Masters of the Courtroom SM

Transcription

1 Masters of the Courtroom SM Opening Statements, Closing Statements, Rebuttal, Demonstrative Exhibits The Hon. Jane Triche Milazzo, USDC EDLA M. Nan Alessandra, Phelps Dunbar LLP Jason R. Williams, Jason Williams & Associates Course Number: Hour of CLE December 11, :30 1:30 p.m.

2 Jane Triche Milazzo was sworn in as a United States District Court Judge for the Eastern District of Louisiana on October 12, Judge Milazzo was nominated by President Obama on March 13, 2011 and was unanimously confirmed by the United States Senate on October 11, Judge Milazzo graduated from Nicholls State University in 1977, and taught elementary school for several years. In 1986, she went to work for her father as his legal assistant and eventually found her way to law school. She graduated from LSU Law school in After graduation, she immediately went into practice with her family, Law Offices of Risley Triche, LLC, where she engaged in a general practice. In 2008, Judge Milazzo was elected to the 23 rd Judicial District Court without opposition. She was the first female elected to that position. During her years in private practice, Judge Milazzo was active in several legal organizations and served as president of both the Assumption Parish Bar Association and the Twenty-Third Judicial Bar Association. She was also a member of the Louisiana State Bar Association House of Delegates where she served as a member of the Legislative Committee and as chair in As a state district judge she served on the executive committee of the District Judges Association. She currently serves on the Board of Directors for the New Orleans Federal Bar Association. Judge Milazzo is married to John Milazzo, Jr. and has four children, Richard Perque, Anne Perque Schmidt, Jerome Perque and K. Joseph Perque, Jr. and two step-children, Jack Milazzo and Jennifer Milazzo Bailey; they have three grandchildren. She is the daughter of the late Risley Pappy and Clara Triche of Napoleonville,.

3 M. Nan Alessandra Partner Practice Nan Alessandra practices in the areas of employment litigation, arbitration and employment counseling, alternate dispute resolution, civil rights, business litigation, and constitutional law litigation. Her employment litigation and arbitration practice includes representing employers in the defense of discrimination claims for age, gender, disability, race, retaliation, ethnicity, religion, and workplace harassment, and handling EEOC charges and other administrative complaints through the administrative, arbitration, and judicial process, including both trials and appellate proceedings. She also advises clients on a variety of human resource issues, assists in developing employee policies and procedures and provides training to company management and personnel on a variety of employment and labor related topics on corporate and legal compliance issues. She serves as the practice coordinator of the employment law group in the firm's New Orleans office. Contact Canal Place 365 Canal Street, Suite 2000 New Orleans, Louisiana T: F: nan.alessandra@phelps.com Service Areas Commercial Litigation Labor and Employment Education Loyola University New Orleans College of Law, J.D., cum laude, 1985; Member, Loyola Law Review University of New Orleans, B.A., 1982 Admissions Louisiana Texas Ms. Alessandra has been awarded the AV rating by the Martindale-Hubbell Law Directory, which is the highest possible rating for legal ability and ethical standards. She is also among a select group of lawyers listed in a nationwide client survey published in Chambers USA: America s Leading Lawyers for Business as well as The Best Lawyers in America and Super Lawyers. Ms. Alessandra is on the panel of neutrals with the American Arbitration Association

4 for both arbitration and mediation. She also writes and speaks often on behalf of management interests on employment-related topics and is the managing editor and a contributing editor of the firm s employment and labor law updates. In 2003, she co-authored a law review article with a client entitled Drafting Non-Competition Agreements in Louisiana: A Drafter s Dilemma, 49 Loyola Law Review 809 (2003). Prior to joining the firm, she was Judicial Clerk to the Honorable A.J. McNamara and Judicial Extern to the Honorable Martin L.C. Feldman, both of the United States District Court for the Eastern District of Louisiana. Membership / Affiliations Louisiana State Bar Association State Bar of Texas Bar Association of the Fifth Federal Circuit Federal Bar Association, New Orleans Chapter New Orleans Bar Association (President-elect, 2013; First Vice-President) American Bar Association, EEO Subcommittee Jefferson Bar Association Fellow, American Bar Foundation and Louisiana Bar Foundation Graduate, New Orleans Regional Institute (2007) American Arbitration Association, Panel of Neutrals for both Arbitration and Mediation American Immigration Lawyers Association Louisiana Hospital Association Representative Matters A list of representative matters is available upon request. Publications/Speeches Speaks and publishes on a wide variety of employment related topics on an

5 annual basis. A list of presentations, speeches, and publications is available upon request.

