Changing the Narrative in Employment Discrimination Cases
Blake Marks-Dias | January 17, 2018
Employment discrimination cases are increasingly getting past summary judgment and into trial. Too often, the defense focuses primarily on what the company did or did not do. This narrative plays right into the plaintiff’s hands—the more the jurors talk about the company’s actions (or inaction), the more opportunity for them to pick it apart. A winning strategy requires the defense to change the narrative, in subtle and respectful ways, leading the jury to instead focus on the plaintiff’s conduct.
Employment Cases Must be Prepared for Trial
Legal scholarship of the last 20 years has bombarded readers with reminders that trial, and the jury trial in particular, is a dying art in this business. It takes little searching to find entire books on the “Death of the American Trial” or law review articles opining on “The Decline of Civil Jury Trials.” While there is no doubt that the likelihood of reaching civil trial in general has dissipated, that trend is not applicable across the board. Practitioners in the field of employment discrimination in particular need to be prepared to try their case.
Civil rights laws underwent major growth during the early 1990s which expanded the types of claims and relief available to plaintiffs and broadened the scope of employment practices considered discriminatory. For this and other reasons, employment discrimination claims accounted for about half of all civil rights filings in U.S. district courts from 1990 to 2006. Further, the percentage of employment discrimination trials involving a jury in this courts increased from 40% in 1990 to 86% in 2006.
A 2005 report from the Bureau of Justice Statistics provides a wealth of information on growing trends in state cases. For example, in deep contrast with other types of civil trials, 91% of employment discrimination cases that made it to trial were decided by a jury as opposed to a bench trial. Plaintiffs won in over 60% of all cases tried, and almost 65% of the time in jury trials. A study of final awards from trials with plaintiff winners in state courts in 2001 in the nation’s 75 largest counties found that 16% of plaintiffs won an award of over $1 million, with over 43% receiving over $250,000.
Because employment discrimination cases are increasingly being tried before a jury, and because of the monetary risk they impose for employers, practitioners and their employer clients need to be ready to present the best case possible to the jury.
Your Narrative Matters
“[N]arrative, both fiction and nonfiction, will always be more alluring than a collection of facts—for better or worse—because narrative is rooted in the human experience.” Indeed, this allure is one of the numerous reasons why trial lawyers are taught to weave a story in their case as opposed to merely presenting the facts. Storytelling has a deep human history, and provides the lens through which we interpret the world around us.
“Many social scientists who study juries have concluded that they interpret information not by considering and weighing each relevant piece of evidence in turn, but by constructing competing narratives and then deciding which story is more persuasive.” Thus, a juror will likely unconsciously rely on narrative to arrive at their verdict, and simply marching all the facts before them may not help in generating the best outcome. Further, “[j]urors are often instructed to interpret the evidence in light of their common sense and their experience in life, and they are traditionally praised by commentators for the perspective that they bring to the courtroom.” A combination of their natural inclinations and the subjective standards that govern our judicial system make it almost inevitable that a juror will impose some of their internal narrative, as well as the provided external narratives, onto your evidence.
Kenneth Burke, an American literary theorist, proposed that a well-formed story is composed of a “pentad” including “an Actor, an Action, a Goal, a Scene, and an Instrument—plus Trouble.” In an employment discrimination suit, the facts before the jury often involve the employer as the “actor” whose actions cause “trouble.” This is why outlining exhaustive evidence explaining the actions of the employer – even positive actions – can hurt a case. “Experimental research has yielded the insight that jurors do not, by and large, estimate probabilities when determining the events that transpired in a case; rather, they draw conclusions based on whether information assembles into plausible narratives.” Thus, while you may envision the evidence involving the employer’s actions as weighing on the “probable” side of no wrongdoing, pushing the focus onto the employer may backfire if your explanation does not align with the juror’s “plausible narrative.” Thus, shifting the focus to actions taken, or not taken, by the Plaintiff can be a valuable way to guide the jury into the narrative you desire. “[T]rials can best be understood as a hybrid of subjective and objective approaches to the interpretation of facts,” and therefore, opportunities exist in presenting evidence for attorneys to “increase analytic processing” in ways valuable to their client’s case.
Writers are often taught the ominous sounding mantra to “murder your darlings.” For a writer, it is a reminder to purge anything that departs from your overall work out of your piece. It may be a detail or storyline that resonates strongly with you, or a vivid point that feels earth-changing—but if it digresses from your story, you have to delete it. This lesson can be duly imposed on a trial attorney; while you will be immersed and captivated by every detail of your case, and every piece of evidence that leans on the “good” side for you, that does not mean it must, or even should, be in front of the jury. Resist the temptation to describe every single action taken by the company. Less is more, and anything that slows, distracts, or confuses from the overall storyline you seek to create is doing you a disservice.
