San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

My colleague and friend, Mike Maslanka, at Work Matters, pens a nice post about questions to pose to the employee plaintiff.  See post.  Mike's post discusses good questions to ask the plaintiff.  Mike generally represents employers.  These questions would usually come during the deposition or the trial.  His point is that the better questions for the employer to ask are not "home run" type questions, but the doubles and triples.  "is this a fair summary?"  As Mike points out, this question, often in a deposition, is not all that fair.  The question often is slanted just a bit to favor the employer.  The goal is to elicit testimony the employer can use to seek dismissal of the case or summary judgment. 

 "Take it to the limit one more time."  Mike makes a valuable point here.  He means the employer's lawyer should look for ways to press the issue regarding personality conflicts.  If he can show the employee was fired due to personality issues, then that undercuts discrimination or some other illegal motive playing a role.  And, he hopes to show that the employee is unreasonable. 

The plaintiff employee who cannot set aside his/her anger will surely lose. The employee needs to show some appreciation for the opposing point of view.   "Niceness" does count in litigation.  Ultimately, we all answer to a judge and jury for everything we do in a lawsuit.  An employe (or employer) who comes across as unforgiving or unreasonable will lose.  The jury does not understand the law very well, but they tend to understand human nature very well.  They do not sympathize with plaintiffs who cannot get past the emotional pain. 

Its a fine line the plaintiff employee must walk.  S/he must be firm, but not cross.  S/he must be "nice" but not easily pushed around during questioning.  It is a difficult task.  But, the employee who cannot set aside anger to some degree loses credibility. 

Its a truism that applies elsewhere.  In my time in the Army, some  28 years in the Army, Army Reserve and National Guard, personnel issues occurred with some frequency.  "He said, she said" disputes were not unheard of.  If one side could discuss the issues with some balance, that soldier gained credibility.  Litigation is no different.......

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 I have talked about this before.  Reasonable settlement offers lead to reasonable, or halfway reasonable responses.  When you are in the midst of a lawsuit, both sides have their "dander up."  It is hard to be reasonable.  But, it is just when it is hardest that it is most critical to appear reasonable.  Pursuing an employment lawsuit is very personal, but one also has to approach it like a business.  Because, if you lose, the perpetrator is doubly rewarded.  

This becomes critical when you want the other side to make a settlement offer.  You want them to make an offer, because you want a choice.  You want to choose between settling a case or going to trial.  Trials are always risky, no matter how good your case is.  So, before you go into trial, you want a choice.  Otherwise, you risk the worst scenario: the perpetrator of your discrimination is rewarded once when they discriminate and again when you go to trial and lose.....

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 Most employees who come see me have thought twice, three times, even 20 times before they decide to file a complaint, or worse, file suit against the employer.  In his blog, Michael Maslanka cautions employers to think twice before going into "fight" mode when an employee files an EEOC charge or even a lawsuit.  That is good advice.  How many employees have told me that if the employer had only said they were sorry, or if only the employer did not do such-and-such, then they would not have called me? 

I have some friends who run a chain of sandwich shops.  A small chain.  They did not attend college.  But, they do much better than many so-called well-educated employers at avoiding lawsuits.  If you make a mistake, they tell you.  If they need to fire you, they tell you why.  They do not escort you out of their shop.  They treat even folks they fire with some measure of respect.  Avoiding lawsuits really is not all that difficult.  Minimizing the effects of a lawsuit is not all that difficult.  It can be done....

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 A lawyer friend had a client once who insisted on asking for $1.5 million to settle a discrimination case.  The client did not make anywhere close to a six figure salary.  He had lost very little income income.  My friend the lawyer, tried and tried to describe to him the reality of low damage cases and how much value they held.  After thinking about it a few days, the client came by the office to drop off some papers.  He stuck his head in the door.  Said he had been thinking about it.  Said he was prepared to lower his initial settlement offer.  ...   Said he was willing to settle for $1.0 million.  

He just did not get it.  He did not get that you need to trust your lawyer, not some friend or relative who claims to know something about the law.  He did not get that low damages equals low value in settlement talks.  If you have lost little or no money, then your case is worth little or nothing.  If you do not trust your lawyer, then you should hire another attorney.   

When you hire a lawyer, you hire him/her for her judgment.  Skills, education, experience are critical components.  But, the most important factor is judgment.  Is your lawyer objective enough?  Will she believe in your case yet still be objective enough to speak on your behalf

As for that client who came down to a "reasonable" settlement offer of $1.0 million, my friend learned later that the client was relying on advice from a paralegal friend.  My friend lost the case on summary judgment.  He recommended that the client not appeal.  But, the client found a lawyer anyway and appealed.  He lost.  

A settlement offer of $1.0 million in that particular case was so unreasonable that the employer never responded with a counter-offer.  As I have told many clients, its one thing to suffer unfair treatment at the job.  But, to let the son-of-a-gun win at trial or during the lawsuit just makes it all so much worse.  

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 The better clients come to see me with documents in hand, sometimes boxes and boxes of documents.  This is the client who wants to be prepared, who seeks to have some control over the outcome of a potential lawsuit.  Some, some very few, will come see me with documents they obtained from their employer.  Is it "legal" to have those documents?  It depends.  See one case where the court found the employee unlawfully took documents home.  But, the court indicated a different set of circumstances in which the employee would have been protected for having taken those documents.  

But, see Michael Maslanka's eventual reaction to a situation in which an employee takes documents home and keeps them: better to simply sue and get them the traditional way.  That is, Mr. Maslanka would say it is better to file suit and then seek the documents in discovery.  He generally represents employers.  The safest course is to always do what your employer tells you to do.  if the employer says do not take documents home, then do not.  But, yes, if the employer has a policy of letting employees take documents home, then it is probably safe to do so.  But, you better be double-darn sure.  Nothing can ruin a good case than to violate some law or employer policy.  If you take something that does not belong to you, then the lawsuit becomes about you, not about the employer.  

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 "Do unto others as you would have others do unto you"  The famous words known as the golden rule.  Its a Christian precept designed to encourage us to treat others as we would like to be treated.  Unfortunately, in the work place, we must sometimes treat others as we must in order to survive, or so we think.  "Niceness" does count in lawsuits.  Extending basic courtesy, or making a generous gesture make a difference in a lawsuit.  

You, as an employee, may be locked in a huge fight, or simply engaged in an ongoing tit-for-tat with your employer.  The struggle may last months or years.  But, everything you do will become magnified if your dispute becomes a lawsuit.  A judge or jury will look at what you did and draw critical conclusions about you as a person.  The judge understands the law, but s/he sees so many lawsuits that personal differences alone may make you stand apart from the horde of losing employees.  A jury, on the other hand, may understand little of the law in a discrimination case.  But, they will well understand an employee "smarting off" to a manager or refusing to perform some task at work.  

The simple things have a way of crystalizing a case for a jury.  It is in your interest to do the right thing,  Because, if you do not,  it can cost you an otherwise winable case.  

That is partly why a leading defense lawyer warns employers to follow the golden rule.  

The more difficult the issues become, the more nasty your dispute may become, the more important it is to follow the golden rule.  Do the right thing.  You will live better and you will have a better chance of winning. 

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