How to Win Your Case on Opening Statement

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Photo by {artist}/{collectionName} / Getty Images

Purpose of the Opening Statement

The opening statement is one of the most important aspects of trial.  It is one of only two opportunities counsel has to address the jury directly.  Narrowly speaking, the purpose of the opening statement is to deliver a clear recitation of the facts of the case in a simple and non-argumentative fashion.  But the opening statement is also a chance to persuade the jury (without crossing the line into argument) that the client should prevail at trial.  In fact, many trial attorneys maintain that, practically speaking, a case is over after voir dire and opening statements, as the members of the jury often have made up their minds at that point, before hearing any evidence.  While that is probably an overstatement, there is no question that the jurors’ viewpoint is profoundly influenced by the content of the opening statement and the manner in which it is delivered. 


The opening statement can be used to paint a sympathetic picture of the client, or to humanize the client, particularly if the client is a corporation.  It is also a chance to provide the jury with a road map for how the evidence will be presented, including introducing witnesses, both lay and expert, in a way that will make it easy for the jury to understand, especially in a complex or highly technical case.


As trial counsel, the goal is to communicate an opening statement in such a compelling and persuasive fashion that at its conclusion every juror thinks the following:  “If the statements you just made are supported by the evidence we are about to see, I will decide this case in favor of your client.”  Here, we will discuss three ways to achieve this goal:  1) communicating a compelling trial theme; 2) diffusing weaknesses in your case; and 3) preemptively attacking the opposition.

1)         Trial Themes
Your opening statement should be built around a trial theme.  An effective trial theme succinctly summarizes the essence of your case and resonates with the jury.  Of course, you must be able to support the theme with the evidence presented at trial, so the key is to find a trial theme that will be appealing and persuasive to the jury, while at the same time remaining true to the facts.  A trial theme often fills in the blank:  This case is about ______________.  Some examples of effective trial themes are:
         

a)Credibility   In defending a corporation against a claim of discrimination, where the plaintiff has been impeached in his deposition, an effective theme could be articulated as follows:

This case is about credibility.  You will see as the evidence develops that the plaintiff will swear to tell "the truth, the whole truth and nothing but the truth," and then proceed to not tell you the truth.  This will occur repeatedly through this trial, and you will have to decide whether or not the plaintiff is a person you can believe and trust.
       

b) Betrayal   In a case involving breach of a long-term partnership agreement, a theme of betrayal can be compelling:

This is a case of betrayal. My client placed her faith and trust in her business partner of many years only to discover that he had betrayed her by defrauding her of over twenty-five million dollars.

c) Corporate Greed and Fraud   In a products liability case involving a medical device that was inadequately tested, corporate greed and fraud is a theme that can resonate with a jury:

This case is about corporate greed and fraud.  The defendants represented to my client that the product was safe, had been thoroughly tested, and would last a lifetime, all of which turned out to be absolutely false.  My client was seriously injured when she relied upon these fraudulent statements and used the defendants’ product without knowing that it was toxic and potentially lethal.

The trial themes illustrated above are effective because they can be easily understood by, and will resonate with, most jurors.  It is important that an opening statement appeal to a jury's sense of fairness.  While jurors generally follow the law based on the jury instructions presented by the court, jurors also have a strong sense of fairness and will often view the facts and law through the prism of what they believe to be fair.  A strong theme expressed in an opening statement gives the jury an opportunity to apply this sense of fairness within the framework of the facts of the case and applicable law.

As noted above, a trial theme must accurately track the facts of the case.  Not only would doing otherwise be unethical, but a trial attorney will quickly lose his or her credibility by putting forth a trial theme that is not supported by the evidence subsequently received by the jury.  For example, if your theme is the plaintiff's lack of credibility, you must be able to prove from deposition testimony, documents, or other admitted evidence that the plaintiff has impeached himself.  Of course, if your client also has significant credibility problems, this is a trial theme you should avoid in spite of the opposing side's lack of credibility.  This brings us to the next purpose an opening statement can serve: to anticipate and diffuse weaknesses in your case.


2)         Diffuse Weaknesses
If you are going to trial, by definition your case has one or more weaknesses.  Otherwise, it would have been disposed of on summary judgment.  The opening statement is your opportunity to address your case's vulnerabilities on your terms, before any harmful facts are brought into evidence (and if you represent the plaintiff, before the other side can bring them to the jury's attention at all).  For instance, if your client has contradicted herself during the course of the case, the last thing you want is for the jury to first learn this when she is being examined on the witness stand.  In your opening statement you can give the jury a preview of the inconsistency and minimize its impact.  For example, you can explain that the perceived discrepancy was the result of your client being nervous, confused, or misled, or explain that the differences are trivial (in spite of the fact that opposing counsel will try to overstate their significance), and that the most important aspects of the case favor your client. 