6 Jason Rogers Williams Biography Born in uptown New Orleans, Jason Rogers Williams graduated from Woodward Academy in College Park, GA and entered Tulane University and Tulane Law School. After working for two years at law firms post-graduation, he started his own practice. Williams was later appointed to serve as State Court Judge at Orleans Parish Criminal District Court by the Louisiana Supreme Court in Williams also worked to exonerate and free the wrongfully convicted through his pro-bono work with the Innocence Project. In addition, Williams also served on the Louisiana State Indigent Board s Director Selection Committee and has also worked as a Professor at Tulane Law School. He has made several guest appearances as a legal analyst on local media outlets. He currently serves on the Board of Directors of the Innocence Project of New Orleans. He formerly served on the Board of Directors of the Partnership for Youth Development, the Board of Directors at Sophie B. Wright Charter School, the Board of Directors at the Audubon Nature Institute and on the Mayor s Criminal Justice Council. He has been lead counsel at Jason Rogers Williams & Associates for the past twelve years. Williams was elected as a New Orleans City Councilmember At-Large in March of 2014.

7 OPENING STATEMENTS, CLOSING STATEMENTS, REBUTTAL & DEMONSTRATIVE EXHIBITS DECEMBER 11, 2014 M. Nan Alessandra PHELPS DUNBAR, LLP 365 Canal Street - Suite 2000 New Orleans, Louisiana Telephone: (504) nan.alessandra@phelps.com THE NUMBER ONE STRATEGY: PICKING THEMES THAT WILL WORK. In any employment litigation matter, particularly a jury trial, it is essential to pick out a theme and a sub-themes that will work and develop these themes throughout the trial. In fact, of all key strategies for effective opening and closing arguments, the key strategy of developing themes that the jury will follow and that withstand the scrutiny of opposing counsel is critical. Why is it so critical to develop a theme that will work? As counsel for plaintiff or defendant, you must grab the jury's attention and make them listen. Through the years, scholars, legal commentators, jurists and lawyers alike have all opined about the mercurial nature of jury trials. The following quotes provide a small but significant sampling of quotes that underscore why developing a theme is so critical. I confess that in my experience I have not found juries specially inspired for the discover of the truth... they will introduce into their verdict a certain amount a very large amount, so far as I have observed of popular prejudice, and thus keep the administration of the law accord with the wishes and feelings of the community. Oliver Wendell Holmes Address, January 17,

8 A jury verdict is a quotient of the prejudices of twelve people. Kenneth P. Grubb, American Jurist "False Fears," Insurance Counsel Journal October, 1959 A jury consists of 12 persons chosen to decide who has the better lawyer. Robert Frost ( ) Kenneth Redden, Modern Legal Glossary (1983) The classic adversary system in the United States not only encourages, it demands that each lawyer attempt to empanel the jury most likely to understand his argument, or least likely to understand that of his opponent. You don't approach a case with the philosophy of applying abstract justice. You go in to win. Percy Foreman, New York Times February 3, 1969 As proud as we trial lawyers are of our abilities, the fact is that none of our skills, however polished, and none of our evidence, however, convincing, necessarily amounts to anything, if we don't have a jury that is willing to listen.. Johnnie L. Cochran Journey to Justice with Tim Rutten (1996) For purposes of the discussion today, Johnnie Cochran said it best: You must get the jury to listen. How is that accomplished? The answer is simple: develop a theme that will work. The following are key examples of important themes that could work, although there is no guarantee of success

9 I. THEMES THAT CAN WORK. A. Personalizing the Corporate Defendant. A major component of any corporate defense strategy and a key component of any theme established at the inception of the litigation is the attempt to personalize the company. B. Recognizing and Neutralizing Inherent Sympathy for the Employment Plaintiff. Another key component of an important theme that can work is to recognize but neutralize inherent sympathy for the employment plaintiff. In many employment litigation cases, defense counsel is faced with a termination or an employment severance which for most people, indeed the majority of people is unpleasant. To neutralize the inherent unpleasantness of the employment termination, defense counsel's theme should focus on the jury's duties and guidelines as the trier of fact. Specifically, the jury should be told in a straightforward yet uncondescending manner that their job is not to decide the case based on sympathy, compassion or prejudice; it is not to decide whether terminations are pleasant or unpleasant; and, it is not to substitute their judgment. Rather, their job is to put aside their individual concerns for the plaintiff and decide whether or not the termination violated plaintiff's rights as a matter of fact and law. The concept of neutralizing prejudice and passion is no small feat. C. Plaintiff Has the Burden of Proof. Another key component of a successful theme that can work is never losing sight of the fact that the plaintiff has the burden of proof. If one sits in any employment litigation trial long enough, it is likely that you will hear a plaintiff's lawyer try to shift the burden of proof from plaintiff to the defendant

