McElhaney on Litigation
What the jury thinks of your client will affect how it decides the case
Posted Aug 1, 2008 7:00 AM CST
By Jim McElhaney
Nick Wheeler of Randolph and Wheeler came into the First Federal Soup and Sandwich Shop. Without a word, he walked over and sat down at the table where Angus and I were having lunch. Then he said, “Mind if I join you?”
I was a little surprised to see Wheeler where the combat troops eat. He usually hangs out with the brass from the other large firms (and captains of industry) at places like the Purple Artichoke, the Dow or the MizzenMast.
“What brings you here?” said Angus.
“I want to ask you a question,” said Wheeler. “What’s the most dangerous evidence in a trial?”
Angus smiled. “I assume your question involves more than just intellectual curiosity,” he said.
“Seventeen million dollars more,” said Wheeler. “That’s what the jury gave Karl Neeseman, the 59-year-old man who brought an age discrimination case against our client, Pencraft Builders. We took a real hit. Fortunately, Judge Mudrock made a mistake in the jury instructions, so he had to grant our motion for a new trial.
“Now, I don’t think the instructions actually had anything to do with the verdict—which is outrageously excessive—but since we’ve got a second bite at the apple, I want to make sure we don’t make the same mistakes twice.”
“So the question,” said Angus, “is what would make a jury mad enough to return a $17 million verdict against Pencraft Builders?”
“Exactly,” said Wheeler.
PICKING OUT THE BAD GUYS
“While I’d have to know a lot more about the case to get specific, the quick answer is easy,” Angus said. “Character evidence.”
“Excuse me,” said Wheeler. “Character evidence? I’m afraid you don’t get it. Character had nothing to do with this case. This is a civil action. You can’t use character evidence in a civil trial. Nobody in the trial said anything about the kind of people on either side, much less gave their personal opinions about anybody or testified to their reputations.”
Angus put up his hand. “Hold on a second,” he said. “Did you actually try this case?”
“No,” said Wheeler. “Pat Reilly from our office. But after that verdict, I went through the entire transcript, looking for anything I could find.”
“So you read what happened at trial,” said Angus, “but you weren’t there. And when I said character evidence, you instantly had the picture of someone charged with murder whose only hope was that the jury would believe his friends when they said he’s not a killer.”
“Well, yeah,” said Wheeler.
“I’m not talking about the form of testimony or the rules of evidence, which admit all kinds of character evidence in civil trials,” said Angus, “but the way the judge and jury use what they see and hear during the trial.
“The jury obviously thought your firm was representing the bad guys. Not just some company technically responsible for what happened to Mr. Neeseman, but an organization that needed to be taught a serious lesson.
“Judges and juries believe that lots of people—sometimes even whole corporations—have character traits that lead them to deliberately trash other people, use them up and throw them out, or are so inherently dishonest that they try to lie and cheat their way through trial.
“Evidence showing those kinds of character traits can be devastating. And even though nobody actually puts character in issue, that’s what the judge and jury are looking for. They are trying to figure out what kind of people are in the case. Sometimes it’s obvious by the way the parties and their witnesses act on the stand, or from what they did that landed them in court. Lots of times all the judge and jury have to go on are little bits and pieces that seem to reveal the real story.
“By the way,” said Angus. “Character is not a one-way street. It doesn’t just hurt defendants. The sense that the plaintiff provoked the situation, is lying or exaggerating, is driven by greed, or is trying to blame someone else for what he did himself can result in an otherwise solid case actually getting a zero liability verdict.
“And don’t forget the lawyers. People figure that sneaky, tricky clients hire sneaky, tricky lawyers,” said Angus. “Everybody knows we’re hired guns, and they’re sure we know a lot more than what we tell them. So they watch us like hawks for anything we might let slip.
“A trial is a moral arena in which the character of the players is powerful medicine. It is typically the most important thing to think about while planning how to put the ‘focus of judgment’ on your opponent.”
“Focus of judgment?” said Wheeler.
“Right. In virtually any kind of case, you want to put the other side ‘on trial.’ So tell me about your case.”
“Neeseman started working for my client back when it was called Cromwell Developers,” said Wheeler. “That was 26 years ago, when Neeseman was 33. Now he’s a widower whose kids are out of school and on their own. He’s a bookkeeper who worked in Cromwell’s accounting department. That’s all he wanted to do. Never tried to move up. His evaluations were always quite good. Reliable, dependable, not exciting—but he was a bookkeeper. After more than 20 years with the company, his salary was at the top of the scale for his job description.
“Then, two years ago, Cromwell was bought by Pencraft—the big California developer that makes whole gated communities up and down the West Coast and now is starting the same thing in the Midwest.
“After Cromwell became part of Pencraft, an independent accounting firm took over the entire department, and all the bookkeepers were let go. It had nothing to do with anyone’s age—it had to do with efficiency, corporate reorganization and maximizing the return to the shareholders.”
FINDING THE CRITICAL DIFFERENCE
I had to interrupt. “excuse me,” i said, “but is that a quote from one of Pencraft’s witnesses?”
“Exactly,” said Wheeler. “It’s what the CEO said on direct examination.”
“And you say the plaintiff wasn’t treated any differently from anyone else in his department?” said Angus.
“Nope,” said Wheeler. “The department was gone. No more bookkeepers.”
“Anyone older than Mr. Neeseman get phased out?”
“No, he was the oldest in the department by 10 or 12 years,” said Wheeler.
“Any of the bookkeepers offered different jobs so they could stay with the company?”
“Five of the six moved to different departments.”
“So the only one who wasn’t offered a new job was Neeseman,” said Angus. “Did they tell him why?”
“All the other jobs required skills he didn’t have.”
“Did they offer him a trial period to see if he could do the work?” said Angus.
“Did he ask if he could stay on in a different job?”
“Yes, but that wouldn’t have been appropriate.”
“So after 26 years, the company told Mr. Neeseman that it had no place for him and wouldn’t even let him try a different job,” said Angus.
“If you want to put it that way,” said Wheeler.
“What kind of severance package did he get?”
“Thirty days’ termination pay,” said Wheeler.
Angus leaned back and looked at Wheeler. “What kind of corporate character do you think is shown by the story you’ve told about Pencraft Builders?”
“Oh, I don’t know,” said Wheeler. “Tough, hard-nosed, fair, impartial. Gave their employee exactly what his employment contract called for. No more, no less.”
“Jimmy,” said Angus, “what do you think?”
“Hardly warm and fuzzy,” I said. “They didn’t just let Neeseman go. They threw him away and kept the rest. It’s one thing to close down a department. It’s different when you find another job for everyone but the one who just happens to make the most money—the oldest one who’s going to have the hardest time getting a new job. But the biggest affront is that they didn’t even give him a chance to learn a new job and stay. After 26 years they handed him a month’s pay and said, ‘You’re useless to us, Karl. We don’t have anything for you.’ It doesn’t leave him a lot of dignity.”
Then Angus said, “Nick, this ‘not appropriate’ excuse for refusing to give Neeseman a chance to stay sounds pretty lame. Is that a word that came from the trial?”
“Matter of fact,” said Wheeler, “there was a memo from the head of HR to the CEO that said, ‘Maybe we could use Neeseman to work with numbers in the planning department,’ and the CEO scrawled ‘inappropriate’ over the memo. He didn’t do a very good job of justifying his reaction on cross-examination.”
“Nick,” said Angus, “I’d say your case has a character problem.”
McELHANEY AT HIS BEST
The ABA Journal occasionally reprints some of Jim McElhaney’s most popular columns from past years. This one first appeared in the March 2001 issue under the headline “Character Studies.”
Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Distinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.