1. HOW EMPLOYERS MAKE JURIES ANGRY – And Pay for it With Big Verdicts Presented By: Robert E. Bettac Ogletree, Deakins, Nash, Smoak & Stewart, P.C. San Antonio Office 210.277.3622

2. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Why Talk About It? Jury trials are a vanishing breed But fear of a bad jury verdict Is the engine that drives Personnel actions Costs of defense Settlement decisions

3. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Trial Defined Examination of evidence and applicable law by a competent tribunal to determine specified charges or claims. The American Heritage® Dictionary of the English Language, Fourth Edition

4. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST What Trial Really Is Synonyms: affliction, crucible, ordeal, tribulation Nouns which denote distress or suffering that severely tests resiliency and character.

5. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST The brass knocker being slammed twice in succession, followed by the bailiff's command to, "All rise!" has tightened more corporate sphincters than any angry shareholders' meeting. web log of a Texas Plaintiff’s Lawyer

6. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Why Employment Trials Are Different Everyone is an expert Company defending its decision Makes it personal Employer’s position We Didn’t Do It! If jury finds you did You not only did it You lied to them as well

7. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST What Jurors Feel 55% would do what is right, even if it went against the judge’s instructions 45% believe an important function of juries is to send a message to companies 73% believe without agencies like the EEOC, employees would be taken advantage of by employers 62% believe companies have ways to get back at those who complain of harassment

8. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Making Juries Mad Lying Falsification of Evidence Missing Documents Tampering With Witnesses Trying the Wrong Case Picking the Wrong Theme of the Case Picking the Wrong Jury Selecting the Wrong Witnesses Misbehaving in the Courtroom Underestimating the Power of Bad Facts Attacking the Plaintiff

9. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Lying LIES, LIARS and LYING To employees To the public In administrative proceedings In depositions In prior cases And, at trial

10. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Falsification of Evidence Unusual to have evidence created for trial Problems File Builders Re-creators Hole Fillers Post Daters

11. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Missing Evidence Juries expect documentation For both performance and discipline cases “Clean” file raises multiple issues “Missing” document = cover-up? Possible spoliation instruction Jury can assume document would be adverse to ‘destroyer’

12. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Tampering With Witnesses Unusual to have direct bribes or threats Problems Overzealous managers Talkative HR staff Major business changes involving witnesses Violating “The Rule”

13. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Trying the Wrong Case Not all cases have to be tried Most are not tried Be aware of Bad facts Bad venues Bad luck

14. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Picking the Wrong Theme Bad employee, punished himself Good Plaintiff is a liar Better be sure you can prove it “She wanted it” or some similar version Dangerous Use a positive theme, if possible

15. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Picking the Wrong Jury Where the case is won or lost Different theories Select those most like your client Make sure that you eliminate those who will kill your case Use of stereotypes

16. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Juror Stereotypes Management types Not enough of them Engineers, accountants Precision Like Rules (if you followed them) Helping professions Teachers Nurses But always trust your instincts

17. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Selecting the Wrong Witnesses Not always a choice Can choose your experts Make sure they are ‘teachers’ Jurors cannot abide Liars Arrogance Applies to much more than just witnesses

18. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Misbehaving in the Courtroom Courtroom is really much larger Appropriate Dress Reacting to testimony Rolling eyes, laughing Not a laughing matter

19. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST “ Superior” Behavior CEO or Other Top Dog Above all this Won’t prepare Angers when challenged Applies to Your Lawyer As Well

20. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST The Danger of Bad Facts Focus on facts, not legal defenses View through eyes of juror Do not view from employer perspective Was employee given due process?

21. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Creating Bad Facts Aggressive security departments Making an “example” Ignoring complaints Demeaning behavior Slander after termination

22. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Creating Bad Facts “Surprise” enforcement of neglected rule Ignoring or neglecting valid complaints Doing incomplete or sloppy investigation Terminating employees by email, letter or phone Evicting employees/unnecessary fanfare

23. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST How You Treat the Plaintiff Avoid harsh attacks Avoid unnecessary personal attacks Avoid retaliatory behavior Timing can be crucial “Not eligible for rehire” problematic

24. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST Trial Strategy Pre-instruct the jury Empower the plaintiff Demonstrate corporate responsibility Give context to punitive damages sought? Bifurcate?

25. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST

26. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST ARROGANCE KILLS

27. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST

28. EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST So Does STUPIDITY

29. HOW EMPLOYERS MAKE JURIES ANGRY – And Pay for it With Big Verdicts Presented By: Robert E. Bettac Ogletree, Deakins, Nash, Smoak & Stewart, P.C. San Antonio Office 210.277.3622 