10 Indeed, quite often you will hear plaintiff's counsel tell the jury that the defendant must be able to prove whether the termination was just and, if the company cannot, then plaintiff should win. Defense counsel must be on guard to resist this shifting of the burden of proof and, more importantly, should make every effort throughout the trial to establish from voir dire to closing that it is plaintiff who bears the burden of proof in establishing discrimination, workplace, harassment or any other legally cognizable claim in the employment arena. Of all strategies for effective opening and closing arguments, picking a key theme that will work in personalizing the company, neutralizing the sympathy for plaintiff and focusing on the burden of proof borne by plaintiff is critical

11 II. DEVELOPING AND EXPANDING THE THEME AND SUB-THEMES CHOSEN IN VOIR DIRE AND CONTINUING IN OPENING AND CLOSING STATEMENTS. A. Opening Statements. The opening statement is often considered the most important part of the trial. Indeed, jury polling often indicates that many jurors make up their minds at the end of the opening statement. Accordingly, defense counsel should always make an opening statement, particularly in a jury trial. However, the opening statement should never be precisely the same as the closing argument. In fact, the opening should set forth the story to follow while closing should summarize how that story actually unfolded. Ultimately, the jury should be advised that, in essence, they will write the final scene of the last act of the play. 1. Telling a Story. In the opening statement, defense counsel must tell the jury its side of the story, i.e., set out your "theme" of the case. Unlike many other aspects of life and law, repetition here is not a bad thing. Indeed, a concise, cogent opening statement often repeats key points and themes. 2. Showing Key Exhibits. In the opening statement, key exhibits should be shown to the jury through a visual display. It is frequently a good technique to list on a chart or screen the major points that will be proven. This chart should be referred to again in the closing. It goes without saying that you should make sure that you live up to your promises on proving the major points listed on the chart. Otherwise, the chart could backfire. More importantly, make sure the judge has approved in advance the exhibits and blow-ups you will be using. 5

12 3. What is the Proper Length of the Opening? Obviously, the judge will decide how long the opening and closing arguments will be. Nonetheless, if you expound too long you will definitely lose the jury at the beginning of the case. In litigating employment cases and in speaking to jurors afterwards, jurors make no secret of the fact that they like attorneys to get to the point and to be prepared. These two juror preferences underscore that less is more in the opening statement

13 B. Closing Statements. Before the closing argument to the jury, it is absolutely essential to have instructions to the jury in a final form. Moreover, you should discuss the jury instructions in closing. Some key points to remember in the closing statements are the following: 1. Do not emphasize and recount all of the evidence adduced. You will only put the jury to sleep. Rather, focus on the key evidentiary points and several key questions and answers elicited on cross-examination to articulate why, in light of the judge's instructions to the jury, the defendant company should win. 2. Instruct the jury on how to fill out the Special Jury Verdict Form and why the record evidence dictates the answers to those questions. 3. Defense counsel should reiterate that, whether fair or not, plaintiff will get the last word on rebuttal. Defense counsel should also reiterate that in the rebuttal, plaintiff is not supposed to raise anything new and that the jury should not construe defendant's failure to respond as any type of acquiescence on its part. Defense counsel should also ask the jury to rely on what it has heard during the course of the trial as to how it thinks defense counsel and the defendant would respond. 4. Give the jury some perspective on damages. Quite often in jury trials the damages become akin to monopoly money. Some jurors have no comprehension of whether $100,000 to one company is akin to $5,000,000 at another. Indeed, there is a tendency on the part of many jurors to split the difference and play King Solomon between what the plaintiff asks for 7

14 and what the defendant contends would be appropriate if liability were to be found. 5. If plaintiff is seeking an award of everything in wages and benefits that he/she would have earned from the date of discharge until the end of his/her career, defense counsel should be prepared to draw an analogy to wrongful death cases where that is precisely what is done. Defense counsel should indicate that what plaintiff is arguing is his/her chance of obtaining any work whatsoever for the balance of his/her worklife are no better than if he/she were dead. This should highlight the injustice of awarding lifetime wages and benefits to a discharged plaintiff who is capable of returning to the workforce. C. Concluding the Story. As noted in opening, it is often important to tell a story and indicate to the jury what you hope to prove at trial. Failing to keep promises you made in the opening statement can prove fatal. The same holds true for plaintiff. In closing, defense counsel should hammer home any promise plaintiff did not keep with respect to his or her opening statement. Defendant counsel should also make sure to go back to his or her own opening to make sure his or her story is now consistent at the end and, if not, explain why not. Here, more than ever, defense counsel must get the jury to not only listen to their story but, more importantly, embrace their story by guiding them slowly and persuasively through the record evidence with visual aides which lead to your conclusion as the only conclusion. As the late United States Supreme Court Justice Benjamin Cardazo cogently stated: - 8 -

