It is tempting to simply conclude that the litigator’s most important tasks in the early stages of class action employment litigation are unrelated to jury psychology, as class certification and various motions that require resolution well before trial appear to be the most obvious candidates for dominating the agenda.  However, decisions made at early stages by the court when class certification and related motions are considered are, in some crucial respects, similar to those made by a jury later on the courtroom floor -- after all, judges are humans too, and they often react to the underlying human-interest elements inherent in class action employment cases in ways that are similar to a jury’s reactions. Therefore, the most astute trial team managers in class action matters will approach the bench in the pre-certification phase with similar types of preparation as those utilized when approaching a jury – especially since mistakes made in the early phases can, and usually do, haunt the trial team all the way to the courtroom floor.

We approach the topic of preparation with a three-dimensional framework representing a structure for optimal persuasion, consisting of (1) The Substantive Themes; (2) Witness Performance; and (3) Demonstrative Exhibits.  Naturally, these three dimensions are interdependent, as (2) and (3) serve the goals and purposes spelled out in (1) the Themes; consequently, in the discussion that follows, consideration of these content domains will not necessarily be entirely separate from each other. The adage “You win by out-preparing the other side” appears to hold as strongly in class action employment cases as in any other type of litigation, from our experience – if not more so. Early phases of pre-certification discovery should not be instituted without a strategic plan, and this plan should include persuasive elements that are effective with both the court and the triers of fact.

Substantive Themes

One issue that seems to continue to resurface in litigation is the observation that plaintiff attorneys conduct exploratory research (often operationalized as “Focus Groups”) much earlier than defendants.  As is well-known to litigators, this initial type of exploratory research is what guides theme development and provides an initial “temperature gauge” as to the apparent likelihood of a favorable versus an adverse verdict result.

Why do plaintiffs conduct this research earlier? Because their own money is at stake – they are funding their own cases, and they cannot afford to invest in a loser. What is the tactical implication? Defendants should approach the case with the same urgency, since knowing at the beginning what works and what does not in terms of substantive evidentiary material will provide the trial team with a working foundation on which strategy – especially themes for the witness testimony – may be effectively built.

Focus Groups do not need to use “mock jurors” to guide trial preparation – in fact, in the pre-certification stage, research design options are available to investigate which arguments and contentions will shape the conclusions of a judge to obtain a favorable ruling as well as a jury.  Recruiting judge-like research participants as opposed to jury-like participants is often referred to as a “Mock Bench Trial.” In this approach, arguments by both sides are presented in an adversarial setting to a group of three, four or five paid judges recruited to serve as research subjects. As a result of conducting such research, once the effective themes are revealed, the trial team is then in a position to start preparing and training the witnesses for the depositions that will be used in pre-certification discovery.

Employment cases are unique in the sense that jurors have a wealth of pre-existing background experiences – often referred to as “baggage” – which they superimpose on the contentions and responses within the case fact scenario, regulating their overall, ultimate dispositions in the case.  The notion that “judges are humans too” means that their rulings will also be affected by this subjective backdrop to some extent (after all, if this were not the case, then judges would all rule similarly instead of differently on a given case).  

The myriad unique features of a given employment situation for a specific defendant make the requirements for such early research even more compelling. Thus, wage & hour; donning & doffing; and race/sex discrimination cases each have their own inherent human-interest elements that are made even more idiosyncratic by virtue of the specific circumstances within the broad context of the particular defendant’s business setting and environment. Deciding which of these elements make a significant difference in the perception of the plaintiffs’ claims constitutes a task that requires implementation of an appropriate research design in order to obtain a reliable foundation for an action plan.

For example, in wage & hour cases there are innumerable types of employment and work-related situations that create an impression as to whether a worker is really acting as a non-exempt employee. Is he/she doing “grunt work” (unloading trucks) or “higher level” (requiring executive decisions) work? Are the hiring and firing decisions “real” or “engineered” by someone else?  Who is working under him/her? Does the person have an office?  How hard does he/she work and what is the pay? How much does that work out to per hour? The enormous number of potential facets of the employment setting create a distinct danger of being “more clever than correct” in making inferences as to which features of the case are truly dispositive of a verdict decision – either for a judge or a jury. By the same token, removing the dangers of being “more clever than correct” is precisely the goal of exploratory research.

Unexpected perceptions of fine details in events within employment settings can make or break a case. Thus, in wage & hour cases, the degree to which a store manager appears to act autonomously can be outcome determinative. This perception of autonomy is regulated by day-to-day activities that may slip under the radar screen in trial preparation.  For example, one juror stated in a pre-trial research project, “The Regional Manager did not visit the store very often because it was too remote.  It seems to me the store manager had to make hiring and firing decisions on his own because of the absence of anyone there to supervise him.” In this case, jurors were coming to conclusions about personnel activities as a function of the rural, isolated locations of some of the stores. Other jurors opined that the store manager was not truly a manager because of the types of tasks in which he was often engaged, i.e., “Managers are not supposed to have to stock the shelves.” The relative balance of time spent on each of various types of tasks were then weighed in making a final determination as to whether a worker is truly a manager and therefore an exempt employee.

Perhaps most importantly from a thematic perspective, jurors begin a case with a “presumption of guilt” that can be a perceptual burden for a defendant in the Federal Court setting. The courtroom environment itself creates the impression among jurors that “if the defendant had not done anything wrong we would not be here” (especially if there is a class certification).  Ordinary signs of nervousness and apprehension by key defense witnesses, once they are placed on the spot under cross-examination, are unfortunately construed as indicia of “guilt.” These perceptions are exacerbated by negative perceptions of employers that are carried as “baggage” into the case by many jurors from their own work histories. Many jurors automatically assume that employers cannot be trusted; put profits over people; exploit employee vulnerabilities and take advantage of their lack of power or influence; discriminate against employees or create “glass ceilings” impeding upward mobility; etc. These assumptions tilt the playing field against defendants and make witness effectiveness training even more critical than it ordinarily would be.