Shifting Focus to the Plaintiff
Civil jury trials are structured in a way that puts the defendant a step behind out of the gate. Although the plaintiff may have the burden of proof, they also have the opportunity to frame the issues first. Once that storyline has stuck, defendants often spend the remaining time in trial on their heels, playing defense.
Within this structural difficulty, a common, reasonable defense mistake in employment discrimination trials is choosing to focus on the company’s actions as opposed to actions or inactions of the plaintiff. It is an understandable mistake, as the blueprint of an employment discrimination case naturally errs toward a focus on the employer. For example, pattern jury instructions are generally tailored with a focus on the actions and decisions made by the employer:
To establish [his] [her] “disparate treatment claim,” (name of plaintiff) has the burden of proving each of the following propositions:
(1) That (name of defendant) [terminated] [did not promote] [did not hire] [laid off] [(other tangible adverse action)] (name of plaintiff); and
(2) That (name of plaintiff’s) [age] [creed] [disability] [marital status] [national origin] [race] [religion] [gender] [sexual orientation] [honorably discharged veteran status] [military status] was a substantial factor in (name of defendant’s) decision [to terminate] [not to promote] [not to hire] [to lay off] [(other tangible adverse action)].
Wash. Pattern Jury Instr. Civ. WPI 330.01 (6th ed.). In these instructions it is the defendant who is the entity behind the verb and the plaintiff who is the entity being affected. The actions of the employer are necessarily thrust into the spotlight. This focus is further emphasized if your case relies upon one or more affirmative defenses. For example:
To establish that [his] [her] [its] requirement is a bona fide occupational qualification, (name of defendant) has the burden of proving each of the following propositions:
(1) That (name of defendant) applies the requirement uniformly to all applicants or candidates for the job; [and]
(2) [That all or substantially all individuals who fail to meet the requirement are unable to perform the job safely and efficiently];[or] [and] [that excluding individuals was essential to the purposes of the position.]
Wash. Pattern Jury Instr. Civ. WPI 330.04 (6th ed.). Here, not only are the actions of the employer at interest, but additionally, the burden of proof is on their shoulders.
This is not to say that these types of instruction and all the evidence relevant to them should be avoided. You must, of course, address the relevant instructions. It is, instead, a matter of primary focus. To the extent that employers can avoid exacerbating this problem, and can shift the focus onto the actions of the plaintiff, it will help in crafting a winning narrative for the jury to align with. In viewing trials as a narrative, “readers necessarily become participants in the story.” Popular behavioral models “posit jurors speculating about facts external to the trial in order to complete the picture.” Thus, any information you put before the jury will be dissected through their worldview, as “[r]eaders construct the events themselves ‘in the light of the overall narrative,’ and by the time an audience confronts a story, ‘readers necessarily become coauthors of and participants in that world.’” With this understanding, imagine two scenarios in the jury deliberation room: in the first, they spend an hour discussing the actions taken by the employer, and in the second, they spend an hour discussing the actions taken by the plaintiff. Inevitably, they will find fault with either if they spend that much time debating the evidence. You want to put your client in the more favorable position of scenario two.
One way to do this is to emphasize the parts within the instructions that pull the focus away from the employer’s actions. For example, in a sexual harassment, or quid pro quo, case, instructions often require:
To establish [his] [her] claim of sexual harassment, (name of plaintiff) has the burden of proving each of the following propositions:
(1) That a [supervisor] [manager] subjected (name of plaintiff) to unwelcome sexual conduct or advances; and . . .
Wash. Pattern Jury Instr. Civ. WPI 330.22 (6th ed.) (emphasis added). Here, although the instructions again focus on the actions of the employer, the qualification of “unwelcome” provides an avenue to address the actions, or inactions, of the plaintiff. Another example can be found in instructions for hostile work environment cases, where the plaintiff must prove:
(1) That there was language or conduct [concerning age] [concerning creed] [concerning a disability] [concerning marital status] [concerning national origin] [concerning sexual orientation] [concerning honorably discharged veteran status] [concerning military status] [of a racial nature] [of a religious nature] [of a sexual nature], or that occurred because of the plaintiff’s [age] [creed] [disability] [marital status] [national origin] [race] [religion] [gender] [sexual orientation] [honorably discharged veteran status] [military status];
(2) That this language or conduct was unwelcome in the sense that (name of plaintiff) regarded the conduct as undesirable and offensive, and did not solicit or incite it; . . .
Wash. Pattern Jury Instr. Civ. WPI 330.23 (6th ed.) (emphasis added). Again, the plaintiff will bear the burden of proving their own conduct was not welcoming, soliciting, or inciting. Lawyers can take the opportunity to focus on witnesses’ interpretations of the plaintiff’s behavior, or evidence like inter-office correspondence that supports the employer’s case.
