As trial lawyers representing employers, we have learned a great deal over time about how jurors tend to think about employment cases. Yet watching a jury deliberate during a mock trial — behind a one-way mirror — is always a wake-up call. It provides an unvarnished look at how jurors actually think and talk about employment claims behind closed doors.
Recently, we conducted a mock jury session on behalf of a client in an employment discrimination and retaliation case. In the day-long exercise, three separate mock juries heard the exact same summaries of both parties’ evidence, including video excerpts of testimony from key witnesses, and then deliberated and reached a verdict.
Watching a jury deliberate during a mock trial — behind a one-way mirror — provides an unvarnished look at how jurors actually think and talk about employment claims behind closed doors.
The results, while different in each room, raised many of the same themes that we have seen in other mock jury settings. Below are five key lessons from the mock juries, as well as strategies for how employment counsel can shape a trial narrative in light of jurors’ views.
Jurors empathize with long-term employees
Legally, an at-will employee remains at-will no matter how long he has worked for the employer. But juries may not agree.
Many jurors think that long-term employees should get special protection, whether there is a law requiring it or not. In the mock deliberations, jurors repeatedly said things like: “But he had been a good employee for a long time.” They felt he was owed extra chances to turn around his performance. They wanted the employer to take special care with him.
Because of this potential bias, go ahead and acknowledge a plaintiff’s long tenure at the company. Express the employer’s appreciation for those years of service. At the same time, explain why, despite that long tenure, the plaintiff’s conduct became unacceptable.
Maybe the plaintiff’s performance declined through time — make that clear. Maybe an egregious instance of misconduct necessitated termination, even though it had never happened during the many prior years he had worked for the company — explain why.
Emphasize extra chances the employer gave the plaintiff to turn around performance. Highlight the ways the employer treated the plaintiff well during his years at the company.
Jurors are wary of human resources
It will not come as a surprise that many jurors are suspicious of in-house lawyers, but some may be surprised to learn that jurors also are suspicious of HR. Yet HR professionals are frequently witnesses in employment cases, and there is often a lot of evidence of their interactions with both the plaintiff and business leaders.
In one mock deliberation, a juror said: “HR is never going to help the employee; their job is always to protect the company.” In response to that sweeping generalization, the rest of the jurors nodded and laughed approvingly. Jurors in the other two mock sessions expressed similar thoughts. Jurors shared stories of their own — often negative — interactions with HR in their workplaces.
In response, humanize the HR witnesses who will appear before the jury. Make sure the jurors are reacting to those individuals in front of them, as opposed to their generic views of “HR.”
Have HR witnesses give a nuanced explanation of their training and their role. Have them explain that they are a resource for both the employee and the managers, and that they ensure that the company follows law and the company’s own policies.
Emphasize how HR treated the plaintiff consistently with others at the company, gave the plaintiff notice of his performance shortcomings, and tried to help the plaintiff.
Jurors want employers to follow the progressive discipline policy … to the letter
Jurors are suspicious of even the slightest deviation from a company’s progressive discipline policy. Plaintiffs’ lawyers try to exploit that by arguing that deviation from the policy is evidence of discrimination.
Regardless of how carefully a progressive discipline policy is worded — with caveats that the employer can go straight to termination if warranted and skip steps as circumstances require — jurors largely prefer to see all of the disciplinary steps followed in sequence before an employer decides to terminate employment.
For that reason, in our counseling practice, we recommend that employers reconsider whether to have a progressive discipline policy at all if they do not intend to follow it to the letter.
The mock jury sessions highlighted a nuance to that general rule: The mock jurors were very interested in the apparent decision to deviate from the policy and skip to an accelerated termination. They debated at length whether and why the company had deviated and whether any deviation was due to a discriminatory motive.
Knowing that predisposition, you should spend time explaining to the jurors what the policy actually says; why the employer took the action it did in the sequence it did; why it was well justified; and why, given the context, the employer acted consistently with the policy.
Even if the plaintiff does not emphasize the point, jurors are likely to wonder when they suspect the company did not follow every step of the policy, so it is best to address it head on.
Jurors will scrutinize the plaintiff’s performance and conduct
In many of our cases, the mock juries also scrutinized the plaintiff. They were receptive to evidence that the plaintiff himself bore responsibility for his performance and should have foreseen the discipline and ultimate termination.
They made statements like: “If I had caused my company to lose this much money, I would definitely have been fired.” One said: “If I had refused to attend a meeting with my boss’s boss, I would be gone.”
They relied on and shared with each other their own life experiences as to what conduct was acceptable in their own varied workplaces, as well as employers’ legitimate expectations about performance and results. They also viewed the plaintiff’s own video testimony critically, with one juror dismissing it as “feelings over facts.”
For that reason, emphasize where and when the plaintiff made poor choices, what the logical consequences of those choices were, and why the employer felt that the performance failures or misconduct was significant.
Point out all the different choices the plaintiff could have made to avoid discipline or termination, maybe in a dynamic visual flowchart illustration. Be clear about what was conspicuously missing in the plaintiff’s testimony and explanations for his behavior. Chances are the jurors noticed it too.
Jurors need timelines to keep track of the facts
We are always impressed by how juries can process a lot of new facts in a short amount of time. Watching a jury deliberate, however, also reveals that jurors can get confused about details, especially about the sequence of key events and which came first in a series of rapid-fire, crisscrossing emails.
In the mock deliberations, we had a whiteboard in our observation room on which we tracked what confused them. Let’s just say there were more than a few entries.
For that reason, we regularly use color-coded timelines as demonstratives during trial to demonstrate clearly the chronology of events and eliminate any confusion. Make them bright, eye-catching and compelling. Resist the urge to include every event; limit it to just the events that the jurors must remember.
With the court’s permission, leave the timeline up as witnesses testify. Reinforce the timeline and use any visuals again in the closing argument. The sequence of events is often critical in employment cases, so leave no room for confusion.
Dawn R. Solowey is senior counsel and Lynn A. Kappelman is a partner at Seyfarth Shaw in Boston.