Successfully litigating employment discrimination claims

1. Successfully Litigating
Employment Discrimination Claims
Charles R. Bailey, Esquire

2. Voir Dire
 Employment law is about “motivation.”
 At trial, the theme of your case, voir dire, direct examination, cross
examination, closing argument, and each and every element of
your case will focus on motivation.
 The jury is instructed that if they find by a preponderance of the
evidence that a motivating factor in the employer’s decision to
discharge the employee was based upon an impermissible motive,
then they may find for the plaintiff. On the other hand, if the jury
finds that the employer was motivated to discharge the plaintiff
because of a legitimate, non-discriminative motive, they may find
for the defendant.
 Remember that the impermissible motive need only be “a
motivating factor,” not the sole motivating factor.

3. Voir Dire
Most employment cases are mixed motive
types, which places both the plaintiff’s and
the employer’s conduct at the workplace
under the microscope. Thus, you need to find
out what motivates the jury during voir dire.

4. Voir Dire
 The paramount goal of voir dire is to identify those jurors
who are, more likely than not, motivated to accept your
theory of the case.
 Ask questions where a juror may answer affirmatively. Then
ask open-ended questions where they can explain their
belief.
 This line of questioning will have the jurors explaining to
other jurors why they believe that a certain attribute, such
as attendance, is an important part of the job.
 Here, you have not only introduced and laid the ground
work for the theme of your case, but you have also
identified jurors who are going to work for you.

5. Voir Dire: Challenges for Cause
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
 When considering whether to excuse a prospective juror for cause, a trial
court is required to consider the totality of the circumstances and grounds
relating to a potential request to excuse a prospective juror, to make a full
inquiry to examine those circumstances and to resolve any doubts in favor
of excusing the juror.
 If a prospective juror makes an inconclusive or vague statement during
voir dire reflecting or indicating the possibility of a disqualifying bias or
prejudice, further probing into the facts and background related to such
bias or prejudice is required.
 Once a prospective juror has made a clear statement during voir dire
reflecting or indicating the presence of a disqualifying prejudice or bias,
the prospective juror is disqualified as a matter of law and cannot be
rehabilitated by subsequent questioning, later retractions, or promises to
be fair.

6. Voir Dire: Peremptory Challenges
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,
619 S.E.2d 176 (2005)
• Whether the interests of two or more plaintiffs or two or more
defendants are antagonistic or hostile for purposes of allowing
separate peremptory challenges under Rule 47(b) of the West
Virginia Rules of Civil Procedure , the allegations in the complaint,
the representation of the plaintiffs or defendants by separate
counsel and the filing of separate answers are not enough.
• Rather, the trial court should also consider the stated positions and
assertions of counsel and whether the record indicates that the
respective interests are antagonistic or hostile.

7. Voir Dire: Peremptory Challenges
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,
619 S.E.2d 176 (2005)
• In the case of two or more defendants, the trial court should
consider a number of additional factors including, but not limited
to:
– (1) whether the defendants are charged with separate acts of
negligence or wrongdoing,
– (2) whether the alleged negligence or wrongdoing occurred at
different points of time,
– (3) whether negligence, if found against the defendants, is subject to
apportionment,
– (4) whether the defendants share a common theory of defense, and
– (5) whether cross-claims have been filed.

8. Voir Dire: Peremptory Challenges
Murphy v. Miller, 222 W.Va. 709, 671 S.E.2d 714 (2008)
citing Syl. Pt. 3, Price v. Charleston Area Med. Ctr., 217 W.Va. 663,
619 S.E.2d 176 (2005)
• To warrant separate peremptory challenges, the plaintiffs or
defendants, as proponents, bear the burden of showing that their
interests are antagonistic or hostile and that separate peremptory
challenges are necessary for a fair trial.

9. Jury Instructions
 To be able to craft effective jury instructions, you need to
comprehensively research the issues. You must thoroughly
read every case in West Virginia that addresses the
particular issues you are trying.
 From these cases, you must pick out the legal points that
will assist the trier in fact in reaching a conclusion on behalf
of your client.
 Although you are restricted from “arguing” your case, to be
subtly persuasive, you may be creative in fashioning them.
One technique is to reiterate a certain point of law
through-out the jury instruction. This point will be non-
argumentative, but clearly and concisely state the legal
point to be made.

10. Jury Instructions
 For instance, the defense should try end the jury
instruction as follows:
◦ “If the plaintiff fails to meet each and every element of his/her
case, you may find on behalf of the defendant. The burden of
persuasion always remains with the plaintiff and it is her duty to
persuade the jury by a preponderance of evidence that a
motivating factor in her discipline was because of her gender and
not because of legitimate, non-discriminatory reasons.”
◦ Note: The burden of persuasion never shifts to the defendant,
but in a mixed motive case, the burden of proof may shift to the
defendant if the plaintiff creates a prima facie case of
discrimination, then it is incumbent upon the plaintiff to present
legitimate, non-discriminatory reasons for the adverse action.
Then, the plaintiff may rebut this evidence by showing that the
proffered reasons for the conduct are pre-textual.