Pretrial practice, including any dispositive motions or statements of the case, will help to clearly identify your case's weaknesses.  If you address these directly in your opening statement, you can often diffuse them and minimize the harm to your case.


3)         Preemptively Attack the Opposition
In conjunction with diffusing weaknesses, you should also preemptively attack the opposition in your opening statement.  This gives you the opportunity to undercut the opposition's known or anticipated positions when you address the jury directly.  It is also the part of an opening statement that can tread closest to the forbidden territory of argument, and therefore must be conducted with care.  Again, opposing counsel’s dispositive motions and statements of the case provide great insight into their positions that you can preemptively attack in your opening statement. 


An example is a strong expert witness that the opposition plans to have testify at trial.  Of course, you will have your own expert to testify to the contrary, but the two sides' experts may use different methods, and will certainly arrive at different conclusions.  If you expect that the "battle of the experts" will be crucial to the determination of the case, you will want to spend some time in your opening statement giving the jury a preview, including reasons why your expert and/or her methods are more reliable than those the opposing party will put forward. 


Another issue that trial counsel may want to preemptively attack in the opening statement is an anticipated statute of limitations defense.  For instance, in a legal malpractice case, a plaintiff typically has at most four years from the date of his attorney's wrongful act or omission to bring a lawsuit.  However, this period is tolled if the attorney willfully concealed the facts constituting the wrongful act or omission.  In the plaintiff's opening statement, counsel will want to describe to the jury the defendant's concealment of these facts, preemptively attacking an anticipated defense, and settling the issue, or at least planting the seed, in the minds of the jury. 

Conclusion

As counsel's first opportunity to address the jury directly for a sustained period and, generally, without interruption, the opening statement presents a chance to win your case when the trial has barely begun.  While argument is prohibited, a strategically-crafted opening statement can be extremely persuasive.  Employing the techniques described above can help you make the most of your opening statement, and give your client a possibly insurmountable head start at trial.

Categories: commercial litigation, employment litigation, trial practice, litigation

How Does the Brinker Decision Affect an Employer’s Obligation to Provide Meal and Rest Breaks?

In 2012, the California Supreme Court finally handed down its highly-anticipated decision in Brinker Restaurant Corporation v. Superior Court, 53 Cal. 4th 1004 (2012) (“Brinker”).  The case clarified what an employer’s duties are regarding its employees meal and rest breaks.  With review granted in 2008, the long-awaited decision resolved the substantial confusion surrounding employers’ obligations in this area.  Here, we will address some of employers’ most frequent questions as to how best to comply with the law.



What Obligation Do Employers Have to Give Employees a Meal Break?


To comply with California law and the applicable Wage Orders, employers are required to provide all non-exempt employees who work over five hours in a day with an uninterrupted 30-minute meal break.  To satisfy this obligation, employers must:

• Relieve the employee of all job duties;

• Relinquish control over the employee’s activities; and

• Permit employees a reasonable opportunity to take an uninterrupted 30-minute break.



When Do Employers Need to Provide the 30-Minute Meal Break?

The Brinker Court clarified that the first 30-minute break must occur no later than five hours after the employee begins work.  When the break is made available is entirely discretionary, just so long as it is provided within the first five hours of work.  If the employee is working less than six hours total, the employer and employee can agree in writing to waive the meal break.


The Court also held that employers are not required to provide a second 30-minute meal break within five hours of the first.  As the Court explained, this could easily lead to scenarios where an employee might take a 30-minute break only two hours into a shift, and then the employer would be required to provide another meal break before the end of an eight hour day.  Instead, the Court stated that the employer is only required to give a second 30-minute meal break if the employee works ten hours or more.



Do Employers Need to Police Employees to Ensure That they Take Their Breaks?


The Brinker decision clarified that while employers are required to “provide” a meal break, they are not required to “ensure” that the employee refrains from working during his or her break.  Once the 30-minute meal period begins, the employer relinquishes control over the employee and is not required to police the break room to guarantee that employees are not engaged in any work-related conduct.


