EXPERTS, MOTIONS IN LIMINE, AND OTHER PRE-TRIAL CONCERNS
Angel Gomez, III
Katten Muchin Zavis
(a) Whether to have experts, and if so for what topics
From the defense side, typically at least two experts are designated and prepared
for testimony: (1) financial damages, and (2) emotional distress damages experts.
In addition, experts may also be used to explain a broad number of other areas of
relevance to the case, for example: (3) why plaintiff's performance was below the
"standard of care" expected of a person performing that job (e.g., a CFO, or
doctor); (4) the standard of care in personnel practices (e.g., adequacy of
investigation); (5) failure of the plaintiff to mitigate his or her damages by
showing alternative employment that was available to the plaintiff.
(b) Expert notes and reports; discoverability
Virtually everything that is given to the expert, or that the expert prepares is
discoverable and admissible. Great care should be taken in this regard not to
inadvertently waive attorney-client privilege or work-product protection.
(c) What facts/resources to give to the expert
Protect the expert from potentially damaging cross-examination by making sure
that the expert has not been told only "one side of the story." Make sure that the
expert has both helpful and damaging information, including deposition transcripts
and documents. Difficult judgment call whether to give expert damaging
information that is unclear whether the other side presently knows this
information, or is going to learn it.
(d) Jury consultant experts
For cases with anything more than a modest exposure, seriously consider making a
presentation before a mock jury, using a jury consultant expert. Modern practice
has shown the utility of using jury consultant experts and presenting the case to a
mock jury. Typically, depending on the potential exposure, a jury consulting
company hires two (or more) mock juries, trying to match the demographics of the
expected actual jury pool. A presentation is made to the mock jury, and the mock
jury then deliberates, typically while being videotaped and unobtrusively
observed. The type of presentation varies widely, ranging from simply reading a
summary of the facts to the mock jury, to live summary arguments from attorneys
with limited live "testimony" from the actual witnesses, to a full "mini-trial" that
may last several days. The other side is typically represented by other attorneys
within the firm, or occasionally, from another (friendly) firm.
2. Motions in Limine
Be aware of Local Rules which may obligate moving counsel to have "met and
conferred" with opposing counsel about any proposed Motions in Limine, and to
file a declaration reciting the results of that meet and confer session.
(a) Typical Motions which may be brought by employers
G Bifurcate punitive damages phase from liability phase
G Exclude private information concerning other employees
G Exclude plaintiff's speculation as to reason for termination
G Exclude plaintiff's "diary" or other hearsay-type evidence
G Exclude evidence of other employment claims
G Exclude evidence of alleged discrimination not related to the present claim
In sexual harassment cases, the following are additional Motions which may be
G Exclude evidence of alleged harasser's consensual relationships with others
in the workplace
G Admit evidence of plaintiff's participatory or "welcoming" behavior; cf.
Evidence Code § 783
G Exclude evidence of "old" harassment incidents barred by the statute of
G Exclude evidence of alleged discrimination not related to the present claim
(b) Key evidentiary disputes not to be discussed in front of the jury
In the alternative, request a hearing out of the presence of the jury before plaintiff
offers specified non-probative and highly prejudicial evidence.
3. Pre-Trial Concerns
The following are "conventional wisdom" views of how juries view the employment
relationship and employment litigation:
(a) How Jurors Perceive Trials and the Trial Process
Jurors, like anyone else, are swayed by their emotional response to the facts and
people involved -- even if they do not articulate their decision in those terms.
The average juror will generally shift the burden of proof to the company. In the
juror's frame of reference, it is up to the company to prove that a good reason
existed for the termination.
(b) Nature of Employment Relationship
Many jurors have either been fired from a job or had a close family member be
fired. If they themselves have been fired, or had a close family be fired, many
jurors believe the firing was not justified.
Some jurors believe they have personally been discriminated against because of
age, race, or sex.
Jurors operate on the often unspoken assumption that "good cause" is needed for
all terminations. Jurors consciously or unconsciously assume that employees are
entitled to keep their jobs unless there is a good reason for them to be fired.
Despite the fact that the controlling legal principle may be that the employee was
terminable "at will" and could be fired "for any reason," arguments that
employment was "at will" are rarely given weight by jurors.
Arguments by the company of "at-will" status to the jury may backfire, because
jurors do not usually emotionally accept that companies should be entitled
arbitrarily to terminate employees. Save "at-will" arguments for the judge, and
The supervisor is frequently viewed by jurors as having an obligation to help an
employee in trouble, but the help offered cannot be perceived as belittling.
Supervisors are expected to assist, but without condescension.
If a dispute arises concerning the proper method to perform a task, the jury may
not assume that the "boss is right" and is entitled to direct the workforce or decide
business strategy. In these situations, jurors may side with the employee. This
result is a substantial surprise to management, which is accustomed to having the
final authority and being able to say "I'm the boss, and we're doing it my way."
Jurors, on the other hand, may feel the employee was right and hence justified in
the action that lead to the termination.
(c) Jurors' Perception of the Actors' Personality and Credibility
Jurors' perceptions of the personalities of the employee and the supervisor are
central in the deliberative process. In some juror's minds this may be the single
most important element, and it will play a central subliminal role in jurors'
attitudes. If the employee is viewed as a "nice guy," and the supervisor as a "hard-
liner" or over-reaching the bounds of authority. Jurors will forgive many of the
employee's faults -- even the ones that led to termination.
