Persuasive Case Themes in Employment Litigation

Memorable movies all have memorable themes that resonate throughout the entire story. What would Casablanca be without “As Time Goes By”? Similarly, your employment case should have a theme that singularly conveys your most important message to the jury. Deposing and Examining Employment Witnesses offers helpful tips for developing a persuasive case theme and presenting that theme to the jury. For example:

Characteristics of a Strong Case Theme

A strong case theme:

1) Helps jurors organize and make coherent sense of the evidence.
2) Encourages jurors to remember the facts that fit your version of the case-story and reject those that do not.
3) Can be stated succinctly, using plain and straightforward language, so that the jury understands immediately what the case is all about.
4) Has a “hook” that grabs the jurors’ attention. One common and effective form of hook is the “trilogy” (e.g., “I came. I saw. I conquered.”). Trilogies are a dramatic and memorable means of communication. In an employment case, you might describe the plaintiff as “dedicated, hard-working, and loyal,” or as having been “discarded, dumped and destroyed“ by the employer’s actions.

How to Use Your Case Theme

1) As soon as you are retained as counsel, start thinking about possible themes and trying to incorporate those themes into pretrial discovery and motion practice.
2) Introduce your theme during voir dire, and expound upon it during opening statement. Your theme should influence witness order, and your questions on direct examination and cross-examination of witnesses. Finally, revisit the case theme and reinforce it during your closing argument.

Samples of Persuasive Themes in Employment Cases

In an age discrimination case: This case is about the firing of a hard-working employee because of his age. It is about the unexpected and sudden end of a man’s career at the young age of 55. It is about how a greedy corporation discarded, dumped and destroyed a valued and loyal employee who helped it make profits. For more than 15 years, John Doe worked for XYZ Corporation, and he did his job very well. He received commendations, raises, promotions and stock options, and he would still be working for XYZ today if he were 25 years younger. How do we know that? Because one month after he was fired, he was replaced one month by a 30-year-old.

In a whistleblower case: This case is about John Smith, who was fired because the defendants believed they were above the law. Mr. Smith’s job was to make sure ABC obeyed the federal antitrust laws. He courageously dared to protest potential violations of those laws that the defendants conspired to conceal. His protests fell on deaf ears, and his reward was retaliation, retribution and ruin. The issue you will have to decide is whether John Smith was fired because of his protests. In other words: was John Smith fired for doing his job?

In a breach of contract case: This case involves broken promises. John Smith was wrongfully fired by his employer, who broke written promises of fair treatment to its employees. ABC promised that fair treatment, but had no intention of keeping that promise to John Smith.

 

Tod F. Schleier is a partner in the law firm of Schleier Law Offices, P.C. in Phoenix, Arizona. Mr. Schleier graduated from Brown University, magna cum laude, Phi Beta Kappa and with honors in 1973, with a B.A. in Political Science and Religion. He graduated from Arizona State University Law School in 1976 and was a member of the Arizona State University Law Journal. Mr. Schleier has practiced as a plaintiff’s employment lawyer for thirty-five years and has litigated virtually every type of employment case, against private employers and public entities, in state and federal court.