Note that under Brinker, while employers are not required to police employees’ breaks, they will, however, be held liable if they have policies which discourage employees from taking their meal breaks.  Specifically, if the employer knew or should have known that employees missed breaks, they face liability.



What Obligations Do Employers Have to Give Employees Rest Breaks?


The Brinker Court also explained that employees are “permitted” to take a 10-minute rest period, every four hours of work, “or major fraction thereof.”  In layman’s terms, this means employees are entitled to one rest period for shifts of 3.5 to 6 hours, two rest periods for shifts of more than 6 hours and up to 10 hours, three rest periods for shifts of more than 10 hours up to 14 hours, and so on.  (After the 10 hour mark the employee is also eligible for another 30-minute meal break.)



What Are the Penalties For Not Complying With The Brinker Standards for Breaks?


When an employer does not provide an employee with a required meal break, it must pay the employee one hour of pay at the employee’s regular rate of compensation for each workday that the employee does not receive his or her meal break.



What Can Employers Do to Protect Themselves from Liability?


Noncompliance can be costly, especially if it is widespread across the company such that there is exposure to class action litigation.  With that in mind, there are a few things employers can do to limit their exposure.


First, employers should comply with the laws as explained above.  With so much litigation in this area, any potential loopholes should be regarded with trepidation.  Second, employers should have their meal and rest break policies in writing and easily accessible to employees.  Third, employers should provide an accurate time keeping mechanism that permits employees to record their breaks and note if they missed a meal break.  (For this reason, employers are advised against engaging in an auto-deduct practice whereby the employer assumes that employees have taken their breaks, and deducts 30 minutes from their time, thus placing the burden on the employees to report if they did not take a break.)  Finally, while Brinkerclarified that employers do not need to police their employees, a wise business practice would encourage employees to take their breaks in a separate room, or to leave the place of employment entirely in order to discourage employees from working through their breaks.

 

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litigation

employment litigation

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wage & hour

rest and meal breaks

The Pitfalls for Mandatory Arbitration for Employment Cases

Sunday September 1, 2013

For the past decade, employers have increasingly embraced mandatory arbitration to resolve employment cases.  The conventional wisdom was that an arbitrator would take the decision regarding an employee’s claims against the employer out of the hands of jurors who were viewed as hostile to the employer’s interests.  In addition, on the surface, arbitration seemed to offer the benefits of reduced litigation costs by limiting discovery such as depositions and interrogatories, and providing a shorter timeframe to obtain resolution of the employment dispute.  Finally, arbitration limited the ability of appellate review to the rare circumstance where the arbitrator engaged in fraud.

The High Cost of Arbitration

 


Despite the above, the touted benefits of arbitration have proven to be illusory in light of the fact that a great deal of employment cases do not settle.  In addition, the cost of arbitration has proven to be far more expensive than employers initially assumed because under California law the employer is required to pay all of the costs associated with the arbitration.  This includes the fees for the arbitrator, who is often an expensive retired judge or lawyer.

This firm recently defended a disability discrimination case at arbitration.  For a two-week arbitration, the client was presented with a $103,000 bill for the arbitrator’s fees!  This fee was in addition to the cost of discovery which included requests for production of documents, interrogatories, and more than ten depositions.

As a general rule, arbitration organizations only allow enough discovery for the parties to prepare their respective cases for the arbitration hearing.  However, in employment cases, which may involve a large number of potential witnesses, arbitrators are increasingly permitting parties to take greater numbers of depositions, thereby curtailing the perceived benefits of abbreviated discovery in arbitration.  Moreover, any discovery disputes that cannot be resolved between the parties are subject to something akin to law and motion practice, wherein the parties brief the arbitrator with points and authorities regarding the nature of the controversy and their respective positions.  Generally, arbitrators will charge an hourly fee to read and analyze the submissions, and render a decision on the discovery controversy.  Once again, the employer is obligated to bear the entire cost of the arbitrator’s fee in order to resolve the discovery dispute.



Procedural Concerns


The arbitration forum rewards the inexperienced trial attorney.  It also rewards the attorney who is either unfamiliar with, or unprepared to address, the often complex and daunting rules of evidence that are common in a jury trial.  Selecting a favorable jury, determining what evidence to include and exclude, and honing the content and delivery of the opening statement and closing argument is a complicated process that often determines the outcome of a case.  The unseasoned attorney who is not familiar with the strategy and process of jury selection, the complex interplay of evidence to be introduced and excluded, and the methods for persuading a jury, avoids these substantial hurdles to victory by engaging in the arbitration process.  Unlike a trial judge in state or federal court, arbitrators regularly allow evidence in that would be excluded in a jury trial such as hearsay, documents that would be inadmissible, and witness testimony that should be excluded.  The rationale is that it provides a more relaxed environment and the arbitrator will not be prejudiced by what would otherwise be inadmissible evidence in a jury trial.


