they did not do the right."

Three things never to do in an opening statement

1. Talk about the wonders of our judicial system. It is 1983, I am trying an age case and make this mistake: "You are the judges of the facts; Judge [name] is the judge of the law." What makes this a painful memory is that I practiced this the night before, complete with hand gestures.
2. Overpromise and underdeliver. The court reporter is taking it all down, and opposing counsel will order a transcript of the opening to use in their closing. It is like Internet dating; rosy promises up front, the harsh reality later. It backfires in both situations (not that I would know about either, let me hasten to add).
3. Overwhelm with details.The human mind can absorb just so much. Lawyers and litigants have lived with the case for years; the jury for only an hour or so in voir dire.

Three things to do in every opening statement

What are the three things a lawyer should do in every opening? My nominees:

1. Promise the jury up front that you won't waste their time. You must mean it and follow through on it. As I get older I realize that time is our most precious possession. The jurors know that as well.

2. Tell the jury in the first two minutes why they are here. Directly  tell them why the plaintiff underwent the adverse employment action. Jurors are most alert in the first five minutes. Utilize that alertness by being direct and simple, like in first-grade readers: "This is Spot. Spot is a dog. See Spot run."

3. Channel Abraham Lincoln. In his first inaugural address, trying to stop the South from breaking away, Lincoln signaled he was near the end so that people's ears would perk up. He said 'I am loathe to close" and then let loose with the zinger to the South about not being enemies but friends. Same here. Alert the jury to the fact you have only a few minutes left and then dish it out. (Yes, I know Lincoln's brilliant tactic didn't work, but it is still brilliant.)

Winston Churchill's eulogy of a rival offers wisdom

One of my favorite speeches is little known. It is Winston Churchill's eulogy of Neville Chamberlain. Churchill had replaced Chamberlain as prime minister in May 1940; Chamberlain died in November 1940. The eulogy has a lot to teach lawyers. Churchill starts off by acknowledging the role chance and circumstance play in our lives: "In one phase men seem to have been right, in another they seem to have been wrong. Then again, a few years later, with the perspective of time has lengthened, all stands in a different setting." Today's heroes are tomorrow's goats; today's goats are tomorrow's heroes. Churchill then goes on to make use of rhetorical questions to prick up his audience's ears and funnel their attention. He talks about how Chamberlain's hopes were dashed and asks, "But what were those hopes in which he was disappointed? What were these wishes in which he was frustrated? What was that faith that was abused?" (Note that he groups ideas and phrases in threes. It’s a powerful communication tactic as are the rhetorical questions he so masterfully asks. Lawyers can use it to great effect in voir dire, opening and, especially, closing.) His answer: The "most noble and benevolent instincts of the human heart — the love of peace. . . . " His use of the word “heart” resonates.Churchill’s message is also this: Stand for something. Be firm in your convictions. Believe in something. Here is the best part of the speech: “The only guide to a man is his conscience; the only shield to his memory is the rectitude and sincerity of his actions. It is very imprudent to walk through life without this shield, because we are so often mocked by the failure of our hopes and the upsetting of our calculations; but with this shield, however the fates may play, we march always in the ranks of honour.” Churchill teaches lawyers to be gracious. He implores us to act with character. He advises us to be decent. But, you know what? We don't anymore. We tell ourselves we can't because we will look foolish, appear weak, be exploited. But he takes the long view. We should, too.

Employment law lesson from the Bible

The Bible teaches us a lot about being employment lawyers. Let's look at whistle-blowers. I often help companies deal with them. When I do, I think of Matthew 5:25: "Agree with thine adversary quickly, whilst thou are in the way with him; lest, at any time the adversary deliver thee to the judge. . . ." That’s good advice, and Matthew didn't charge $450 an hour for it. It is a foundation for 1-800 reporting hotlines, anti-harassment policies and the satellite industry of investigative consultants. Matthew teaches lawyers to listen to the one registering the concern while the company still employs him and — regardless of the claim’s apparent merits — to refuse to marginalize him. Look for more posts on how the Bible, as well as the Tao, makes us better employment lawyers. Do you have a suggestion on religious writings that offer words of wisdom for employment lawyers? Send me a direct message on Twitter.