My clients often tell me some horrible deed by the employer and quickly ask me "can they do that?" To me the real question is "will the employer’s act and his explanation pass muster with the judge and jury?" I usually answer by "guestimating" what how a jury would respond. If the client really presses me, I will tell them they should ask their friends and neighbors. Friends and neighbors do not represent a scientific sampling of a jury pool. But, it is a starting point.
We see some of this credibility assessment at work in the redistricting lawsuit against the state of Texas. One of the state’s witnesses testified that when they worked on the Republican favored districts, they did not consult with any government official. I have never worked in state government. But, it does not seem credible to me that state employees working on redistricting had little guidance from Republican lawmakers in charge of the redistricting process. That assertion struck one of the judges the same way. Washington D.C. District Judge Beryl Howell had the same reaction. He commented during the trial that he had to "scratch his head" over that testimony. See San Antonio Express News report. Whenever a federal judge offers an opinion, the listener should pay close attention. Judge Howell’s comment is judge-speak for "I do not believe you."
As I have explained to clients many times, what we say in court must be believable on some level. If an employer claims he fired someone only because s/he was late one time one minute, that just stretches the limits of credibility. So, yes, we can all say whatever we want in court. But, it must pass "the smell test." I heard a report today that Judge Howell’s reaction prompted the state, in part, to discuss possible settlement in the lawsuit. Yes, comments from judges do have that effect.
When I was a young lawyer in rural Louisiana, I clerked for a smart state district judge. He would routinely pull the lawyers for both parties into the back room to hear the "skinny" on whatever motion they were in court on that day. He always asked if the parties had talked about settlement. If there was a stumbling bock to settlement, he wanted to hear about it. Once in a while the stumbling block was some motion that one of the parties was sure they would win. After a lot of careful language, my judge would tell the lawyers that based on what he heard, he would rule in a particular way. He was telling them in judge-speak how he would probably rule on the disputed motion. Dropping that heavy hint always brought about an agreement or settlement. Judge Howell dropped his hint, I think.