Even when an employee’s termination is clear cut and wholly justified, the aggrieved employee may still strike back. At Hirschfeld Kraemer, we “have our client’s backs.” We will position the case for an early dismissal, but an effective trial strategy is always part of our plan.
Smart and Aggressive Strategy When an Employee Strikes Back
Resolving litigation inevitably involves a process. There are often many twists and turns along the way. Even when a client’s actions, such as a legitimate, non-discriminatory termination of an employee, is wholly justifiable, the employee may, nevertheless, strike back. When one does, our hardworking and savvy litigators are always prepared to represent our client’s best interests with smart and aggressive work.
One plaintiff worked in a customer-facing position for our client in Southern California. The company discovered that the employee improperly gained access to a company office by misrepresenting her purpose to building security staff, and then she removed company products from the office and sold the company’s products and services on the side to a third party, a longtime client. After conducting an appropriate investigation, the company terminated her employment after reasonably concluding that she had engaged in theft and for directly competing with the company by taking the business of an established client for her own private, financial gain.
Despite the clear reasons for her termination, the former employee retained an attorney and sued the company for age and disability discrimination. The employer retained partner Greg Glazer and associate Derek Ishikawa of Hirschfeld Kraemer’s Santa Monica office to defend the company and an individual manager also named in the lawsuit.
High Standards for Summary Judgment
Greg and Derek defended this matter aggressively, and their first strategy was to position the case to be dismissed in a motion for summary judgment. The legal standard for this type of motion, however, is high. The court must consider evidence in the light most favorable to the non-moving party (in this case, the former employee), and if there is a dispute concerning material facts, the court is compelled to deny the motion, and set the case for trial. Greg and Derek conducted discovery with a dual purpose: to obtain the necessary information to file the motion for summary judgment to dismiss the case; and to prepare for trial. They filed the motion to dismiss, but, unfortunately, the court found there was enough evidence to deny the motion, and set the case for a jury trial. Although they disagreed with the court’s decision, Greg and Derek prepared for trial.
Trial preparation involves not only written work, such as a trial brief, jury instructions, jury verdict form, exhibit list, witness list, statement of the case and pre-trial motions to limit evidence that the jury will hear, but also extensive time preparing witnesses to present the necessary facts for the defense. This effort includes preparing witnesses for direct examination as well as their cross-examination by opposing counsel. Cross-examination must be prepared for the plaintiff’s witnesses. All of these components must be orchestrated with an overall strategy of how to effectively communicate the story to 12 members of the jury, who generally have a bias against employers. Jurors often believe that any former employee who brings a lawsuit against an employer must have merit, or a legitimate reason, to bring a case.
In Los Angeles County Superior Court, Greg and Derek represented our client’s interests remarkably. Cross-examination of the plaintiff is often a critical time in any trial. Greg had thoroughly prepared by reviewing multiple statements by the plaintiff under oath, including a deposition, two workers’ compensation depositions, a declaration and statements to the Employment Development Department for the State of California. He prepared more than 20 pages of questions highlighting the weakness of the plaintiff’s case and the strength of the company’s position. By the end of his cross, Greg believed that he had effectively destroyed the plaintiff’s case and proved the company’s defense; that is, the company had legitimate reasons for the employment termination (theft), and her termination had nothing to do with the plaintiff’s age or disability.
The Fastest Win in the West
Every trial attorney is wary of how the case may be perceived by the jury. Although Greg and Derek felt confident about how the evidence went before the jury, they knew there were no guarantees, particularly concerning jurors’ tendency for bias against employers.
The jury received its instructions, and retired to the jury room to elect a foreperson and consider the evidence. Fifteen minutes after leaving the courtroom, the jury buzzed the courtroom deputy. When juries contact the courtroom deputy so quickly, they typically have questions about lunch, or an administrative issue. In this instance, however, the jury had reached a verdict, and found unanimously for the company. This 15-minute verdict was the quickest in the history of that particular courtroom. Obviously, our client was jubilant to be publicly vindicated so expediently.
Hirschfeld Kraemer cannot, obviously, guarantee all of our clients a 15-minute jury win in every case. But our attorneys understand that clients need pending litigation resolved in the most efficient and cost-effective manner possible. Most cases do not result in jury trials, but Hirschfeld Kraemer attorneys are prepared, from the first moment after a complaint is filed, to represent our clients in court. Unlike many law firms, our litigation attorneys actually try cases in front of juries, and our deep and experienced trial bench benefits all of our clients.