Another major difference between a jury trial and arbitration is that impeaching a witness in a jury trial is much more powerful than it is in arbitration.  In trial, jurors are expected to follow their oath to be fair and impartial, wait until all of the evidence has been introduced before making a decision, and avoid any influences outside the evidence produced at trial.  Having taken this oath, jurors then justifiably demand that the witnesses presented by the parties, particularly the plaintiff who is asking for money, testify truthfully.  The consequence for a plaintiff who does not respect the oath to testify truthfully is often fatal.  For example, this practitioner has had a number of trials where a plaintiff, even in a liability situation, has fabricated testimony under oath regarding his damages.  As a result, the juries rendered defense verdicts and not only denied the plaintiff all claimed damages, but also refused to find liability.  Impeachment is a powerful tool for an employer defending its case before a jury.  On the other hand, maybe because of experience with numerous untruthful witnesses throughout their careers, retired judge and attorney arbitrators often give much less importance to the fact that a plaintiff has fabricated testimony under oath.


The intimidation value of a jury trial can also be used by employers when negotiating a settlement.  Plaintiff’s counsel who has little or no trial experience is likely to be intimidated by the prospect of going to trial and will be much more willing to settle the case on a reasonable basis.  On the other hand, an inexperienced attorney who knows that the arbitrator is likely to refrain from enforcing strict evidentiary rules and allow otherwise inadmissible evidence into the arbitration ‒ and generally be far more forgiving than a jury for serious miscues ‒ is much more likely to stick to an unreasonable settlement demand.



Arbitrators Award Plaintiffs Nominal Damages Where a Jury Might Not


Another important disadvantage for employers in arbitration is that arbitrators are generally known to “split the baby.”  The experience of this practitioner in defending numerous employers in jury trials involving race, sex, harassment and wrongful termination, is that jurors will not hesitate to deny compensation to an employee who has a meritless case, particularly when the plaintiff employee has been untruthful in a material aspect of the case.  While this practitioner believes that arbitrators strive to be fair and impartial, there is a natural inclination to give both parties some benefits.  Specifically, in a weak plaintiff’s case, arbitrators tend to provide what they believe to be nominal awards rather than render a defense verdict which would have been likely if the case was tried before a jury.  Given the choice of alienating a plaintiffs’ firm by rendering a defense verdict, arbitrators will often supply an award that effectively “splits the baby” between the plaintiff’s demand in closing arguments and the defendant’s suggested amount.



Nominal Damages Result in Cost-Shifting of Fees to the Employer


Discrimination cases under the DFEH or EEOC present a serious drawback for an employer in a case where an arbitrator “splits the baby.”  This is because a prevailing plaintiff’s counsel is then entitled to an award of attorney’s fees. The fees are awarded in a post-arbitration motion unless the parties agree to stipulate to the amount of fees.  Unlike a defense verdict in a jury trial where fees are completely denied plaintiff’s counsel, with even a nominal award, the arbitrator must award all the attorney’s fees relating to the discrimination claim without consideration of proportionality.  In other words, if the arbitrator awards a nominal sum of $25,000 and $30,000 after a two to three week arbitration, a plaintiff’s attorney presenting a $500,000 fee has an excellent chance of obtaining the entire amount, or a fee close to that sum.



Conclusion


Arbitration has not proven to be the panacea for employment cases originally envisioned.  Employers still face the costs of discovery and the time expenditure in preparing for arbitration, while at the same time paying all of the arbitrator’s fees.  The employer also loses an important playing card in the form of an “intimidation factor” for plaintiff’s attorneys who are inexperienced in the complexity and pressure of conducting a trial by jury.  Finally, the powerful tool of impeachment to drive a reasonable settlement or obtaining a defense verdict at trial is often lost at arbitration, and the arbitrator might still be inclined to award the plaintiff a nominal sum.  In light of the above, employers should carefully consider whether their employment policies and procedures that require binding arbitration to resolve employment disputes are truly in their best interest.

 

 

Categories

alternative dispute resolution

employment litigation

arbitration

litigation

What Effect Do the Recent Supreme Court Title VII Cases Have on California Employers?