11. Jury Instructions
In most cases, especially in employment cases,
there are at least three instructions that should
be emphasized to the jury.
Whether you represent plaintiff or defendant,
make sure the jury understands what a
preponderance of the evidence is.
◦ Plaintiffs often use the preponderance of evidence to
their advantage by comparing it to beyond a
reasonable doubt.
◦ Conversely, defendants relay to the jury that the
preponderance of the evidence is more than 50/50. It
must be more likely than not.

12. Jury Instructions
 Read the standard jury charge of the court very
carefully because the jury charge may not be entirely
accurate or it may not comport with your theme of the
case. Judges usually are receptive to changes you want
to make to the jury charge, as long as you can support
it with case law.
 Make sure your jury instructions are supported by case
law. Cite specific West Virginia authority for your case
and applicable federal authority. The Supreme Court
of Appeals of West Virginia has ruled that while federal
authority is not always binding, it does carry weight.

13. Opening Statement
• Your opening statement should be about
motivation. While you should exercise
caution regarding arguing the law at the
opening statement stage, you need to lay the
foundation for how the jury is going to be
instructed.
• Who? What? When? Where? How? These
questions should be your mantra. Why people
act and what motivates them.

14. Closing Argument
• Remember that you must always show the
jury how the facts, when applied to the law,
lead to the inescapable conclusion that the
jury should find on behalf of your client.
• Show the jury the instructions
• List the facts when tied to the jury instruction
that will lead the jury to know to rule in your
client’s favor.

15. Closing Argument: “Motivation”
Defense: Tell the jury that the employer made a
mistake and should have acted sooner and been
more honest. However, your client is a
professional salesman who has always been
confident that he could motivate people to excel
and he simply could not face the fact that he
could not rehabilitate his employee. While he
was motivated for her to succeed, she was
motivated to use her charm, skill and talents not
to the betterment of the company, but for her
own self interest.

16. Closing Argument: “Motivation”
• Plaintiff: emphasize that the facts show that
the employee was motivated to succeed but
that race, gender or age motivated the
employer to treat her differently.
• A plaintiff must constantly remind the jury
that you need not prove that the sole
motivating factor was the protected class or
conduct, but was a motivating factor.

17. Compelling Case Theme
• In employment cases, it is imperative that you
know the law. The law directs and focuses
you on the theme of the case.
• Develop your theme immediately, be
prepared to modify your theme.
• An over-arching theme contains a main plot
and many subplots.

18. Compelling Case Theme:
Your Client’s Motives
• The plaintiff must convince the jury that the
complaint against the employer was
motivated by a true legal wrong not the
simple frustrations of the job.
• The defendant needs to show that the
employer was motivated to help the employee
succeed, but for legitimate reasons, an
adverse action had to be taken irrespective of
the plaintiff’s protected class.

19. Direct and Cross Examination
• Remember that in direct and cross
examination every question will be designed
to convey the theme of your case to the jury.
• You must involve and direct your client in
developing testimony that will motivate the
jury to understand the client’s position and
ultimately return a verdict in his or her favor.

20. Strategies
• For both sides, embracing the truth and not
running from the problems is a winning
strategy. The trick is to find it, recognize it,
and turn it to your advantage.
• Both sides should figure out what aspect of the
human condition applies to their client and will
appeal to the jury. 34 DEC Trial 20

21. Mock Trial: Direct and Cross
Examination of Expert Witness
72 Mich. B.J. 1046
• Mock trials are useful because it targets and
evaluates the critical issues; identifies
appropriate juror profiles; exposes litigation risks;
and enhances overall case strategy.
• Utilize the opponent’s expert deposition
testimony and read relevant parts of the
testimony for the mock jury.
• The bottom line in evaluating the expert: were
they persuasive?

25. Lowering the bar
A man was chosen for jury duty who very much wanted to be
dismissed from serving. He tried every excuse he could think of but
none of them worked. On the day of the trial he decided to give it
one more shot. As the trial was about to begin he asked if he could
approach the bench.
“Your Honor,” he said, ” I must be excused from this trial
because I am prejudiced against the defendant. I took one
look at the man in his blue suit with those beady eyes and
that dishonest face and I said ‘He’s a crook! He’s guilty,
guilty, guilty!’ So your Honor, I can not possibly stay on
this jury!”
With a tired annoyance, the judge replied, “Get back in the
jury box. That man is his lawyer.”