15 Justice is not to be taken by storm. She is to be wooed by slow advances. Benjamin N. Cardozo The Growth of the Law (1924) - 9 -

16 III. FINE-TUNING THE SPECIFIC THEMES OF PERSONALIZING THE COMPANY, NEUTRALIZING SYMPATHY FOR THE PLAINTIFF AND FOCUSING ON THE IRREFUTABLE FACT THAT PLAINTIFF HAS THE BURDEN OF PROOF AT ALL TIMES. A. Personalizing the Company. As noted above, it is absolutely essential to try and personalize the corporate defendant. Titles such as "defendant" or "company" get lost on the juror. Accordingly, personalizing the name is critical and this crosses over to individuals who are corporate representatives, such as supervisors, managers and co-workers. These individuals should all be referred to by name. Everything should be done to personalize not only the company, but the diverse faces of the company as well. 1. Who is the Corporate Representative? It is often glossed over by defense counsel in the midst of preparing for trial that the face of the company will often be the corporate representative sitting next to defense counsel for better or worse. Choosing that corporate representative is no small task. This individual must be away from the office or the business and available throughout the trial. The goal should always be to promote the jury's association of the corporation with this representative. Choosing a management representative who is too high in the food chain may backfire, particularly if this individual had nothing to do with the case or, worse, failed to take action despite his/her position of power. B. Neutralizing Inherent Sympathy for Plaintiff. As discussed above, defense counsel must accept the natural feeling that most terminations are unpleasant and that the jury will empathize and indeed sympathize with the plaintiff. These emotional reactions will often militate in favor of the jury's wanting to help the plaintiff. Therefore, defense counsel must stress to the jury as early as the 10

17 voir dire, throughout the trial and again in the closing, that the jury will have such feelings and will want to help plaintiff. Nonetheless, defense counsel must stress that their jobs as the trier of fact is not to decide the case based on sympathy, compassion or prejudice nor is it to decide whether terminations are pleasant or unpleasant; rather, their job is to put aside their individual concerns for plaintiff who has lost his/her job and decide whether or not a termination or employment action violated the legal rights of plaintiff. This point is so critical that it is important to get each prospective juror's commitment during voir dire that they will be able to decide the case based on the facts and the law and not sympathy for plaintiff. Neutralizing the inherent sympathy for plaintiff has many variations on a theme. Each will be addressed in turn. 1. Driving the Theme Home in Closing That Jurors Cannot Be Influenced by Sympathy, Prejudice or Passion. In almost every employment litigation case, plaintiff's counsel will pitch sympathy. In closing, defense counsel must take it on directly. Defense counsel should consider addressing head-on the jury instructions in which the judge instructs the jury that they may not be influenced by sympathy, prejudice or compassion. Defense counsel also should remind the jury that, during jury selection, each juror was asked if they would be able to keep sympathy and prejudice out of their deliberative process. Defense counsel, if supported by the record evidence, should then note plaintiff's specific tactics at the trial is trying to elicit sympathy and juxtapose those tactics with the judge's instructions to the jury

18 2. Point Out the Fairness of the Company's Response in Dealing with Plaintiff. In the context of trying to neutralize sympathy for the plaintiff, every effort should be made to show how the company's actions square directly with its written policies and how those policies have been applied in the past to other individuals in similar situations. Additionally, anything nice the company did for plaintiff before, during and after a termination or employment action should be emphasized at all time, particularly in the opening and the closing. 3. Plaintiff was Treated Like Everyone Else. Another key factor to consider in trying to neutralize sympathy for plaintiff is to emphasize the impact plaintiff's shortcomings/conduct had on other employees, the company, the customers, etc. If plaintiff was put on a performance improvement program, all of the factors which precipitated that action should be put into evidence. Indeed, quite often plaintiff is complaining of not receiving benefits which no other employee has ever received. The fact plaintiff wants to be treated better than, rather than equal to, his co-workers is a fact which too often goes unnoticed. Quite often one hears reference to some individuals who think they are "above the law." This component should be carried over in the employment litigation context in dealing with a troublesome plaintiff whose termination was prompted by his/her conduct to demonstrate that, despite company policies which consistently applied to everyone, plaintiff chose not to comply but then cried foul. Defense counsel shall emphasize that plaintiff does not seek equal treatment, but rather, preferential treatment