On June 24, 2013, the U.S. Supreme Court handed down two opinions that were largely heralded as great victories for companies that are regularly sued under Title VII, the federal statute that prohibits: 1) discrimination on the basis of race, color, national origin, sex, and religion; and 2) retaliation against employees that complain of discrimination on one of these enumerated grounds.  In Vance v. Ball State University, 570 U.S. ___ (2013) (“Vance”) the Court defined “supervisor” for purposes of employer harassment liability.  In University of Texas Southwest Medical Center v. Nassar, 570 U.S. ___ (2013) (“Nassar”) the Court identified a strict “but/for” standard in retaliation cases, holding that an employer is not liable for retaliation under Title VII if it would have taken the same action even if the employee had not engaged in the protected conduct of complaining about discrimination.

When Vance and Nassar were handed down, employers emitted audible sighs of collective relief and plaintiff’s attorneys hung their heads in defeat.  But was this just a knee jerk response?  Both of these opinions were analyzed under the auspices of Title VII, a federal statute.  However, California employees generally raise their claims of discrimination, harassment and retaliation under the state’s Fair Employment and Housing Act (“FEHA”) because it provides much broader protections.  This poses the question of whether employers in California will experience any relief stemming from these decisions.

Who is a Supervisor?

In Vance, a controversial opinion delivered by Justice Alito, the Supreme Court resolved a Circuit Court split over the definition of a “supervisor” for Title VII liability in harassment cases.  Defining who qualifies as a supervisor is important because employers are vicariously liable for their supervisors’ discriminatory harassment.  The Court rejected a broader approach that defined a supervisor as a person who directed the plaintiff’s daily work activities.  Instead, the Court held that supervisors are only those with the authority to “take tangible employment actions against the victim … such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.”  In most states, employers and their attorneys rejoiced over the narrowly adopted definition, but employers in California would be well advised not to put much stock in the Court’s opinion.

For California employers, Vance’s impact on harassment cases based on FEHA is likely to be limited.  The FEHA imposes strict liability on employers for harassment committed by a supervisor and defines “supervisor” in a manner that resembles the EEOC standard that Vance rejected.  (See Cal. Gov’t Code § 12926(s).)  In fact, the definition of a supervisor under California’s FEHA specifically includes a person who has responsibility to direct other employees.  California courts have relied on this definition to hold that the authority to direct the plaintiff’s day-to-day work could be sufficient to establish supervisory status.  (See Chapman v. Enos, 116 Cal. App. 4th 920, 930-31 (2004) (holding that an employee having the authority to direct other employees’ day-to-day duties is a “supervisor” even if he or she does not have the power to make tangible employment actions, such as hiring, firing, or ordering transfers)).  Thus, California employers sued under the state’s FEHA are not likely to find much cause to celebrate the Vance decision.

What is the Standard to Establish Employer Retaliation?

The other big victory for employers sued under Title VII came in Nassar, 570 U.S. __ (2013).  The question in Nassar was whether the retaliation provision of Title VII requires a plaintiff to prove but-for causation (i.e., that an employer would not have taken the retaliatory employment action “but for” the plaintiff’s engaging in protected conduct) ‒ or instead, merely requires proof that the employee’s complaints were a “motivating factor” for the employer’s retaliation.  The Supreme Court adopted the strict but-for causation standard, making it much more difficult for employees to prevail on retaliation claims.

In contrast, the California Supreme Court recently adopted a broader causation standard for FEHA discrimination cases in Harris v. City of Santa Monica, 56 Cal. 4th 203 (2013) (“Harris”).  In Harris, the Court held that a plaintiff must prove that her protected status was a “substantial motivating factor” in the employer’s adverse employment action.  While this holding was specifically in the context of establishing discrimination, California’s FEHA uses the same language to define the causation standard for both retaliation and discrimination claims.  Some have speculated that because the Harris holding did not specifically address retaliation, California courts might still be influenced by Nassar when deciding retaliation claims.  However, since the FEHA uses the same language to articulate the causation standards for both causes of action, courts are more likely to apply the “substantial motivating factor” standard to retaliation claims.

Conclusion

Employers in California are subject to both federal and state law so employers that escape liability under Title VII can still be held liable under California’s FEHA.  Because of the broader protections provided under FEHA, employees are more likely to sue under the state law.  As a result, the recent Supreme Court Title VII cases are expected to have little, if any, effect on employers sued in California.