In addition, aside from potentially worrisome emails, employment cases tend not to be document intensive. Thus, witness testimony can quickly become the backbone, or Achilles’ heel, of a case. Therefore, cross-examination is a vital time to employ the strategy of maintaining focus on the actions and inactions of the plaintiff. Indeed, “[t]he goal of cross-examination at trial should be to minimize the importance of the witness’s direct examination and to avoid actually presenting evidence that supports the opposing party’s case.”
Therein lies the real question: how to focus on the plaintiff without being so aggressive that the jury turns against you. The topics addressed in employment cases are sensitive, and the concern that a lawyer will appear arrogant or attacking is heightened. Instead, retain control of the questioning, and maintain the focus on the plaintiff. This is the time to focus on negative performance reviews, the plaintiff’s failure to report or follow employment guidelines and procedures, and the plaintiff’s own inappropriate behaviors in the workplace.
In addition to cross-examination, there are many opportunities in the trial where lawyers can strengthen their case by focusing the lens on the plaintiff: opening statement and closing argument, illustrative exhibits (e.g., a calendar showing absences at work; etc.), direct examination, and careful objections all give the opportunity to shape the narrative that the jury will deliberate on. Take each of these opportunities to focus primarily on what the plaintiff did or did not do. The more the jurors hear about this evidence, the more opportunity for them to dissect it. A winning strategy requires the defense to change the narrative, in subtle and respectful ways, leading the jury to focus on the plaintiff’s conduct, and, in turn, the employer’s reasonable defense.
Ideally, but not always practically, implementation of this strategy begins before the lawsuit is filed. Shifting the focus onto the plaintiff is, naturally, much easier when there is objective evidence to support it. A manager’s testimony regarding an employee’s poor performance is one thing; a well-written performance evaluation (i.e., trial exhibit) is quite another. Written (visual) evidence is far more persuasive than oral testimony alone. Visual evidence is also much more likely to be remembered during deliberations. Proper documentation of an employee’s shortcomings, failures to meet job expectations, etc., is therefore not only good business practice – it is a highly powerful risk management tool.
Blake is a partner at Corr Cronin. His practice focuses on cases which the client “must win” and, when necessary, which must be tried. Blake has been widely recognized by his peers for his trial skills and is a Top 100 Washington Super Lawyer. He is on the faculty of the National Institute for Trial Advocacy. Mallory Satre, an associate at Corr Cronin and the co-chair of the marketing committee for the Pacific Coast Labor and Employment Law Conference, assisted with this article. Blake Marks-Dias can be reached at email@example.com.
 Examples of this expansion include the passage of the Americans for Disabilities Act of 1990 and the Civil Rights Act of 1991. The Civil Rights Act of 1991 amended several federal employment discrimination laws including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1871, the Age Discrimination in Employment Act of 1973, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990.
 Civil Rights Complaints in U.S. District Courts, 1990-2006, Bureau of Justice Statistics 2 (available at https://www.bjs.gov/content/pub/pdf/crcusdc06.pdf).
 Id. at 6.
 Contract Bench and Jury Trials in State Courts, 2005, Bureau of Justice Statistics (available at https://www.bjs.gov/content/pub/pdf/cbajtsc05.pdf).
 Id. at 2.
 Id. at 4.
 Contract Trials and Verdicts in Large Counties, 2001, Bureau of Justice Statistics 5 (available at https://www.bjs.gov/content/pub/pdf/ctvlc01.pdf).
 Lamb-Sinclair, Ashley, When Narrative Matters More Than Fact (The Atlantic, January 9, 2017) (available at https://www.theatlantic.com/education/archive/2017/01/when-narrative-matters-more-than-fact/512273/). Ms. Lamb-Sinclair is a high-school English teacher, the 2016 Kentucky Teacher of the Year, and the founder and CEO of Curio Learning.
 Kern Griffin, Lisa, Narrative, Truth, and Trial, 101 Georgetown Law Journal 281, 285 (available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5450&context=faculty_scholarship).
 Id. at 305.
 Jerome Bruner, Acts of Meaning 50 (1990).
 Kern Griffin, Lisa, Narrative, Truth, and Trial 293.
 Id. at 285.
 The phrase is widely attributed to Arthur Quiller-Couch, via his 1913-1914 Cambridge lectures “On the Art of Writing.”
 Kern Griffin, Lisa, Narrative, Truth, and Trial 306.
 Employment Law Trials: A Practical Guide 116 (available at http://media.straffordpub.com/products/witness-examination-strategies-in-employment-litigation-2013-01-23/reference-materials.pdf).
Originally published in the January issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.