19 4. Decision-Makers at Issue The Good, the Bad, the Ugly. Quite often in employment litigation matters, plaintiff's counsel tries to distort the face of the company by seizing on individuals who are so-called "bad" actors. Defense counsel should make every effort to develop the decision-makers at issue as fair people so as to offset any undue sympathy for the plaintiff. It is interesting that, quite often, the true decision-maker is sidestepped so plaintiff can attack the supervisor with poor people skills even though he or she was not the decision-maker at issue. Defense counsel should keep the jury's eyes on the ball and develop appropriately (if possible) the decision-maker as a fair and non-discriminatory person. Indeed, quite often the decisionmaker and/or supervisor is "on trial." Thus, defense counsel should make every effort to note that these individuals "stand accused" of vile allegations of discrimination and/or harassment, as the case may be. This should offset or at least neutralize any undue sympathy for the plaintiff. Moreover, defense counsel should not and cannot shy away from the fact that some supervisors/managers are not "role models" for company behavior. In some cases, the defense counsel may have to distance the company from the "person" and the "personality" while standing by the legitimacy of the decision. Here, defense counsel walks a fine line but defense counsel must address the decision-maker and the supervisor head-on, whether the facts are good, bad or ugly. Jurors will not only expect it but hold the company accountable for failing to do so. 5. The Big Kahuna Emphasize the Credibility Gap. In the Old Testament, Daniel 6:12, it is stated that: The thing is true, according to the law of Medes and Persians, which altereth not

20 This Biblical passage underscores the simplicity of one fact: true statements do not change over time. Indeed, Henry David Thoreau, in Civil Disobedience (1849), opined that: The lawyer's truth is not Truth but consistency or consistent. In gearing up for trial, particularly an employment litigation trial, both sides are looking for "inconsistent statements." In an employment litigation case where the plaintiff's credibility is critical, the Big Kahuna can often rise and fall on the plaintiff's credibility or the lack thereof. One critical fact which cannot go unnoticed is the need to point out any inconsistencies made by plaintiff which may affect his or her credibility. The so-called "credibility gap" is critical since in many employment litigation cases it is a "he said she said" situation. Almost all jurors can understand the significance of someone's being caught "in a lie." Whether it is inconsistency in tax returns, inconsistency in filings before the Social Security Administration or other governmental agencies, and/or inconsistencies during the course of the lawsuit, the trial or in a pretrial investigation, jurors "get it." C. Focus On the Fact that Plaintiff Has the Burden of Proof. In employment litigation cases, plaintiff has the burden of proving discrimination, harassment and/or other forms of wrongful action by the company. More often than not, the burden is one of proof by a preponderance of the evidence. Beginning in the voir dire and continuing through the opening statement, trial and closing, defense counsel must never shy away from honing in on one irrefutable fact: plaintiff has the burden of proof

21 1. Do Not Shy Away from Emphasizing What the Burden of Proof Entails. Particularly in the closing argument, defense counsel should focus on what the burden of proof imposed on plaintiff means. Emphasis should be given to the fact that it is not merely enough for plaintiff to accuse defendant of wrongdoing so that defendant must now prove the absence of guilt. Your position on this point should be underscored by the judge's own instruction to the jury as to what that burden of proof means. A final component of this sub-theme is informing the jury why this burden of proof is such an integral concept in our system of justice

22 SUGGESTED RESOURCE REFERENCE MATERIALS FOR EFFECTIVE STRATEGIES IN OPENING AND CLOSING ARGUMENTS 1. Ball, David, Theater Tips and Strategies for Jury Trials, Chapter 10 (NITA, 3 rd Ed. 2003). 2. Fallon, Eldon E., Trial Handbook for Louisiana Lawyers, Chapters 7 and 29 (Lawyers Cooperative Publishing Ed., 2 nd Ed., 1992 & Supp. 2005). 3. Fontham, Michael R., Written and Oral Advocacy, Chapters 7 and 8 (John Wiley & Sons, Inc. 1985). 4. Stern, Herberg J. & Saltzburg, Stephen A., Trying Cases to Win, Chapters 2 and 14 (Aspen Law & Business 1999). 5. Tigar, Michael E., Persuasion: The Litigator's Art, Chapters 3 and 5 (ABA 1999). PD

23

24

25

26

27

28

29

30

31