Persuasive Litigator

Treat Knowledge as Intent

By Dr. Ken Broda-Bahm: 

It is one thing to know an act has a chance of resulting in harm, and it's another to intend that harm to occur. Or is it? Consider the example of a company that is aware of a small risk of electric shock if repairs are done without powering off a piece of equipment. If the company sends an employee to make that repair anyway, would jurors say that company intended the injury to occur? It turns out, it depends on how you ask the question. A new study in the Journal of Empirical Legal Studies (Mueller, Solan & Darley, 2012) looked at exactly that scenario and found that, while research participants were generally able to see distinctions between varying degrees of liability (e.g., negligence versus willful disregard and intent), when asked to make a binary choice regarding intent, they tended to treat just about any level of knowledge as proof of intent. The tree of knowledge, in other words, bears the fruit of intent. 

The challenge with any concept as subjective as "intent" is that jurors and judges end up with few, if any, foolproof cues, and instead they need to rely on their own projections. In the study, participants were asked to look at a scenario and assign consequences for the employer in deciding whether its acts were intentional or not. In that setting, the researchers found that participants' "'hot' moral judgments play a larger role than do their 'cold' cognitive categorizations." That means that the ability to understand a legal distinction won't always translate into a willingness to apply that distinction in practice. This post takes a look at this interesting new study on the ways jurors handle intent, and provides some practical advice for handling the distinctions in intent required by your case. 

Realistically Compare Your Employment Fact Finders

By Dr. Ken Broda-Bahm 

Imagine a typical employment discrimination case, subject to all of the ambiguities of human motivation. To the plaintiff, it is a story of good if not exceptional work performance cut short by a decision to terminate based on race, gender, age or disability. To the defendant, it is a story of enforcing job expectations broadly on all employees, including those who happen to be in protected categories. Given that a biased motive is rarely declared, it generally needs to be inferred from the circumstances. That act of inferring can invoke many of the subtleties of the fact finder's world-view, attitudes, and bias. 

But the question is, who decides? The recent history of employment litigation is a history of shifting fact finders. In the early days of Title VII, it was judges. Then after the Civil Rights Act of 1991, the door was open for employment plaintiffs to seek verdicts and damages from juries. More recently, as employers have moved to mandatory arbitration clauses, the dominant fact finder has changed yet again. Some dimension of choice remains, particularly for defendants, and that choice is important. In this post, I take a look at the question from the defendant's point of view to share some of what we know on how judges, arbitrators, and juries compare in the context of employment cases. 

Treat Your Terminations as "For Cause" (Even When They're "At Will")

By Dr. Ken Broda-Bahm: 

Here is a piece of advice that works not only as a trial message, but also as a strategy for avoiding trials in the first place: When someone loses their job, make sure it is for reasons that meet the legal tests, even when those tests aren't legally required. For in-house attorneys or HR personnel, that can mean functionally treating employees as "for cause" even when they might be "at will."

When an employer faces the need to let an employee go, and the threat of litigation in response is either real or implied, it is only natural for the company to want to wrap itself in cleanest available defense. On that score, it is helpful to the company that the vast majority of American employees are "at will" employees, meaning that the relationship may be ended by either party for any reason, as long as that reason isn't illegal. That last caveat, however, provides quite a bit of wiggle room for a former employee/plaintiff to argue, for example, that a termination was discriminatory, violated an express or implied contract, or ran afoul of an implied covenant of good faith and fair dealing. That means that in practice, juries, judges, and arbitrators will generally take a close look at the equities of the result. But the role of fairness isn't always simple. In this post, I take a look at some of the factors that affect that perception of fairness, including the seven tests of just cause.  

Don't Say Nothing: The Limitations of "No Comment" as a Litigation Crisis Strategy

By Dr. Ken Broda-Bahm:

A Google search on the phrase "no comment" appearing in recent news yields thousands of hits -- various individuals and organizations responding in time-honored fashion to some sort of crisis.  Recently, for example, after CNN Analyst Roland Martin had his finger too close to the Tweet button during the Super Bowl and broadcast a homophobic response to David Beckham's underwear advertisements, the network responded to mounting cricitism and petitions with "no comment" for several days before ultimately suspending Martin.  While careful decisions can require delay, the problem in a sustained "no comment" approach is that the silence fuels doubt and uncertainty while allowing the other side of the story to hold the floor uninterrupted.  Given that you can't "not communicate," your silence is inevitably interpreted in a variety of ways, most of them quite negative. 

Recently, I was approached by a company that had just received some bad press on an impending lawsuit.  Understandably, the in-house and outside counsel were united in a "please don't respond" position, while the PR department -- also understandably -- pleaded, "we've got to say something."  Ill-advised public statements naturally carry a risk of creating evidence and complicating a future trial defense.  However, when the litigation related crisis has the public's attention, silence from a party creates a cloud of doubt and an empty space that can only be filled in by those on the other side.  That route creates problems from both a PR perspective and a legal perspective by tainting a venue and influencing potential witnesses.  Making the argument that in this day and age, the time-honored "no comment" is a presumptively flawed prelitigation strategy, this post focuses on striking the intelligent balance:  avoiding both a "no comment" as well as a bad comment. 

Take a Note From an Anonymous Law Firm: Don't Look For Discrimination if You Don't Intend to Do Anything About It

By Dr. Ken Broda-Bahm:

A good piece of advice for employers:  If your habit is to sweep things under the rug, then don't commission a study to look under the rug.  Last Thursday, the ABA Journal released a fascinating report with important implications on the role of research, the risks of discrimination, and the occasional absence of a self-protective instinct exhibited even by a law firm.  Its name protected by a confidentiality agreement, a Wall Street law firm with national and international offices hired a consultant, M.J. Tocci, to look into its evaluation procedures involving 268 junior attorneys.  In a firm where near-perfect scores are required for promotion to partnership, Tocci found the women received significantly lower scores.  If that was explained by the women simply being less effective, you would expect to see the same difference in the narrative comments that accompanied the scores, but you don’t.  In some ways, in fact, the women’s narratives were better.

So what is happening?  The researchers concluded that gender bias is indeed alive and well at this firm, and playing a dramatic role in limiting the partnership opportunities for female associates.  But the real kicker is this:  What does the firm plan to do about it?  Absolutely nothing. 

This post is directed, not at the trial defense, but at in-house legal and HR departments, with the aim of reducing the need for a trial defense.  For the law firm at issue, the only thing standing between it and a class action discrimination suit is a confidentiality agreement.  But for all companies, it is important to take a close look at this study, in order to understand and address subtle discrimination and the potential vulnerabilities of your employee evaluation process.