Jurors will react strongly to whomever they perceive as the more inflexible, harsh,
rude, insensitive or selfish actor. If the supervisor is viewed as arrogant, arbitrary
or power-hungry, jurors may react with anger and a desire to punish the employer.
If jurors believe that it was the employee who was the more offensive, jurors are
more likely to conclude that the employee "got what he or she deserved," and vote
for the defense.
The concepts that employee discipline and terminations are often unpleasant or
traumatic experiences for individual managers, and hence will be done only as a
last resort, will likely be viewed skeptically by jurors.
Managers are held to a higher standard of conduct, and frailties of human nature
on the part of a manager are not easily forgiven by jurors if a subordinate is
injured. Hence, if a manager is guilty of procrastination, error in judgment,
misunderstanding, or not wanting to confront tough issues, these failings will not
usually be viewed as sufficient excuses -- the company will have to pay for the
manager's failings. Indeed, an attempt to offer these excuses may be seen as a
"cover-up" for malicious motives.
Jurors may be cynical about a manager's motives, and may find venal or retaliatory
"real reasons" for actions that the manager subjectively viewed as based on
legitimate business needs.
When faced with a credibility contest between a manager and an employee (who
are the only eyewitnesses) about what happened, jurors will look at:
circumstantial evidence, prior conduct, character of the actor to show propensity to
commit alleged conduct, and character of the actor for veracity.
(d) Grounds for Discipline and Termination
Jurors may take the position that failure of the employee to achieve agreed-upon
goals is excusable if the employee is "trying hard enough." Jurors may adopt the
view that if the employee was giving his or her best efforts, the fact that goals
were not achieved is excusable.
Terminations for "disloyalty" or those based on "office politics" may be viewed as
unfair where the employee was otherwise doing an acceptable job -- for example,
where a new boss comes in and within a year a new team is in place.
If a company's written policy and common practice are at odds with each other,
jurors may use common practice as the criterion for evaluation of the case.
(e) Disciplinary Procedure and Documentation Issues
Jurors tend to place great weight on requiring the company to follow closely its
own policy manuals. Policy manuals may be intended by companies as guidelines
only, and to be followed only at their discretion. Jurors on the other hand will
often hold companies strictly to their policy manual statements.
Lack of clear documentation concerning the employee's performance weighs
heavily in jurors' decisions. If the company argues that the employee had been
performing poorly for years but cannot produce any memos to the employee or to
file as evidence of performance corrections, jurors may conclude that the
employer's story is a pretext, and that the problems did not really exist or were not
Even if a failure to document problems was intended by the manager at the time as
a benefit to the employee, jurors will typically not accept that reason as a
sufficient excuse, and at least some jurors will not believe that the problem ever
actually existed or that it was serious.
If the manager failed to document problems because the manager felt somewhat
intimidated or wanted "to avoid a confrontation," that also will likely not be
accepted by jurors as a sufficient excuse.
"Too many" write-ups may look like the company is unfairly "building a case" on
A series of "write-ups" about small faults will likely not be viewed as grounds for
Termination of an employee "out of the blue" for performance problems may raise
questions about the "real motive" for the termination, and strikes jurors as unfair
that the employee was not given an opportunity to improve. Jurors expect the
company to give the employee a specific warning that failure to improve may lead
to termination, and then give the employee an opportunity to improve.
Jurors expect longer tenure employees to be put on longer warning tracks, while
those with shorter tenure may be given shorter warning periods.
Jurors expect companies to give an employee honest assistance, opportunity to
improve and express written warnings, and think termination appropriate only if
the employee thereafter failed to improve his or her performance despite this
assistance because of arrogance or misdeeds.
Jurors will vote for the company where they perceive the company as acting
patiently and regretfully, and perceive the employee as stubborn and mean-
spirited, and/or incompetent.
Where an employee is accused of a serious offense such as theft, gross
insubordination or flagrant violation of established company policies, or an on-
the-job crime such as drug selling, jurors accept that the usual disciplinary steps
may be eliminated and the employee terminated immediately.
Jurors may have difficulty accepting attempts by an employer to try to explain
"evaluation inflation" -- in which "average" performing employees are routinely
rated as "above average", and under-performing employees are listed as "average".
The concept of "damning with faint praise" will not be believed by jurors, and
evaluations will be taken at face value.
(f) Money and Damage Issues
Jurors' sense of the meaning and value of money in a corporate setting is probably
very different from that of the company. Jurors tend to believe that most
companies have lots of money that can be spared to solve an employee's problems.
Defense arguments about tight budgets and lack of funds are apt to be viewed
suspiciously and may be viewed as a pretext.
Many jurors respond strongly to injury, and place high priority on making an
injured person feel better -- even if the employee's injury was wholly or partially
Jurors may adopt informal and sometimes subconscious notions of comparative
fault. Hence, even if jurors feel that a termination was justified, jurors will still
assess damages against the company if they feel there was some mistreatment by
(g) Other Issues
Constructive discharge cases are often difficult for employers, because often there
has been no disciplinary procedure followed, and often little ability by the
company to argue fair notice, opportunity to improve, and a final warning.
June 6, 2011