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Cross-examination in employment cases: if the defendant is trying to cover up vengeful retaliation or malicious discrimination, cross-examination is your best opportunity to expose the lie.

Article Excerpt
Cross-examination is critical in any trial, but it is particularly important in employment cases for several reasons. First, you often have to prove your case in whole or in part with the testimony of witnesses who are either openly hostile or employed by the defendant, and therefore must be presumed defense-friendly.

Second, in most of these cases the employer's state of mind is the critical liability issue. You must prove a discriminatory animus, which you can rarely do through friendly witnesses only.

Third, in cases involving employment actions like demotions or terminations, you must show that the employer's reason for taking the action is spurious. To do this, you will have to cross-examine defense witnesses who were involved in making the decision.

Finally, many jurors either are or have been employed and know from experience what is fair and what is not in the employment setting. If an employer is trying to appear fair but actually is not, your best time to expose the lie is during cross-examination. Whether you are trying to show that a company's CEO vengefully retaliated for a sexual harassment complaint against him or that an employer targeted older workers in a lay-off, your case is often won or lost during cross-examination of the defendant's witnesses.

Argue the case

I like to use cross-examination to argue the case through the witnesses. To do this, your cross-examinations should be conducted with your case theme or theory in mind.

In other words, know what points you are trying to make with the witness's testimony. Your cross-examination does not have to prove every aspect of your case. In fact, it is dangerous to try to prove too much with one witness. But your questions should aim to elicit answers that advance your client's case.

This does not mean you should ask a question that states all or part of the case theme, regardless of the answer you expect. Some lawyers think that as long as they make a statement ("You discriminated against my client because of her race, didn't you?"), even if it is denied, a jury will find it believable. This technique rarely works.

The best way to argue the case with cross-examination is to make a series of small points that lead inevitably to one conclusion. For example, in a case that my firm handled, our client--a university employee--claimed his supervisor had sexually harassed him and that he had complained about it to the university's sexual harassment board. Word of the complaint got back to the supervisor, who then retaliated against the employee.

The case theory was that the employee just wanted to do his job without being sexually harassed but that the university would not protect him from the sexual harassment or retaliation. We also wanted to defeat the employer's affirmative defense that it had acted reasonably to correct and prevent sexual harassment.

The defendant was playing a game of hot potato regarding who was responsible for stopping the harassment and retaliation. The board claimed that the president had this duty, the president claimed that the school's dean did, and the dean said he just decided to let the plaintiff and the alleged harasser work things out between the two of them. Ultimately, no one stepped up and accepted responsibility.

Our first witness was the chairman of the sexual harassment board. The objective was to show that board members believed they could do nothing and did do nothing to stop the harassment or prevent retaliation. But before raising these ultimate issues, we had to prove them point by point because the witness, a high-ranking university staff member, was not inclined to help.

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