A version of this article was originally published in Executive Counsel Magazine’s June / July 2012 Edition. You can read the article on their website here.
When preparing for the defense of a labor and employment case that is headed toward trial, companies are often faced with a common problem: The defense is based on the testimony of a variety of employees, most of whom are disinterested in the trial and appalled at the prospect of testifying1. When faced with this problem, how can in-house and outside counsel create a strong defense out of this disadvantageous scenario?
When preparing for the defense of a labor and employment case, it is beneficial to gather all of the testifying witnesses (e.g., executives, HR representatives, relevant supervisors) in one place for a coordinated series of witness preparation sessions over the course of a weekend or a number of days. This Coordinated Witness Preparation technique exposes individual and group issues that can weaken or derail a defense strategy. Throughout this process, common individual behavioral and motivational issues emerge and, once identified, they can be resolved before trial.
This Coordinated Witness Preparation procedure can be used not only to prepare each witness, but also to coordinate their responses to attacks on their own actions and the actions of others in the company, to delineate clearly and coherently standard corporate procedures, and to create coherent case narratives and trial themes.
When the trial team hears the potential witnesses testify back-to-back, the strengths that emerge from consistent positions and the weaknesses that come from inconsistencies become obvious. It is easy, then, to imagine how the jurors will see the witnesses and evaluate the case overall.
Gathering all witnesses together and hearing their testimony back-to-back often exposes a significant case problem that might otherwise be missed in individual witness preparation: The Hot Potato Problem. In this common scenario, each supervisor and human resources worker attempts to obscure his or her own responsibility for decisions made about workplace incidents (such as termination, and responses to complaints) and points toward other departments as being the proper place of decision-making. This may be useful for an individual witness, but problematic for the company and the defense strategy.
This issue routinely arises with human resources department witnesses in particular. Human resources workers are trained to defer many decisions to other departments such as the legal department or upper management. When working on the defense of a wrongful termination case at an insurance company, our experts brought together the three human resources people involved in a chain of decisions that occurred over the course of one day that led to an employee’s firing. In the preparation session, each of the witnesses sheepishly hinted at the two others’ responsibility for failing to make proper decisions without saying it outright. It was dizzying to watch them shift the blame like a hot potato going round and round.
Having identified the problem, the consultant and the trial team explicitly labeled this as an issue by telling the witnesses what they saw. This was presented to the witnesses as a systemic problem that they needed to resolve together rather than as an admonishment of any one of them individually. They all then worked together to trace the various decisions that were made and not made in this sequence of events, and jointly identified the reasonableness of the actions taken at each of these decision points. When each witness saw that they were not at risk of either getting in trouble at work or of bringing down the case, each was visibly relieved, and were then cooperative with each other in developing the true narrative of the day that satisfied each of them individually and as a group.
This is typical of how this common Hot Potato problem is resolved. First, the problem is exposed and identified by having the witnesses prepare together. Second, the problem is explicitly labeled as a problem to the group without any one witness being blamed. Third, the group cooperates in identifying the reasonableness of actions taken at each decision point until all are satisfied in the unified and accurate narrative.
Why is this problem so harmful if it is left unidentified? When we worked on the plaintiff side of a class action discrimination case against Novartis Pharmaceuticals, it became apparent to us that the defense was suffering from this common problem. After identifying this weakness in the opposing counsel’s strategy, our trial team put Novartis’ head of human resources on the stand and walked her through explaining those aspects of the business for which she had responsibility. As we had hoped, she took every opportunity to pass the responsibility for just about every human resources type decision to the legal department or management. Her testimony made her department seem ineffectual and useless to employees who had real issues. The plaintiffs were awarded $250 million in this case. Seek out the Hot Potato Problem and resolve it before going to trial.
Another important reason to gather witnesses together for coordinated preparation is to develop a synchronized case narrative out of the disparate testimony. When working on the defense side of a racial discrimination case related to hotel staff, we used focus group research to develop case themes. The results of the research led us to believe that trial jurors would be likely to see the conflicts at issue as personality-based rather than race-based.
Next, the trial team worked with witnesses to make more explicit references to the personality issues that were noted in the evidence, so that each witness hit similar, evidence-supported talking points. In this way, the reactions of supervisors and human resources personnel were shown to be coherent, coordinated and appropriate responses to workplace personality conflicts.
In this way, the consultant and trial team act as conductors of an orchestra bringing together the various melodic lines, keeping one rhythm, and emphasizing and de-emphasizing different players at different times to make one unified symphony out of many sounds.
While it is important to gather one’s own witnesses to find the strengths and weaknesses of one’s own case, this technique can also be used to find the other side’s weaknesses as revealed in deposition testimony.
In this counter-strategy move, the team watches the other side’s deposition videos in order to understand their witnesses’ strengths and weaknesses. This technique is especially useful in employment cases because it can often shed light on particular behavioral issues of testifying workers in certain industries.
For instance, we applied this technique when we were on the defense side of a wage-and-hour case in which relatively low-level travel agency workers sued for overtime pay. The written transcripts of their depositions made their case look quite powerful. When we watched many of the plaintiffs’ deposition videos in a row, however, we saw that their behavior told a very different story. On video, it was obvious that most of them were not comfortable testifying. They acted as if they had been cajoled or coerced into testifying. Seeing how they might appear on the stand, we changed our strategy for defending the case to take advantage of the plaintiffs’ weakness. Additionally, our analysis of the deposition videos revealed which parts of their testimonies the witnesses were most uncomfortable discussing.
We have seen variations in how different types of workers testify on both sides of employment cases. When working on the plaintiffs’ side, for instance, we saw our strong case become weak when we met with rural warehouse workers suing about racial discrimination. They were awkward and uncomfortable with our trial strategy team. On paper, their case was strong, but their hearts were not into standing up to opposing counsel.
In conclusion, an uncoordinated strategy that does not account for inconsistencies among witnesses, the role of self-interest and the Hot Potato Problem, and behaviors that belie the witnesses’ confidence in their positions is a problem that can be addressed. The solutions discussed here are relatively simple fixes to problems that left unattended can break a case. Coordinated witness preparation strategies can save your case.
1 While we are focused here on the defense of labor and employment cases, as trial strategy consultants, we have worked for both defendants and plaintiffs in these types of cases (and others). The techniques reviewed here may be applied whenever nervous, self-interested witnesses are being prepared to testify.
Roy Futterman, Ph.D. is a Clinical Psychologist and Director at DOAR Litigation Consulting, LLC. He can be reached at firstname.lastname@example.org.